The South Australian Police Commissioner announced last week that the COVID-19 vaccination orders for police would cease from 7 March, replaced with other control measures. He also indicated that the current emergency declaration could cease within a month, meaning that orders issued under them would cease to exist. Organisations in industries that are subject to the vaccination orders will be affected in several ways. Employers in other states should also plan for life after government-mandated vaccination.
Vaccination orders under the emergency management act
In South Australia, the State Co-Ordinator declared a major emergency (for COVID-19) in accordance with s 23 of the Emergency Management Act 2004 (SA). Section 25 provides the following powers to issue the orders (emphasis added):
25—Powers of State Co-ordinator and authorised officers
On the declaration of an identified major incident, a major emergency or a disaster under Division 3, and while that declaration remains in force, the State Co-ordinator must take any necessary action to implement the [State Emergency Management Plan] and cause such response and recovery operations to be carried out as he or she thinks appropriate.
Without limiting or derogating from the operation of subsection (1), but subject to the regulations, the State Co-ordinator or an authorised officer may, if of the opinion that it is necessary to do so, do or cause to be done all or any of the following things:
Once the emergency declaration ends, all orders made under it will cease to exist. This includes various orders requiring COVID‑19 vaccination in health care, child care, aged care, education, disability services, transport and other sectors.
What areas could be affected?
Removal of the emergency orders does not mean that managerial directives, where appropriate, would not be lawful and reasonable. But a different process will need to be relied on.
The removal of the orders in the designated industries could affect employers in the following ways:
Risk management including vaccination policy.
The return of employees who are not working because of the orders but are still employed.
Current “disciplinary” processes for unvaccinated staff.
Unfair dismissal and general protections claims from employees that have not been finalised.
Organisations will also need to reconsider their process for visitors and contractors.
Other compulsory orders might remain
There may be other orders that remain in force under the Public Health Act. This note addresses those under the Emergency Management Act.
Require further information/assistance?
If you require further information or advice about what do when COVID-19 orders are repealed, please contact your Consultant.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.