Learn how to protect your rights with legal insights and navigate the complexities of COVID-19 regulations under the SA PHA 2011 amidst the pandemic, leveraging statutory presumptions and human rights concerns to protect your personal freedom.

(This is a fictional case study)

Role Play

You have been instructed by the Commissioner of Police for South Australia to provide a legal opinion regarding the following story in South Australia. You will need to conduct independent research and refer to the applicable legislation and techniques and rules of statutory interpretation in your answer. Your answer should be written in the format of an advice given by a barrister to a solicitor.

Background Story

‘Come Fly with Me’

24 June 2021 is a beautiful day in Griffith, NSW, and Abigail, Beatrice and Craig have decided
to take a joy flight. Abigail has recently obtained a pilot’s licence and she is keen for some
practice. Beatrice and Craig really feel it would be great to get away from the stresses of
their lives. They have been a couple for the past 5 years and their relationship has fallen on
tough times during the COVID-19 pandemic. Craig has been short of work as he normally
performs in a band at major events. He is stressed and short tempered, and Beatrice has
almost had enough. They are both worried that they can no longer pay the rent and they are
increasingly argumentative with each other.

The plane takes off to the south and flies over outback South Australia. The group gradually
relaxes and enjoys the views. After some hours into the flight, while flying over Coober Pedy, the
plane engine develops a strange noise. Abigail has never heard this noise before and is
highly alarmed. She remembers the emergency procedures she has learned and looks for a
safe place to land. Fortunately, she sees a station below has a landing strip. She puts the
plane down. Shaken but safe, the three walk into town and stop at a karaoke bar, Sing
Along. A QR code is posted in the window, but, too discombobulated by the emergency
landing, they don’t notice. They go in and order drinks. Abigail feels that singing might help
her recover her serenity, so she selects a Frank Sinatra song, ‘Come Fly With Me’ and starts
to croon, the crowd in the bar seem to enjoy this and many start to join in as she moves
onto Bette Midler, ‘Wind Beneath My Wings’.

An Argument at the Bar

Beatrice and Craig still feel quite upset. They drink their drinks rather fast, and an argument
starts up about their money troubles. While she is making a point emphatically, the stool
Beatrice is on tips, and she loses her balance, bumping her nose on the edge of the counter.
Craig grabs her arm, and giving her a sharp shake, he growls ‘be careful’. Beatrice
rubs her arm, which is reddened where he has grabbed her, resumes her seat and continues
to tell Craig how they have no chance to get work in NSW.

Meanwhile the bartender, Daria, overhearing the heated conversation and guessing they
have all come from NSW, calls the local police officer, Estefan. Estefan quickly comes to the
bar and informs Abigail, Beatrice and Craig that they have breached COVID restrictions. He
detains them, advises them that he will charge them. At a short court hearing they are
given bail and instructed to leave the state immediately.

Beatrice feels very tired. Her arm is sore where Craig grabbed her and she refuses to leave
the courtroom, saying she is fearful that he will be angry with her.

The state’s Chief Health Officer calls each of the three and tells them that they need to be
COVID tested. Abigail and Craig comply but Beatrice, who has developed a spicy cough, and
has a swollen nose after the events in the bar, refuses. The Chief Health Officer directs
Beatrice to isolate in a remote cabin in Cooper Pedy for 28 days.

(*** University of Adelaide provides this background story)

My Legal Opinion

Dear Mr. Hansen,

In this email, I will share my legal opinion and analysis to help you understand the recent events in SA related to the COVID-19 pandemic.  

Based on the facts you provided in your previous email, we need to examine whether the authorities have abused their power in their circumstances regarding individual rights.

1. Did local police officer Estefan legally detained these visitors?

First, we need to analyze whether these visitors crossed the border illegally, as Estefan stressed that they breached COVID-19 restrictions.

– Materials

At the time they entered SA, the relevant COVID-19 legislations in force were as follows:

  • Emergency Management Act 2004 (SA) [EMA 2004]
  • COVID-19 Emergency Response Act 2020 (SA) [COVID-19 2020]
  • Emergency Management (Cross Border Travel – General) (COVID-19) Direction 2021 [GD] 
  • Emergency Management (Cross Border Travel – Association Direction No. 20) (COVID-19) Direction 2021 [AD No. 20] 
  • SA Public Health Act 2011 [PHA 2011]
  • South Australia Consent to Medical Treatment and Palliative Care Act 1995 [Consent 1995]
  • Summary Offences Act 1953 SA [SOA 1953]
  • Privacy Act 1988 [PA 1988]
Important note

Section 4 of the ‘General Direction’ defines ‘associated direction’ as “a direction made under s 25 of the ‘EMA 2004’ that is to operate as an appendix to this general direction”. We may read them together as a whole ‘to achieve the purpose of the Act’ based on s 15AA of the Acts Interpretation Act 1901 (Cth), as stated explicitly in the Preamble of both Directions. [1]

The purpose of the Act (Emergency Management Act 2004)

After reviewing the objects of the ‘EMA 2004’, we understand that the purposes of this Act are to ‘…reduce community vulnerability in the event of an emergency’,[2] through ‘prevention’ and ‘collective responsibility…including individuals.’ [3]

Hence, the underlying principle is to ‘minimize the risk’ in every part of the society. Although the word ‘control’ is absent in the objects, it may be intentionally omitted to ‘gain successful passage of a bill’. [4] However, to authorize police officer, [5] suggests that legislators intend to use police power to control the situation where necessary, as implied by s 5 of the ‘EMA 2004’. [6] The dominant purpose is to gain full control.

Application

The phrase ‘subject to…’ in s 5 of ‘AD No. 20’, indicates that ‘specified class of person’ is a subordinate clause, while ‘level of requirement’ is a dominant clause, even in different legislations.[7] Section 5(1) of ‘AD No.20’ further clarifies that arrivals from a specified location ‘must comply with’ the requirement. The word ‘must’ confers a mandatory obligation. [8]

Reading s 5(1) of ‘AD No.20’ and s 5(1) of ‘GD’ together, we understand that unless the three NSW visitors are ‘essential travelers’ and ‘permitted arrivals’, they crossed the SA border illegally, as the authorities declared NSW a restricted zones on June 24, 2021.[9]  

Analysis of Terms

To find out if they are ‘essential travelers’, we examine the section of ‘passing through’ under s 10 of Schedule 3 of ‘GD’ :

The Most Direct and Practical Route and Means

The dictionary defines ‘direct’ as proceeding by the shortest way. [10] Arguably, compared with other transportation tools, an airplane is the most direct route in relation to time, space and speed. The meaning of ‘practical’ refers to the capability of being put to use. [11] Relatively, the rate of obtaining a pilot’s license is lower than that of driver’s license. Therefore, flying may not be the most practical means. We can construe the expression ‘direct and practical’ here as a hendiadys. [12] To read this phrase conjunctively or disjunctively is linked to the purpose of ‘EMA 2004’, which is to minimize the risk; therefore, it is reasonable to read this hendiadys conjunctively to tighten the restriction.

Permission

Unless the authorities accept Beatrice’s case as Domestic Violence arrival.

‘Coober Pedy’ and ‘Supplies’

They might not stay there much longer, and we can only detect ambiguity for the word ‘supplies’. The dictionary defines ‘supplies’ as the quantity or amount (as of a commodity) needed or available and the act or process of filling a want or need. [13]

The second meaning touches the ‘psychological’ side. As Abigail ‘feels that singing might help her recover her serenity’ after their emergency landing, singing can be a reasonable act to fill their want to ‘calm down’. However, to align with the purpose of ‘EMA 2004’ to ‘reduce community vulnerability’, we need to ‘read down’ to constrain the meaning to reach a constitutionally valid interpretation.[14] Coober Pedy is the traditional land where Indigenous people have long historical connection, so to protect this vulnerable community, we need to limit activities. Thus, any ambiguity shall served to best promote the purpose of the Act. [15] Consequently, ‘singing’ is not part of ‘supplies’.

Non-essential Contacts

The meanings of ‘essential’ include: ‘of essence, Inherent’ and ‘of the utmost importance, basic, indispensable, necessary’.[16] Something ‘being essential’ only refers to things with a permanent character, not temporary. One will always need foods, water, groceries, but one may not always need to ‘sing’. As we have already applied ‘reading down’ to ‘supplies’, ‘singing in the crowd and interacting with other guests at the bar’ is clearly not a permanent need. Hence, they didn’t avoid non-essential contacts.

    The conclusion is that the three NSW visitors are not ‘essential travelers’.

    Examination of Beatrice’s Situation

    2. Next, we look at s 3 of Schedule 2 of ‘GD’ to examine if Beatrice qualifies as ‘Domestic Violence arrival’ regarding ‘reasonably necessary’ and ‘purpose’ under ‘Permitted Arrivals’. The dictionary defines domestic violence as ‘violent or abusive behavior directed by one family member or household member against another’, [17] and ‘abusive behavior’ refers to using or involving physical violence or emotional cruelty.

    Given that Beatrice felt that she ‘has almost had enough’ of Craig, it appears she has been suffering at least emotionally, fitting into the category of DV. Joining this joy flight demonstrates at least she (and Craig) is ‘dealing with circumstances arising out of DV’.

    The journey in the sky means they already entered SA by flying cross the border with that ‘healing’ purpose in mind. No law saying the sky above SA is not part of SA. The emergency landing didn’t change the original purpose but added an additional one still highly associated with the original purpose. Hence, the entire entry (in the sky and after the emergency landing) is for that healing purpose, although this is not the dominant purpose of the Act ‘EMA 2004’. 

    Based on the analysis above, they crossed the border illegally. They have Art 12(1) of ICCPR to defend their rights to the liberty of movement, [18] but Art 12(3) of ICCPR stipulates that such rights shall be subject to the law protecting public health.[19]

    “Arrest”

    The police officer may exercise the power under s 75 of SOA 1953. The State must prove one critical element to meet the condition of ‘arrest’, which is an offence.

    The legal definition of ‘offence’ means ‘an infraction of law’.[20] But the breach requires another element – mens rea – as ‘every offence must contain mens rea, which is imputed even where it is not specifically stated’.[21]

    As visitors coming from NSW, unless they crossed SA border by car or arrived at Adelaide Airport, chances are they may not know these changeable prohibitions regarding individual rights, particularly when choosing private aircraft. Also, unless there are noticeable sign displayed outside the bar explicitly stating, ‘No Entry for Visitors from NSW’, they might not be equipped with such a warning.

    “Reasonable Cause”

    In s 75 of SOA 1953, the phrase ‘reasonable cause to suspect…’ empowers the police to use subjective discretion.

    First, the dictionary defines ‘reasonable’ as “being in accordance with reason, and not extreme or excessive”. [22]

    Based on the facts provided, Estefan detained them shortly after arriving. The basic reason in our case is that, unless an exception applies, your origin solely dictates whether you can enter SA. While the exception will be investigated later, the single fact that you are from NSW is sufficient for the police officer to suspect you. Additionally, whether Estefan’s suspicion is ‘extreme or excessive’ can be compared to an ordinary person’s standard. The fact Bartender Daria called the police after learning these guests were from NSW, supports that the police officer’s suspicion is not extreme.

    ICCPR for Rights Protection

    Second, the dictionary defines ‘suspect’ as ‘to imagine (one) to be guilty on slight evidence or without proof, or probable…’. [23]

    Section 75 of SOA 1953 permits the police to arrest even without sufficient evidence of intent.

    The police officer is still entitled to arrest them even if no fault is present. The law gives the police officer intrusive and totalitarian power based on subjective (discretionary) judgement. The legal meaning of ‘arbitrary’ is defined as anything ‘depending on individual discretion and not fixed by law’. [24] While this is against the principle of ‘no arbitrary arrest or detention’ under Art 9 (1) of ICCPR, [25] it can be overridden by the government as it is still in accordance with domestic law, which does not necessarily mean ‘international law’. [26]

    It remains unknown whether they are charged with a criminal offence, but if it’s evidenced that they do not have fault, they have Art 15(1) of ICCPR to protect their rights, as Statutes should also be interpreted in line with international law obligations. [27]  

    2. Whether Chief Health Officer’s direction to Beatrice for both testing and isolation is lawful?

    We look at the primary Act ‘SA PHA 2011’ to see the condition for the CPHO to ‘reasonably’ require a test.

    Section 73 (1) of the Public Health Act 2011 (SA):

    • ‘controlled notifiable condition’ – The definition of ‘notifiable’ means ‘required by law to be reported to official health authorities’. [28] Based on the slight similarity, Beatrice’s spicy cough and a swollen nose are not necessarily identified as ‘notifiable conditions’ .
    • ‘reasonable grounds to believe’ – More evidence is needed for such similarities to qualify for the CPHO ‘believing that the person is likely to present a risk’. ‘Believe’ means ‘to accept the evidence’.[29] And ‘a likely risk’ is linked to the probability, but ‘the belief probability refers to the credibility – the believability – of the evidence in support of a party’s factual claims’.[30]

    It’s hard to argue that requiring a test based on Beatrice’s symptoms is reasonable. Beatrice may use s 6 of ‘Consent 1995’ as her defense for her rights.

    Under s 75 of SA PHA 2011, the CPHO still has the discretionary power to give further directions, including isolation. However, the CPHO should not act unless Beatrice has undergone counselling under s 75 (2) based on procedure fairness protecting individual’s rights.

    Additionally, s 75(5) states that the CPHO ‘must not impose a direction’ if the person ‘has a conscientious objection…due to a religious, cultural or other similar ground…’. The list of grounds is not exhaustive. A ‘privacy ground’ may fit in.  Health information, including any data related to medical examination, is part of our privacy as this is ‘personal information’. [31]

    Statutory Presumption Protecting Rights

    Basically, a statutory presumption allows beneficial provisions, such as s 75(5), to be broadly construed where ambiguity arises.[32] An interpretation that benefits Beatrice is favored if it aligns with the purpose of SA PHA 2011 to protect individual rights. [33] 

    3, Human Rights Concern

    These issues highlight the conflict between individual freedom and government power, which usually threatens human rights.

    Rebuttable statutory presumptions protect ‘the principle of legality’,[34] but Parliament can intentionally abrogate fundamental rights, even contravening international law, if stated clearly. Such a violation is legal according to ‘derogation’ under Art 4(1) and (2) of ICCPR.[35]

    COVID-19 seems to justify such derogation. ‘SA PHA 2011′ clearly states in s 14(2) the ‘overriding principle’ that the collective interest is higher than individual interest during the ‘infectious pandemic’. [36] The State’s intention to use the police power to uphold this principle where necessary is implied by defining ‘authorized person’ as ‘police officer’.

    Section 4 elaborates on the compromise: If the State intends to encroach upon fundamental rights and freedom, it must be the ‘last resort’, [37] with minimum infringement, [38] and ‘proportionate to risk’ suggests that the authorities must examine the situation at discretion.[39]

    For example, considering Beatrice mental stress and her symptom not being ‘identical’ with COVID-19, isolating her remotely for 28 days might not be the ‘least infringement’ on her individual rights.

    4, Final Note on Individual Rights

    My final note is that Statutory Interpretation can be daunting, especially when the intention of the legislation conflicts with our individual rights. Unfortunately, it’s our obligation to interpret it as it is. If we doubt democracy because of legislative encroachment, our role to interpret the law instead of ‘making the law’ manifests the separation of power – the backbone of democracy.

    (END)

    Footnote
    Part 1

    [1] Section 4 of ‘General Direction’ defines ‘associated direction’ as ‘a direction made under s 25 of the ‘EMA 2004′ that is to operate as an appendix to this (general) direction’, we may read them together as whole ‘to achieve the purpose of the Act’ based on s 15AA of Acts Interpretation Act 1901 (Cth), which has also been expressively stated in the Preamble of both Directions.

    [2] Emergency Management Act 2004 (SA) s 2(1).

    [3] Emergency Management Act 2004 (SA) s 2(3).

    [4] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 74.

    [5] Emergency Management Act 2004 (SA) part 1.

    [6] Emergency Management Act 2004 (SA) s 5.

    [7] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 162.

    [8] Acts Interpretation Act 1915 (SA) s 34.

    [9] AD No. 20 s 6(3).

    [10] Direct, Merriam-Webster Dictionary,  https://www.merriam-webster.com/dictionary/direct .

    [11] Practical, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/practical .

    [12] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 152.

    [13] Supplies, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/supply .

    [14] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 101.

    [15] Acts Interpretation Act 1901 (Cth) s 15AA.

    [16] Essential, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/essential .

    [17] Domestic Violence, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/domestic%20violence .

    [18] ICCPR, Art 12 (1).

    [19] ICCPR, Art 12 (3).

    [20] Offense, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/offence .

    Part 2

    [21] Hogan v Hinch [2011] HCA 4.

    [22] Reasonable, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/reasonable .

    [23] Suspect, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/suspect .

    [24] Arbitrary, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/arbitrary .

    [25] ICCPR, Art 9.

    [26] F.J. v Australia, para. 9, p2.

    [27] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 284.

    [28] Notifiable, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/notifiable .

    [29] Believe, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/notifiable .

    [30] David W. Barnes, ‘Too many probabilities: statistical evidence of tort causation’ (2001) 64(4) Law and Contemporary Problems 190, 192.

    [31] Privacy Act 1988 (Cth) s 6.

    [32] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 237.

    [33] Public Health Act 2011 (SA) s 14(5)(d).

    [34] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) 297.

    [35] ICCPR, Art 4.

    [36] Public Health Act 2011 (SA) s 14(2).

    [37] Public Health Act 2011 (SA) s 14(6).

    [38] Public Health Act 2011 (SA) s 14(7).

    [39] Public Health Act 2011 (SA) s 14(5)(e).