What is an Emergency Declaration
In times of emergencies, the government has the power to make public declarations which then enable the government to enforce strict, invasive and controlling powers over its citizens. Because these powers allow the government to intrude into our private lives, there are strict criteria that must be met before a declaration is made. The most common declaration is a “State of Emergency”, which we saw recently during the bushfires. These declarations are most commonly made pursuant to the Emergency Management Act.
In mid March 2020 the Premier declared a “Public Health Emergency” under the South Australian Public Health Act. This is the first time this Act has been invoked. The Public Health Act and Emergency Management Act work very closely together, but because the risk to the public from a Public Health Emergency has the potential to be far more widespread than a natural disaster, the government can implement far more invasive Orders. On 22 March 2020 the Premier upped the ante by declaring a “major emergency” which has given the government extraordinary powers to intrude into our private lives. Once a Public Health Emergency has been declared then the government can make certain directions which are legally binding on the public. Some of these directions include:
• Banning large outdoor gatherings
• Specifying numbers for gatherings indoors
• Closure or restriction of trade for certain businesses
• Requirements for self-isolation or quarantine under certain circumstances
• Restriction on movement between states
These are not laws, but Directions. And because they are Directions, certain people and businesses can apply for an exemption. The offence lies in failing to comply with a Direction once a declaration has been made. The penalty is a fine of up to $20,000 for an individual and $75,000 for a body corporate. Failure to comply with a Direction does not attract a term of imprisonment. However, there is a power to “remove to such place as he or she thinks fit any person who obstructs or threatens to obstruct response or recovery operations”. Arguably, this could include placing a person in forced quarantine or isolation.
Will the government actually punish people for breaking the law
Realistically, I doubt that every person who breaks the law will be charged or fined. We don’t have enough police to enforce the laws during non-emergencies, let alone when there are additional requirements on us involving our freedom of movement. However, we should expect that obvious and flagrant breaches will be punished. And if there is a crowd of people disobeying the Directions, there is nothing to stop police arresting and charging just a few people. There is no requirement that police charge EVERY PERSON who fails to comply. And it is not a defence that you were only one of several people breaching the Directions.
What is far more likely is that if you are publicly flouting restrictions on movement, your face will be plastered all over social media. In announcing these restrictions, the government has subtly invited the public to watch over each other. And if you don’t care that you might end up on social media, google “death by social media”.
Can the government do this?
Yes it can, within reason. A state of emergency can only be declared for 14 days, after which time the powers that were enlivened lapse. This is to prevent ongoing restrictive Directions without good reason. The legislation provides scope for the declaration to be extended, and I understand this has been done Australia wide. In addition, the government can only issue directions that it is “of the opinion” are “necessary” to reduce the threat. It cannot take advantage of the current situation to search people and properties for general crime related activities.
Can you defend charges of breaching a Direction?
The offence is one of failing to comply with a Direction. The caselaw says that you must KNOW that there is a Direction and that you have willingly failed to comply. It would be a defence if you did not know that a Direction existed or that you did not know you were breaching it. For example, if you are in a room, complying with the number requirements and someone else enters the room without your knowledge and therefore breaches the number restrictions, that would be a defence.
You could also defend a charge on the basis that the Direction was not lawful. The Directions are issued by the government. Police do not have the power to issue specific directions for specific people without good reason. If a police officer demanded you let them into your house for a general search, this would not be lawful. But because of wide discretion given under the legislation, and provided the government is of the opinion that a Direction is necessary, the Directions that would be unlawful in far less crazy times may well now be lawful.
The big question that keeps popping up on my feed is whether the government can prevent freedom of movement between states when the Constitution guarantees freedom of trade between states. The High Court says that while there is a constitutional freedom of movement, it must be “reasonable”. Based on the statistics of the spread of coronavirus overseas, in my view stopping the borders is a reasonable response to prevent death. I might be wrong. You may be able to mount an argument that such severe laws are not constitutional. I will happily defend you if you want to mount this argument. You will need to put 3 squillion dollars into my trust account so we can take your argument to the High Court.