The global coronavirus outbreak has prompted the South Australian Government to enhance its powers to deal with public health threats.
Following amendments to the Public Health Act which passed on 4 March, the Chief Public Health Officer (CPHO) of the State can more readily order an examination, quarantine people, and detain people who present a risk of contracting an infectious disease.
It is important that the public understand the measures the Government can now take to contain a public health threat such as COVID-19.
WHY DOES THE GOVERNMENT NEED GREATER POWERS TO DEAL WITH OUTBREAKS?
While the State Government already had significant powers to issue orders such as requiring a person to undergo a medical examination, be quarantined at a specific place or be detained at a facility such as a hospital, the speed at which the COVID-19 epidemic has spread prompted the Government to draft laws that would enable health authorities to respond more rapidly to threats.
Essentially, the new laws lower the threshold for when the CPHO can make orders and allows the CPHO to make an on the spot oral order, rather than having to go through the process of issuing a formal written order.
WHAT ARE THE NEW THRESHOLDS?
An order to undergo medical treatment, remain in a specified place or be detained can be issued if the CPHO is satisfied that a person “could have been exposed to a controlled notifiable condition” and “could present a risk to public health”. The powers of the CPHO are invoked when Government declares a disease to be a controlled notifiable condition.
A key difference between the new laws and the previous laws is the word “could”. Previously the CPHO had to have reasonable grounds to believe that a person has, or has been exposed to, a controlled notifiable condition to issue an order. To take the most serious action to detain someone, the CPHO also had to consider the person to present or likely to present a public health risk; and for the person to have failed to comply with a previous direction (such as to remain isolated or receive medical treatment), in order to detain someone.
Under the new laws, the CPHO has the power to issue an order on the basis that a person “could have been exposed” to a disease, and can detain a person even if the person has not been issued any previous orders (for example to undergo a medical examination or isolate themselves).
However if a person is detained on the basis that they “could have been exposed to a controlled notifiable condition”, the order will be in place for no longer 48 hours, after which the CPHO will need to apply to the Magistrates Court for an extension.
One would expect that in most cases, the CPHO would not detain a person as a first resort when exercising her powers.
Where a person has contracted a disease or has been exposed to it, the order can last for up to 30 days.
CAN A PERSON REFUSE AN ORDER?
If a person objects to an order to undergo medical treatment or stay in isolation, they can apply for the SA Civil and Administrative Tribunal to review the order. However they must comply with the order in the meantime. If a person has been detained, the person can appeal the order to the Supreme Court. But again, they must remain in detention during the appeal process.
ARE THESE NEW LAWS JUSTIFIED?
Premier Steven Marshall said the new laws give the State the “ability to place orders on individuals quickly on the basis of the risk they may pose to the community, rather than proven contact with a case.”
Essentially, the new laws are designed to enable the Government to act swiftly and decisively to contain a public health threat such as a highly infectious virus. The Government has a responsibility to protect the public health, and this is the overriding principle of the laws.
The transmission of infectious diseases often occurs much faster than the process of obtaining and issuing written orders, hence the new provision to allow the CPHO to make an on the spot verbal order. Likewise, the lowering of the threshold for when the CPHO can issue orders recognises that, under the previous test whereby the CPHO had to form a reasonable suspicion that a person had been infected, the disease could have spread by the time that test was met.
In short, there are sound policy objectives underpinning these laws, but they need to be exercised with caution and proportionality. There is always a tension between individual rights and the public good.
The laws necessarily restrict individual autonomy, and do have the potential to seriously disrupt people’s lives. Think of the impact on a small business owner who is under quarantine orders and cannot operate their business for 14 days, or a sole carer who suddenly is unable to look after their dependant.
The laws have legitimate objectives but the response must be proportionate to the risk. The greater powers an instrument of the State has, the more open they are to abuse. While we expect these powers to be used sensibly, we must ensure that a policy framework is in place to ensure that people’s liberties are not excessively curtailed.