Section 52 of the Public Health Act 2010 (NSW) makes the spreading of certain diseases and medical conditions a criminal offence, if the following conditions are satisfied:
- A person has a Category 2, 3, 4 or 5 condition, and
- The person is aware that they have the condition, and
- The person does not take reasonable precautions against spreading the condition in a public place.
Therefore, for a person to be guilty, the prosecution must prove all 3 of the above elements. We discuss these elements in more detail below:
Is the novel Coronavirus a Category 2, 3, 4 or 5 condition?
Yes, the Novel Coronavirus 2019 has been included as a Category 2, 3 and 4 condition in Schedule 1 of the Public Health Act 2010 (NSW).
The person is aware that they have the Coronavirus
A person can only be guilty of an offence if they are aware that they have the Virus. It is a complete defence to the charge, if a person can prove that they were unaware that they had the Coronavirus.
There has been some debate about what “aware” means for the purposes of this law. Some lawyers suggest that the only way a person is “aware”, is if they have been medically diagnosed or returned a positive test for Coronavirus.
However, in the current climate where limited testing is available, and governments are directing people to self-isolate if they have Symptoms. Can “aware” mean something less than a medical diagnosis?
Let’s look at two examples:
If a person has very mild conditions, such as a light cough and sniffles, and the person has not traveled or come into contact with anyone who has the Coronavirus.
If the person were to later test positive to the Coronavirus, it will be difficult to suggest that the person was “aware” that they had the Virus.
If a person had just come back from a trip to Italy, and their travel partner whom they were in close contact with tested positive to Coronavirus.
Following a day or two, the person also begun to have significant symptoms of the Coronavirus such as high fever, sore throat, cough, body aches and chest tightness.
It is arguable, that a court can find that the person was “aware” in those circumstances.
These are however novel legal problems and novel times. It will be interesting to see how courts will deal with the issue of awareness in the current circumstances.
One thing is for certain, if a person has been diagnosed by a medical practitioner or returned a positive test for Coronavirus, there can be no argument that they were not aware.
What does “public place” mean?
A person can only be guilty of an offence if the person does not take reasonable precautions to stop the Virus spreading in a public place.
“Public Place” is defined in Section 5 of the Public Health Act 2010 (NSW) as:
A place (including a place in any vehicle or vessel) that the public, or a section of the public, is entitled to use or that is open to, or is used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise).
The definition is extremely broad. It captures almost everything that it is outside a person’s home. Some examples of public places are:
- Shopping Centers.
- Public transport such as buses, trains and ferries.
- Restaurants and cafes.
- Pubs and clubs.
- Gyms and exercise studios
What does “reasonable precaution” mean?
“Reasonable precaution” unlike “public place” is not defined in the law. That is probably because the definition will depend on what kind of disease or medical condition the law is dealing with.
In respect of Coronavirus, a lot of information has been provided by the Australian Government about the precautions that people with the Virus should take.
The Department of Health has stated that the following people must self-isolate as a precaution:
- If you have COVID-19
- If you have been in close contact with a confirmed case of COVID-19; or
- You arrived in Australia after midnight on 15 March 2020
In addition, the Department of Health has also explained what “self-isolation” means:
- Do not go to public places such as work, school, shopping centers, childcare or university.
- Ask someone to get food and other necessities for you and leave them at your front door.
- Do not let visitors in — only people who usually live with you should be in your home.
- You do not need to wear a mask in your home, but you should wear one if you have to go out (for example to seek medical attention).
- Stay in touch by phone and online means with your family and friends
Ultimately whether a person has taken “reasonable precautions” will depend on the individual circumstances of the case.
What is the Maximum Penalty if a person is found guilty?
The maximum penalty for a person who is convicted is 6 months imprisonment or $11,000 fine or both.
Our recommendations for Australians during the Coronavirus Pandemic
These are extremely sad and difficult times for humanity. The entire world is suffering as we struggle to deal with the outbreak.
The advice we provide below is not legal advice nor health advice, but some of our own observations as a team at Australian Criminal and Family Lawyers:
- Try and approach the situation with calm. We don’t mean that people shouldn’t take the Coronavirus seriously but trying to fight people over toilet paper at Coles never helped anyone, ever.
- Stop behaving as though it is every person for themselves. This is a time where we need to show compassion and generosity towards one another.
- Don’t bulk buy food. There is absolutely no shortage of food. The only reason there is a shortage on some items is because people are stockpiling.
- If you have bought food in bulk, try to share it. The sad part is that most of what people have bought will go to waste in 6 months’ time. We are all responsible for food waste.
- Don’t share propaganda and misinformation. The worst thing about this pandemic is people sharing unreliable information which causes people to panic unnecessarily.
- Try to avoid click baiting news headlines. Before you share something, read the contents, not just the headline. Make sure the information comes from a reliable source.
- Offer help to others. There are lots of vulnerable people in our community. If you’re feeling scared, imagine how they’re feeling. A little can go a very long way in times like these.
- Take some time away from the headlines and the articles. Your mind needs a break. It is completely normal to be worried about your employment or business. Try not to stress about things you can’t change at the moment.
- Realise that, the world will move on. The world always does. Try to focus on the positive, even when it seems that there is not a great deal of it.
- Finally, check in on your friends working in the health industry. This will be a very stressful and difficult time for them. They don’t get paid “danger money” to put their lives at risk. They also need support and love, show them some.
We hope everyone can stay safe during this time and our minds and hearts are with people battling the virus.
Our office will remain open and we will continue to provide people with legal assistance during these times. This includes our 24 hour, 7 days a week free legal advice hotline.