Social distancing and other Coronavirus rules are a fact of life in the time of Pandemic. Currently, you face fines, and in some states, jail sentences, for breaking the rules. Because of the ambiguous nature of the rules and poor implementation, more and more reports of police harassment and unwarranted fines are cropping up. Here is how to best comply with the rules and respond if you feel you are unjustly fined.
This article should not be used in place of proper legal advice, but rather it is about general principles and information. Remember, each state, territory or community may have their own laws and these laws are subject to change on an ongoing basis. It is the responsibility of the reader to research the most current and relevant rules in their jurisdiction and seek independent professional legal advice should that be required.
Also, this article is focused on compliance with the law. At no point is advice on how to avoid fines to be seen as avoidance of the law, but on how to properly meet your legal requirements while being able to defend your legal rights.
What are the laws and how do they operate
Most laws in Australia are at the state level, however, generally speaking, the laws across Australia can be very similar because each state has started with a similar legal system and have worked nationally to standardise laws. With COVID-19 laws, the process of creating them has been through the national cabinet which involves the federal and state governments working together to create a fairly unified approach. Once a national agreement has been put in place, each state then enacts its own laws, which are similar in principle, but which may differ a little in detail.
The core principle is that each COVID-19 law is enacted under emergency powers and they empower a duly assigned person, usually the State Health Officer, to enact rules and regulations that restrict movements. The key rules are required to be published by the Health Officer on their website and this lays out the rules that should be followed in each state.
What are the problems with these laws
The mainstream media has focused on the concept of a police state with unrestricted powers, but like most countries in the world, emergency powers exist for the very purpose of responding to a crisis. What I would like to discuss are the practical, not political issues, associated with these laws.
A constant police presence in our lives is designed to make us safety (Image courtesy of Angelic @ Pixabay)
First of all, the laws are very ambiguous. They talk about unnecessary travel, except in some broadly defined circumstances. For example, you are allowed to visit someone to provide assistance or care. A plumber can come around and unblock your toilet, and so can your friend. But can they come around to fix your WiFi, drop off a spare monitor so that you can work more effectively at home or wash your dog? Before anyone writes that, no you can't go around and wash someone's dog for them - let me ask you this, are you sure, where is it written? That is the point, I don't know either.
The laws are often open to interpretation. Some state premiers have stated that you can't do learning driving at this time. Note that I said state premiers. Because when I look at the rules in some of the states, it doesn't mention learner driving but does say that you can travel for the purpose of study. A learner driver is travelling and studying at the same time. A statement from the premier is not a statement published by the Health Officer, so shouldn't be legally binding. But people get fined for it anyway.
In addition, the police have been given discretionary powers to implement the law. That means, if they decide that you have driven to too far to go exercising then you can get fined, if they see you walking along the road with a couple of other people, they can fine you, and if decide that sitting under a tree in a park reading a book is not justified just because your flatmates are arguing and you needed to escape your apartment, well then you will be in trouble.
One recent case I heard about was a yacht owner who was anchored out in Moreton Bay off Brisbane. They were approached by the water police and told that they can't anchor there and had to move. That is fair enough. But he was told to move his yacht to Macleay Island. When he called the appropriate authorities to book his spot there, he was told that because the island is full of retirees and had limited stock in their one sole IGA, he was not welcome. The police were not happy about this and ended up escorting him to Hamilton. But why were the police directing him to an incorrect spot in the first place? They should have known beforehand.
More worrying is the fact that there are increasing reports of police harassment related to the laws. Along with people being fined for laws that they genuinely didn't understand it also includes parents being harassed for letting their kids play in the front yard or people being shouted by law enforcement officers when someone comes up and walks beside them for a short period. The latter is worrying because you are allowed in most states to go out exercising with people who are members of your household. Surely the police could have asked first in that situation before shouting, and provided a warning in this situation.
So how to make sure you are compliant in the first place
Some people are sure to post in the comments about the need to basically stay home and do nothing. In other words, spending the next 6 to 12 months in bed under the covers will ensure your maximum compliance with the law. Though that might be a sarcastic comment, the simple fact is that doing as little as possible or taking steps to carry out tasks in the safest way, will maximise your compliance and be the greatest benefit to the community at this time.
However, you should use your state's published declarations from the Health Officer as your main resource on what you can or cannot do. These are the only legally binding requirements that you need to comply with that go beyond any other existing legal obligations (such as, most states make it illegal to deliberately spread disease). I highly recommend linking this page on your phone so you can access it if there is any issue.
You should also pay attention to any statements made by senior government officials. These are not legally binding interpretations of the law, but it is a declaration of what they intend to enforce, such as the rules against learner drivers.
You should also educate yourself about the way Coronavirus is spread. Then you should consider your actions and take all reasonable steps to comply with the law, try not to push them to the limits, and also realise that it is also valuable to exceed your legal requirements when responding to what is an international crisis. In other words, you can go shopping all day and every day, wander around shops breathing on and touching things, and not be breaking any laws, but well, do I have to say it, please don't do that.
One issue I haven't mentioned is the lack of any rules related to evidence. You can travel when you have a reasonable reason to do so. But there are no defined rules about what evidence you might require, and it is up to the police officer to decide if you are telling the truth or not. So before doing anything, make sure that you have evidence of what you are doing and why. The best way is to have a text message or email rather than a phone call to back up a legitimate reason why you are doing something.
When you encounter the police or other official officers
When you encounter a police officer, the most important thing is to be as polite and compliant as possible. The extraordinary discretionary powers afforded to police mean that they can issue a fine for whatever reason they feel, and have no obligation to back this up with any evidence at the time. There is no guarantee that being polite and compliant will mean you not be fined, but this should be your starting point. Certainly, challenging their authority can make them look for ways to assert their authority. Also, we are all in this together, so cooperating with authorities is often a good idea overall.
Remember in Australia you are legally allowed to film police, as they are in public and conducting a public function. As a general rule, if you film or record a person, you should advise them that you have started to do this. The police have been instructed to approach the public in matters of COVID-19 compliance in a polite and professional way. If they are rude or start making accusations that you feel are unjust, film or record them as evidence. Remember, they could just claim you were doing something which you weren't doing, so it is incumbent on you to gather the evidence.
While the police can issue fines on the spot, sometimes they will issue the fine after the fact. So just because the police leave, doesn't mean you won't be getting a fine.
After you get a fine
If you get a fine and you were doing something wrong, please pay it. The fines are there for a reason and the police are doing their job if they fined you when you were deliberately breaking the COVID-19 restrictions.
If you can't afford to pay it, then there will be contact details provided on the fine notice. Tell them your financial situation, and they might arrange a payment plan or defer your fine, depending on the rules in your state.
You are also entitled to seek an administrative review of your fine. There have been a disturbing number of fines that have been overturned, including ones where they fined people just after the laws came into place and people didn't know what the rules were or, more often now, the police officer didn't know the rules. Another area of challenge is where you have evidence that supports your side of the argument.
Ultimately in Australia, the courts are the arbiter of any issue and you have the right to legally challenge any fine that you receive. Remember, it is best to go to court only after receiving legal advice and if the court rules against you, your fine normally increases and you may even in some states face a jail term. So most people are not going to go to court.
Reasons for legally challenging a fine
The average person is not going to challenge their fines, but we can expect that some legal cases will be brought forward against the worst of policing excess. There are some core principles that might be used here.
Image of the High Court of Australia courtesy of A constant police presence in our lives is designed to make us safety (Image courtesy of Alex Proimos @ Wikimedia
The most basic challenge will be around errors made by the police. This could be in police not following the rules, not understanding the rules or in the interpretation of the rules. The case would be learner drivers, which is an interpretation of the rules, not something written explicitly. Which is why some states ban learner drivers and others don't. Another example of interpretation is that we can drive somewhere to exercise, as long as it is nearby. How near is the definition of nearby? This sort of ambiguity is why lawyers make a lot of money.
Another issue is around rules of evidence. People used to challenge speeding fines because the police couldn't prove that the person who owned the car was driving the car. Be aware they changed the rules so that you get fined not matter who is driving your car unless you prove that someone else was driving the car. With COVID-19 fines, lack of evidence for issuing the fine might be a key issue and a point of challenge.
Then there are issues with the facet that law is never straightforward. Instead, we have multiple different laws that overlap. An example would be the police issuing fines in Victoria to a group doing a refugee protest from their cars. So they were exercising their right to protest as well as maintaining social distancing to avoid spreading the disease. Even if they were breaking the law by unnecessary travel, does their right to protest outweigh this? You can be some lawyer has already signed up pro bono to take on this case for free.
Last, of all there is the concept of the letter versus the spirit of the law. I know that sounds like Dennis from the Australian classic movie The Castle saying "In summing up it's the constitution, it's Mabo, it's justice, it's law, it's the Vibe and, no that's it, it's the vibe.", but when the COVID-19 laws are so ambiguously written, judges need to decide on the intention that the law had rather than just the wording. The example would be the pro-refugee protest in Melbourne. It could be argued that the protestors did not break the spirit of the law as they conducted their protest from inside cars and so would not have caused any transmission of the disease.
COVID-19 laws and regulations have been enacted to not only keep you safe but for the benefit of the whole community. The more people who can take personal responsibility for their actions at this time, the quicker restrictions will be lifted and the fewer people will get sick or die. However, that doesn't mean the police have the right to harass people and interpret the rules as they see fit. It is important to understand how to comply with the law as well as how to respond to the incorrect or unjust application of the very ambiguous COVID-19 laws.