Role Play
You have been instructed by the Commissioner of Police for South Australia to provide a
legal opinion in relation to 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.
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. 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’.
Beatrice and Craig are still 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, rights her 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 they will be charged. At a short court hearing they are
given bail and instructed to leave the state immediately.
Beatrice is now 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.
(***This background story is created by University of Adelaide)
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 COVID-19 pandemic.
Based on the facts that you provided in your previous email, the pressing issue we need to examine is whether the authorities have abused power in the given circumstances.
1. Whether the local police officer Estefan legally detained these visitors?
We shall first analyze if they cross the border illegally as Estefan stressed that they breached COVID-19 restrictions.
– Materials
At the time they entered SA, the list of relevant COVID-19 legislations in force is 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 ‘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. [1]
The purpose of the Act (Emergency Management Act 2004)
After an intrinsic review to the objects of ‘EMA 2004’, we know 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’ at every front of the society. Although the word ‘control’ is absent in the objects, it may be intentionally hidden to ‘gain successful passage of a bill’. [4] But to authorize police officer, [5] suggests the legislators intend to use the power of the police to control the situation where it is necessary, this is implied by s 5 of ‘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 subordinate clause, while ‘level of requirement’ is dominant clause, even in two different legislations.[7] s 5(1) of ‘AD No.20’ has further clarified that the arrivals from a specified location ‘must comply with’ the requirement. The word ‘must’ confers a mandatory obligation. [8]
Putting s 5(1) of ‘AD No.20’ and s 5(1) of ‘GD’ together, we know, unless three NSW visitors are ‘essential travelers’ and ‘permitted arrivals’, they crossed the SA border illegally, as NSW is already declared to be the NSW restricted zones on June 24, 2021.[9]
- 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 meaning of ‘direct’ in the dictionary includes: proceeding by the shortest way. [10] Arguably, compared with other transportation tools, airplane is the most direct route in relation to time, space and speed. The meaning of ‘practical’ refers to: capable 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. The expression ‘direct and practical’ here can be construed 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 Beatrice’s case is accepted 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’. In the dictionary the meanings of ‘supplies’ include: 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 one touches the ‘psychological’ side. As Abigail ‘feels that singing might help her recover her serenity’ after their emergent landing, singing can be a reasonable act to fill their want to ‘calm down’. But to be in line 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] because Coober Pedy is the traditional land where Indigenous people have long historical connection with, to protect vulnerable community, we need to limit the activities. Thus, any ambiguity shall be served as 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 the things with permanent character, not temporary. One will always need foods, water, groceries, but one may not always need to ‘sing’. As we already applied ‘reading down’ to ‘supplies’, so ‘singing in the crowd and to interact with other guests at the bar’ is obviously not a permanent need. Hence, they didn’t avoid non-essential contacts.
The conclusion is three NSW visitors are not ‘essential travelers’.
2. Then we look at s 3 of Schedule 2 of ‘GD’ to examine if Beatrice is qualified as ‘Domestic Violence arrival’ as to ‘reasonably necessary’ and ‘purpose’ under ‘Permitted Arrivals’. DV in the dictionary means ‘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.
From what Beatrice felt that she ‘has almost had enough’ of Craig, it appears she has been suffering at least emotionally, she might fit into the category of DV. To 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 emergent landing didn’t twist the original purpose, just adding an additional one which is still highly associated with the original purpose. Hence, the entire entry (in the sky and after 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 defense 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]
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’, that 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 in Adelaide Airport, chances are they may not know these changeable prohibitions particularly when choosing private aircraft. Also, unless there are noticeable sign displayed outside the Bar expressively stated, ‘No Entry for Visitors from NSW’, they might not be equipped with such warning.
In s 75 of SOA 1953, the phrase ‘reasonable cause to suspect…’ empowers the police to use subjective discretion.
First, the meaning of ‘reasonable’ in the dictionary includes “being in accordance with reason, and not extreme or excessive”. [22]
Based on the fact provided, Estefan detained them shortly after he arrived. The very basic reason in our case is, unless exception applies, where you are from dictates solely whether you can enter SA. While the exception shall be investigated later, a single fact that you are from NSW is sufficient for the police officer to have suspicion over you. Besides, whether Estefan’s suspicion is ‘extreme or excessive’ can also be compared with ordinary person’s standard. The fact Bartender Daria called the police after knowing these guests coming from NSW, supported that the police officer’s suspicion is not extreme.
Second, the word ‘suspect’ in the dictionary means ‘to imagine (one) to be guilty on slight evidence or without proof, or probable…’. [23]
S 75 of SOA 1953 permits the police to arrest even without sufficient evidence as to the intention.
However, the police officer is still entitled to arrest them even the fault is absent. 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 it is against the principle of ‘no arbitrary arrest or detention’ under Art 9 (1) of ICCPR, [25] it will be pushed back by the government as it is still in accordance with domestic law and the law 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 what the condition for the CPHO is to ‘reasonably’ require a test.
In the s 73 (1) of 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 condition’ .
- ‘reasonable grounds to believe’ – It needs more evidence for such similarities to be qualified for the CPHO ‘believes 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 hardly to argue that to require a test based on Beatrice’s symptoms is reasonable. Beatrice may have s 6 of ‘Consent 1995’ as her defense.
Under s 75 of SA PHA 2011 the CPHO still has the discretionary power to give further directions, including isolation. However, the CPHO shall not act so unless Beatrice has undertaken counselling under s 75 (2) based on procedure fairness.
Additionally, s 75(5) addresses 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 it in. Health information including any data related to medical examination is part of our privacy as this is ‘personal information’. [31]
Statutory presumption allows beneficial provision, such as s 75(5), to be broadly construed where ambiguity arises,[32] so an interpretation towards the better benefit for Beatrice is favored, if in line with the purpose of SA PHA 2011 to protect individual freedom. [33]
3, Human Rights Concern
These issues have manifested the conflict between individual rights and the power, which usually threatens human rights.
Rebuttable statutory presumptions are to protect ‘the principle of legality’,[34] but Parliament can intentionally abrogate fundamental rights even to contravene international law, if clearly to say so. Such 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 expounds in s 14(2) the ‘overriding principle’ that the collective interest is higher than individual interest during the ‘infectious pandemic’. [36] State’s intention to use the police power to uphold the overriding principle where it is necessary, is implied by the definition that ‘authorized person’ means ‘police officer’.
The compromise is elaborated in the s 14 – If State intends to encroach upon fundamental rights, it must be the ‘last resort’, [37] with minimum infringes. [38] and ‘Proportionate to risk’ suggests that we shall examine the situation at discretion.[39]
For example, considering Beatrice mental stress and her symptom has not reached the level to be ‘identical’ with COVID-19, to isolate her remotely for 28 days might not be the ‘least infringes’.
4, Final Note
My final note is that Statutory Interpretation could be daunting, especially when the intention of the legislation is against our personal value. Unfortunately, it’s the obligation for us to interpret it as it is. If we are doubting the democracy because of the encroachment by the legislation, then our role to interpret the law instead of ‘making the law’ manifests the separation of power – the backbone of democracy.
(END)
[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 .
[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).