• Alyce Cooper

What are the powers of Police enforcing Covid lockdown laws and what are your rights?

Our legal expert Alyce Cooper gives a guide to police powers during lockdown and outlines what your rights are if the long arm of the law reaches out

Just this last week, a Darlinghurst man who disrupted a media conference being held by NSW Police Commissioner Fuller, and claiming to be the “prime creator of the earth”, was fined $1000 under the Public Health Act and issued a move-on direction.

It’s perhaps one of the more bizarre examples, but it shows how police can use powers under the Public Health Act 2010 (NSW) to enforce the restrictions and social distancing laws we have in place during the Covid-19 pandemic.

And new powers were put in place allowing Police to arrest, question and issue penalty notices during lockdown.

Police are able to issue on-the-spot fines to individuals and corporations if they fail to comply with the measures and restrictions itemised under the Act.

· For an individual the on-the-spot fine is $1000.

· For a corporation the on-the-spot fine is $5000.

· For not wearing a mask under the Act, the fine is $200.

Of course, if you elect to have your fine dealt with by a Court, the fine can be increased, or decreased, or waived completely.

Police also have the power to arrest you and charge you with a criminal offence if you are found to be breaching the legislation and will then issue you a Court Attendance Notice. The penalties are much more severe if you are dealt with by a Court.

The new powers to arrest and fine people do however have some restraint. The legislation uses the word ‘may’ instead of ‘must’ in relation to the issuing of fines or arrest. This means Police have the discretion to not arrest, or not issue a fine.

Can the Police enter your premises to se if you are breaching the Act?

Under the legislation, Police can enter premises that are used for BOTH commercial and residential purposes if they consider it necessary and they produce either a valid search warrant or a valid certificate of authority, or if the occupier provides informed consent.

This means, the Police should not enter a premises used solely for residential purposes unless they have a valid search warrant, of the occupier provides valid consent.

What must you tell the Police if questioned on the spot?

If police reasonably suspect you are in breach of the public health order, the officer should ask you for your name and address.

You are not compelled to provide Police with any more information, under the legislation, if you are questioned on the spot.

You still have your right to silence. Bear in mind, if the officer continues to believe you are breaching the legislation, or suspect it, they can arrest you.

The legislation does not state you are the one who bears the onus of proving on the spot that you have a reasonable excuse to not be complying with legislation.

However, if you do talk to the Police and tell them the reason you believe you have a ‘reasonable excuse’ or an exemption, the matter may well be immediately resolved.

In the last few weeks I have heard of many fines and court attendance notices being issued, such as:

· The Darlinghurst man who disrupted a media conference being held by NSW Police Commissioner Fuller, claiming to be the “prime creator of the earth”. He was fined $1000 and issued a move-on direction

· A cafe owner whose staff were not complying with the new rules was issued a fine

· A man and two women were arrested after complaints were made that staff at a Bowral cafe were not wearing masks. Court Attendance Notices and fines were issued

· Three men from Merrylands and Auburn, attended Jenolan Caves and attempted to purchase tickets for a tour. Staff requested the group to leave on establishing they were from Sydney and police were notified. A short time later, police stopped their vehicle and when asked why they had travelled there. They allegedly said they were bored. They were each issued with $1000 fines and directed to return to Sydney

· The owners of a café on Snowy Valley Way, Jindabyne were arrested and charged for not wear fitted face covering in retail business. They were given conditional bail. However, officers went back to the café another time, and again found no face coverings being worn by members of the public, no QR code and no sign-in sheet. The owners were handed $1000 fines and Court Attendance Notices were issued for breaching their bail.

It is hard to tell how the Court will deal with the criminal charges, as the legislation is new, and there doesn’t appear to be a firm precedent set.

In relation to fines, I am told by colleagues that if you genuinely have a reasonable excuse and inform State Debt Recovery Office of the same, in most cases, they will withdraw the fine. In the cases above, where people are deliberately not complying with the legislation and a Court Attendance Notice is issued, I imagine criminal convictions would be in order.

Alyce Cooper is the Principal Solicitor at AKC Legal. Ms Cooper specialises in traffic law, criminal law, civil law, family law, Estate Planning and Probate matters.

The contents of this article should not be construed as specific legal advice to any individual reader’s situation. If you would like legal advice tailored to your situation, please contact AKC Legal on 0401 451 322.

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