DISCLAIMER: (May 2021) This article was originally written in April 2020 when the country was first dealing with the evolving impacts of coronavirus (COVID-19). Since then, as a measure to minimise and stop community spread of COVID-19, federal and state government-imposed restrictions and lockdowns, have periodically been imposed and then relaxed depending on localised outbreaks. In accordance with the Emergency Management Act 2004 (SA) authorities have, at different times, introduced fines and penalties to ensure compliance to various COVID-19 related directives. If you have received a COVID-19 related fine and you believe the fine has been issued in error or is unfair, you may seek to formally engage Scammell & Co to provide you with legal advice in respect of challenging the fine in court. This means that you are asking the court to decide if you must pay the fine. If this is the case, contact us for further assistance.
Threats associated with the global spread of the coronavirus (COVID-19) disease have forced the Australian Government to make a series of temporary lock-down recommendations so as to protect the health and wellbeing of our population. These measures have had a dramatic impact on the way Australians go about their daily lives, including the way they work, shop, exercise, learn, worship and socialise.
When the Prime Minister makes recommendations to the states and territories, each state must then consider how those recommendations will be applied. The COVID-19 Emergency Response Act 2020 (SA) was established to make various temporary modifications to South Australian laws including the Emergency Management Act 2004 and the South Australian Public Health Act 2011. A rule becomes enforceable when a Direction is made by the State Coordinator, Commissioner Grant Stevens. However, the Australian government’s recommendations have caused some confusion for South Australians as each state and territory applies their own laws, penalties and infringement processes. For example, an activity permitted in one state may be banned in another.
Despite the many negative social and economic impacts of these restrictions, most people have willingly complied with the new Directions to slow the spread of the virus. Grim news of what has occurred in countries where lock-downs have not been implemented quickly enough or as restrictively as they should be have been a motivating factor. Unfortunately, there have been many instances around the country where people have deliberately or absent-mindedly flouted the new restrictions, especially in relation to gatherings. In such cases, having laws in place provides police with the necessary powers to enforce compliance to protect the community. That said, situations have arisen whereby Police have lacked consistency and common sense, or been subject to discriminatory biases in the application of their discretionary powers in issuing fines. This has prompted calls for greater clarity and transparency in Police operations.
In South Australia, individuals who don’t comply with
Directives face a $1,000 fine while businesses caught flouting
restrictions face a $5,000 fine.
Over the Easter weekend, South Australian police issued 10 expiation notices of up to $1,000 each, as well as five cautions to those caught flouting the new rules. As of 14 April, this takes the state’s total number of coronavirus related fines issued to 36. These are not huge numbers considering how tempting it would have been for people to gather with others over a long weekend. It was a different picture in other states and territories around Australia over the same period with more than $1.63 million in fines issued to those caught violating public health orders.
The grey area where confusion exists between what is a recommendation and what is an enforceable Directive and how aggressively and consistently the law has been applied, could mean that the significant penalties imposed may be open to legal challenges.
IMPORTANT: If you have received an expiation notice and believe you have genuine grounds to dispute the fine, it is important not to pay the fine until you have sought legal advice. Contact one of Scammell & Co.’s experienced solicitors as soon as possible for advice regarding your options.
For clarity, below is an overview of the temporary South Australian Directions applicable to everyone living in, and entering, South Australia. Please note these are being reviewed regularly. Click through to the government website for the latest information:
Cross-border travel quarantine
In accordance with the Emergency Management (Cross Border Travel No 2) (COVID-19) Direction 2020 all people arriving into South Australia must identify a suitable place and ensure arrangements are in place for them to reside and remain in that place for a 14-day period commencing on the date of their arrival in South Australia. Whilst residing at that place they must remain there, self-quarantined and segregated from other persons (excluding persons who usually live at the place), for the duration of 14 days. Such persons can only leave quarantine for medical or emergency purposes.
Further restrictions have also been made in relation to essential travellers who arrive from overseas by either boat or aircraft. For example, a flight or boat crew who arrive from overseas into South Australia will be required to self–quarantine (at the conclusion of their duties) for 14 days or until they leave South Australia, whichever is shorter.
The Emergency Management (Cross Border Travel No 3) (COVID-19) Direction 2020 comes into effect on 16 April 2020 at 11:59 pm and revokes the cross-border travel direction number 2. It has been updated to include new information about who qualifies as an essential traveller including:
- active military and Defence Department personnel
- health services
- FIFO workers
- those who meet new compassionate grounds criteria.
Anyone who claims to be an essential traveller will be required to provide evidence that they fall within that category. Further details can be found here.
Overseas travel self-quarantine
In accordance with the Emergency Management (Continuation of Overseas Travel Self-Quarantine) (COVID-19) Direction 2020 all passengers arriving after 12.01 am on 29 March 2020 will be directed to accommodation nominated by South Australia Health and remain in quarantine at that location for 14 days from the date of arrival in Australia.
Each state and territory is implementing similar directions and any South Australian coming into another state or territory from overseas will be required to remain in quarantine in that state or territory before returning to South Australia. Upon returning to South Australia, following a period of quarantine in another State or Territory, a further 14 days of self-quarantine will apply in South Australia.
Further restrictions have also been made in relation to essential travellers who arrive from overseas by either boat or aircraft. For example, a flight or boat crew who arrive from overseas into South Australia will be required to self–quarantine at the conclusion of their duties for 14 days or until they leave South Australia, which-ever is shorter.
Upon returning to South Australia, following a period of quarantine in another State or Territory, a further 14 days of self-quarantine will apply in South Australia.
Exemptions apply to essential travellers who are overseas arrivals. Essential traveller categories include:
- National and State security governance
- Health services
- Essential medical treatment
- Transport and freight services
- Skills critical to maintaining key industries or businesses
- Emergency service workers
- Cross border community members
- Passing through (by the most direct route)
- Compassionate grounds
Further details can be found here.
On 31 March 2020, the State Coordinator made a Direction under the Emergency Management Act 2004 to limit surgery to emergency surgery only.
The latest version of the Emergency Management (Appropriate Surgery During COVID-19 Pandemic No 3) Direction 2020 came into effect on 3 April 2020.
The new Direction provides greater clarity around the types of surgery that may be performed. Further details can be found here.
A direction is in place regarding prohibited gatherings.
Replacing the original Direction dated 22 March 2020 the Emergency Management (Gatherings No 2) (COVID-19) Direction 2020, came into effect on 16 April.
Prohibited gathering means:
- a gathering of more than 10 persons
- a gathering of 10 or less persons that does not comply with the density requirement, which is a requirement that the total number of persons present in a gathering must not exceed one person per 4 square metres.
The direction stipulates that a person who owns, controls or operates a place in the State of South Australia must not allow a prohibited gathering to occur at the place.
A person must not organise a prohibited gathering at a place in the State of South Australia.
A person who is present at a gathering (whether or not a prohibited gathering) must use their best endeavours to comply with the social distancing principles (having regard to the all the circumstances).
A person who is present in a court or tribunal must comply with a reasonable direction of a sheriff’s officer given for the purposes of implementing the density requirement and the social distancing principles.
It is important to note that a gathering of more than 10 people or a gathering of 10 people or less that does not comply with the one person per four square metres rule is prohibited at any location, either indoors or outdoors in this state. However, those who ordinarily reside in premises with 10 or more people are able to continue residing together in those premises.
Direction also provides an updated list of gatherings that are not to be regarded as a prohibited gathering.
The principles of social distancing remain unchanged and everyone must make every effort to keep 1.5 metres away from each other and not exceed the density requirement of one person per four square metres.
It is an offence to breach this direction.
More details, including powers of authorised officers and what does not include a gathering, can be found in the direction here.
Closure of non-essential business and other activities
In March 2020, the State Coordinator made a Direction under the Emergency Management Act 2004 to limit business activities.
The latest version of the Emergency Management (Non-Essential Business and Other Activities No 4) (COVID-19) Direction 2020 came into effect on 15 April 2020.
The new Direction now aligns wineries, cellar doors, breweries and distilleries with restrictions currently in place for hotels, restaurants and similar businesses. This means wineries, cellar doors, breweries and distilleries can sell alcohol and food on a take away basis from the premises.
Tastings of any kind are not permitted and consumption of any produce, alcohol or food is not permitted on site.
Social distancing restrictions for people attending wineries, cellar doors, breweries and distilleries remain the same and must be complied with.
Further details can be found here.
Restrictions on blood tests
The purpose of this direction is to prohibit a person from using a point of care serological (blood) test (including an assay or device) as an acute illness diagnostic tool for COVID-19, as their use may adversely affect the prevention, control and abatement of the serious public health risk present by COVID-19.
This direction does not apply to employees of SA Pathology or the Department of Health and Wellbeing.
Further details can be found here.
Isolation following diagnosis or close contact
This direction means that if any person is diagnosed with COVID-19 or have come in close contact with someone who currently has COVID-19 then that person must follow the direction to isolate and segregate themselves from other people.
During this process the person may be contacted by a member of the Communicable Diseases Control Branch of the Department of Health and Wellbeing. They will be given information and instructions to help them through this process.
For their safety and the safety of their family, friends and the community it is critical that they follow the advice and directions provided by health professionals.
Further details can be found here.
Residential Aged Care facilities
On 27 March 2020, the State Coordinator made a Direction under the Emergency Management Act 2004 to limit entry into residential aged care facilities.
Further restrictions came into effect on 10 April as outlined in the Emergency Management (Residential Aged Care Facilities No 2) (COVID-19) Direction 2020.
The outbreak of any virus in an aged care facility can cause significant problems. Some facilities have banned visitors completely, but under guidelines a resident can receive one visit a day (no more).
Visitors are advised not to visit aged care facilities if they have:
- returned from overseas in the last 14 days
- been in contact with a confirmed case of COVID-19 in the last 14 days
- have a fever or symptoms of a respiratory infection such as a cough, sore throat or shortness of breath
From 1 May 2020, visitors must have had your influenza vaccination to visit an aged care facility.
Aged care facilities must take extra precautions when it comes to visits. These include:
- making sure visits are kept short
- allowing no more than two visitors, including doctors, at a time
- making sure visits occur in a resident’s room, outdoors, or in a specific area they designate – there should be no visiting in communal areas
- ensuring there are no large group visits or gatherings, including social activities or entertainment
No school groups of any size are allowed to visit residential aged care facilities.
No children aged under 16 years are permitted to visit residential aged care facilities except in special circumstances.
If you cannot visit your family and friends in a residential aged care facility, it’s important to keep in touch. Make phone or video calls, send postcards, photos or artwork or film short videos to share.
Further details can be found here.