Covid-19 restrictions in SA – What they are & What they are not

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Disclaimer: The information on this site is based on our research and should only be interpreted as the opinion of the writer. It should not be taken as legal advice. It is highly recommended to do your own research and to seek legal advice for your own situation.

In order to understand the relevancy of the restrictions/mandates/directives in South Australia you must first understand the hierarchy of laws in Australia.

Section 109 of the Constitution of the Commonwealth of Australia says โ€œWhen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.โ€œ.

In simple terms … state laws are valid up to the point that they contradict a federal law.

So having established that hierarchy, there is a federal law called the Biosecurity Act 2015 which was written for the specific purpose of dealing with threats like Covid-19. It includes everything related to handling a pandemic, e.g. lockdowns, stay at home orders, wearing masks, contact tracing, etc.

Within South Australia, there is a law called the ‘Emergency Management Act 2004‘. Within this law is Section 25 – ‘Powers of State Co-ordinator and authorised officers’ (the State Co-ordinator is the current Commissioner of Police – Grant Stevens), which lists things that they can do as they see fit when an emergency has been declared.

However, what the SA government has done is written another law called the ‘COVID-19 Emergency Response Act 2020‘, which amongst other things modifies other laws for a set period of time. Note that they keep extending the period of time that it modifies other laws.

One of the laws it modifies is the ‘Emergency Management Act 2004’. The key section that it modifies is Section 25 by adding in …

“The State Co-ordinator (or a delegate of the State Co-ordinator) may give a direction or make a requirement under this section that applies to persons generally throughout the State.”

From this modified Section 25 of the Emergency Management Act 2004, they have written the ‘Emergency Management (Activities-General No 3)(COVID-19) Direction’, amongst other activity specific directions. It is these directions that contain the items related to mask wearing, contact tracing, lockdowns, etc.

It is important to note that these ‘Directions’ are not a law. A law has these three primary characteristics:

  1. voted on by the people elected into parliament;
  2. has a “date of assent”;
  3. has a “proclamation date”.

The ‘Directions’ have none of these characteristics, and are therefore not a law and most importantly are not enforceable.

Even if they were a valid law in South Australia, nearly all of them are over-ridden by the federal Biosecurity Act 2015 which renders them invalid.

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