The publication of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (Restrictions on Gathering and Movement Order) has given rise to understandable concerns about the powers of NSW Police in enforcing the order. This is particularly so given the contestability of notions such as “reasonable excuse”, “place of residence” and “vulnerable person”. Footage of NSW Police vehicles driving through Rushcutters Bay park moving people on has heightened those concerns. Is a couple that has taken their baby for a walk in a pram committing an offence if they stop at a park bench to rest (and are therefore no longer exercising)?
Because of some of the commentary on the effect of this Order in recent days, it is important to clarify one matter. Confusingly, the Restrictions on Gathering and Movement Order, despite its name, is not a “public health order” under the Public Health Act 2010 (Act). A “public health order” is an order made under section 62 of the Act, which are orders directed to a specified person whom the Secretary suspects on reasonable grounds may have COVID-19 (and various other diseases, it should be remembered – this is an existing power) and may on that account be a risk to public health and therefore should undergo a medical examination. The Restrictions on Gathering and Movement Order, on the other hand, is an order or direction made under section 7 of the Act. The distinction is important because NSW Police have powers to act to enforce a public health order that they do not have to enforce a direction under section 7.
There are very few specific powers conferred on NSW Police under the Public Health Act 2010 (Act). Under section 10 of that Act a person who, without reasonable excuse, fails to comply with the Restrictions on Gathering and Movement Order commits an offence. It should be noted that the offence is only committed if the person has notice of the direction.
Enforcement powers are given under the Act are given to “authorised officers”. NSW Police are not authorised officers in under the Act except in relation to two limited aspects of enforcement.
The first is the power to issue a penalty notice. Under section 118 of the Act NSW Police have the power to issue a penalty notice where it appears to the officer that a person has committed a penalty notice offence (which includes an offence under section 10 of the Act – ie contravening the Restrictions on Gathering and Movement Order. Despite the exaggerated reports of people facing $11,000 fine and 6 months in prison (which can only be imposed if prosecuted through the courts), the reality is that most people who are dealt with by the law for breaching the Restrictions on Gathering and Movement Order will be issued with a penalty notice, which is $1,000.
The second is the power under section 112 of the Act to direct a person whom the officer suspects has contravened the Act, or who is apparently in charge of premises where such a contravention has occurred, to state their full name and residential address and (if the person is not the occupier of the premises) the name of the occupier of the premises.
The powers of Police in this area, more generally, are governed by the general powers of law enforcement under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Importantly, any offence committed by contravening the Restrictions on Gathering and Movement Order is not an indictable offence, which significantly limits the powers of NSW Police under LEPRA.
A police officer has no general power under LEPRA to stop or detain a vehicle. The only power to stop a vehicle that could conceivably be relevant to enforcement of the Restrictions on Gathering and Movement Order arises where the police officer suspects on reasonable grounds that the driver of, or a passenger in, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest.
The power to arrest (and therefore to stop a vehicle in the present circumstances) is constrained by section 99 of LEPRA. The power of arrest arises where the police officer suspects on reasonable grounds that a person has committed an offence, and that arrest is reasonably necessary for one of a number of specified purposes. The only conceivably relevant specified purpose would seem to be to stop the person committing or repeating the offence.
There is no power to stop a vehicle for the purposes of carrying out an investigation to ascertain whether or not the Order is being breached. It is difficult to see how a police officer could be satisfied that arrest was necessary to prevent ongoing commission of the offence (ie breach of the Restrictions on Gathering and Movement Order) unless the person’s conduct otherwise gave rise to a reasonable suspicion that the Order was being breached. That suspicion cannot be provided by the exercise of a power to stop which itself only arises where the suspicion exists. The tail cannot wag the dog.
So there is no express power conferred upon NSW Police to stop a person (whether in a vehicle or otherwise) to inquire as to whether or not they have a “reasonable excuse” to have left a place of residence. The cases that have found an implied power to stop (see, eg, State of New South Wales v Le  NSWCA 290 in relation to the enforcement of public transport ticketing) arise in very different scenarios and do not have any readily apparent application to enforcement of the Restrictions on Gathering and Movement Order. However, in a practical sense a failure to stop and explain oneself might have the consequence that Police decide to issue a fine or exercise a power of arrest in circumstances where whatever reasonable suspicion they may have had that an offence was being committed could have been removed with an explanation. Again, however, that reasonable suspicion must exist prior to and independently of the failure to provide an explanation.
It should also be noted that NSW Police have no general power to move people on, and failing to comply with a purported command to move on is not of itself an offence. There are some limited move-on powers set out in section 197 of LEPRA, but they arise where the person’s conduct is obstructive, harassing or intimidatory, likely to cause fear, or is for the purposes of unlawful drug supply. NSW Police do not have a power to move-on that could conceivably be relevant to a mere contravention of the Restrictions on Gathering and Movement Order (the windscreen washer who was moved-on in recent days was committing an offence against Road Rule 236(4)(e)). However, failing to comply with a move-on direction (even if such command is not legally effective) might give a police officer reasonable grounds to be satisfied that arrest was necessary to prevent a continuation of the offence, but only if there were independently reasonable grounds to suspect the offence had been committed in the first place.