In the State of New South Wales as it is in other parts of Australia, there are currently a number of restrictions on public gathering and movement mostly in line with the public health policies of the Government. The question that follows the placement of restrictions in New South Wales is whether the government has the power to enforce those restrictions under the legislation. Further, one of the confusing outcomes of the restrictions arising from the unprecedented pandemic outbreak is where the line is drawn between what is allowed and what is illegal to do during the COVID-19 pandemic.
Government Powers & COVID-19 Restrictions
The Public Health Act 2010 (NSW) (“the Act”) addresses the powers of the government in relation to the restrictions and also outlines the outcome of the breach of orders made under the Act.
Under the Act, the NSW Government has the power to deal with public health risks in general in circumstance that a situation causes a risk to public health. The Government’s exercise of such powers remains lawful irrespective of whether or not a state of emergency is declared.Section 7 of the Act provides that where the health minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health, the minister may take such action or give such directions that are necessary to deal with the risk and its possible consequences.
In line with a rather broad Public Health Powers, the NSW Health Minister will be able to make directions necessary in line with reducing or removing the risk of COVID-19, segregating and isolating people within the State of NSW and to prevent or give on a conditional basis access to any part of NSW.
There are however time restrictions in relation to such Orders made under the Public Health Powers which deem them expired after 90 days unless the orders are withdrawn or otherwise made to expire sooner.
Criminal Offence Penalties and COVID-19
The Act also empowers the state officials to make a range of enforceable directions and orders with a view to dealing with public health risks. These restrictions are enforceable under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, effective 31 March 2020, and the Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order 2020, effective 4 April 2020.
Breach of such orders made under the Act is a criminal offence and attracts heavy penalties.
Section 10 of the Act states that a person who, without reasonable excuse, fails to comply with such a direction faces a maximum penalty of 6 months in prison and/or a fine of 100 penalty units which is currently $11,000.
The Act further provides for any continued failure to comply with the directions to be punishable by a fine of 50 penalty units, or $5,500, for each day the offence continues. Under the Act, the maximum penalty for companies and legal entities is 500 penalty units, or $55,000, and 250 penalty units, or $27, 500 for each day the offence continues.
Further, NSW law enforcement authorities are empowered to issue criminal infringement notices. Hence NSW Police has the power to issue ‘on-the-spot’ penalty notices of up to $1000 to individuals and up to $5000 to businesses. Receiving these penalty notices does not by itself result in criminal record and the recipient of the fine may elect to take the matter to court.
Importantly, if the matter is taken to court and in circumstances that the Court decides that the offence is proved to have occurred, the maximum penalties outlined above will be enforced and the finding of guilt will lead to a criminal record. It is very important to note that in such circumstances an experienced lawyer’s services would be required to persuade the Court with the exceptions available to the recipient of penalty notice with a view to seek an order from the court for section 10 dismissal or a conditional release order without conviction.
There are a range of restrictions now in place on movements and gatherings and social distancing and public conducts which will affect your day to day routine whether it is leaving home without a reasonable excuse or being in company of others, or leaving the state of your residence.
It is crucial that you are familiar with the current and fast-developing rules and ascertain that your actions will not bring unwanted and disappointing consequences at these already difficult and stressful times. Please contact one of our efficient and helpful solicitors at Pavuk legal for consultation and advice.