COVID—19 Update — Non—Essential Business and Other Activities No 2

COVID—19 Update — Non—Essential Business and Other Activities No 2

31 March 2020

Following our Alert yesterday, Monday, 30 March 2020, the SA State Coordinator released a further Direction.

Importantly, this Direction does not amend the density requirements or social distancing principles. The limit on numbers for gathering remains at 10, provided the premises density requirement (4m2) and the social distancing principle (1.5m) are complied with (that is, the 2-person limit recommended by the Prime Minister has not, as yet, been imposed).

Nor do the Directions include public playgrounds, outside gyms and skateparks as ‘defined premises’.

The amendments that have been made to the Direction, relate to the inclusion of a ‘winery’ within the defined premises and prohibiting take-away meals from a winery, as well as tasting food and beverages at wineries.

This apparent ‘disconnect’ arises on the basis that the general ‘rules’ and recommendations advocated by the National Cabinet and announced by the Prime Minister can only be given legal effect by the States and Territories by way of ‘Directions’ (or other statutory instrument) under the various emergency management legislation in the States and Territories.

Many people have been under the misapprehension that if the Prime Minister has spoken to a recommended measure, this has legal effect. This is not the case. It is always, up to the individual States and Territories whether the measures advocated by the National Cabinet are enforced in their jurisdiction and, hence, capable of being enforced by the police.

Taking into account the particular situation for South Australia, the Premier has determined that while ‘we need to keep the foot down’ on COVID-19 community restrictions, the State Government was looking to getting ‘the balance right’ at the State level on strict new National Cabinet advice.

Speaking on ABC Radio yesterday, the Premier said he did not want to put any restrictions in place that were not sustainable or enforceable and was ‘feeling comfortable’ with where South Australia was positioned and:

…we’ve got to get a balance here in our state and look at the implications with further isolation and locking people up for long periods of time. It’s got to be sustainable which is what we’ll be looking at.

While we understand that some councils have, as is their right, already moved to close playgrounds and skateparks, it needs to be understood that it is not, currently, an offence under the emergency management provisions in South Australia for persons to continue to use those public spaces. It would, however, be an offence if such use is contrary to a council by-law that has been relied upon to achieve the closure.

Finally, by way of update to our readers on the ‘Notice’ to be issued by the Minister under the Local Government (Public Health Emergency) Amendment Act 2020, we are advised by the Minister’s Officer that a Notice will be Gazetted today. However, at this time, the focus is to be on processes and procedures surrounding Council Meetings, rather than meetings of Committees and subsidiaries.

If you have any questions, or if we can assist you in relation to measures to put in place so that committees and subsidiaries, that do not already have such processes in place, can meet by telephone or other electronic means, contact:

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