NSW Legislation page has been updated, identifying amendments to and repeals of legislative instruments

When I began this webpage I naively did not anticipate the sheer volume of material that would be generated in such a short space of time. The original structure whereby I simply listed the various legislative instruments in chronological order has therefore rendered the legislaiton pages unwieldy.

Accoridngly, I am progressively going through and separating out those legislative instruments that have been superseded by later instruments, and included them in a separate section at the bottom of each webpage. I have identified in respect of each such suprseded instrument the instrument by which it was repealed/revoked.

In addition, a number of instruments have themselves been subject to amendments, and I have identified those amending instruments in a note appended to the original instrument.

NSW Police powers to enforce the Restrictions on Gathering and Movement Order

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 [2017] 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.  

DV

New NSW laws prohibit leaving a place of residence, and limit public gatherings of more than 2 persons: an explainer

This post has been updated to include a discussion of what is a “vulnerable person” (31 March 2020 7:50am)

On Sunday evening the Prime Minister announced further restrictions on social gatherings, limiting them to two persons, or to the members of a household. It was up to the individual states and territories whether or not these restrictions would be merely advisory, or whether they would be made mandatory by government regulation. At a press conference on Monday morning, the Premier of NSW announced that these restrictions would be mandatory in NSW from midnight tonight.

The NSW Government Gazette has just (ie at around 11pm) published the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, the effect of which is described below.

Definitions

Firstly, some important definitions:

  • household means any persons living together in the same place of residence.
  • indoor space means an area, room or other premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of the roof or walls are permanent or temporary, or open or closed. NB “Premises” is defined by section 5 of the Public Health Act 2010 (NSW) to include any land, temporary structure, vehicle or vessel.
  • parent, in relation to a child, includes a person who is not a parent of the child, butwho has parental responsibility for, or who has care of, the child.
  • place of residence includes the premises where a person lives together with any garden, yard, passage, stairs, garage, outhouse or other area or thing attached to, or used in connection with, the premises.
  • public place, regrettably for an instrument that is supposed to tell people what they can and can’t do, is defined by reference to the Summary Offences Act 1988. It means a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.
  • work includes work done as a volunteer or for a charitable organisation.

Many of the exemptions from the general prohibitions in this Order depend upon whether or not a person is a “vulnerable person”. None of the Order, the Public Health Act 2010, or the Interpretation Act 1987 contains a definition of “vulnerable person”, or even the word “vulnerable”. The various Acts of Parliament and Regulations made in NSW that use “vulnerable person” define that concept differently. Most, but not all, include children and minors. Thry all include people with cognitive impairment. Some, but not all, include people with physical impairments, from ATSI backgrounds, and some icnlude people from non-English speaking backgrounds. Only one includes advanced age. It is again regrettable that such an important concept is left undefined, and therefore left in the hands of NSW Police to determine in the way they enforce the laws, at least in the first instance.

The term “vulnerable person” falls to be construed having regard to the ordinary meaning of the term having regard to the context in and purpose for which it is used. Having regard to the current health advice, one would think that it obviously includes persons over the age of 70, persons over 60 years of age who have existing health conditions or comorbidities, and Indigenous Australians over the age of 50 who have existing health conditions or comorbidities. The extent to which it extends byond those categories is uncertain. There are sound reasons to think that it ought extend to those in the community who may not be aware of or understand important public health information, such as those with cognitive impairment or language difficulties.

The basic prohibition on leaving one’s place of residence

The Order commences with the basic prohibition: a person must not, without reasonable excuse, leave the person’s place of residence.

This prohibition does not apply to a homeless person.

What are reasonable excuses?

There is a long list of things contained in Schedule 1 to the Order that are deemed to constitute a “reasonable excuse”. I have set out the full text of Schedule 1 at the end of this post, but they include: 

  • obtaining food or other goods or services for the personal needs of the household or other household purposes (including for pets) and for vulnerable persons
  • travelling for the purposes of work if the person cannot work from the person’s place of residence
  • travelling for the purposes of attending childcare (including picking up or dropping another person at childcare)
  • travelling for the purposes of facilitating attendance at a school or other educational institution if the person attending the school or institution cannot learn from the person’s place of residence
  • exercising
  • obtaining medical care or supplies or health supplies or fulfilling carer’s responsibilities
  • providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance
  • donating blood
  • accessing public services (whether provided by Government, a private provider or a non-Government organisation)
  • for children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings.

You can still attend a wedding or a funeral (subject to the limits of 5 persons at a wedding and 10 persons at a funeral).

Importantly (or so the draftsperson seemed to think) taking a holiday in a regional area is not a reasonable excuse for leaving a place of residence. It is not entirely clear whether or not taking a holiday in an urban are would be a reasonable excuse, but it would seem doubtful.

Gatherings of 2 or more persons

Where a person is allowed to leave their place of residence (ie because they have a reaosnable excuse to do so, as discussed above), they “must not participate in a gathering in a public place of more than 2 persons.”

This does not prohibit larger gatherings in a private residence, although attendance at such a gathering might involve a contravention of the prohibition on leaving a place of residence (for example, attending a party at someone else’s residence).

There are exceptions to this prohibition as well.

Importantly, the prohibition on gatherings in public places of more than 2 persons does not include a gathering of persons who are all members of the same household. So members of the same household can still go shopping or exercise without breaching this particular prohibition.

Expressly allowed are the following gatherings:

  • a gathering of persons for the purposes of work,
  • a gathering of persons all of whom are 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 (including attending a court or tribunal, satisfying bail requirements or participating in legal proceedings).

There is also a long list of what are described as “essential gatherings” set out in schedule 2 which essentially replicates the earlier exemptions from the previous gatherings prohibitions enacted by the Government, and to some extent overlaps with the earlier list of allowed gatherings:

  • gatherings for the purposes of transportation (so one can still drive a car or catch a bus, train or ferry);
  • gatherings at a hospital or other health facility (NB there is another Order made under the Public Health Act that limits visitation to aged care facilities);
  • a gathering at a supermarket, food market, grocery store or shopping centre (but only a supermarket, food market or grocery store within that shopping centre);
  • a gathering at a retail store (which must comply with the one person for every 4 square metres restriction);
  • gatherings at a workplace, school, university, educational institution or child care facility;
  • a gathering at a hotel, motel or accommodation facility;
  • a gathering at an outdoor space where 500 or more persons may be present for the purposes of transiting through the place (the example given is Pitt Street Mall, although Martin Place would perhaps be a better example).

Other gatherings and closures

Finally, the Order re-enacts the earlier prohibitions on mass gatherings and closures of premises in substatially the same terms.

DV

Schedule 1 Reasonable excuses

  1. obtaining food or other goods or services for the personal needs of the household orother household purposes (including for pets) and for vulnerable persons
  2. travelling for the purposes of work if the person cannot work from the person’s place of residence
  3. travelling for the purposes of attending childcare (including picking up or dropping another person at childcare)
  4. travelling for the purposes of facilitating attendance at a school or other educational institution if the person attending the school or institution cannot learn from the person’s place of residence
  5. exercising
  6. obtaining medical care or supplies or health supplies or fulfilling carer’sresponsibilities
  7. attending a wedding or a funeral in the circumstances referred to in clause 6(2)(d) and (e) or 7(1)(h)
  8. moving to a new place of residence (including a business moving to new premises) or between different places of residence of the person or inspecting a potential new place of residence
  9. providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance
  10. donating blood
  11. undertaking any legal obligations
  12. accessing public services (whether provided by Government, a private provider or a non-Government organisation), including—
    •  social services, and
    •  employment services, and
    • domestic violence services, and
    •  mental health services, and
    • services provided to victims (including as victims of crime)
  13.  for children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings
  14.  for a person who is a priest, minister of religion or member of a religious order— going to the person’s place of worship or providing pastoral care to another person
  15. avoiding injury or illness or to escape a risk of harm
  16.  for emergencies or compassionate reasons

Queensland two-person rule now in force

The Queensland Government has made the Home Confinement Direction, becoming the first Australian govenrment to enact restrictive laws prohibiting a person from leaving home except for “permitted purposes”. Any person who is permitted to leave home may only be in the company of one other person, or in the company of persons (unlimited in number) from their own household.

For the purposes of the Direction, “household” is defined to mean “persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences.”

Although one of the “permitted purposes” is work-related, it is restrictively expressed so as to enable a person only “to perform work on behalf of an employer that is engaged in an essential business, activity or undertaking, and the work to be performed is of a nature that cannot reasonably be performed from the person’s principal place of residence.” There is no broader work-related permission that would authorise non-employees (such as self-employed doctors, barristers, even Judges and Parliamentarians) to leave home.