Although life is slowly returning back to normal following the effects of the COVID-19 pandemic, it is important to be aware of what the law says in relation to the Public Health Orders should harsher restrictions and social distancing rules return.
THE LAW IN NEW SOUTH WALES
Firstly, it should be known that a Public Health Order is, in essence, a Ministerial Direction which is derived from section 7 of the Public Health Act 2010 (NSW). The provision is written to grant the Health Minister specific powers in the event of a biohazard such as the current COVID-19 pandemic.
Section 7 of the Public Health Act 2010 (NSW) allows the Health Minister to;
(3) declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary–
(a) to reduce or remove any risk to public health in the area, and
(b) to segregate or isolate inhabitants of the area, and
(c) to prevent, or conditionally permit, access to the area.
Under this provision, the Health Minister may enact, direct and order a wide range of restrictions and social distancing rules which do not require the permission of parliament. In other words, the current restrictions and social distancing rules is ipso facto enforceable law. It is therefore imperative that you follow the current Public Health Order to avoid committing an offence.
WHY IS NON-COMPLIANCE WITH A PUBLIC HEALTH ORDER A CRIMINAL OFFENCE?
Although you may have seen people on the news or social media confronting police regarding the validity of social distancing restrictions, (often by raising points about Constitutional Law), it is important to acknowledge that failure to comply with a Public Health Order is an offence by virtue of section 10 of the Public Health Act 2010 (NSW).
Although the offence is not a conventional crime (such as murder, assault, prohibited drug possession/supply and sexual assault), State governments have the power to enact legislation which concerns public health and emergency management laws. With the exception of International Border Travel, the enactment of the Public Health Act 2010 (NSW) complies with the powers given to State Governments under section 51 of the Australian Constitution.
WHAT IS THE PENALTY FOR NON-COMPLIANCE OF THE PUBLIC HEALTH ORDER?
Pursuant to section 10 of the Public Health Act 2010 (NSW) the penalty for failure to comply with a Public Health Order is punishable by a maximum penalty of $11,000.00 and/or imprisonment of 6 months. Whilst it is unlikely that offenders will receive these maximum imposed penalties, the extent of non-compliance will be a matter for the Courts to consider.
It is also important to note that corporations may also be found guilty of non-compliance and could be fined a maximum of $55,000.00 and/or $1,000.00 for each representative of the corporation found to be in non-compliance.
WHY IT IS BEST TO FOLLOW THE PUBLIC HEALTH ORDERS: ASSAULTING A POLICE OFFICER IN THEIR EXECUTION OF DUTY
Regardless of the existence of any valid medical, political or social arguments, it is important that you follow the current Public Health Order so that you are not committing an offence. Often times, a person, in their confrontation with police over the issuing of an infringement notice, may find themselves charged with additional offences.
For example, recently one of our clients was also charged with the offence of assault a police officer in the execution of his/her duty. Our client had engaged in a confrontation with police which concluded with a pot plant falling near the officer. Although our client was charged and found guilt of assaulting a police officer in the execution of duty, our expert criminal defence lawyers argued that due to long-term undiagnosed mental health problems, our client was prone to erratic behaviour. This resulted in a 12-month non-conviction Conditional Release Order (previously referred to as a section 10 (10)(1)(b) good behaviour bond) which is an outstanding result given the severe penalties often applied to crimes of this nature.
Bear in mind, that an assault is not limited to physical contact, but may also include;
- Intimidation;
- Harassment;
- Raising a fist, hand or leg in an attempt to strike;
- Verbal threats; and
- The throwing of an item (such as a water bottle) even if that item does not make contact.
Accordingly, an assault (where no physical contact is made) of a police officer in the execution of his/her duty could see a maximum penalty of 5 years imprisonment. Should an assault involve actual bodily harm (which includes physical injuries as small as scratching or bruises) the accused may face a penalty of up to 7 years imprisonment. Therefore, it is the advice of National Criminal Lawyers® not to resist a police officer’s lawful execution of his/her duty.
PROVIDING IDENTIFICATION TO POLICE
Should you find yourself in breach of a Public Health Order, police may be empowered under Section 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to request that you disclose your identity. This may be applicable if the police officer requires your identity in order to give you a lawful direction to leave a specified place or area. It is important to note that failure to provide proof of identification without a reasonable excuse is an offence under section 12 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
I’VE RECEIVED AN INFRINGEMENT NOTICE: WHAT CAN BE DONE?
Although you may have been issued with an infringement notice for failing to comply with the current Public Health Order, National Criminal Lawyers® can be retained to appear on your behalf and fight any charges laid against you.
Whilst many of us are still recovering from the effects of the pandemic, it is vital that you retain specialist criminal defence lawyers to protect your interests and legal rights. If you or anyone you know has been charged with a criminal offence, contact our office immediately! At National Criminal Lawyers® our team of expert criminal defence lawyers will be able to help you understand the process and explore the possible defences.