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Powers to require examination, testing, counselling, quarantine and detention

Under Part 10 of the South Australian Public Health Act 2011 (SA), the Chief Public Health Officer (CPHO) has a range of powers to require examination, testing, counselling, quarantine and detention in relation to controlled notifiable conditions.

A controlled notifiable condition is one declared by regulations [s 70 (1)] or by notice in the Gazette (where the Minister considers it necessary in the interests of public health in urgent circumstances) [s 70(2)]. Human coronavirus, for example, was declared by the Minister for Health and Wellbeing to be a controlled notifiable condition by notice in the Gazette dated 28 January 2020.

Controlled notifiable conditions declared under the South Australian Public Health (Notifiable and Controlled Notifiable Conditions) Regulations 2012 (SA) include Cholera, Diphtheria, Hepatitis, Measles, MERS, SARS, Salmonella, Tuberculosis and Yellow Fever, among others [reg 5].

On 16 July 2020, Coronavirus Disease 2019 (COVID-19) / Severe Acute Respiratory Syndrome Coronavirus 2 infection (SARS-CoV-2) were further added to regulation 5 as a controlled notifiable condition.

The following requirements and directions must be imposed by the CPHO giving the person a written order, unless the CPHO considers it is urgent, in which case the CPHO may give an oral order, followed by a written order within 48 hours [ss 73(8)(b) and (8a), 74(3) and (3a), 75(3) and (3a), 77(3) and (3a)].

Requirement to undergo examination or testing

If the CPHO has reasonable grounds to believe that [s 73(2) and (4)]:

  • a person has a controlled notifiable condition and the person has presented, presents or is likely to present a risk to health through the transmission of the condition, OR
  • an incident has occurred or a circumstance has arisen in which a person could have been exposed to, or contracted, the condition

AND

  • the person has been given a reasonable opportunity to undergo examination and testing but has failed to do so, OR
  • the requirement is reasonably necessary for rapid diagnosis and treatment of the person

the CPHO may require the person to present for examination or testing or both [s 73(5)]. Testing may include the provision of a sample of blood, urine or other biological specimen [s 73(9)].

Requirement to participate in counselling, education or other activities

If the CPHO has reasonable grounds to believe that [s 74(1) and (2)]

  • a person has, or has been exposed to, a controlled notifiable condition, AND
  • the person has been given a reasonable opportunity to participate in the relevant counselling or other activity but has failed to do so

the CPHO may require the person to participate in counselling, education or other activities relevant to understanding the condition or the impact of the condition [s 74(4)].

Quarantine directions

If the CPHO has reasonable grounds to believe that [s 75(1) and (2)]:

  • a person has, has been exposed to, or could have been exposed to a controlled notifiable condition, AND
  • the CPHO considers it reasonably necessary in the interests of public health,

AND

  • the person has either already undertaken counselling or refused to undertake counselling, OR
  • urgent action is required in the particular case and counselling can take place afterwards

the CPHO may impose a range of directions on the person.

Directions that may be given include [s 75(4)]:

  • that the person remain (isolated if necessary) at a specified place, including but not limited to a hospital or quarantine facility,
  • that the person refrain from carrying out specified activities (including but not limited to employment, use of public transport or participation in certain events) either absolutely or unless specified conditions are satisfied,
  • that the person refrain from visiting a specified place or class of place or associating with a specified person or class of persons,
  • that the person take specified action to prevent or minimise any health risk,
  • that the person attend meetings and provide information,
  • that the person place their self under the supervision of a medical practitioner and obey their reasonable directions,
  • that the person submit their self to examination by a medical practitioner at intervals as the CPHO may require,
  • that the person undergo specified medical treatment, and
  • any other direction as to the person’s conduct or supervision the CPHO considers appropriate in the circumstances

Conscientious objections may be raised in relation to examination or treatment [s 75(5)(a)].

Review of examination, testing, counselling and quarantine directions by SACAT

A person subject to one of the above requirements or directions may apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review of the requirement or direction at any time while the requirement or direction is in place [s 76(1) and (2)].

More than one application may be made while the requirement or direction is in place, but before considering a second or subsequent application, the Tribunal must first consider whether there has been a significant change in the circumstances since the previous application [s 76(3)].

Orders for detention

If the CPHO has reasonable grounds to believe that [s 77(1) and (2)]:

  • a person has, has been exposed to or could have been exposed to a controlled notifiable condition,

AND

  • the person has been the subject of a direction under section 75 (relating to quarantine) and has failed to comply with the direction, OR
  • there is a risk the person would not comply with such a direction, OR
  • urgent action is required in the circumstances of the case and a direction under section 75 is not appropriate,

AND

  • the CPHO considers the person presents, or could present a risk to public health

the CPHO may order that the person be detained at a specified place [s 77(4)].

If the order is made on the ground that the person could have been exposed to a controlled notifiable condition, the order will be for an initial period not exceeding 48 hours, but may be extended by the CPHO from time to time for periods not exceeding 30 days [s 77(6) (b)]. However, before extending an order beyond the initial period of 48 hours, the CPHO must apply to the Magistrates Court for a review of the order [s 77(8a)].

If the order is made on the ground that the person has, or has been exposed to, a controlled notifiable condition, the order will be for an initial period not exceeding 30 days, but may be extended by the CPHO from time to time for periods not exceeding 60 days [s 77(6) (a)]. However, before extending the order beyond the initial period of 30 days the CPHO must apply to the Supreme Court (which will be constituted of a single judge) for a review of the order [s 77(7)].

Orders may be extended pending the outcome of the application for review, which must be heard as soon as reasonably practicable [s 77(8) and (8b)].

A person must not be detained for a period exceeding 6 months unless the CPHO applied to the Supreme Court (which will be constituted of a single judge) for confirmation of the order [s 77(9)].

A person who is detained must be examined at intervals not exceeding 30 days or such shorter period set by the Court having regard to the nature of the controlled notifiable condition [s 77(13)].

Review of detention order by Supreme Court

A person subject to a detention order under section 77 may apply to the Supreme Court (which will be constituted of a single judge) for review of the order at any time while the order is in place [s 78(1) and (2)].

More than one application may be made while the requirement or direction is in place, but before considering a second or subsequent application, the Court must first consider whether there has been a significant change in the circumstances since the previous application [s 78(3)].

Enforcement of orders, requirements, directions

Failure to comply with an order, requirement or direction is an offence [s 81].

Maximum penalty: $25 000

Expiation fee: $750

If a person fails to comply with an order, requirement or direction, the CPHO may apply to a magistrate [s 79(1),(2) and (3)]:

  • for the issue of a warrant for the apprehension of the person,
  • for the person to be brought before the magistrate, and
  • for the person to be subject to any examination, test or other action required by the order, requirement or direction to which the warrant relates, and
  • for other orders the magistrate thinks fit, including detention.

Appeal from orders made by the magistrate under section 79 lie to the Supreme Court (constituted of a single judge)[79(7)].

Commonwealth laws

The Commonwealth Government has similar powers under the Biosecurity Act 2015 (Cth).

Powers to require examination, testing, counselling, quarantine and detention  :  Last Revised: Thu Jul 16th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.