After a (very long) month into the NSW coronavirus lockdown, the rules surrounding lockdown laws remain slightly confusing:
- Can I even go to the beaches once they reopen?
- What is a “care” reason for leaving the house, and does it cover visiting family members or romantic partners?
- Can I drive with someone else in the car?
- When can the police actually arrest me?
This muddle likely reflects the extraordinary speed at which the laws were passed and the unfamiliar territory they cover. The confusion likely also reflects the communications hodgepodge from the Federal and NSW Government as to exactly what people can and cannot do. The problem with this lack of clarity is that lockdown laws aren’t just a well-wished sentiment for everyone to “Stay Home”, but come with a variety of criminal penalties if you disobey them.
The NSW Government has provided accessible guidelines for the scope of the lockdown laws, which can be found here. Importantly, while this is a helpful Government digestion of the legislation, the bounds of these offences, i.e. when they actually apply, remains significantly untested by the Courts.
With lockdown looming for the foreseeable future, O’Brien Solicitors is curating your guide to NSW COVID-19 offences. We’ll be looking at what you can charged with, whether these penalties are actually needed for a successful lockdown, and potential legal challenges to the offences.
In this edition, we’ll discuss the offences that individuals can be charged with for violating lockdown laws. We’ll also consider whether these punishments are even necessary to enforce lockdown laws.
Two Main Types of COVID-19 Offences
There are two main categories of offences that individuals who violate lockdown order appear able to be charged with. Which offence is charged depends on the source of the lockdown rule that is violated. The offences are:
a) either failure to comply with a “Ministerial Direction”, an order made by Minister Brad Hazzard broadly directed at the NSW public, or
b) failing to comply with a “Public Health Order”. These are narrow, person-specific orders made by the Chief Health Officer Dr. Kerry Chant and other authorised differences.
So, Ministerial Directions vs. Public Health orders, what’s the difference?
Ministerial Directions by Order…
Ministerial Directions by Order appear to be the predominant type of lockdown order. These are Directions made by Brad Hazzard, the NSW Minister for Health and Medical Research, These are confusingly referred to by many public officials as Public Health Orders, despite “Public Health Orders” having a different meaning under the PHA (see below).
The up-to-date published Ministerial Directions (by order) can be found on the NSW legislation Notice Board here.
The power for the Minister to make directions is governed by s7 of the PHA. This power is quite broad. To make directions, the Minister must consider on reasonable grounds that a situation has risen that is, or is likely to be, a public health risk. In those circumstances, the Minister may by order give directions as the Minister “considers necessary” to deal with the risk and its consequence.
…Vs a “Public Health Order”
Public Health Orders are specific orders made “in respect to a person”, i.e. not the NSW population at large. A “Public Health Order” is given its meaning by reference to in s62 of the PHA, and can only be made by an “authorised medical practitioner”. An “authorised medical practitioner” [‘AMP’] is defined in s60 of the Act, and includes the Chief Health Officer (Dr. Kerry Chant) or a registered medical practitioner. It therefore categorically does not include the Minister for Health and Medical Research.
The ability for Dr. Chant or another AMP to make a public health order is governed by s62(1). An AMP may make Public Health order if they are “satisfied on reasonable grounds” that a person has a “Category 4 or 5 condition” [such as COVID-19; see Schedule 1 of the PHA] and because of the way they behave, may be a risk public health.
Alternatively Public Health Orders may be made is the AMP is satisfied on reasonable ground that the person has been exposed to the condition, is at risk of developing the condition, and behaves in a way that may be a risk to public health.
Evidently, the discretion to make public health orders is significantly narrower than the Minister’s discretion to make directions under s10, and requires more specific circumstances to satisfy the making of the order.
It is these “Public Health Orders” from Dr. Chant and other authorised AMP’s that is the subject of the police’s new powers of arrest under s71A of the PHA.
Now we now where they come from, what offences can you be charged with violating these “Directions” and “Orders”?
To note: for all offences, s118 of the PHA empowers police to issue fines discussed. As standard, the police discretion has to enforcing these offences.
Ministerial Directions Offence 1: Failing to comply with Ministerial Directions (PHA s10)
Penalty: maximum penalty= $11,000 fine or 6 months imprisonment or both. Fines increase to $55,000 per day for “continuing offences”.
Source: s 10 PHA.
Our first offence is found under s10 of the PHA. s10 dictates that it is an offence for a person to fail to comply with a Ministerial direction.
As per s10, there are arguably three components to this offence.
- s10(1)(a): the person must be “subject” to the direction- ie. it must actually apply to the person charged.
- s10(1)(b): and “has notice” of the direction. The PHA does not prescribe any means by which the Minister must make sure someone “has notice”, or what this actually means. Presumably, it means that a person has to actually know about the direction to commit an offence under it- however the specific scope of this in unclear. Commentary on this section suggests that it may require the Government to generally bring the direction to peoples’ attention rather than personally notify them of the directions.
- The “third” – the person “must not, without a reasonable excuse, fail to comply with the direction”. This suggests a statutory defence of a “reasonable excuse” for failing to comply with the orders.
It is interesting to think about whether the “reasonable excuse” listed in s10 is the same as “reasonable excuses” listed by the Minister in his Directions. It is unclear whether the Minister has the power to exhaustively dictate what a “reasonable excuse”.
Importantly, language in Ministerial Directions has suggested that the Minister’s listed “reasonable excuses” (eg. the Minister had noted in a direction that a reasonable excuse to leave a person’s place of residence “includes” for exercise) are not all-encompassing.
Ministerial Directions Offence 2: Regulatory Sub-Offence of s10 (PHReg Sched)
Penalty: $1000 fine.
Source: s134 PHA/ Schedule 4 PHReg
Our second offence is likely to be the main offence individuals face when charged with disobeying lockdown laws. Accordingly, the Public Health Regulation 2012, Schedule 4, essentially creates a specific sub-offence of a s10 offence. This offence is for failing to comply with a Ministerial Direction between 26 March 2020 and 25 March 2021. The penalty is a $1000 fine as penalty. Given that it is a sub-offence of s10, the same three components of the offence discussed above comply.
It is important to note that, as per s134 of the PHA, any future regulatory offences made RE: COVID-19 may not exceed a penalty of $2200. There are also a variety of requirements for a regulatory offence to be legally valid- eg. it cannot be inconsistent with PHA, etc.
Public Health Order Offence 1: Public Heath Act s70- Offence to not to comply with a Public Health Order
Penalty: Maximum penalty= $11,000 or imprisonment for 6 months, or both
Source: s70(1) of the PHA
Our third offence pertains to individual people under specific “Public Health Orders” from the Chief Health Officer. s70(1) states that a person who fails to comply with “a requirement” of a Public Health Order commits an offence. This again reflects the person-specific nature of these Public Health Orders: they are specific restrictions on certain infectious people under certain circumstances. If they breach a requirement of this Order, then they commit an offence.
Public Health Order Offence 2: Regulatory Sub-Offence for s70 (PHReg 2012)
Source: s134 PHA/ Schedule 4 PHReg
Similar to our s10 regulatory sub-offence, the PHReg Schedule 4 creates a specific regulatory sub-offence of s70(1), for individuals failing to comply with a requirement of a Public Health Order between 26 march 2020 and 25 March 2021. The penalty is also $1000.