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Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown

Published online by Cambridge University Press:  01 January 2025

Ben Mostyn Open the ORCID record for Ben Mostyn [Opens in a new window]  and
Niamh Kinchin
Ben Mostyn*
Affiliation:
University of Wollongong, New South Wales, Australia
Niamh Kinchin*
Affiliation:
University of Wollongong, New South Wales, Australia
*
The author may be contacted at bmostyn@uow.edu.au.
The author may be contacted at nkinchin@uow.edu.au.
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Abstract

This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a ‘reasonable excuse’. This article considers the confusion around the order in the community and upper levels of the government. Publicly available information about the fines issued by the police is analysed and it is argued that an overly narrow application of the order by police meant that its application was not reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is concluded that if future lockdowns are required, care will need to be taken to ensure that Ministerial orders are crafted in line with the legislation and that police officers clearly understand their operation.

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Articles
Information
Federal Law Review , Volume 49 , Issue 3 , September 2021 , pp. 465 - 495
Copyright
Copyright © 2021 The Author(s)

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References

1. Public Health Act 2010 (NSW) s 7 (‘Public Health Act’).

2. Of relevance, the new order also used new language in some places. Under s 8, rather than banning gatherings, it proscribed operators of outdoor spaces to ‘allow 500 or more persons to enter or stay on the premises at the same time’. This suggests that there is difference between gatherings and crowds under the orders.

3. Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) pt 2 (‘Covid Order’).

4. Ibid sch 1.

5. Ibid pt 3.

6. Public Health (COVID-19 Restrictions on Gathering and Movement) Order (no 2) 2020 (gazetted on 14 May 2020, commencing 15 May 2020).

7. Pat O’Malley, ‘Theorizing Fines’ (2009) 11(1) Punishment & Society 67 (‘Theorizing Fines’).

8. Jeremy Bentham, The Works of Jeremy Bentham (John Bowring ed, Russell and Russell, 1962) vol 1, discussed in O’Malley, ‘Theorizing Fines’ (n 7).

9. O’Malley, ‘Theorizing Fines’ (n 7) 68.

10. Ibid 72.

11. Ibid 79.

12. Julia Quilter and Russell Hogg, ‘The Hidden Punitiveness of Fines’ (2018) 7(3) International Journal for Crime, Justice and Social Democracy 9, 12 (emphasis added).

13. Ibid 27.

14. Public Health Act (n 1) s 3.

15. New South Wales, Parliamentary Debates, Legislative Assembly, 24 November 2010, 28128 (Dr Andrew McDonald, Parliamentary Secretary).

16. See, eg, ‘Coronavirus: Police Take Action on Bondi Beach Crowds’, BBC News (online, 21 March 2020) <https://www.bbc.com/news/world-australia-51984725>.

17. Concise Oxford Dictionary ([Edition Number] Ninth ed, 1995 [Publication Year]) ‘gathering’ (def 1 [Definition Number]).

18. Macquarie Dictionary (Online [Edition Number] ed, 2020) ‘gathering’ (def 3 [Definition Number]).

19. This interpretation of ‘gathering’ seems to have been adopted by NSW Police in later enforcement. Before arresting student protesters on 15 September 2020 at the University of Sydney, ‘they declared that the different groups had, in fact, a common purpose and exceeded COVID-19 separation recommendations.’: Tim Barlass, ‘Sydney University Protest at Cutbacks Wrong-Footed by Police’, Sydney Morning Herald (online, 16 September 2020) <https://www.smh.com.au/national/nsw/sydney-university-protest-at-cutbacks-wrong-footed-by-police-20200916-p55w4r.html>.

20. Covid Order (n 3) s 5(1).

21. Ibid s 5(2) (emphasis added).

22. Ibid Explanatory Note.

23. Lisa Visentin and Alexandra Smith, ‘NSW to Enforce PM’s Social Restrictions amid “Stabilisation” in Coronavirus Cases’, The Sydney Morning Herald (online, 30 March 2020) <https://www.smh.com.au/national/nsw/nsw-to-enforce-pm-s-social-restrictions-amid-stabilisation-in-coronavirus-cases-20200330-p54f4k.html>.

24. Alexandra Smith and Lisa Visentin, ‘NSW Records 116 New Coronavirus Cases, State Tally Hits 2298’, The Sydney Morning Herald (online, 2 April 2020) <https://www.smh.com.au/national/nsw/nsw-records-116-new-coronavirus-cases-state-tally-hits-2298-20200402-p54g93.html>.

25. NSW Police Force, ‘Statement from NSW Police Force Commissioner Mick Fuller’ (Press Release, 2 April 2020).

26. Michael Koziol, ‘“Police State”: Stopping the Virus with the Full Brunt of the Law’, The Sydney Morning Herald (online, 5 April 2020) <https://www.smh.com.au/national/stopping-the-virus-with-the-full-brunt-of-the-law-20200402-p54gfg.html>.

27. Ibid.

28. Ibid.

29. Ibid.

30. Ibid.

31. Michael Koziol, ‘Is That Really Essential? When One Man’s Luxury Is Another’s Necessity’, The Sydney Morning Herald (online, 7 April 2020) <https://www.smh.com.au/national/nsw/is-that-really-essential-when-one-man-s-luxury-is-another-s-necessity-20200407-p54hvg.html>.

32. Ibid.

33. Peta Fuller, ‘Can L-Platers Still Drive and Have Driving Lessons during the Coronavirus Pandemic?’, ABC News (online, 9 April 2020) <https://www.abc.net.au/news/2020-04-09/l-platers-learning-to-drive-under-coronavirus-restrictions/12131826>.

34. Ibid.

35. Ibid.

36. Luke Kennedy, ‘Surfers in Sydney’s East Are Not Criminals But They’re Being Treated That Way’, The Sydney Morning Herald (online, 12 April 2020) <https://www.smh.com.au/national/surfers-in-sydney-s-east-are-not-criminals-but-they-re-being-treated-that-way-20200412-p54j5c.html>.

37. Ibid.

38. See, for instance, ‘Coronavirus: Kebab Fine Gives WA Premier Fits of Laughter’, Nine News (online, 3 April 2020) <https://www.9news.com.au/videos/coronavirus-kebab-fine-gives-wa-premier-fits-of-laughter/ck8jutq9200100hqtixz4xxfe>.

39. Sarah Keoghan, ‘NSW Arts Minister Don Harwin Fined $1000 for Trip to Holiday Home’, The Sydney Morning Herald (online, 10 April 2020) <https://www.smh.com.au/politics/nsw/nsw-arts-minister-don-harwin-fined-1000-for-trip-to-holiday-home-20200410-p54iru.html>.

40. Paige Cockburn, ‘NSW Police Fine NRL Players after Camping Trip amid Coronavirus Lockdown’, ABC News (online, 27 April 2020) <https://www.abc.net.au/news/2020-04-27/nrl-players-under-investigation-for-breach-of-coronavirus-rules/12188192>.

41. Lisa Visentin, ‘Ex-NSW Minister Don Harwin to Appeal His $1000 Fine for COVID-19 Breach’, The Sydney Morning Herald (online, 21 May 2020) <https://www.smh.com.au/politics/nsw/ex-nsw-minister-don-harwin-to-appeal-his-1000-fine-for-covid-19-breach-20200521-p54v7r.html>; Adrian Proszenko, ‘Addo-Carr to Fight NRL, Police Fines for Social-Distancing Breach’, The Sydney Morning Herald (online, 13 May 2020) <https://www.smh.com.au/sport/nrl/addo-carr-to-fight-nrl-police-fines-for-social-distancing-breach-20200512-p54s81.html>. On 3 July 2020, Mr Harwin’s fine was dismissed after public prosecutors decided not to pursue the case. The Police Commissioner Mick Fuller disagreed with the decision and issued a statement: ‘I reviewed the circumstances of the incident at the time, and I stand by my decision to proceed with a penalty infringement notice’. Mr Harwin was reinstated as Arts Minister: ABC News, ‘NSW Police Boss Hits Back after Former Arts Minister Don Harwin Gets off Coronavirus Fine’, ABC News (online, 3 July 2020) <https://www.abc.net.au/news/2020-07-03/don-harwin-court-covid-travel-restrictions-fine-withdrawn/12419448>.

42. Jordan Baker, ‘“Not Black and White”: Lawyers Warn Fines for Public Health Breaches Could Fall Over in Court’, The Sydney Morning Herald (online, 13 April 2020) <https://www.smh.com.au/national/nsw/not-black-and-white-lawyers-warn-fines-for-public-health-breaches-could-fall-over-in-court-20200411-p54j1v.html>; a forum held by the Public Interest Advocacy Centre on policing and COVID-19 also demonstrated many lawyers were concerned by the police interpretation of the order.

43. See Koziol (n 26) and accompanying text; see also Michael Levenson, Tara Parker-Pope and James Gorman, ‘What We Know About Your Chances of Catching the Virus Outdoors’, The New York Times (online, 14 May 2020) <https://www.nytimes.com/2020/05/15/us/coronavirus-what-to-do-outside.html>.

44. Lon Fuller, Morality of Law (Yale University Press, 1969) 39.

45. (1933) 49 CLR 142, 155 (‘Williams’).

46. (1989) 166 CLR 161.

47. Ibid.

48. (2013) 249 CLR 1, 84.

49. (2005) 147 FCR 299, 332 (‘Vanstone’).

50. Dennis C Pearce and Stephen Argument, Delegated Legislation in Australia (Butterworths, 2nd ed, 1999).

51. Vanstone (n 49) 337; see also Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 585.

52. (1993) 40 FCR 381, 384.

53. Vanstone (n 49) 338.

54. Ibid 337 [141].

55. Williams (n 45) 155.

56. Covid Order (n 3) s 5(1).

57. (1981) 52 FLR 285, 289 (‘Thornton’).

58. Ibid.

59. George v Rockett (1990) 170 CLR 104, 112.

60. Commonwealth Attorney-General, ‘A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers’, Attorney-General’s Department (PDF, September 2011) <https://www.ag.gov.au/sites/default/files/2020-03/A%20Guide%20to%20Framing%20Cth%20Offences.pdf>.

61. Maciej Koszowski, ‘Restrictions on the Use of Analogy in Law’ (2016) 37(3) Liverpool Law Review 137.

62. Thornton (n 57) 289.

63. King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184.

64. Ibid; Cann’s Proprietary Ltd v The Commonwealth (1946) 71 CLR 210.

65. The Mayor, Councillors and Citizens of the City of Brunswick v Stewart (1941) 65 CLR 88, 98.

66. Moefili v Parole Authority of New South Wales (2009) 76 NSWLR 555, 566 [81].

67. Dennis C Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 3rd ed, 2005) 22.4.

68. Zaravinos v New South Wales (2004) 62 NSWLR 58, 68 [29]. Based on this reasoning, inter alia, the police had committed the tort of false imprisonment.

69. Joint Committee on Human Rights Chair’s Briefing Paper, The Health Protection Coronavirus Restrictions (England) & the Lockdown Restrictions (8 April 2020) 1.

70. Ibid 14 [37].

71. See Coco v The Queen (1994) 179 CLR 427.

72. Ibid.

73. (2008) 168 FCR 576.

74. Government Information (Public Access) Act 2009 (NSW). More commonly known as an FOI request.

75. Caitlin Fitzsimmons and Nigel Gladstone, ‘Police Ease Up On COVID-19 Fines as Pandemic Progresses’, The Sydney Morning Herald (online, 10 May 2020) <https://www.smh.com.au/national/nsw/police-ease-up-on-covid-19-fines-as-pandemic-progresses-20200509-p54rcw.html>. This includes fines under the first and second public health order, but our data only look at the fines under the second public health order.

76. Braun et al, ‘Thematic Analysis’ in Pranee Liamputtong (ed), Handbook of Research Methods in Health Social Sciences (Springer Nature, 2011).

77. (1996) 186 CLR 454, 464.

78. Christian Knight, ‘COVID-19: Catching Up with Mates at Crescent Head Proves Costly’, The Mackay Argus (online, 12 April 2020) <https://www.macleayargus.com.au/story/6720188/covid-19-catching-up-with-mates-at-crescent-head-proves-costly/>.

79. This sentence may suggest that the officer was correctly applying the Public Health Act s 10 reasonable excuse provision. However, given the evidence presented throughout this article, and also the wording of the sentence, it still appears that the officer is applying the list of excuses (ie, ‘none of them’) in the Order and not considering s 10 properly, which requires a holistic view of what is a reasonable excuse.

80. Keoghan (n 39).

81. Koziol (n 31).

82. Pallavi Singhal and Laura Chung, ‘Police Issue $165,000 in COVID-19 Fines, But Only Two in Sydney’s Worst-Affected Area’, The Sydney Morning Herald (online, 9 April 2020) <https://www.smh.com.au/national/police-issue-165-000-in-covid-19-fines-but-only-two-in-sydney-s-worst-affected-area-20200409-p54ik3.html>. It was beyond the scope of this study to code fines by geography.

83. Ibid.

84. As we only have NSW Police summaries of events, this is speculative. Further research may look into interviewing fine recipients to better explore their understanding of the process.

85. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 11 (‘LEPRA’).

86. Public Health Act (n 1) s 97.

87. Ibid s 112(3).

88. Greg Miskelly and Peta Doherty, ‘Inside the Police Database That Holds 40 Million Private Records and Any Officer Can Access’, ABC News (online, 23 June 2019) <https://www.abc.net.au/news/2019-06-23/nsw-police-database-privacy-breach-exposed-in-abc-investigation/11224426>.

89. South Australia v Tanner (n 46).

90. LEPRA (n 85) s 197.

91. Ibid s 197(2).

92. The phrase ‘proactive patrols’ or similar appear 16 times in the data.

93. When police internal directives were released in late July, they advised officers not to stop people in groups of two going about their business or family groups. The Sydney Morning Herald put this issue to NSW Police: ‘But several instances that were published by NSW Police showed people had been fined after being stopped while walking along the street or driving. A police spokesperson said the published summaries may not necessarily include the initial lawful reason a person was spoken with or a vehicle pulled over’. The directive also advised officers, ‘a family having a sandwich in the park after a walk, for example, would not warrant the same police response as a group of rowdy teenagers eating and socialising in the park’: Angus Thompson, ‘NSW Police Internal Directives for COVID-19 Fines Revealed’, The Sydney Morning Herald (online, 17 July 2020) <https://www.smh.com.au/national/nsw/nsw-police-internal-directives-for-covid-19-fines-revealed-20200716-p55coc.html>.

94. See ibid.

95. When the police directives were revealed they had advised officers not to stop cars just to check where people were going: ibid.

96. For a detailed analysis of policing and bike fines in normal times, see Russell Hogg and Julia Quilter, ‘Policing Mandatory Bicycle Helmet Laws in NSW: Fair Cop or Unjust Gouge?’ (2020) Alternative Law Journal 45(4) 270.

97. Fitzsimmons and Gladstone (n 75).