COVID-19 - Template Instruments under the South Australia Public Health Act 2011

On Sunday night the Prime Minister and Chief Medical Officer announced that:

1. from midday on 23 March 2020 the following facilities will be closed:

• all restaurants and cafes (excluding take away and/or home delivery)
• pubs, registered and licensed clubs (excluding bottle shops attached to these venues)
• hotels (excluding accommodation)
• entertainment venues, cinemas, casinos and night clubs
• gyms and indoor sporting venues
• religious gatherings, places of worship or funerals (in enclosed spaces and other than very small groups and where the 1 person per 4 square metre rule applies) must be closed

(This includes outdoor spaces associated with the above venues, such as beer gardens)

2. the 1 person for every 4m2 rule is strictly applicable in other indoor places where people may gather for non-essential purposes (for example shopping centres, public libraries and so on).

The measures are expected to be reflected in State law shortly, and will be reviewed monthly.

Role of councils

Over the weekend, the Commonwealth and State Governments also clearly communicated an expectation that local government (as the tier of government closest to communities) will assist to monitor, report and (where necessary) take action in their local areas.

Local authorised officers (EHOs) appointed under Section 44 of the South Australian Public Health Act 2011 already have substantive powers to issue verbal emergency notices under Section 92 of that Act to deal with harm or potential harm to public health and risks or perceived risks to public health. However, not all Councils will necessarily have full time EHOs or sufficient EHOs to deal with every issue that might arise in the Council’s area for the duration of the current emergency.

Template instruments

Norman Waterhouse has been engaged by the LGA to provide a suite of resources to assist councils to implement a legally compliant arrangement to allow persons other than a Council’s EHO to take action to deal with local risks associated with the transmission of COVID-19.

The following documents have been prepared to assist councils. Each document includes detailed instructions regarding how the document is to be completed and implemented by councils.

1. Draft resolution to make head delegations to the Chief Executive Officer of the council under the South Australian Public Health Act 2011 to appoint a local authorised officer and issue notices under section 92 of the South Australian Public Health Act 2011.

This document can be used by councils in circumstances where head delegations have not yet been made to the Chief Executive Officer to make the above appointments and delegations. Most councils will already have these delegations in place.

2. Subdelegation under South Australian Public Health Act 2011 to issue notices under section 92 of the South Australian Public Health Act 2011.

This instrument can be used to subdelegate the powers to issue Section 92 Notices to employees of the council or otherwise persons appointed as an authorised person under Section 260 of the Local Government Act 1999 (see below) to enable them to issue written Section 92 notices on the Council’s behalf.

A person does not need to be an environmental health officer (EHO) or an authorised officer under Section 44 of the South Australian Public Health Act 2011 to be delegated authority under Section 92 of the South Australian Public Health Act 2011. For example, a regulatory compliance officer or community safety officer may be delegated the powers under Section 92.

3. Instrument of Appointment of an Authorised Officer under the South Australian Public Health Act 2011.

This instrument can be used to appoint a person who is not currently a local authorised officer of the council as a local authorised officer under Section 44 of the South Australian Public Health Act 2011. Local authorised officers may (for example) be employed by another council and this instrument would enable a neighbouring council to appoint a local authorised officer as a local authorised of their council. Local authorised officers must hold prescribed qualifications before they may be appointed (see below).

4. Instrument of Appointment of an authorised person under the Local Government Act 1999

Under Section 44 of the Local Government Act 1999 a delegation under an Act such as the South Australian Public Health Act 2011 can only be made to a person who not an employee of the council if the person are appointed as an authorised person of the council under Section 260 of the Local Government Act 1999. This instrument provides for the appointment of authorised persons (who are not employees of the relevant council) to enable delegations to be made to the person (for example the delegation to issue written Section 92 Notice).

5. Approved qualifications for appointment as a local authorised officer under the South Australian Public Health Act 2011.

This document lists the prescribed qualifications necessary to appoint a person as a local authorised officer under Section 44 of the South Australian Public Health Act 2011.

6. Template Written Section 92 Notice

This document provides a template that can be adjusted based on local circumstances to deal with local public health risks. It can be issued by an person who has been properly delegated authority under Section 92 of the South Australian Public Health Act 2011 per the above. When issuing a notice under Section 92 of the South Australian Public Health Act 2011 a delegate is required to have regard to the principles prescribed in Sections 5-14 of the Act. The delegate should also have regard to the provisions of Section 37, Section 56 and Section 92 of the South Australian Public Health Act 2011 in totality before issuing the Notice. In the circumstances, it would be prudent to inform SA Health of the proposed action.

The suite of documents is available to download from the LGA Member Website: www.lga.sa.gov.au/covid19.

Councils are encouraged to consider specific circumstances before utilising these instruments, and to seek specific legal advice where necessary.

Details to follow about an urgent EHO briefing / training session provided by the LGA in conjunction with Norman Waterhouse.