By Ugur Nedim and Sonia Hickey: Sydney Criminal Lawyers Blog
It seems that hardly a week goes without the New South Wales government issuing a new public health order, or amending or adding to existing orders.
As a consequence, it can be difficult to keep up with and digest the ever-changing, increasingly complex and frustratingly vague and ambiguous rules.
So it’s no surprise that in just one 24 hour period earlier this week, 22 people were issued with court attendance notices and will face court for allegedly failing to comply with a public health order and 240 were issued with on-the-spot fines.
And it seems there will be no let up, as various branches of the New South Wales Police Force have made it clear they will be out in numbers to enforce the rules – be they general duties, water, traffic, transport or mounted groups of officers.
But the latest changes have led to many comparing the approach taken by those in power to authoritarian governments of both today and yesteryear.
Carrying and presenting identification
At 10.44am yesterday, 20 July 2021, Health Minister Brad Hazzard issued the tenth set of amendments to the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021.
Among other things, a new order 24D has been inserted, effectively making it compulsory for residents of Greater Sydney including the Blue Mountains, Central Coast, Wollongong and Shellharbour to carry identification.
The amendment provides that:
“a person must, if requested to do so by a police officer, provide information, including proof of residence and evidence that the person has been tested for COVID-19, to allow a decision to be made about:
(a) whether the person is an affected worker or a Greater Sydney worker, and
(b) if the person is an affected worker or a Greater Sydney worker, whether the person has complied with this Part.
According to the New South Wales government, the amendment means those in Greater Sydney:
“must carry proof of your address if you
- have left your home for a reasonable excuse
- are exercising outdoors or have left your home for recreation, or
- have a reasonable excuse and are leaving the area of Greater Sydney including the Blue Mountains, Central Coast, Wollongong and Shellharbour.
You must show your proof of address if asked by the NSW Police.”
However, the section is phrased so broadly it could potentially require a person who is approached outside the Greater Sydney area to present such proof to a police officer who suspects the person of being a Greater Sydney resident.
Carrying and presenting a face mask
It is also now mandatory for a person to carry a face mask outside his or her home when in Greater Sydney, regardless of whether the person intends to enter an area where it is mandatory to wear the mask.
In that regard, order 17(5A) provides that, “a person in Greater Sydney must carry on their person a fitted face covering at all times when the person is away from the person’s place of residence or temporary accommodation.”
Order 17(1) requires residents of Greater Sydney must wear face covering fitted over the nose and mouth:
- in any indoor area of non-residential premises,
- in an indoor area on common property for residential premises in Greater Sydney,
- at a public transport waiting area or in a vehicle or vessel being used to provide a public transport service,
- in a recreation facility (major),
- attending a COVID-19 safe outdoor gathering or a controlled outdoor public gathering,
- working at a hospitality venue and dealing directly with members of the public,
- in any indoor or outdoor area of a market in Greater Sydney that predominantly sells food (Example. Sydney Markets at Flemington and the Sydney Fish Market),
- outdoors next to or near food and drink premises or retail premises in Greater Sydney (Example. A person queueing outside a cafe or shop to collect take away food or drink or a person walking on a street near shop fronts), and
- working in an outdoor area in Greater Sydney
Exceptions to wearing masks
Order 17(3) provides that a person is not required to wear a face covering when otherwise required to do so if:
- the person is eating or drinking,
- the person is engaging in strenuous physical exercise except in an indoor gym class or dance class,
- the person is communicating with another person who is deaf or hard of hearing,
- the person is at work and the nature of the person’s work makes the wearing of a fitted face covering a risk to the person’s, or another person’s health and safety, or means clear enunciation or visibility of the person’s mouth is essential,
- the person is asked to remove the fitted face covering to ascertain the person’s identity,
- there is an emergency,
- the removal is necessary for the proper provision of the goods or service,
- the person is in a correctional centre or other place of custody,
- the person is a patient in a public hospital or private health facility,
- the person is a resident of a residential aged care facility,
- the person is a student at a school,
- the person is a guest in a hotel, motel or other accommodation facility and is in the person’s own room,
- the person is in the process of getting married,
- the person is working alone in an indoor area like an office until another person enters the area, or
- the person is in a vehicle alone or with another person of the same household.
Under order 17(2), those aged 12 years or under, or who have a physical or mental health condition, or a disability, that makes the wearing of a face covering unsuitable, are exempted from wearing one. The order provides that this includes ‘a skin condition, an intellectual disability, autism or trauma’.
Hefty fine or court
Failing to comply with a public health order is an offence under section 10 of the Public Health Act 2010 which comes with a maximum penalty of 100 penalty units (currently $11,000), or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units ($5,500) for each day the offence continues.
In the case of a corporation, the maximum penalty is 500 penalty units ($55,000) and, in the case of a continuing offence, a further 250 penalty units ($27,500) for each day the offence continues.
These penalties apply where the case is dealt with in court, and police and public health officials have the option of issuing a criminal infringement notice of $1,000 in the case of individuals or $5,000 in the case of corporations.
The fine for not wearing a face mask is currently $200.
Vague and uncertain rules
But despite the fact those sent to court – or who elect to contest their fines in court – face the possibility of harsh penalties, prosecutors should be aware that the vagueness and uncertainty of terms contained in public health orders could make offences difficult to prove inside a courtroom.
For example, does “eating and drinking” under order 17(3) include smoking, sucking on a lolly, chewing gum? What counts as “strenuous physical exercise”? – a stroll may be strenuous to some but not others.
When is “clear enunciation of the person’s mouth… essential” in the work environment? On the phone? At an important meeting in a large setting? When is removal of a mask “necessary for the proper provision of the goods or service”? What is an “emergency”? What counts as, “next to or near food and drink premises or retail premises”? What amounts to “trauma”?
The list goes on and on: what are “compassionate” grounds in the context of visits?
The terms are broad and ambiguous, and Premier Berejiklian’s use of phrases along the lines of “it’s obvious that this counts as this, and it’s obvious that isn’t covered” does little to assist the public in understanding what, on the one hand is permissible and what, on the other, amounts to a crime attracting a maximum penalty of 6 months in prison under section 10 of the Public Health Act.
Work from home direction
The same uncertainly applies to the Minister’s “work from home direction”.
In that regard, order 8 states, “The Minister directs that an employer must allow an employee to work at the employee’s place of residence if it is reasonably practicable to do so”.
Employers who contravene this order face a fine of $10,000, and the Premier has encouraged employees to inform on employers who “force them to come to work”.
The order offers no further guidance as to when it may be reasonably impracticable for a business to operate externally.
To business owners and employees alike, the rules are unclear and confusing.
Rules are even unclear to lawyers
Even the New South Wales Bar Association – which is the body responsible for regulating barristers – has had a hard time ascertaining the scope and application of the rules.
A recent article by the Association’s President considered whether lawyers in the Local Government Areas of Fairfield, Canterbury-Bankstown and Liverpool are captured by the recently-published “administration of justice” exception to the prohibition against leaving those areas for work, given the exception expressly applies to those involved in the “operation of courts and tribunals, correctional centres and community corrections”, but does not mention lawyers.
The President concluded that the exception applies to lawyers who are leaving their LGA to attend court, provided their appearance cannot be undertaken by a remote method such as telephone, email or audio-visual link.
However, this clarification is far from clear from the wording in the government’s clarification of the order.
Enforcement of public health orders
New South Wales police officers have been criticised for using heavy-handed tactics against members of the public, particularly those living in Western Sydney, in the enforcement of these orders.
The approach has been seen by many as counterproductive, with some expressing the view that heavy-handed policing is merely pushing an already-frustrated public over the edge.
Western Sydney community leaders have said the preferred approach is for police to work together with the public, rather than conducting raid-like sweeps of the streets.
Police have also been criticised for the inconsistency in their approach, with many pointing out that shortly before hoards of officers descended on Fairfield, Canterbury-Bankstown and Liverpool, the wealthy Eastern Suburbs of Sydney were subjected to a relatively modest police presence – despite crowds roaming the streets and congregating on beaches.
The police have denied racial profiling and targeting, and Prime Minister Scott Morrison has backed them by saying “police are just doing their job.”
We can’t arrest our way out
As time goes on, the public is becoming increasingly tried, frustrated and angry for a range of reasons, including not being able to work, financial stress, separation from friends and loved ones, having their freedoms taken away and their movements tracked.
And it really has to be asked whether tough penalties and harsh enforcement measures are the right answer in the present environment.
Many are of the view that we can’t arrest our way out of a pandemic, and that greater compassion, cooperation and discretion are called for.