Powers of councils in a public health emergency: COVID-19

(21 March 2020 4:00pm)

Comments from the Federal Health Minister today, and the subsequent closure of Bondi Beach, has placed the nation’s attention squarely upon what powers Local Government authorities in Australia have to manage the public health risks of COVID-19.

The position in South Australia as at the afternoon of 21 March 2020 is set out in this article. In South Australia, the relevant legislative framework is the Emergency Management Act 2004 (EM Act) and the South Australian Public Health 2011 (SAPH Act).

At the time of writing, the powers available to councils, and their authorised officers under the SAPH Act (whom we will call environmental health officers or “EHOs”), are the same powers which are always available under the SAPH Act. Further powers may soon become available under the EM Act.

Types of orders/directions which may be made in respect of COVID-19

Before providing our legal analysis of the powers under the SAPH Act and the EM Act, we first set out some practical examples of the sorts of measures which we consider are presently available to EHOs in the context of COVID-19.

In particular, we consider that EHOs presently have the power, where appropriate, to:

• direct that facilities or locations be cleaned or disinfected;
• direct that hand hygiene products are provided at facilities or locations;
• direct individual persons, and/or owners of premises (e.g. restaurants, bakeries, social clubs, gyms), to ensure that appropriate social distancing is maintained in accordance with present requirements and guidelines from health authorities;
• direct that facilities or locations be closed or evacuated where such requirements are not being observed or are incapable of being observed.

It is ultimately a matter for EHOs to make an assessment of what is appropriate in the circumstances, taking into account current health advice and the nature of their legal powers under the SAPH Act and (if and when applicable) the EM Act.

SAPH Act powers

The powers available to councils and EHOs under the SAPH Act are broad.

Most relevantly for the purposes of this article, they include the power under subsections 92(6) and (7) of the SAPH Act for an EHO to issue a verbal ‘emergency notice’ for the purpose of securing compliance by any person with the general duty to take all reasonable steps to prevent or minimise any harm to public health, or generally for the purpose of averting, eliminating or minimising a risk, or a perceived risk, to public health.

The threshold which allows an emergency notice to be issued is that the EHO forms the opinion that ‘urgent action is required’. The types of requirements which can be imposed by an emergency notice are not limited, except that they must only go so far as ‘what is reasonably required in the circumstances’.

EHOs are the persons best placed to make these assessments. When issuing an emergency notice verbally, the EHO must forthwith advise the person to whom the notice is issued of their right to apply to the South Australian Civil and Administrative Tribunal for a review of the order. An emergency notice expires after 72 hours unless confirmed in writing by a notice from the council.

EM Act powers

COVID-19 is a formally declared public health emergency under the SAPH Act. However, it is not yet the case that council EHOs are “emergency officers” under the EM Act (unless a particular EHO has already been separatelyappointed as such, though this is uncommon).

It may soon be the case that the Chief Executive under the SAPH Act appoints some or all council EHOs as emergency officers pursuant to section 48 of the SAPH Act. This is a decision for the Chief Executive under the SAPH Act.

If and when this occurs, EHOs (or some thereof depending on the Chief Executive’s decision) will gain further powers under section 25 of the EM Act. Of particular relevance in the circumstances of COVID-19, these powers include powers to:

• subject a place or thing to a decontamination procedure;
• direct the evacuation or removal of any person or animal;
• direct or prohibit the movement of persons, animals or vehicles;
• direct a person to submit to a decontamination procedure;
• direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons;
• direct a person to undergo medical observation, examination (including diagnostic procedures) or treatment (including preventative treatment);
• direct a person who is in a position to do so to close any premises or other place.

The threshold which allows an emergency officer to take any of these steps is that the emergency officer forms the opinion ‘that it is necessary to do so’. In respect of directions for isolation or segregation of a person or that a person remain in a particular place, further opinions must be formed regarding matters under the Mental Health Act 2009before such a direction is made.

Powers should be exercised consistently with the State Emergency Management Plan and with any direction made by South Australia Police.

It is necessary to note that the EM Act does not ‘override’ the powers in the SAPH Act. EHOs can still issue emergency notices under the SAPH Act even if they become emergency officers under the EM Act. An advantage of emergency notices under the SAPH Act is that an expiation notice for $750 can be issued immediately for any non-compliance with n emergency notice.

Going forward

It is important that EHOs understand the full extent of what powers they presently have under the SAPH Act, and the extent of any new powers if and when conferred under the EM Act.

Using emergency powers is something which, up until now, has only required infrequent consideration. In the context of the COVID-19 pandemic, EHOs and other staff may require immediate advice and upskilling. Norman Waterhouse is working with the Local Government Association to ensure that all Councils have necessary support and can receive specific advice and training as and when required.

For more specific information about the matters discussed in this article, please call the LGA COVID-19 hotline on 8224 2099 or contact Paul Kelly on 0421 098 717 or Dale Mazzachi on 0427 380 776.

We also encourage all readers to frequently check the LGA website for up-to-date information and guidance regarding managing the effects of COVID-19 on all aspects of council functions and operations.