The South Australia Law Society notes that the Public Health (COVID-19) Amendment Bill 2022 has passed South Australia’s House of Assembly and will be reviewed by the Legislative Council in the coming weeks.

It is understood that this law will be used to manage COVID-19 when the State of Emergency expires.

The Law Society will provide a detailed submission on the Bill, but at first glance it appears that, under this new Bill, the wide-ranging powers to enforce public directions that are currently available under the Emergency Management Act could be invoked at any time by regulation, but would only apply to people who have tested positive for COVID-19 or who are deemed close contacts under directions issued by the Governor.

There is no clear explanation in the Bill as to who may be deemed a close contact. While there needs to be a degree of flexibility with regards to the definition of a close contact to ensure it reflects the current level of risk, consideration should be given to establishing a framework that sets out the parameters on what can be regarded a close contact.

There does not seem to be any reference in the legislation to safeguards to ensure a proportionate response that has regard to an individual’s basic rights.

Accountability mechanisms should built into the legislation to ensure that advice upon which any directions are made is independent and publicly available. Given orders can be made that intrude on people’s liberties, it is important that the State can demonstrate the evidentiary basis on which they are made.

Any proposed legislation that has serious implications for people’s rights and freedoms needs to be carefully scrutinised.

Any legislation to manage public health risks need to strike a balance between protecting the health of the populace and respecting the rights of individuals. It is vital that any such laws enable scrutiny of those who have power to enforce directions, and require public disclosure of the evidence relied upon to make orders.

The Society has called for a review of the Emergency Management Act as a matter of priority. There should be a comprehensive review of our emergency management laws that examines the competing interests of managing a pandemic with a view to ensuring our laws are best equipped to deal with a public health crisis and have robust oversight.

By: Victoria O’Brien