The NSW government has implemented new and amended existing legislation as a result of the COVID-19 pandemic. One of the Acts that has been amended to introduce new law is the Public Health Act 2010 (NSW).
The Public Health Act is the legislation that pertains to the government’s protection, monitoring and regulation of public health and the control of infectious diseases. Before the COVID-19 pandemic, there were already offences contained in the Act relating to the spread of infectious disease. The Act, however, has been amended in light of the pandemic.
The Public Health Act creates certain offences for non-compliance with the legislation, including non-compliance with a specific Ministerial Direction or Public Health Order. Numerous Public Health Orders containing Ministerial Directions have been issued relating to the COVID-19 pandemic and can be accessed on the NSW legislation website.
The offence for failing to comply with a Ministerial Direction carries a maximum penalty of 100 penalty units ($11,000) and/or 6 months imprisonment for persons or 500 penalty units ($55,000) for a corporation. Police can issue an infringement for breaches of this offence or require a person (or corporation to attend court). Presently, the following may constitute an offence of failing to comply with a Ministerial Direction contained in the Public Health Order:
1. Leaving your place of residence without a reasonable excuse (link to page);
2. Participate in a gathering in a public place of more than 2 persons (link to page);
3. Keep open certain businesses or premises. For example, licensed venues, entertainment facilities, places of public worship, beauty salons, gyms etc. (link to page);
4. Failing to self-isolate for 14 days after international travel, or failing to go directly to a quarantine or medical facility if directed to do so (link to page);
5. Failing to self-isolate for 14 days if diagnosed with COVID-19 (link to page); and
6. Attending an aged care facility (link to page).
It is also an offence to Obstruct or Assault a person (such as a police officer) who is exercising functions under the Act. The maximum penalty is 100 penalty units ($11,000) and/or 6 months imprisonment.
Ordinary criminal offences still apply. For example, a person can still be charged with Resist Officer in Execution of Duty or Assault Officer in Execution of Duty if they are resisting a lawful arrest and/or assault a Police Officer in the execution of their duty.
Police have the following powers to ensure compliance with the Public Health Act:
1. Issue a Penalty Notice
Police can issue on the spot fines to individuals and corporations for failure to comply with the measures enacted under the Public Health Act 2010 (NSW).
For an individual – the on the spot fine is $1000.
For a corporation – the on the spot fine is $5000.
2. Criminal Charges
Police can charge people or corporations with a criminal offence and issue a Court Attendance Notice. The penalties are more severe a court deals with you – the maximum fine is $11000, and the maximum prison sentence is six months. If the offence continues, you face a further possible fine of $5500.
3. Arrest and return to home
Section 71A of the Public Health Act gives a police officer the power to arrest a person if they suspect on reasonable ground that the person is contravening a public health order relating to the COVID-19 pandemic.
Upon arrest, they must return the person to their home, or, the place where they were ordered to reside.
4. Direction to provide your name and residential address:
Section 112 of the Public Health Act enables a police officer to require a person to state their full name and residential address where they suspect that person has contravened any provision of the regulations.
Author: Trudie Cameron