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Legal experts raise concerns about lack of civil liberty safeguards in SA’s COVID-19 legislation

Legal experts have criticized legislation that the South Australian government says will allow it to “water down” the state’s COVID-19 restrictions, instead saying it could result in extraordinary one-off powers being enshrined into permanent law.

The state government introduced amendments to the Public Health Act earlier this week, which passed through parliament’s lower house on Wednesday.

But the state’s law society has raised concerns over the wording of the bill.

Here’s a look at what’s been happening.

What’s changing?

Currently, COVID-related orders like isolation requirements, vaccine mandates and state-wide lockdowns are issued under the Emergency Management Act – a piece of legislation that was originally intended for dealing with natural disasters.

It gives State Emergency Coordinator and Police Commissioner Grant Stevens extraordinary powers, including the ability to override other laws in the interest of public safety.

SA Police Commissioner Grant Stevens’s COVID powers would be shifted under the proposed legislation.(ABC News: Ben Pettit)

SA has been operating under that emergency declaration for the past two years – a process that requires the Commissioner’s powers to be renewed every 28 days.

Under the proposed changes, some of those COVID powers will be moved into health legislation.

It will allow SA Health, as opposed to SA Police, to impose isolation requirements on positive cases and close contacts.

It will also enshrine rules around vaccination mandates and mask-wearing for staff in high-risk settings such as hospitals and aged and disability care.

The government says the move will allow the emergency declaration to end, while still protecting the state’s most vulnerable.

What are the criticisms of the legislation?

The Law Society of South Australia has raised several concerns with the wording of the bill, which it says “does not seem to have any reference” to safeguards that would protect individual freedoms.

“If the bill is passed as currently proposed, the wide-ranging powers to enforce public directions that are currently available under the Emergency Management Act could be invoked at any time by regulation,” president Justin Stewart-Rattray said.

justin stewart rattray
Justin Stewart-Rattray says “accountability mechanisms” should be built into the legislation.(Supplied: Law Society of SA/Tom Roschi Photography)

“There is no clear explanation in the bill as to who may be deemed a close contact.

“There does not seem to be any reference in the legislation to safeguards to ensure a proportionate response that has regard to an individual’s basic rights.”

Mr Stewart-Rattray said “accountability mechanisms” should be built into the legislation to ensure any advice upon which directions were made was independent and publicly available.

“Given orders can be made that intrude on people’s liberties, it is important that the state can demonstrate the evidentiary basis on which they are made,” he said.

What type of safeguards could be introduced?

When the Victorian government moved to replace its emergency powers with a piece of legislation, opponents raised concerns about powers granted to the Premier and Health Minister, and called for greater oversight and checks to be included.

Dozens of amendments were eventually made before the bill became law.

University of South Australia legal expert Sarah Moulds said Victoria’s legislation was far more advanced than South Australia’s when it came to protecting civil liberties and included a pandemic response oversight committee as well as a “disallowance” mechanism that effectively allows the parliament to cancel legislation it does do not agree with.

UniSA law expert Dr Sarah Moulds.
University of South Australia legal expert Dr Sarah Moulds says Victoria’s legislation has more protections for civil liberties in place.(UniSA)

“The Victorian legislation … has regard to the human rights that are protected by law in Victoria,” Dr Molds said.

She pointed out Victoria’s Charter of Human Rights formed the basis for the new laws, which allowed for a nuanced response to take into consideration people’s needs.

“So people with disability, older people, people with other underlying health conditions or non-English speaking people … might need a different response,” she said.

What are the COVID numbers in SA?

Meanwhile, the state recorded a drop in COVID cases today, coinciding with a decrease in testing rates.

South Australia recorded 2,874 new COVID infections, a decrease of about 1,000 from the day before.

But the state also had a 29 per cent drop in PCR testing rates yesterday compared with the previous 24 hours.

A woman in her 80s who tested positive for COVID has died.

The number of people in hospital increased slightly from 218 on Thursday to 221 today, with 10 people in intensive care.

Active cases have dropped to 21,748, the lowest number since March 18.

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