FAQ — Councils’ COVID—19 Regulatory Role & Functions — Business as (un)usual

FAQ — Councils’ COVID—19 Regulatory Role & Functions — Business as (un)usual

6 April 2020

We have been receiving numerous clarification requests regarding regulatory functions in the context of COVID-19, in particular, the steps that can be taken by council officers to enforce the various Directions made under the Emergency Management Act 2004 (“the EM Act”).

Yesterday’s Sunday Mail has exacerbated the issues in announcing that council officers will be assisting the State Government, in particular SAPOL, to enforce the Directions (refer article here).

Of particular relevance are the Emergency Management (Non-Essential Business and Activities No 2) (COVID-19) Direction 2020 and the Emergency Management (Gatherings) (COVID-19) Direction 2020 (“the Directions”).

Accordingly, we have prepared this Alert to ensure that the common issues and the consistent advice is shared with all simultaneously. It answers the questions that are commonly being asked regarding the role of council and its officers under the Directions. It is current at the time and date of publication. We will, of course, keep our clients informed of relevant changes.

 1.   I’m an EHO appointed as a local authorised officer under section 44 of the SAPH Act:
1.1   Can I issue an expiation notice to a person who has failed to comply with the Directions under the EM Act?

No.

Persons solely appointed as local authorised officers do not have power to expiate an offence under section 28 of the EM Act arising from a contravention of the Directions.

Only SAPOL and other persons appointed as an emergency officer under section 48 of the SAPH Act or as an ‘authorised officer’ under the EM Act are authorised to expiate these offences.

1.2   What power do I have to enforce social distancing, business closure and minimum gathering requirements under the Directions?

 Where a breach of the Directions is assessed to give rise to a risk to public health (or is otherwise in contravention of the general duty under section 56 of the SAPH Act), it can be enforced by way of issuing a written notice under section 92(1) of the SAPH Act or, where an EHO considers urgent action is required, by issuing an emergency notice verbally under section 92(6) of the SAPH Act. If a person fails, without reasonable excuse, to comply with the notice, an EHO has the ability to issue an expiation fee for $750.

The decision to issue a notice must be made on a case-by-case basis having regard to the particular facts and the nature of the risks arising in the circumstances.

Breaches of the Directions can also be referred to SAPOL.

In addition, refer question 2.2 below.

1.3   Is it necessary to assess whether there has been a breach of the general duty before a notice is issued?

No.

If a delegate is satisfied that the circumstances give rise to a risk or perceived risk to public health, a notice can be issued under section 92(1)(b) of the SAPH Act requiring action to be taken that is considered necessary to avert, eliminate or minimise the identified risk.

 2.   I am not an EHO but I am appointed as an authorised officer under other legislation:
2.1   Do I have power to issue an expiation notice for a failure to comply with a direction of the State Coordinator under the EM Act?

No.

For the same reasons that an EHO is unable to (as above).

2.2   What assistance can I give to enforce the Directions?

The assistance role that council officers are being asked to perform is threefold:

(a)   monitoring compliance with the Directions in the council area (non-compliance that constitutes an immediate threat to public safety should be reported to SAPOL as per the agreed reporting requirements);

(b)   educating the community regarding their obligations under the Directions; and

(c)   regularly reporting upon the compliance activities undertaken and outcomes to SAPOL as per the agreed reporting requirements.

2.3    Is delegated authority required to perform these functions?

No.

A council can, simply, require its officers to perform these functions in exercise of its responsibilities under section 37(2)(a) and (b) of the SAPH Act.

2.4   Can I issue a written notice under section 92(1) of the SAPH Act?

Yes, if this power has been sub-delegated to you.

2.5   Can I issue a verbal emergency notice under section 92(6) of the SAPH Act?

No.

The power to issue a verbal emergency notice is conferred on and can only be exercised by a person appointed as an authorised officer under the SAPH Act. The power cannot be delegated.

 2.6   What power do I have to enter onto private land to assist with enforcing the Directions?

Land can be lawfully entered for this purpose in the following circumstances:

    • with the consent of the owner or occupier of the land; or
    • by an authorised person under the Local Government Act 1999 (“the LG Act”), upon giving reasonable notice to the owner of occupier pursuant to section 261(1)(a)(i) of the LG Act; or
    • when accompanying an EHO in the exercise of his/her functions under the SAPH Act for the purposes providing assistance to the EHO (per section 47(2) of the SAPH Act).
3.   Can a council delegate the power to issue a notice under section 92(1) of the SAPH Act to a person who is not an employee of the council (for example, to a contractor)?

Yes, provided that the person is first appointed as an authorised person under section 260 of the LG Act.

This is because the powers of delegation and sub-delegation under sections 44 and 101 of the LG Act (and, pursuant to which, powers and functions under the SAPH Act are delegated and sub-delegated) restricts the (natural) person to whom a delegation/sub-delegation can be made to an employee of the council or an authorised person.

4.   Can an EHO direct members of the public to leave council land?

Yes, if the direction is for the purpose of averting, eliminating or minimising a risk to public health. In this case the direction can be given by way of issuing a verbal or written notice under section 92 of the SAPH Act.

By way of example, if a gathering of more than 10 persons is occurring on council land (or even private land for that matter) an EHO can choose to issue a notice directing the persons in the group to immediately leave the land.

5.   What public facilities is a council required to close?

The Emergency Management (Non-Essential Business and Activities No 2) (COVID-19) Direction 2020 outlines the ‘defined premises’ that must be closed.

It operates to require a council to close all ‘non-essential facilities (such as libraries and pools)’ as well as other facilities that it owns or operates that is within the meaning of ‘defined premises’, which include:

  • buildings used by social and sporting clubs;
  • indoor sporting venues;
  • galleries, museums, libraries (other than libraries in educational institutions), public institutions and historic sites; and
  • community, youth and recreation centres (such as community halls, clubs, RSLs, PCYCs).

The closure obligation under the Direction is subject to exceptions set out in clause 5.

6.   How does a council determine what are essential services that should continue to be provided?

In the absence of a declaration or clarification in legislation, our advice is that the determination as to what constitutes an ‘essential service’ should be made having regard to the definition of ‘essential service’ under the Essential Services Act 1981:

a service (whether provided by a public or private undertaking) without which the safety, health or welfare of the community or a section of the community would be endangered or seriously prejudiced

By example, the regulatory functions of a council (including enforcement activities that are necessary to preserve public safety and welfare) fall within the meaning of an essential service. It is, therefore, critical that a council and its regulatory officers continue to do what is necessary to uphold compliance with the regulatory laws that are within the jurisdiction of the council.

7.   Are council parks, playgrounds and dog parks required to be closed?

No.

At the date of publication of this Alert, these facilities are not subject to mandatory closure under the Emergency Management (Non-Essential Business and Activities No 2) (COVID-19) Direction 2020.

A council may, however, choose to close such facilities where it sees fit, including by taking into account the duty of care owed by the council to users of the facilities. For example, where a council is unable to take adequate steps to mitigate the risks to public health arising from these facilities remaining open, accessible to and used by the public, this will likely justify a decision to close them.

If you have any questions in relation to the above, please contact:

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