Since 26 June 2021, New South Wales has been subject to the longest and harshest lockdown the State has experienced since the start of the Pandemic.
While the restrictions and conditions have increased substantially with time, surprisingly, so have the powers that have purportedly been given to the NSW Police Force.
Never before has the State of New South Wales, experienced such a large and unchecked increase in police powers. Unsurprisingly, many now referring to it as a “police state” with the Premier at the whims and desires of the Police Commissioner.
While some may not see the concern that such overarching police powers have, the reality is that such powers can and will be exploited and often they are exploited against the most marginalised members of the community.
According to the latest Public Health Order, police have purportedly been given the power to:
- Stop and ask any person for their identity without any suspicion that the person has done something wrong.
- Ask a person for their medical documents including vaccination status, covid test results, and mask exemptions.
- Ask a person for proof of their employment.
- Request a person to go home.
The question however remains, are these powers lawful?
Our interpretation of the law is that many of the police powers under the current Public Health Order are unlawful and legally invalid.
We equally believe that many of the fines that have been issued by the NSW Police can be subject to challenge in court.
While this may all sound good, unlike many, we did not want to make bold assertions about the law without explaining the fundamental legal basis and logic behind why we have come to hold these views. We have therefore set out a detailed explanation of our interpretation of the law.
To be clear, this article is not intended as legal advice and we are not encouraging people to rely on this article as legal advice. This article is the opinion of the writer as to the interpretation of the law. This interpretation might not necessarily be accepted by a court, however we think many of these issues require ventilation before a court.
As a final constraint to this article, we do not in any way recommend or encourage that people breach the Public Health Orders. The Orders are in place for the safety of the community. This article is not concerned with validity or the necessity of those Orders. Covid-19 is a serious public health risk and should be considered as such.
This article is solely concerned with the validity of police powers under the Public Health Order and the implications that might arise if our interpretation of the law surrounding those powers is accepted.
How does the Public Health Order work
To properly understand the legalities, it is important to first understand how the Public Health Orders work.
The Public Health Order is not an Act of Parliament, it is not legislation, nor is it a regulation. The Public Health Order is an instrument that is made by the Health Minister (Brad Hazzard) under the powers provided under Section 7 of the Public Health Act (The Act).
So, the starting point is to consider the scope of the power given to the Health Minister under the Public Health Act to make Orders.
Under Section 7 of the Public Health Act if the Minister considers on reasonable grounds that Covid-19 is a risk, or is likely to be a risk, to public health,the Minister can take such action and by order give such direction that the Minister considers necessary to deal with the risk and its possible consequences.
It is undisputable that the Minister has a wide power under Section 7 to make orders and give directions to deal with the public health risk. However, does that power also include enforcement power.
Our view is that it does not. We will explain why.
What is the offence of breaching the Public Health Order?
The starting point is to identify the legal source for the offence in order to then consider how it might be enforced.
Despite common misconception, the Health Minister does not have power to create offences. The offence is not contained in the Public Health Order itself. Rather, the offence is contained in Section 10 of the Public Health Act.
For relevant purposes, section 10 of the Public Health Act states that a person who is subject to a direction under Section 7 and fails to comply with the direction without a reasonable excuse is guilty of an offence.
Therefore, if a person fails to comply with the Public Health Order they are committing an offence under Section 10 of the Public Health Act. They are not committing an offence under the Public Health Order.
What are the enforcement powers?
Part 8 of the Public Health Act is titled “Enforcement of Act”. That is that it contains all the sections enacted by Parliament that deal with Enforcement of the Public Health Act.
It is important at this stage to note that the offence provision, being Section 10 of the Act, is subject to these enforcement provisions. That is that Part 8 of the Act gives the powers to enable the enforcement of Section 10.
So, what are the actual enforcement powers under the Act?
The power in Section 112 allows a police officer to request that a person state their name and residential address if they suspect that the person has breached the Public Health Order.
What is however most important to note is that Section 111 of the Public Health Act, which provides the power to request other information or documents from a person is not a power that has been given to the Police.
Under Section 111 an authorised officer may request information and documents from a person by giving them notice in writing. However, the definition of authorised officer in the Act does not include a police officer.
Unlike Section 112, where police officer has specifically been included into that power in the section, the same has not been done in Section 111. Clearly indicating that Parliament did not intent to give police the power to request documents or information.
So to conclude, the only power that has been given to the police under the Public Health Act to enforce Section 10 (the offence provision of not complying with the Public Health Order) is Section 112, and that is the power to ask a person to state their name and address but only if the police officer suspects that the person has breached the Order.
The question to turn to now is whether the Minister can provide the police with additional powers that exceed the powers given to the police under the Public Health Act.
Our interpretation of the law suggests that the answer is no.
Section 32 of the Interpretation Act provides as follows:
(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
The Public Health Order is an instrument that is made under the Public Health Act. Therefore, the enforcement powers given to the police under the Public Health Order cannot exceed the enforcement powers under the Public Health Act.
The only enforcement power given to the police under the Act is under Section 112 and that is to ask a person to state their name and address if they suspect that the person is in breach of the Public Health Order.
Accordingly, any enforcement power that is given to the police that exceeds the power under Section 112 in our view is unlawful and invalid.
Which police powers under the Public Health Order are unlawful
Basically, any power that exceeds Section 112 is unlawful in our view. This includes the following powers purported to be given to the police under the Public Health Order:
1) The power to ask for a person’s name and address to determine if they are from a Local Government Area of Concern or if they are exercising outside of their relevant radius,
2) The power to ask a person for their medical documents including vaccination status, covid test results, and mask exemptions.
3) The power to ask a person for proof of their employment.
4) The power to request a person to go home.
What happens if a police officer asks me for this information
There is nothing in the law that stops a police officer asking a person these questions. The question is what happens if a person does not comply with answering them.
There is nothing that a police officer can do compel a person to answer question outside of the power under Section 112. However, the police officer might then decide to fine the person.
Just because a police officer issues a person with a fine does not mean that the fine is valid. A person is entitled to challenge the fine at Court.
What is important to note that it at all times it is for the New South Wales Police to prove that a person is guilty of an offence. There is nothing in our reading of the Order that reverses the onus of proof so that a person must prove that they are not guilty.
Take for example a situation where a person refuses to provide a police officer with their vaccination status. The police officer fines that person for breaching Section 10.
The person elects to go to Court, it will be incumbent on the police to prove that the person was not vaccinated at the time. The police will need to place that evidence before the Court. In doing so, the police will not be able to rely on the powers given to them under the Order if they are deemed invalid.
In our view, it really is a house of cards for the prosecution. Yet it only get worse when considered in light of the right against self-incrimination and right to silence that we discuss below.
The right against self-incrimination and right to silence
This is the most important aspect of the operation of the Public Health Order that needs to be understood.
The right against self-incrimination and the right to silence are the most fundamental common law rights that all Australians have.
This is not only recognised by a plethora of cases in Higher Courts, most important is the fact that it is recognised and protected in Part 8 (The Enforcement Part) of the Public Health Act.
The way that this works in the Public Health Act is as follows:
1) Section 114(2) of the Public Health Act removes a person’s right to silence if they are given a direction Part 8 of the Public Health Act. For our purposes such a direction will be under section 112 where a police officer asks a person for their name and address if they suspect that they have breached the Public Health Order. A person must provide this information once directed.
2) However, this removal of a persons right to silence is subject to the very stringent protections against self-incrimination in Section 114(3) of the Public Health Act which provides:
Any information furnished or answer given by a natural person in compliance with a direction under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under section 113(2)) if–
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
Therefore, even in a circumstance where a police officer suspects that a person has breached the Order and requests their information, if the person objects to answering the question or if the police officer does not warn them that they can object to answering the question, then any information obtained from that person is inadmissible in criminal proceedings.
The effect of this is that it essentially makes most fines that have been issued by the police subject to possible legal challenge.
Essentially, the only enforceable fines under the Act are those where the police have investigated through other means, other than by questioning the person and gathered enough evidence to determine that the person is in breach of the Public Health Order. If that is the case, then the police officer can ask the person for their identity however this request can only be made for the purpose of issuing the person with a fine or court attendance notice and not to investigate or attempt to prove the offence against the person.
That is the inherent power under Section 99 of The Law (Enforcement Powers and Responsibilities) Act to request a person’s identity for the purpose of initiating proceeding against them. However, the High Court has made it clear that the powers in Section 99 cannot be used for investigative purposes.
A summary of the Public Health Order
To summarise how the Public Health Orders work:
1) Section 7 of the Public Health Act gives the Health Minister the power to make the Order.
2) The Health Minister issues an instrument pursuant to the power in Section 7 of the Public Health Act which contains the directions and orders.
5) The only power given to police under Part 8 of the Act is under Section 112, and that is to ask a person to state his or her name and residential address if they suspect that the person is in breach of the Order.
6) However, under Section 114(3) if the person objects to providing their name and or address or they are not informed that they can object, then any answer that they give to the police is inadmissible in criminal proceedings.
What to do if you have been fined for breached the Public Health Order
You can elect to have your fine determined in Court where the Court will need to determine your matter according to law. The application of the law is not discretionary, and the Court must apply the law even if the end result does not align with the views of the decision maker.
Free legal advice on the Public Health Order
We will do our best to maintain free telephone advice in respect of enquiries regarding the Lockdown Order. Depending on the circumstances, we may even offer to represent certain persons for free.
Our office will remain open during the coronavirus lockdown, this includes our 24 hour, 7 days a week free legal advice hotline.
Note: This article is not intended to be legal advice and reliance should not be placed on this document as legal advice. This is the authors views on the law and is not intended to apply to any particular circumstances. We recommend that you obtain legal advice specific to your circumstances.