With the ongoing COVID-19 pandemic engulfing Australia and the world, there has been significant discussion in relation to restricting the operations of various businesses. A significant amount of this discussion has resolved around ensuring “essential services” are permitted to continue to operate.
Whilst each government announcement must be considered separately when it is issued, businesses need to plan ahead in this rapidly evolving regulatory environment.
This fact sheet provides examples of what the various State and Territory governments might consider as essential if business restrictions are tightened in the near future, based on past and current legislation.
Please be aware however, this factsheet does not consider what constitute ‘essential services’ in relation to COVID-19 announcements made by Federal and State governments to date and the terms of those announcements should be considered.
Queensland
Under the State Transport Act 1938 (Qld), a state of emergency can be declared in the state where circumstances imperil the peace, welfare, order, good government or public safety of the state. If a state of emergency is declared, provisions can be made for securing the essentials of life to the people generally or, in any particular case, the securing and regulating of the supply and distribution of food, water, fuel, light, or other necessities, the provision and maintenance of the means of transit, transport, locomotion, or other services.
In addition, the Disaster Management Act 2003 (Qld) also provides a non-exhaustive list of examples of essential services, which includes gas, electricity, telecommunications, water and sewerage infrastructure.
New South Wales (NSW)
In NSW, the Essential Services Act 1988 (NSW) (Essential Services Act) has been enacted to protect the community from disruption to any essential services. For the purposes of the Essential Services Act, a service is essential if it consists of any of the following:
- the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources;
- the public transportation of persons or the transportation of freight (including the provision of rail infrastructure for those purposes);
- the provision of fire-fighting services,
- the provision of public health services (including hospital or medical services);
- the provision of ambulance services;
- the production, supply or distribution of pharmaceutical products;
- the provision of garbage, sanitary cleaning or sewerage services;
- the supply or distribution of water;
- the conduct of a welfare institution;
- the conduct of a prison;
- a service declared to be an essential service by the Governor; and
- a service comprising the supply of goods or services necessary for providing any service referred to in this list.
Victoria
The Essential Services Commission Act 2001 (Vic) is intended to promote the long-term interests of Victorians. It defines essential service to include a service, including the supply of goods, provided by:
- the electricity industry;
- the gas industry;
- the ports industry;
- the grain handling industry;
- the rail industry;
- the water industry;
- the non-cash payment transaction industry;
- the commercial passenger vehicle industry in relation to unbooked services; and
- any other industry prescribed for the purpose of this definition.
South Australia
Similar to NSW, South Australia has implemented the Essential Services Act 1981 (SA) to protect the community from disruption to essential services. It defines essential service as a service without which the safety, health or welfare of the community or a section of the community would be endangered or seriously prejudiced.
Northern Territory
The Essential Goods and Services Act 1981 (NT) is intended to regulate the provision of goods and services in periods of shortage. It defines essential services as:
- public transportation of persons or freight other than taxi-cab services;
- firefighting services;
- hospitals administered under the Medical Services Act 198 (NT)2;
- electricity supplied by electricity entities (as defined in the Electricity Reform Act 2000 (NT));
- water supply;
- garbage collection, sanitary cleansing or sewerage; or
- any other service or facility concerned with the maintenance of public health or a public utility.
Australian Capital Territory (ACT)
There is no current legislation in the ACT which defines essential services. Essential services were previously governed by the Essential Services (Continuity of Supply) Act 1992 (ACT) and the Essential Services (Continuity of Supply) Regulation 1995 (ACT) which were repealed in 2001.
The repealed legislation defined essential service as the provision of electricity, the supply of reticulated water, and sewerage services.
Other jurisdictions
Western Australia, Tasmania, and the Commonwealth do not have existing definitions of essential services in their legislation.