14/04/2020
WHERE ARE THE GAPS IN THE LAW – COVID-19 Restrictions
Currently recognised as a period of significant Global stress, the COVID-19 crisis has compelled the introduction of new laws which restrict human activity outside the home and imposed criminal penalties for those who breach these directions. It is however obvious that confusion may arise even with the legislation spelt out as there is NO other clarity at this time to inform us whether our actions are legal or not.
Scenario:
Mason Clarke a hospitality worker has been recently stood down by his employees due to the COVID-19 restrictions on non-essential business’s. With no more work, every morning around 9.00am Mason wakes up, gets dressed and drives to his favourite beach which is located 10km away. He runs along the beach and over the headland to the beach around the corner and then back again for a final swim and take-away coffee before driving home. On Saturday the 6th April he decides to sit on the beach after his swim as he is exhausted from his exercise. A police Officer approaches Mason and asks him what why he is sitting. Mason responds by stating that he is ‘tired from his run and swim’ and has decided to rest. The officer then asks for his ID and comments that he is outside his postcode area. The officer then handed Mason a $1000.00 fine for non-compliance with the new legislative measures.
This hypothetical scenario postulates numerous legal issues and contentions which exist at the basis of the new legal Order placed within the Public Health Act 2010 as the provisional order itself lacks expansive clarity and leaves definitional gaps in the statute itself.
What the Current legislative framework says
Under NSW Legislation, section 7 of the Public Health Act 2010, if the Public Health Minister believes on reasonable grounds that a circumstance has arisen which is likely to be a risk to public health, he/she is legally entitled to make any orders necessary to reduce, minimise and prevent the possible consequences of this risk. Thus, recognised internationally as an unprecedent global threat to public health, the COVID-19 virus satisfies on ‘reasonable grounds’ as a ‘risk’ which gives rise to ministerial power to enact new legislation which aims to reduce and limit the severity of the virus’ impact.
As such on the 31st March 2020, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 was introduced by the NSW government to create a legal framework which purports to introduce strategy to minimise the severity of the virus’ effects. The principle direction given by the Minister effecting all individuals states that no person, without a reasonable excuse, should leave a person's place of residence. The legislation also limits gatherings of more than 2 persons in a public place with exceptions being for the purpose of work, for weddings, funeral, members of the same household, gatherings for the care and assistance of vulnerable, gatherings to facilitate move to new residence and gatherings necessary for fulfilling legal obligations.
Breach of these orders are considered an offence under Section 10 of the Public Health Act 2010, as failure to comply with these regulations imposes a penalty equivalent to a maximum fine of $11,000 or imprisonment for 6 months (or both).
What’s missing? Faults and gaps in the legislation
Considered to be legally unprecedented in the history of the Australian law, the assertation of new laws by the Minister of Health causes concern as there is no prior statute, high authority judgement or case-law which can guide and give effect to fair and just application. Further flaws are found in the first direction given by the minister stating that a person must not, without reasonable excuse, leave the person's place of residence.’ The legislation seems to remain silent as to the time frame of the activity exercised. It also doesn’t address whether an individual is required to come home straight after that ‘reasonable excuse’ has been completed.
There has also been chatter around how far is appropriate for one to travel for the purpose of a reasonable excuse. If there is a Coles in your postcode but you have a preference for another Coles 20 minutes down the road does it matter that you go there instead. This lack of clarity becomes problematic as individuals do not know their responsibilities and rights in this circumstance.
Turning to reasonable excuses which are codified within schedule 1 of the Order, the scope for interpretation may be quite broad. It is obvious that primary needs such as obtaining food, medical care and continuation of work are listed as defences as they may be seen as necessary in the maintenance of Australia as a functioning and productive country. As such a lot of the reasonable excuses are self-explanatory and understood to the reasonable person. However, when implementing excuses such as ‘exercise’ no definition is included as to what exercise is, which leaves this open to subjective interpretation. As the hypothetical scenario above examined, is rest from exercise in a public place appropriate and is there a time measurement involved.
Another point of interest regards No 16 of schedule 1 which speaks to a reasonable excuse to leave one’s residence is for ‘emergencies and compassionate reasons.” Disregarding the emergencies part, which is also explanatory, the term ‘compassionate reasons’ is not well spelt out. What does compassion mean and how does authority by way of objection measure this concept.
One final point is, Mason left home for the purpose of exercise which was a reasonable excuse, however the legislation is silent as to whether he is required to immediately return home following his exercise.
