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].

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

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 72 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)]:

AND

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)]

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)]:

AND

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

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

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)]:

AND

AND

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

In such circumstances, the CPHO or an authorised person (a police officer or person authorised by the CPHO) may:

[s 77(5a)].

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)].

Applications are governed by Chapter 2 Part 3 of the Uniform Special Statutory Rules 2022 (SA).

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)]:

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). For further information, see Emergency declarations.