South Australian Public Health Act 2011 (South Australia) — Zoe

South Australia act

South Australian Public Health Act 2011

In ForceSA

Jurisdiction

South Australia

Collection

act

Plain English Summary

9/10 complexity

What this law does, simply put

This Act sets out how South Australia protects and manages public health. It creates roles, plans and powers for the State and local governments, and gives officials tools to prevent, detect and respond to health risks and outbreaks.

Mechanically, the Act:

Establishes key decision-makers and bodies: the Minister (policy and oversight) (s17), the Chief Public Health Officer (operational lead, advice and powers to act) (ss20–21), and the South Australian Public Health Council (SAPHC) to advise and assist (ss26–35).
Makes each council the local public health authority and assigns local duties such as sanitation, identifying public health risks and delivering immunisation programs (ss37–38).
Authorises appointment of State and local authorised officers and emergency officers with inspection, information‑gathering and enforcement powers (ss43–49, 48).
Requires public health planning (State and regional plans) and provides rules for drafting, consulting on and publishing those plans (ss50–52).
Imposes a general duty on any person to take all reasonable steps to prevent or minimise harm to public health, and allows enforcement by notices (s56; Part 12).
Creates tiers of offences for causing material or serious risks to public health with significant monetary and custodial penalties (ss57–58), and provides defences and evidentiary rules (ss59,108).
Establishes notification duties for health practitioners, pathology services and certain laboratories for notifiable diseases and contaminants (ss63–68, 64, 68).

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Deep Dive

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What it does

The South Australian Public Health Act 2011 establishes a comprehensive framework for protecting and promoting public health in South Australia. Its objects, set out in section 4, include promoting health and well-being, preventing disease and injury, protecting individuals and communities from risks to public health, ensuring a healthy environment especially for disadvantaged communities, developing early detection and management measures, providing information, encouraging planning for healthy environments, supporting policies and programs for vulnerable groups including Aboriginal and Torres Strait Islander peoples, monitoring diseases of public health significance, collecting information for research and public health purposes, and establishing a scheme for State and local government functions. The Act replaces the Public and Environmental Health Act 1987, as indicated in the legislative history.

The Act is guided by a set of principles in Part 2 that must be considered in its administration (section 5). These include the precautionary principle (section 6): if there is a perceived material risk to public health, lack of full scientific certainty should not postpone measures to prevent or abate that risk. The proportionate regulation principle (section 7) requires regulatory measures to minimise adverse impacts on business and community while protecting public health. The sustainability principle (section 8) considers public health, social, economic and environmental factors with future generations in mind. The principle of prevention (section 9) requires decisions and actions to consider how risks can be prevented. The population focus principle (section 10) focuses on the health of populations, but also considers individuals. The participation principle (section 11) encourages individuals and communities to take responsibility for their own health. The partnership principle (section 12) requires collaboration across sectors and levels of government. The equity principle (section 13) requires that decisions not unduly disadvantage individuals or communities and that health disparities be addressed. Sections 14 sets out specific principles for Part 10 (controlled notifiable conditions) and Part 11 (emergencies), including the overriding right of the community to be protected from persons whose infectious state presents a risk, the responsibility of individuals with controlled notifiable conditions to avoid placing others at risk, and a series of entitlements for persons subject to orders including privacy, dignity, participation in decisions, least restrictive means, and adequate care and communication.

Current sections

Direct links to the current provisions in South Australian Public Health Act 2011.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

View on official register

Sourced from South Australian Legislation (legislation.sa.gov.au), CC BY 4.0.

Who decides: the Minister, Chief Public Health Officer and Chief Executive hold concentrated regulatory and operational discretion (ss17, 20–21, 89). They can make policies, declare notifiable/controlled conditions, issue emergency declarations and set standards (ss53, 63, 70, 86–87).
Who pays: individuals or businesses who fail to comply face fines and criminal penalties (e.g. ss57–58, 92(10)); the Crown or councils can recover costs incurred when authorities take remedial action from the person responsible (ss66(6), 93(4)–(5)); regulations may prescribe fees and enable their recovery (s109(2)(p)–(q)). Councils may also be directed to act and, in some cases, the Minister may recover costs from the council (s41(13)).
Behaviour the law compels or changes: it requires persons and organisations to report notifiable conditions or contaminants (ss64, 68); to take reasonable preventive steps generally (s56); to comply with notices, directions, or orders to clean, isolate, test, cease activities, or submit to treatment or detention in prescribed circumstances (ss66, 73–77, 77–79, 92). Early childhood services must obtain and rely on immunisation records and may not enrol or provide services to children who do not meet immunisation requirements (ss96B, 96BA, 96BB).
Compliance burden and administrative cost: the Act requires periodic reporting (biennial report by Chief Public Health Officer, s23; 2‑yearly regional reporting, s52), record‑keeping by services (s96B(4)), notifications within tight timeframes (s64(1) — within 3 days; s68(1) — within 24 hours), and potential operational action by authorised officers (s47). Regulations can require technical reports, record‑keeping and standards across industries (s109(2)(a)–(b), (e)–(f), (k)). These are concrete sources of administrative burden for regulated parties.
Discretion and implementation risk: the Act gives officials multiple powers that may be exercised without full prior consultation when urgent action is considered necessary (for example, oral emergency notices or orders that are later confirmed in writing) (ss73(8)(b), 74(3), 75(3), 92(4)–(7)). The Minister and Chief Public Health Officer can adopt or reference external standards and codes by policy or regulation (ss53(3), 109(3)–(5)), and regulations may delegate detail to other bodies. Those mechanisms centralise decision‑making authority while leaving technical and procedural detail to subordinate instruments, which increases reliance on administrative implementation and on the quality of guidance and delegation.
Remedies and review: people subject to orders, notices or detention have review or appeal routes (Tribunal review, Magistrates Court, Supreme Court, District Court depending on the power and urgency) (ss76–79, 95–96, 90(5)–(16), 90G). However, most reviews do not suspend the operation of the underlying direction or detention while proceedings are brought (e.g. ss76(2), 95(5), 90E(5)), so compliance is immediately required in many cases.
Effects on private enterprise and sectors: the Act enables the Minister to issue codes or standards targeting industries or sectors and to regulate the manufacturing, marketing and sale of goods for public health purposes (s62; s109(2)(c)–(f)). The Act therefore creates a route for sector‑specific regulation that can change product design, labelling, distribution and advertising via codes or regulations.

Main concepts

Public health is defined in section 3 as the health of individuals in the context of the wider health of the community. Section 3(2) further provides that public health may involve policies, programs and safeguards designed to protect, maintain or promote the health of the community at large, including where one or more persons are the focus, or to prevent or reduce the incidence of disease, injury or disability. Harm includes physical or psychological harm, or potential harm, whether long term or immediate. Potential harm includes risk of harm and future harm.

A notifiable condition is a disease or medical condition declared as such by the regulations or by the Minister in urgent circumstances (section 63). Reports must be made to the Chief Public Health Officer within three days of suspicion. A controlled notifiable condition is declared by the regulations or by the Minister in urgent circumstances (section 70) and attracts more coercive powers in Part 10. A serious disease under section 71 allows the Chief Public Health Officer to treat a disease that is infectious and presents a serious risk to public health as a controlled notifiable condition for up to 28 days. A non-communicable condition may be declared by the Minister (section 61), and codes of practice may be issued (section 62).

Notifiable contaminants include antibiotics, pathogens, or other things prescribed by regulation (definition of contaminant in section 3). Detection or isolation must be reported within 24 hours (section 68). Vaccine preventable disease has the same meaning as in the Australian Immunisation Register Act 2015 of the Commonwealth (section 96A).

Public health incident (section 86) is an emergency declared by the Chief Executive with the Minister's approval, lasting up to 12 hours. Public health emergency (section 87) is an emergency declared by the Chief Executive with the Minister's approval, lasting up to 14 days initially but extendable by the Governor. The Public Health Emergency Management Plan is a plan prepared by the Chief Executive and approved by the Minister (definition in section 3). Emergency has the same meaning as in the Emergency Management Act 2004.

Authorised officers are State authorised officers appointed by the Minister (section 43) or local authorised officers appointed by councils (section 44). They must hold approved qualifications (section 45) and carry identity cards (section 46). Their powers under section 47 include entry, inspection, questioning, sampling, seizing evidence, and requiring answers. Reasonable force may be used with a warrant or in urgent circumstances. Emergency officers are appointed by the Chief Executive (section 48) and include police officers.

General duty under section 56 requires all reasonable steps to prevent or minimise harm to public health. Reasonableness is determined by reference to the Act's objects, potential impact, environmental/social/economic/practical implications, degrees of risk, nature of harm, relevant policies and codes, and prescribed matters. A person is taken not to be in breach if acting in accordance with generally accepted practices or a policy or code of practice.

Public health partner authority under section 51(23) may be declared by regulation or by the Minister to assist with regional public health plans. Review Panel under section 95 is the Public Health Review Panel constituted by the Chief Public Health Officer and two SAPHC members for reviewing notices related to the general duty. Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013 (definition in section 3 as amended).

Who it affects

The Act imposes obligations on a wide range of persons and entities within South Australia. The general duty in section 56 applies to any person who does or omits to do anything that causes or is likely to cause harm to public health. This includes individuals, businesses, corporations, public authorities, and any other legal entity. The offence provisions in Part 7 similarly apply to any person who causes a material or serious risk to public health.

Medical practitioners and pathology services are directly affected by the notification requirements in Part 9. They must report suspected notifiable conditions to the Chief Public Health Officer within three days (section 64) and may be required to provide additional information. Failure to report carries a maximum penalty of $10,000. Laboratory services and prescribed persons must report notifiable contaminants within 24 hours (section 68), with penalties up to $25,000.

Persons suspected of having or being exposed to a controlled notifiable condition may be subject to orders requiring examination, testing, counselling, directions (including isolation), or detention under Part 10. These orders can affect individuals' liberty, privacy, and freedom of movement. Parents or guardians of children under 16 are responsible for ensuring compliance with such orders (section 72). Children themselves are subject to the Act, with modifications where specified.

Councils are affected as local public health authorities under section 37. They must take action to preserve, protect and promote public health within their areas, provide or support immunisation programs (section 38), identify risks, take remedial action, and assess development impacts. They must prepare and maintain regional public health plans (section 51) and report biennially (section 52). Councils may appoint local authorised officers. They can also be directed by the Minister to perform functions if they fail to do so (section 41), and their powers may be transferred to the Chief Public Health Officer.

Providers of early childhood services are significantly affected by Part 12A. They must not enrol a child or provide services unless immunisation records indicate the child meets immunisation requirements (sections 96BA and 96BB). They must keep copies of immunisation records (section 96B). They must provide information to the Chief Public Health Officer on outbreak of vaccine preventable disease (section 96C) and comply with exclusion directions (section 96D). Penalties for contravention are up to $30,000.

Public authorities as defined in section 3 include government departments, bodies established for a public purpose, councils and council subsidiaries, the Police Force, and members/officers of those bodies. They may be requested by the Chief Public Health Officer to participate in addressing situations of increased risk of avoidable mortality or morbidity (section 22). They must consider and respond to such requests.

The Chief Public Health Officer, the Minister, the Chief Executive of the Department, SAPHC, authorised officers, emergency officers, and other officials involved in administration are affected by duties, powers, and immunities. They must act in accordance with the Act's objects and principles.

Businesses that handle substances, materials or equipment that may create a risk to public health may be subject to regulations under section 109 that prohibit, restrict or regulate manufacturing, possession, transport, storage, use or disposal. They may also be subject to codes of practice for non-communicable conditions (section 62). The general duty applies to their operations.

The community as a whole is affected by the Act's rights and protections. Section 14(2) states that members of the community have a right to be protected from a person whose infectious state or behaviour may present a risk of transmission of a controlled notifiable condition. The Act provides for information collection and monitoring to protect the public.

Key duties and rights

The central duty is the general duty in section 56(1): a person must take all reasonable steps to prevent or minimise any harm to public health caused by, or likely to be caused by, anything done or omitted to be done by the person. This duty is not directly enforceable by civil or criminal action for breach alone (section 56(4)), but can be enforced by notice under Part 12. In determining reasonableness, regard must be had to the Act's objects, the potential impact, environmental/social/economic/practical implications, degrees of risk, nature/extent/duration of harm, relevant policies under Part 5, codes under Part 8, and prescribed matters (section 56(2)).

Notification duties are imposed on medical practitioners, pathology services, and prescribed persons under section 64(1) to report suspected notifiable conditions within three days. For laboratory services and prescribed persons, detection or isolation of notifiable contaminants must be reported within 24 hours (section 68(1)). Failure to comply is an offence. A person does not breach any law or professional ethics by furnishing information under these provisions (sections 64(8) and 68(10)). No civil liability arises from a report made honestly and without malice (sections 64(7) and 68(9)).

Under Part 10, the Chief Public Health Officer may impose requirements on persons who have or have been exposed to controlled notifiable conditions. The person must undergo examination or testing (section 73), participate in counselling (section 74), comply with directions (section 75), or be detained (section 77). The duty to comply is set out in section 81: a person subject to an order, requirement or direction must not, without reasonable excuse, contravene or fail to comply. Maximum penalty $25,000.

Persons subject to orders under Part 10 have significant rights. Section 14(5) outlines entitlements: privacy and patient confidentiality, appropriate care and treatment without discrimination, participation in decision-making, informed consent to treatment (for children, parental consent), proportionate restrictions, least restrictive means for isolation or quarantine, adequate food, clothing, shelter, medical care and communication, and maintenance of premises according to safe and hygienic standards respectful of cultural beliefs. Section 14(6) provides that any requirement restricting liberty should not be imposed unless it is the only effective way to protect public health. Section 14(7) requires that the power that least infringes on rights be exercised. Families should be kept together where practicable (section 14(8)). The person's next of kin or nominated person must be informed unless the person instructs otherwise (section 14(9)).

A person who is the subject of an order, requirement or direction under Part 10 may apply to the Tribunal for review (section 76) at any time during its currency. A second or subsequent application requires a significant change in circumstances. Detention orders under section 77 can be reviewed by the Supreme Court (section 78) and also by the Tribunal? Actually section 78 provides for Supreme Court review, and section 76 also allows Tribunal review for other orders. For detention orders, the Supreme Court review is separate. Persons detained must be examined by a medical practitioner at intervals not exceeding 30 days (section 77(13)). The Chief Public Health Officer must facilitate reasonable requests for communication (section 77(14)).

For notices under Part 12 (notices to secure compliance with general duty or to avert risks), the person served has a right to apply for review by the Public Health Review Panel (section 95) within 14 days, and then to the Tribunal (section 96). The notice must state this right (section 92(5)(g)). The notice may be varied or revoked.

Under Part 11A (COVID-19), a person who is subject to a direction to isolate or quarantine at a place other than their residence may apply to the Magistrates Court for review (section 90G). The court may confirm, vary or revoke the direction, but may only revoke if satisfied the direction is no longer reasonably necessary in the interests of public health.

Under Part 12A, parents or guardians must provide immunisation records to early childhood service providers (section 96B). Providers have a duty to ensure compliance and keep records. Exemptions may be granted by the Chief Public Health Officer (section 96E). Children may be excluded from premises during outbreaks of vaccine preventable diseases under section 96D.

Penalties and enforcement

Part 7 establishes three tiers of public health offences. Section 57 deals with material risk to public health: intentional or reckless conduct with knowledge that harm will result attracts up to $250,000 or imprisonment for 5 years or both (subsection (1)). Where the person ought reasonably to expect that harm will result, the penalty is up to $120,000 or imprisonment for 2 years or both (subsection (2)). Strict liability (subsection (3)) carries $25,000 (expiation fee $750). A material risk occurs if the health of one or more persons has been or might reasonably be expected to be harmed, but not if the harm is trivial or negligible (section 57(4)).

Section 58 deals with serious risk to public health: intentional or reckless conduct with knowledge attracts up to $1,000,000 or imprisonment for 10 years or both (subsection (1)). Where the person ought reasonably to expect harm, up to $500,000 or imprisonment for 7 years or both (subsection (2)). Strict liability carries $120,000 (subsection (3)). A serious risk is a material risk that substantial injury or harm has occurred or might reasonably be expected, taking into account the nature, scale and effects of harm, location and seriousness, number of persons affected, and availability of precautions (section 58(4)).

The defence of due diligence under section 59 requires proof that the person took all reasonable precautions and exercised all due diligence to prevent the offence. This includes taking reasonable steps to prevent or avoid the circumstances, complying with relevant notices or orders, and as soon as becoming aware of the circumstances, reporting them to the Chief Public Health Officer, the Department or a council, and taking all reasonable steps to prevent or reduce the risk. This defence does not apply to bodies corporate charged under section 106 (section 59(3)).

Section 60 allows a court to find a defendant guilty of a lesser offence under Part 7 if not satisfied of the higher offence, based on relative maximum monetary penalties.

Notices under Part 12 are a primary enforcement tool. A relevant authority (Chief Public Health Officer or council) may issue a notice to secure compliance with a requirement under the Act or to avert a risk to public health (section 92(1)). The notice may impose requirements such as discontinuing an activity, taking specified action, undertaking tests, furnishing reports, or preparing plans (section 92(5)(f)). Non-compliance without reasonable excuse carries a maximum penalty of $25,000 (expiation fee $750) (section 92(10)). Hindering a person complying is also an offence ($25,000) (section 92(11)). If the notice is not complied with, the relevant authority may take the required action and recover costs as a debt (section 93). Costs may become a charge on land.

Emergency notices under section 92(6) may be issued orally by an authorised officer if urgent action is required, but cease to have effect after 72 hours unless confirmed by a relevant authority. Section 94 allows an authorised officer to take immediate action in emergency situations, including entering and taking possession of premises, seizing and destroying things, and using force if necessary. Costs may be recovered from the person who caused the risk.

Enforcement of Part 10 orders is supported by a duty to comply (section 81, penalty $25,000). Warrants may be issued by a magistrate for apprehension of persons who fail to comply, are unserved, or are engaging in risky conduct (section 79). The magistrate may order detention until compliance. Warrants may be executed using reasonable force.

Part 11A enforcement for COVID-19: section 90D provides that an emergency officer may exercise powers under section 25(2) of the Emergency Management Act 2004 to enforce directions. Non-compliance carries up to $20,000 or imprisonment for 2 years for individuals, $75,000 for bodies corporate. Hinderance carries $10,000. Directors and managers of bodies corporate may be personally liable (section 90D(5)). An emergency officer may require a person suspected of an offence to state their name and produce identification; non-compliance carries $5,000 (section 90D(8)).

General enforcement provisions: proceedings may only be commenced by the Minister, DPP, Chief Public Health Officer, authorised officer, CEO of a council, police officer, or a person acting on written authority of the Minister (section 105). Offences by bodies corporate: directors and governing body members may be personally liable for prescribed offences (section 106). Continuing offences attract additional daily penalties of up to one-fifth of the maximum (section 107). Evidentiary provision (section 108) allows the court, Review Panel or Tribunal to accept an assessment of risk by a designated entity (Chief Public Health Officer, authorised officer, or council) as evidence of the existence and extent of the risk. False or misleading information carries a maximum penalty of $25,000 (section 104).

How it interacts with other laws

Section 16(1) provides that except as specifically provided by this Act, its provisions are in addition to and do not limit the provisions of any other law of the State. Section 16(2) explicitly states that the Act is not intended to prevent prosecution under another enactment for an offence also punishable under this Act, or to prevent higher penalties under other laws. Section 16(3) provides that nothing in the Act affects or limits a right or remedy that exists apart from the Act.

The Act interacts closely with the Emergency Management Act 2004. Under section 90, on the declaration of a public health incident or public health emergency, specific provisions of the Emergency Management Act are applied with modifications. These include Part 4 Division 4 (Powers in relation to declared emergencies except section 25(1) and (2)(n)), Part 4 Division 5 (Recovery operations), Part 5 (Offences), and Part 6 (Miscellaneous except sections 37 and 38). Modifications in section 90(2) substitute references: the Minister under this Act, the Chief Executive for State Co-ordinator, emergency officer for authorised officer, Public Health Emergency Management Plan for State Emergency Management Plan, and appropriate references for incident and emergency types. Section 90(3) restricts the use of powers to isolate or segregate persons under the applied Emergency Management Act: such powers may only be exercised if there is no reasonable cause to act under Part 10 or the Mental Health Act 2009, or if there are significant public health advantages in acting under the applied provisions. Review rights under section 90(5) apply if a direction exceeds 24 hours.

Part 11A (COVID-19) also interacts with the Emergency Management Act. Directions under section 90C may require or allow persons to act in contravention of another law of the State (section 90C(2)(a)). They may only operate if a relevant emergency declaration under section 23 of the Emergency Management Act is in force (section 90C(3)). Section 90D(1) gives emergency officers the powers under section 25(2) of the Emergency Management Act to enforce directions.

The Act interacts with the Food Act 2001, adopting definitions of food and food business (section 3). It also adopts definitions from the Local Government Act 1999 (council, council subsidiary), the Health Care Act 2008 (health service, hospital), the Health Practitioner Regulation National Law (medical practitioner), the Australian Immunisation Register Act 2015 (vaccine preventable disease), the Family Law Act 1975 and Family Court Act 1997 (parenting order), the Children and Young People (Safety) Act 2017 (care), and the Freedom of Information Act 1991 (certain documents are exempt from access under sections 64(9), 68(14), and 84).

Part 10 orders from interstate that correspond to this Act's orders have effect in South Australia under section 83, if declared corresponding laws by regulation.

The Act does not limit the operation of the Mental Health Act 2009, as section 90(3) shows that Part 10 or the Mental Health Act may be used as alternatives.

Section 16(2) allows prosecution under other Acts for the same conduct, and higher penalties may be imposed. The Act is supplementary to other health and safety laws.

Amendment history

The Act received assent on 16 June 2011 (No 21 of 2011) and commenced in stages from 23 February 2012. Key amendments include:

Statutes Amendment (Directors' Liability) Act 2013 (No 16 of 2013) amended section 59 (defence of due diligence) and substituted section 106 (offences by bodies corporate), effective 17 June 2013. This introduced director liability for prescribed offences.

South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2019 (No 8 of 2019) inserted Part 12A (Immunisation and Early Childhood Services) effective 1 July 2019, except sections 96B and 96C(1)(b) which commenced 1 January 2020. This imposed requirements for immunisation records and prohibitions on enrolment without immunisation.

Statutes Amendment (SACAT) Act 2019 (No 14 of 2019) amended sections 76, 96, and 108 to substitute references to the South Australian Civil and Administrative Tribunal for the District Court Administrative and Disciplinary Division, effective 2 December 2019. Transitional provisions in that Act (section 171) preserved existing review rights.

South Australian Public Health (Controlled Notifiable Conditions) Amendment Act 2020 (No 1 of 2020) amended Part 10 provisions relating to orders for examination, testing, counselling, directions and detention, effective 5 March 2020. It substituted sections 73(8), 74(3), 75(3), 77(1) and (3), and inserted new subsections for oral orders and confirmation requirements, as well as subsections 77(8a) and (8b) for Magistrates Court review of 48-hour detention extensions.

COVID-19 Emergency Response Act 2020 (No 7 of 2020) inserted section 103A providing Crown immunity for acts or omissions in connection with the COVID-19 outbreak, effective 9 April 2020.

South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2020 (No 12 of 2020) inserted sections 96BA and 96BB (prohibition on enrolment and provision of services where immunisation requirements not met), and amended section 96A and 96E, effective 7 August 2020.

Statutes Amendment (COVID-19 Permanent Measures) Act 2021 (No 25 of 2021) amended sections 66 (inserting subsection (2a) allowing directions by oral, SMS or email), 73, 74, 75 (amending oral order confirmation provisions), 77 (inserting subsection (5a) for apprehension and restraint powers), and 99 (confidentiality), effective 9 September 2021.

South Australian Public Health (COVID-19) Amendment Act 2022 (No 1 of 2022) inserted Part 11A (COVID-19 arrangements) and Schedule 2 (Transitional provisions) effective 24 May 2022. Part 11A included sections 90A to 90G. Section 90C (Governor's directions) expired on 23 November 2022 as per section 90E(1)(b). The transitional provisions allowed continuation of pre-existing emergency directions as directions under the new Part 11A.

Children and Young People (Safety and Support) Act 2025 (No 25 of 2025) will amend Schedule 1 by inserting a reference to that Act, but is uncommenced as of the legislative history.

The Act also repealed the Public and Environmental Health Act 1987 and amended several other Acts including the Electricity Act 1996, Emergency Management Act 2004, Fire and Emergency Services Act 2005, Health Care Act 2008, and Summary Offences Act 1953.

Litigation history

The Act establishes multiple review and appeal mechanisms but the text itself does not cite any decided cases. The following review bodies and rights are provided for in the Act:

Notices under Part 12 to secure compliance with the general duty may be reviewed by the Public Health Review Panel (section 95). The Panel is constituted by the Chief Public Health Officer (or delegate if the notice was issued by the Chief Public Health Officer) and two members of SAPHC, plus any additional expert. The review is a full review, and the Panel may confirm, vary, revoke, substitute, remit, or dismiss. The Panel must hear and determine the application within two months unless the Chief Public Health Officer allows an extension. The person may then apply to the Tribunal under section 96 for review of the Panel's decision, or may apply directly to the Tribunal without first going to the Panel. A council may also apply to the Tribunal for review of the Panel's outcome. The Tribunal conducts the review under the South Australian Civil and Administrative Tribunal Act 2013.

Orders, requirements or directions under Part 10 (controlled notifiable conditions) may be reviewed by the Tribunal under section 76. The application may be made at any time during the currency of the order. For second or subsequent applications, the Tribunal must consider whether there has been a significant change in circumstances and may decline to proceed.

Detention orders under section 77 are reviewed by the Supreme Court under section 78. The person may apply at any time during the order. The Supreme Court (single Judge) may confirm, vary, revoke, substitute, remit, or dismiss. There is also a requirement under section 77(7) that if the Chief Public Health Officer considers extension beyond the initial 30 days necessary, they must apply to the Supreme Court before expiry. The Supreme Court may then confirm, vary or revoke. Total detention cannot exceed 6 months unless the Supreme Court confirms the order under section 77(9). For orders based on possible exposure (section 77(1)(a)(iii)), extension beyond 48 hours requires application to the Magistrates Court under section 77(8a). The Magistrates Court may confirm, vary or revoke.

Warrants under section 79 are issued by a magistrate. A right of appeal lies to the Supreme Court (single Judge) against the magistrate's decision (section 79(7)). The Supreme Court may confirm, vary or quash.

Under Part 11 (emergencies), directions to isolate or segregate that exceed 24 hours may be reviewed by the Magistrates Court under section 90(5). The court may only revoke if satisfied the direction is no longer reasonably necessary (section 90(10)). Appeals from the Magistrates Court go to the District Court Administrative and Disciplinary Division (section 90(13)). The court must hear the matter as soon as reasonably practicable. Persons subject to directions are not entitled to attend proceedings but may be represented by a nominated person (section 90(18)).

Under Part 11A (COVID-19), a person subject to a direction to isolate or quarantine at a place other than their residence may apply to the Magistrates Court for review (section 90G). Appeals go to the District Court. Similar procedural provisions apply, including that the person is not entitled to attend but may be represented and may participate by audio visual link if reasonably practicable.

The Act does not mention any reported decisions of the courts or tribunals. Practitioners should consult the South Australian Civil and Administrative Tribunal and Supreme Court databases for decisions interpreting the Act.

Gotchas

The general duty in section 56 is potentially broad. While section 56(4) states that breach alone does not give rise to civil or criminal liability, this is subject to section 56(5) allowing enforcement by notice under Part 12, and section 56(6) stating that subsection (4) does not limit other provisions. A person could be liable for an offence under Part 7 even if the general duty is not directly enforceable. The defence of due diligence under section 59 requires proof of immediate reporting as soon as becoming aware of the circumstances giving rise to the risk. Delay in reporting may defeat the defence, even if the person otherwise took precautions.

Oral orders under Part 10 must be confirmed in writing within 72 hours, but section 73(8a) explicitly states that a failure to serve a written notice does not affect the validity of the order. This means an oral order remains enforceable even if written confirmation is not provided within 72 hours. Similarly for counselling orders (section 74(3a)), directions (section 75(3a)), and detention orders (section 77(3a)). This is a significant power: an oral order can be enforced despite non-compliance with the confirmation requirement.

The principles in section 14 for Part 10 include an overriding community right to be protected (section 14(2)), which may prevail over individual rights. Section 14(6) states that any requirement restricting liberty should not be imposed unless it is the only effective way remaining to protect public health. However, this principle is subject to the overriding principle. In an emergency context, the balance could tip in favour of protective action.

For COVID-19, section 90F provides that if a public health incident or emergency is declared under Part 11 in respect of COVID-19, then principles in section 14(6), (7) and (9) do not apply to directions given in relation to that emergency. Section 14(6) is the 'only effective way' principle, section 14(7) is the 'least restrictive means' principle, and section 14(9) is the requirement to inform next of kin. This means that during a COVID-19 emergency, directions can be given without the usual constraints of least restrictive measures. Also, section 90(3), (4) and (5) are excluded, so the restrictions on using Emergency Management Act powers (e.g., only if no reasonable cause to act under Part 10) and the review rights for directions exceeding 24 hours do not apply. This significantly reduces safeguards.

The Crown immunity provision in section 103A for COVID-19 is absolute: despite any other provision of this Act or any other Act or law, no liability attaches to the Crown in respect of acts or omissions in connection with functions, powers or duties under the Act in relation to the COVID-19 outbreak, including any failure to exercise a function. This is broader than the standard immunity in section 102 which requires honest acts or omissions and preserves liability against the Crown (subject to section 103 which excludes civil liability for designated authorities). Section 103A overrides all other laws.

Section 103 provides that a failure by a designated authority (Minister, Chief Public Health Officer, council, SAPHC) to perform a function under this Act, or a breach of duty imposed on them, does not give rise to any civil liability. This is a complete bar to civil claims for non-feasance or breach of statutory duty against these bodies.

The evidentiary provision in section 108 is powerful: if the court, Review Panel or Tribunal is satisfied that a designated entity (Chief Public Health Officer, authorised officer, council) has assessed a risk to public health, the court must accept that assessment as evidence of the fact that a risk existed and its extent or significance, in the absence of proof to the contrary. This reverses the normal evidentiary burden on the issue of risk.

Information furnished under section 49 (specific power to require information) or under other provisions such as section 47 may not be used as an excuse to refuse to answer on grounds of self-incrimination. However, the fact of production or any answer given is not admissible in evidence against the person for an offence or penalty (except for false or misleading information). This 'use immunity' does not extend to derivative evidence. Practitioners should be cautious.

The definition of person in section 3(5) is broad for causation: a person may cause something if they contribute to something happening, allow or permit it to happen, or contribute to the continuation of a condition for which they are responsible. This could catch persons who fail to act.

Under section 101(4), orders under Part 10 must be served personally on the relevant person. However, subsection (5) allows alternative service if personal service is not reasonably practicable. And subsection (6) provides that subsection (4) does not apply to written notice confirming an oral order. So oral orders can be confirmed without personal service.

The defence of due diligence under section 59 does not apply to bodies corporate charged under section 106 (director liability provisions). Directors and governing body members may be personally liable for prescribed offences if they could not prove due diligence prevented the offence.

How to comply

Any person or entity subject to the Act should first understand the general duty in section 56. This requires taking all reasonable steps to prevent or minimise harm to public health. What is reasonable depends on the objects of the Act and factors listed in section 56(2). A person should conduct a risk assessment of their activities to identify potential public health impacts. Where the Minister has published policies under Part 5 or codes of practice under Part 8, those should be followed, as section 56(3)(b) provides that acting in accordance with such a policy or code will be taken not to be a breach.

Persons subject to notification duties under Part 9 must establish systems to promptly identify and report notifiable conditions and contaminants. Medical practitioners, pathology services, and prescribed persons must report notifiable conditions to the Chief Public Health Officer within three days of suspicion (section 64(1)). Laboratory services must report notifiable contaminants within 24 hours (section 68(1)). Reports must be in the manner and form determined by the Chief Public Health Officer and include required information (sections 64(2), 68(6)). Continual compliance requires up-to-date knowledge of which diseases and contaminants are declared by regulation or by Ministerial notice.

Providers of early childhood services must ensure that no child is enrolled or provided services unless immunisation records provided under section 96B(1) indicate the child meets immunisation requirements (sections 96BA, 96BB). Records must be kept for the period of enrolment (section 96B(4)). On outbreak of a vaccine preventable disease, the provider must supply child information within 24 hours of a request from the Chief Public Health Officer (section 96C(2)). Providers must comply with exclusion directions (section 96D(6)). The Act provides a defence of good faith reliance on immunisation records (sections 96BA(2), 96BB(2)). Providers should maintain records showing they have checked immunisation status.

Persons who may be subject to Part 10 controls should cooperate with the Chief Public Health Officer. The Act encourages voluntary compliance: the Chief Public Health Officer should not impose a requirement unless the person has been given a reasonable opportunity to comply voluntarily or urgent action is required (sections 73(4), 74(2), 75(2)). If an order is served, the person must comply (section 81). The person may apply to the Tribunal for review (section 76). Legal advice should be sought promptly.

Councils must perform their functions as local public health authorities under section 37. They should prepare and maintain a regional public health plan in accordance with section 51, ensuring it is consistent with the State Public Health Plan, is reviewed every 5 years, and is submitted to the Chief Public Health Officer for consultation before operation. They must report biennially (section 52). Councils should cooperate with other councils and with the Chief Public Health Officer (section 39). They should maintain adequate immunisation services (section 38). They should appoint and supervise local authorised officers (section 44).

Businesses should be aware of the power to issue notices under Part 12. A relevant authority may issue a notice to secure compliance or to avert a risk. The person has a right to make representations before a notice is issued unless urgent action is required (section 92(2)(b)). If an emergency notice is issued orally, it ceases to have effect after 72 hours unless confirmed in writing (section 92(8)). If a notice is served, the person should comply promptly or seek review within 14 days (section 95). The notice may require specific action; costs of non-compliance may be recovered as a debt and may become a charge on land (section 93).

In the event of a public health incident or emergency, persons must comply with directions from emergency officers (section 90(1) applying Emergency Management Act powers). Failure to comply may be an offence. The Chief Executive will implement the Public Health Emergency Management Plan (section 89).

All persons should be aware of the confidentiality obligations in sections 99 and 100. Personal information obtained in the course of official duties must not be intentionally disclosed except as authorised. Unauthorised disclosure carries a maximum penalty of $25,000. Authorised disclosures include for the administration of the Act, as required by law, with consent, for treatment, to prevent transmission of a controlled notifiable condition, or to lessen a serious threat to life, health or safety.

The Minister must review the Act after 5 years via the Social Development Committee of Parliament (section 110), which may result in amendments. Practitioners should monitor any changes and updated regulations.