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NSW Covid-19 Laws

Summary of your rights and obligations under the Covid-19 orders in NSW.

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Covid 19 laws
in NSW
Police
Powers
Police
Targets
Court in a
pandemic
Orders made &
ignored
Reasonable
Excuses
Essential
gatherings
Frequently Asked
Questions

Penalty
Notices
What police need
to prove
Public
Heath Act
Coughing &
Spitting
Issues with Covid
19 laws
Future
Orders

Covid-19 laws in NSW 

Since early March, the Australian and NSW government have been legislating in response to the ever-changing threat of the novel corona virus known as Covid-19. Over 15 different orders and amendments have been made under the Public Health Act. Restrictions and enforcement have steadily increased. The practical effect of the current law is that if you can stay home, you must stay home. If you leave home, you must have a reasonable excuse for that.

Police can issue penalty notices, or a court attendance notices if they believe that you have breached a government issued direction. On the spot penalty notices are $1000 for individuals and $5000 for corporations. Courts can impose much larger fines and even terms of imprisonment.

The goal of the legislation is to keep us all safe. It is restrictive and oppressive, but it is also necessary. Every interaction we have with someone increases our risk of contracting or passing on the disease. The longer people are contracting and passing on the disease, the longer these restrictive measures will need to stay in place.

Orders made and ignored

On the 17th March the first two orders were passed. One related to quarantine periods to be served by people returning to Australia from overseas. The second related to public events and prohibited gatherings of 500 or more people. The very next weekend, hundreds of people gathered on Bondi Beach. This behaviour was condemned by many and described by David Elliot MP, Minister for Police & Emergency Services, as “blatantly ignoring the law.”

As a result, on 26th March legislation was passed allowing NSW Police to issue on the spot fines of $1000 to anyone who knowingly breaches an order made under the Public Health Act. At the same time a further order was made in regard to the self-isolation of anyone who tests positive to the Covid-19 Coronavirus.

Penalty notices

NSW Police have started issuing $1000 penalty notices to individuals who breach orders made in relation to Covid-19 under the Public Health Act. These orders can be made under the Act by the Minister for Health & Medical Research. They can only be made in circumstances where there is a risk to the health of the public and the Minister believes the orders are necessary to deal with the risk.

If you’ve received a penalty notice under the Public Health Act don’t just pay it. Contact Astor Legal. It’s important that you get legal advice before appealing a penalty notice. Our lawyers can assist you and are continuing to operate throughout the pandemic. Contact us now to schedule an obligation free consult which can be via phone or videoconference.

Spitting or coughing on others

On 9th April the Public Health (COVID-19 Spitting and Coughing) Order 2020 created a new offence for intentionally spitting or coughing on particular workers in a way that was reasonably likely to cause fear about the spread of Covid-19. At the time this order was only limited to health workers and public officials. This included police, immigration staff, nurses, doctors, ambulance officers, and other hospital staff.

On 19th April the order was amended by the Public Health (COVID-19 Spitting and Coughing) Amendment Order 2020. Commencing on 20th April this amendment expanded the definition of worker to include retail workers, airport workers, workers in the transport industry, defence force personnel and postal staff. It also extended the order to include not only when the worker is at work, but also travelling to and from work.

Anyone caught intentionally coughing or spitting on a worker can be issued a $5000 on the spot penalty notice.

Covid 19 NSW Police powers

Can the police stop me?

Technically, no. If police reasonably suspect you are in breach of the public health order, police ask for your name and address. You do not need to provide police with more than this, under the legislation.

If police do have a reasonable basis to suspect that you are breaching the legislation, you can be arrested and taken back to the police station for your identity to be ascertained.

The orders made do not create any additional powers for police to stop people in general.

Do I have to answer the police?

The Public Health Act does not compel you to provide anything other than your name and address to the police. Your right to silence is not affected by this legislation and you are not required to tell the police where you are going. Further, the legislation does not reverse the burden of proof, or shift the onus to you to prove on the spot that you have left your house with a reasonable excuse.

Many people incorrectly believe that police can stop you and demand to know where you are going and what you are doing. It is likely that this poorly drafted legislation will be amended.

Reasonable Excuses

What is a reasonable excuse?

Some laws place an obligation on the defendant to prove the reasonable excuse. They say things like “without reasonable excuse, proof of which lies with the person” or “unless the person satisfies the court that they have a reasonable excuse”. This legislation has neither of those. Therefore, the prosecution bears the onus of proving all elements of the offence. Without admissions, or conduct that so clearly breaches the law, a prosecution for a Covid-19 offence would fail.

Examples of reasonable excuses

The government has drafted a non-exhaustive list of examples of what would constitute a reasonable excuse:

  • Obtaining food, goods or services for you, the household or another household or vulnerable persons
  • Travelling for work if you cannot complete the work at home (including volunteer work)
  • Travelling for the purposes of attending childcare
  • Travelling for the purposes of school or education, if it cannot be facilitated at home
  • Exercising
  • Obtaining medical care or supplies or health supplies or fulfilling carer’s responsibilities
  • Attending a wedding or a funeral
  • Moving house, moving your business to a new premises, or inspecting a new potential place of residence or business
  • Providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance
  • Donating blood
  • Undertaking any legal obligations (e.g reporting on bail or attending court)
  • Accessing public services (whether provided by Government, a private provider or a non-Government organisation), including social services, employment services, domestic violence services, mental health services, and services provided to victims (including as victims of crime)
  • For the purposes of continuing child/family access and contact arrangements or contact (e.g separated parents/family law orders?
  • For a person who is a priest, minister of religion or member of a religious order going to the person’s place of worship or providing pastoral care to another person
  • Avoiding injury or illness or to escape a risk of harm (e.g domestic violence situations)
  • For emergencies or compassionate reasons (e.g house fires)

What is and what isn’t a reasonable excuse will ultimately be a matter for a court to decide.

What do the police need to prove?

The majority of penalty notices issued by police will be issued under section 10 of the Public Health Act. Police must prove that:

  • You were a person subject to a direction under section 7, 8 or 9 of the Act
  • You had notice of the direction
  • You failed to comply with that direction
  • You did not have a reasonable excuse

To avoid people claiming that they had no knowledge of the direction, NSW Police have been busy handing out leaflets to affected persons. The first person to be fined under these new laws was served with a warning on Monday and then issued a fine on Thursday.

Other issues with the existing law

The biggest issue in the legislation is that it specifically says, “must not, without reasonable excuse, leave the persons place of residence.” Once you have left your residence with a reasonable excuse, there is nothing to say that you must then return immediately back to your place of residence.

Police have a list, and are checking it twice

It’s no coincidence that police have already issued numerous fines within days of the legislation being enacted. Even prior to the new laws being passed police were already handing out warning notices to affected persons.

Within the most recent order is an information sharing provision. Part 4 directs that a ‘government sector agency’ can collect personal and health information. This information can be disseminated to another government agency in NSW or any other Australian jurisdiction. Essentially if you return to NSW from overseas, or test positive to Covid-19, your name and address will most likely be passed onto the NSW Police Force.

If the police stop you and you are not on the list they can carry out those checks in minutes. Police have been provided a direct email to NSW Health. Using a mobile device they can send your details off and within about 5 minutes will know if you have recently returned from overseas or have been diagnosed with coronavirus.

A recent cabinet meeting expanded the pool of people eligible to be tested for the virus. This means the list of names shared with NSW Police will inevitably grow as the number of diagnosed cases increase. 

In addition to this Police are encouraging people to call Crimestoppers with information relating to breaches of the Covid-19 orders. On 26th March David Elliot MP told Seven News that there had already been several hundred calls made to Crimestoppers about breaches of public health orders.

Essential gatherings and limits

Gatherings in NSW are off, unless they are capped at 2 people. This means you cannot go for a walk with two of your friends and use the ‘reasonable excuse’ defence, as you’d be in breach of the gathering restrictions cap.

Similarly, if you live with two housemates/family members, and you invite two other people over, you will be in breach of the gathering restrictions cap in the legislation.

There is even a question as to whether or not you could, with reasonable excuse, go and visit your partner who lives at a different premises in NSW. 

There are still some gatherings which are considered essential, and are therefore exempt from the two person limit in order for them to continue their normal business and operations. These are:

  • Airports
  • Public transport
  • Hospitals, medical and health facilities
  • Prisons, youth justice facilities etc
  • Disability and aged care facilities
  • Courts and tribunals
  • Parliament
  • Supermarkets and stores who predominately sell food or groceries
  • Retail stores
  • Offices, farms, factories, warehouses, construction sites etc
  • Schools, universities, child care facilities
  • Hotels, motels and other accommodation services
  • Outdoor spaces where people commonly pass through.

The Public Health Act

The Public Health Act allows the government to take action and make orders if they believe on reasonable grounds that a situation has arisen which is likely to be a risk to public health. In those circumstances the government can take action and make directions and orders that they deem necessary to deal with the risk.

Since early March the government has issued a number of orders in line with the changing medical advice, and the views of the national cabinet. The penalties for failing to comply with an order are significant.  The maximum penalty is a period of imprisonment for 6 months and a fine of up to $11,000. Further fines of up to $5,500 apply for each additional day that the offence continues.

What further orders could be made?

If the government considers that there is likely to be a risk to public health, they may take action to reduce or remove risk to the public. Further orders that can and may be made in the future include;

  • Segregating, or isolating people
  • Preventing or conditionally permitting access to an area
  • Ordering that a person refrain from specified conduct;
  • Ordering a person to undergo specified treatment;
  • Ordering that a person discloses who they have been in contact with
  • Ordering a person to disclose their symptoms
  • Ordering a person to undergo specific testing; and
  • Ordering that a person be detained at a specific place.

Attending court during the pandemic 

Every court in NSW has changed the way they operate and has released memorandums and advice about attendance. Courts have been asking people not to attend in person unless it is absolutely crucial that they do so. Some courts have removed that choice from the individuals altogether and will simply not allow police, witnesses, defendants or lawyers in – forcing them to appear remotely via and audio-visual link (AVL).

Now, the easiest way to attend court during the pandemic is through a lawyer. Your lawyer can appear in writing or in person as is needed, and is able to navigate the ever changing landscape for you to help get you the best result.

Frequently Asked Questions

  • Can I go for a drive, but not get out of the car?

    Well, not really no. The legislation says that you must not leave your place of residence, unless you have a reasonable excuse. Your car is not your place of residence, even if you don’t get out. It is hard to see how the police would be able to assess whether or not you are on an aimless drive, without stopping you to ask.

  • Can I go for a surf or a swim at the beach?

    Arguably, yes provided the beach is not closed. There is no specifically legislated guidance on what constitutes exercise. If you swim for exercise or if you surf, you should be able to continue this. What is not permissible however, is loitering at the beach afterwards, or sunbaking – even if you are six feet away from any other person.

  • My child lives with their other parent – can I go and see them?

    Yes, facilitating contact and parenting arrangements are a reasonable excuse in the legislation. If however, you were to have a joint birthday party for the children subject to the parenting agreement – you would be in breach of the legislation.

  • I have a court date/have to report on bail. Can I leave to do that?

    Yes, this is absolutely permissible. You may be able to avoid having to attend court personally though by appearing via email, or through your lawyer. You can contact us to find out more about this.

  • My parents are elderly and live in a different house to me. Can I go to check on them?

    Depending on the circumstances, yes. This sort of situation could easily fit into a number of the legislated reasonable excuse categories regarding care of others. Attending your parents’ house because you are bored, or for a gathering or family event is not okay however. Socialising has effectively been outlawed in order to protect us.