Does the Government have legal authority to enforce the coronavirus lockdown?
The short answer is, yes.
Although the coronavirus lockdown measures are an unprecedented use of the Government’s power, the legal power to enforce a lockdown of this kind has been available for over a decade in New South Wales.
The Governments power to enforce the coronavirus lockdown comes from Section 7 of The Public Health Act 2010 (NSW).
However, these powers can only be used by the Government if they consider on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
It is undebatable that Covid-19 is a risk to public health, and it has been declared as such by The World Health Organisation. Accordingly, the Government can use its powers under Section 7.
What kind of restrictions and lockdowns can the Government impose with these powers?
These powers allow the Government to, take any action, and give any direction, that the Government considers necessary to deal with the public health risk associated with Covid-19.
The legal power given to the Government is very broad, and that has social libertarians trembling in their shoes.
When did the stage 3 coronavirus lockdown measures come into place?
On 30 March 2020 at 10:20pm, the Minister for Health and Medical Research, using his powers under Section 7, signed an Order for the stage 3 coronavirus lockdown measures to take effect.
The Order is called the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).
How long will the stage 3 coronavirus lockdown and restrictions apply?
The coronavirus lockdown Order will automatically expire after 90 days unless it is extended by the Government. The Order is currently due to expire on 28 June 2020. It is anticipated that the Government will extend the Order.
What are the Stage 3 coronavirus lockdown restrictions?
Under the Stage 3 coronavirus lockdown, several restrictions were placed on New South Wales residents. We discuss the two most important coronavirus lockdown restrictions below:
People must stay home unless they have a “reasonable excuse” for leaving
Under the stage 3 lockdown restrictions, a person must not leave their home, unless they have a reasonable excuse for doing so.
What is a reasonable excuse for leaving home during the coronavirus lockdown?
The New South Wales Government has received extensive criticism about the ambiguity of the Stage 3 coronavirus lockdown restrictions.
The coronavirus lockdown Order provides 17 examples of what might constitute a reasonable excuse in Schedule 1. However, what most people don’t realise, is that the Order does not limit the definition of a “reasonable excuse” to those 17 examples. This is a common misconception.
The words used in the Order are as follows:
“For the purposes of subclause (I), a reasonable excuse includes doing an activity specified by Schedule 1.”
The word “includes” has a very important part to play in the interpretation of the Order. The word “includes” is not a word that implies a limitation to a class. Although, this might seem like a crafty interpretation, it is not.
The words that are used in drafting legislation are chosen very carefully, especially where the legislation creates a criminal offence. That is so that the law is not misconstrued or misconceived by the public who must abide by it.
Given the importance of this legislation and the effect that it would have on people, the words would have been very carefully selected.
If the Government intended to send a clear message, that the public were limited to the 17 examples in Schedule 1, it would have made that abundantly clear by using words that had that effect. For example, the Government could have used the words “limited to” as opposed to “including”.
Our view is that although the 17 examples in Schedule 1 can be relied on by the public for leaving their homes, a reasonable excuse is not limited to those 17 examples, nor is the statutory defence of reasonable excuse. We talk about the statutory defence further below.
So, who decides whether something is reasonable or not?
The answer to that question is certainly not the NSW Police Force. The interpretation of the law has never been a function of the NSW Police, however by default, it seems that the NSW Police has taken it upon themselves to decide what they consider is reasonable and what is not.
Over the past week, the NSW Police have offered their interpretation of what is and isn’t a reasonable excuse over several media platforms. Even though, this is not a legal power that has been afforded to the NSW Police.
An example of this is the purported exemption the Commissioner of Police gave for two people in a relationship, who don’t live together, to visit each other in their homes. The Commissioner said that he interpreted this as falling under the provisions of “care”.
The absurdity of this is that there is no reasonable excuse known as “care” in Schedule 1. The only exemption for “care” in Schedule 1 is as follows:
“providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance”
It is hard to see how visiting a person’s partner falls within that category, unless your partner is a “vulnerable person”. For example, old or of ill health.
However, this is not the only way in which the NSW Police have acted outside their powers. The Police Commissioner recently suggested during a press conference that he would not be seeking an extension to the coronavirus lockdown Order at the end of the 90-day period.
The comment raised a number of eyebrows as this was obviously not a function or power that is afforded to the Police Commissioner. In fact, it has no relevance to his function or office.
The fear of becoming a “police state” is something that residents of NSW have joked and “meme’d” about for a long time. Yet that joke seemed to have some bite to it, after a man found himself being fined for eating a kebab alone on a park bench.
Our view is that, whether a particular reason for leaving home constitutes a reasonable excuse, must be considered on its own merits, in the specific circumstances in which the reason arose. It is not something that should be determined by the subjective thoughts of members of the NSW Police Force.
“The Wigs” loophole to the restriction on leaving your home
If you haven’t heard of “The Wigs” you’ve probably been living under the rock. Three fantastic practising barristers in New South Wales decided to get together and make a podcast to discuss interesting and important legal issues.
Their most recent podcast discussed the Stage 3 coronavirus lockdown measures and what they meant. Yet what they also uncovered was a seemingly obvious drafting failure.
The coronavirus lockdown Order provides that a person “must not, without reasonable excuse, leave the person’s place of residence”. Read literally, that only requires a person to have a reasonable excuse for leaving home. However, there is no law in New South Wales that requires a person to go back home once they have left.
So, if a person leaves home with a reasonable excuse, for example, to do grocery shopping and then decides to visit a friend, based on the Order as it currently stands, there would be nothing wrong with that, this is because when the person left home, they left with a reasonable excuse.
This might sound like an ingenious loophole invented by great legal minds, but it importantly reflects on how poorly the stage 3 coronavirus lockdown Order was drafted.
No gatherings of more than two people
The second restriction that has been placed on New South Wales residents is the ban on gathering in a public place with more than 2 people, unless one of the exemptions apply.
What is a public place?
Public place is defined as any place, including on water, that is open to the public, or is used by the public, regardless of whether the payment of money is required to access that place and regardless of whether or not the public to whom it is open to consists of a limited class of persons. A public place does not include a school.
What are the exemptions for having a gathering of more than two people during the coronavirus lockdown?
The Order provides several exemptions to this restriction. We won’t list all of them, however some of the more common exemptions include:
- a gathering for work purposes.
- a gathering of members of the same household.
- a gathering for a wedding at which there are no more than 5 persons (including the person conducting the service).
- a gathering for a funeral service at which there are no more than 10 persons (including the person conducting the service).
- a gathering to facilitate a move to a new place of residence (including a business moving to new premises).
- a gathering to provide care or assistance to a vulnerable person.
- a gathering to provide emergency assistance.
- a gathering necessary for the person to fulfil a legal obligation.
The remaining exemptions can be found in Schedule 2 of the coronavirus lockdown Order.
It is also important to note that the statutory defence of reasonable excuse also applies to this restriction.
Can the police stop me to ask why I am outside my home during the coronavirus lockdown?
Contrary to common belief, the NSW Police does not have a general power that allows them to stop a person and ask them questions about where they are going, why they have left their homes, or what they are doing.
For the purposes of the coronavirus lockdown Order, the only power that a police officer has, is to ask a person for their name and address, if they suspect that the person is in breach of the Order. This power is outlined in Section 112 of the Act.
A person does not need to provide anything more than their name and address.
Some practical examples of “suspicion” might be the following:
If a person is walking in the middle of the day in Sydney CBD, dressed in regular casual attire, there is no basis for a police officer to suspect that they are breaching any term of the Order.
The person could be walking to work, walking to get food, or doing any number of other activities that might constitute a reasonable excuse.
This circumstance in our view would not give police the power to ask for the person’s name and address.
If a group of 7 people were exercising in a park together, and a police officer were to see them doing so, in our view, that would be enough for the police officer to suspect that the persons were breaching the Order. Therefore, entitling the police officer to ask for their names and addresses.
If a person fails to provide their name and address, they can then be arrested and taken back to the police station so that their identity can be determined. They can also be fined up to $5500 for not providing those details.
Interestingly, if a person provides false details, they can face up an $11,000 fine or 6 months imprisonment as outlined in Section 113 of the Public Health Act (2010) NSW.
Do I have to answer police questions about why I am outside my home?
No. A person is not legally required to answer any question other than to provide their name and address in the circumstances discussed above.
This has been pointed out as the most obvious flaw in the drafting of the Order. That is because, unless the legislation particularly indicates, at all times it is for the police to prove that a person is guilty and not a for a person to prove they are innocent.
In simple terms, the police will have to prove that a person did not have a reasonable excuse for leaving their home.
Going back to the first example, if a person were walking through the Sydney CBD and the police stopped them and asked them where they were going. If the person refused to answer the question, how can the police prove that the person did not have a “reasonable excuse” for leaving their home? The simple answer is that they could not.
A person’s right to silence is a fundamental right. It cannot be trumped, and it cannot be used against a person to prove their guilt.
The way in which the Order is drafted, means that unless the person is very obviously in breach of the coronavirus lockdown Order, like in Example 2 above, it will be very difficult for police to prosecute people for these offences.
Can the police issue me with a move on direction just because they want to?
The answer is no, they cannot.
In New South Wales, if a person is not intoxicated, the police can only issue a “move on direction” in 5 circumstances as set out in Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Those circumstance are if a person’s conduct:
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.
If none of those circumstances apply, a person cannot be given a “move on direction”. However, if a person is in breach of the Order and the person refuses to stop breaching the Order, they can be arrested. We discuss this in more detail below.
Can a police officer arrest me for breaching the coronavirus lockdown Order?
Although police officers do not have a general power to issue a “move on direction”, they do have the power to arrest a person in certain circumstance as set out in Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
We will not discuss each of those circumstances, but only the most relevant one. That is the power to arrest a person to stop the person from continuing or repeating an offence.
To demonstrate this power, let’s take Example 2 from above. If the 7 persons who were exercising together were asked to stop and leave and they refused to do so, a police officer will have the power to arrest them to stop them from continuing the offence.
However, one important pre-requisite to being able to arrest a person, is that police officer must have a reasonable suspicion that the person has committed an offence or is committing an offence.
The term “reasonable suspicion” in Section 99 is different than the term “suspicion” that is used in Section 112 to allow a police officer to ask for a person’s name and address.
The degree of suspicion required to arrest a person is, for obvious reasons, significantly higher than that required to ask for a persons name and address.
A reasonable suspicion needs to be more than a possibility but something less than a belief. So, in Example 1 above, where a person was just walking through the Sydney CBD, there would be nothing to incite a reasonable suspicion that the person was committing an offence.
There are fears that the coronavirus lockdown laws will lead to many illegal arrests.
The statutory defence of “reasonable excuse” to the coronavirus lockdown Order
The coronavirus lockdown Order does not itself contain a criminal offence provision. The criminal offence provision is found in Section 10 of the Public Health Act (2010) NSW.
To make this easier to understand, lets break down how the coronavirus lockdows laws work:
- Section 7 of the Public Health Act (2010) NSW gives the Government the power to make an Order.
- The Government issues the stage 3 coronavirus lockdown Order known as the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).
- Section 10 of the Public Health Act (2010) NSW makes it a criminal offence not to comply with an Order that the Government makes under Section 7.
Section 10 carries within it a separate defence of “reasonable excuse”.
Unlike the defence of “reasonable excuse” in the Order, the defence of “reasonable excuse” in Section 10 has no limitations or definitions. A person can raise the statutory defence of “reasonable excuse” to any of restrictions contained in the coronavirus lockdown Order.
Whether a person’s reason for non-compliance with the Order is a reasonable excuse will need to be determined by a court. The court must consider all the circumstances surrounding the breach of the Order before making its determination.
What is the maximum penalty for breaching the stage 3 coronavirus lockdown Order?
The maximum penalty that a Court can impose on an individual who breaches the coronavirus lockdown order is a fine of $11,000 or 6 months imprisonment.
However, Section 118 of the Public Health Act (2010) NSW allows police officers to issue on the spot fines as opposed to issuing a court attendance notice.
The maximum fine that a police officer can issue an individual is $1000 as per Schedule 4 of the Public Health Regulation (2012) NSW.
Additional fines can be imposed for continuing offences. Penalties are also more significant for corporations.
Can I appeal a police officer’s decision to fine me for breaching the coronavirus lockdown Order?
Yes, you can.
A person has the right to have the infringement notice determined by a Court. If a person feels like they have been issued a fine incorrectly or harshly.
Once an application is made for the matter to be dealt with by a court, the fine is stayed, and the person should not pay the fine.
Once the matter is at court, a person can either plead “not guilty “or “guilty” to the offence of breaching the coronavirus lockdown order.
If the person pleads guilty, the person will then be sentenced by the court. The court will need to consider all the circumstance of the offence and the personal circumstances of the offender in determining an appropriate penalty. If a person has financial difficulties this can also be raised with the court in an attempt to reduce the amount of the fine.
The most common questions asked about the coronavirus lockdowns
We recently asked our followers for their questions regarding the coronavirus lockdown measures. We do our best to answer these questions below.
Please keep in mind, that these answers do not constitute legal advice:
Can I drive to a restaurant outside of my local area for food during the coronavirus lockdown?
The obtaining of food is one of the examples of reasonable excuse that is specified in the Order.
The Order does not provide a geographical limitation to the definition of reasonable excuse. Therefore, our view is that it will be subject to the overriding consideration of reasonableness.
We don’t think there is any issue with a person driving to a restaurant outside their local area, within reason, to pick up food. If a person is driving in their car, they are not coming in to contact with anyone else, what difference would it make if the person drove 10 minutes or 30 minutes to get food.
On the other hand, if a person were to drive 6 hours away for food, that might not be a reasonable excuse.
How far can I travel for exercise during the coronavirus lockdown?
Like the answer above, there is no geographic limitation in the Order about how far a person can go for exercise. It will simply come down to the overriding principle of reasonableness.
If a person drove 30 minutes to walk or run their favourite track, we don’t think that will amount to a breach of the coronavirus lockdown Orders. On the other hand, if a person drove 6 hours away to do a hike, that might not amount to a reasonable excuse.
Am I only allowed to leave the home to shop for essentials or can I shop for non-essential items?
Nothing in the Order specifies that shopping is limited to “essentials”. Schedule 1 exempts leaving the home for “obtaining food or other goods and services”.
As long as the particular shop or store has not been required to close as part of the restrictions in Clause 7, there is nothing stopping a person from attending such a store.
Who does the “1.5-meter rule” apply to during the coronavirus lockdown?
There is no general 1.5-meter rule in the coronavirus lockdown Order. This is only a government recommendation at this stage.
The restriction in Clause 8 of the Order requires that the size of the premises must be sufficient to ensure that there is 4 square metres of space for each person on the premises. It doesn’t mean that each person needs to stand that far from each other if they did not want to.
Can I visit my partner during the coronavirus lockdown?
This was one of the most ambiguous aspects to the legislation. Is leaving your home to see a partner a reasonable excuse? We think the answer is yes, it is.
The New South Wales Police Commissioner, Mick Fuller on the 1st of April 2020 indicated that people can visit their partners in NSW. The Commissioner said, he would put that under “care”.
We discussed this in some detail above, it is difficult to see how that would constitute “care” under the Order.
Our view is that it has nothing to do with “care”. It is simply in and of itself a reasonable excuse.
Can I visit my parents during the coronavirus lockdown?
If visiting a partner was interpreted as “care”, it would be difficult for the Police Commissioner to suggest that visiting a parent wasn’t. Although as we indicated earlier, it is not for the Police Commissioner to determine what is and isn’t a “reasonable excuse”.
We are of the view that visiting a parent would constitute a reasonable excuse in and of itself.
Can I visit friends for Easter or Ramadan during the coronavirus lockdown?
Given the circumstances and seriousness of Covid-19, we do not think that visiting friends would amount to a reasonable excuse for leaving home.
Can I go for a drive in my car if I don’t get out of my vehicle during the coronavirus lockdown?
The answer to this question is complicated.
If a person were to leave their home just because they wanted to do “happy laps”, it might not amount to a reasonable excuse.
On the other hand, if a person were experiencing significant mental health symptoms from staying at home or for example domestic abuse at home, we think that this would amount to a reasonable excuse.
However, as we discussed above, if a person was stopped by police, they are not obliged to answer questions about where they are going or what they are doing.
In the absence of those answers, in most instances. it will be difficult for the police to prove that a person left home without a reasonable excuse.
Can I go for a ride on motorbike during the coronavirus lockdown?
Aside from applying the same answer above, regarding going for a drive in a car, it is possible that riding a motorcycle will amount to exercise. There are several sources which claim that riding a motorcycle can amount to exercise.
If that were to be accepted, then riding a motorcycle will fall into the exercise exemption. The Coronavirus lockdown Order does not define the term exercise or exclude any form of exercise.
Can I go spearfishing during the coronavirus lockdown?
Yes, a person can go spearfishing.
Freediving and swimming are both a form of exercise. There is nothing in the cornavirus lockdown Order that limits the definition of exercise.
Can I eat food (a kebab) on a park bench?
The hot topic seems to arise after a man was fined for eating a kebab on a park bench. Unfortunately, it seems like it will be some time before the people of New South Wales can enjoy a kebab on a park bench again.
Clause 7(1)(n) of the Order provides that all “community facilities” are closed to the public. Community facility is defined in Clause 7(6) of the Order as follows:
A building or place (other than educational establishment. hospital, retail premises, place of public worship or residential accommodation) that is owned or controlled by a public authority and it is used for the physical, social, cultural or intellectual development or welfare of the community.
Unfortunately, we believe that park benches are closed to the public due to the coronavirus lockdown.
Can I meet up with another person for sexual purposes during the coronavirus lockdown if we are not in a relationship?
A great question, but a difficult one to answer.
Leaving home to sleep with a stranger will most probably not amount to a reasonable excuse. That is our view at least. Given the seriousness of Covid-19 and the risk to public health we doubt that a court will consider this to be a “reasonable excuse”.
However, police will only know that a person left their home for that purpose if the person decide to tell them. There is an old saying, a gentleman does not kiss and tell.
Can you do personal training sessions in the gym if you are maintaining social distancing during the coronavirus lockdown?
Our view is that it would be a breach of the coronavirus lockdown Order to do so. The Order provides that gyms are to be closed to the public.
Can you provide a personal training session inside someone’s home or in a park during the coronavirus lockdown?
There is nothing in the Order that would stop a person from receiving a personal training session at home. Let’s break this down further:
- The personal trainer will be leaving home for the purposes of work, or alternatively the person receiving the training is leaving their home for exercise. Either way, each person has a reasonable excuse to leave their home.
- If they are to conduct the session in either one of their homes, that would not fall in the definition of a “public place” therefore the restriction on a gathering of more than 2 people would not apply. Alternatively, if the session were to be done in a park or other public area, as long as it did not involve more than 2 people it will also be okay.
- The rule requiring 4 square meters to each person does not apply to a person’s residence. It also does not apply to outdoor spaces such as parks.
Our view is that there is nothing else in the Orders that would prevent a person from offering personal training services to a person in their home or in a park. This includes Muay Thai or boxing pad work.
Can you do personal training sessions in a gym’s outdoor car park during the coronavirus lockdown?
We don’t think that is any different to doing a personal training session in a park as we discussed above.
The only rule that will apply is that there could not be more than 2 people gathering at the same time.
To be clear, the gym itself will need to remain closed at all times.
Can employees and owners of gyms use the premises to broadcast videos during the coronavirus lockdown?
Clause 7 of the Order provides that gyms are not to be open to “members of the public”.
The question is whether owners and employees are included in the definition of “members of the public”.
We think that the answers is yes, they can. Given the effect that such a restriction would have, the Government would have made it very clear that owners and employees could not use their own premises.
As long as it were only the owner and employees, we do not think that this would amount to the premises being “open to the public”.
If you are broadcasting live sessions from a gym, can you be in a group of more than 2 people?
Yes, you can.
If a person were undertaking such a broadcast as part of their employment duties and all persons were employees of the business, the restriction regarding a gathering of more than 2 people does not apply.
A gathering of more than 2 people for the purposes of work is specifically exempt under Clause 6(2)(b).
Stay home and stay safe
Although the coronavirus lockdown Order has been drafted extremely poorly, thankfully most of us get the message. The coming months will be tough, no one will want to stay home. However, if we all do our part, hopefully, we can see the end of these restrictions sooner rather than later.
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.