HOW IS THE CRIMINAL LAW SHAPING THE COVID-19 RESPONSE IN NSW?

At Morrisons, we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice about the current rules or penalties, you can book an appointment with one of our expert criminal lawyers.

In response to the worsening Covid- 19 situation in NSW, a range of new rules have been imposed. There are heavy penalties for any breaches of these rules which can include significant fines, and in some cases, imprisonment.

It was announced on 20 August 2021, that these restrictions will extend until the end of September.

PUBLIC HEALTH ORDERS

In an attempt to deal with the public health risk of Covid-19, and its possible consequences, the Minister for Health and Medical Research has made a number of public health orders.

STAY AT HOME ORDERS

In response to the current Delta Outbreak in NSW,  people in Greater Sydney (including Wollongong) are subject to strict stay at home orders. These rules include:

• Not leaving home without a reasonable excuse. Reasonable excuses include:
  • Obtaining food or other goods,
  • For work, only if you cannot work from home,
  • For education, if it cannot be done from home,
  • For covid testing or vaccination,
  • For exercise or outdoor recreation,
  • For medical or caring reasons, or
  • If you have another reasonable excuse.
• If you are leaving your home for shopping, exercise or engaging in outdoor recreational activity, you must do so within your Local Government Area, or if outside that area, within 5 kilometres of your home.
• If you have a reasonable excuse for leaving your home, or leaving Greater Sydney, you must carry proof of your address and show this to a police officer if requested.
• From Monday 23 August, every time you leave your home, you must wear a face mask, unless you are exercising.
• Not allowing a visitor into a home, except in limited circumstances. For example:
  • As part of a “singles bubble”
  • In an emergency
  • For childcare
  • Caring and compassionate visits
• Not gathering outdoors in groups of more than two people, unless an exception applies.
• Not travelling in a car with another person unless an exception applies.
• Not opening certain premises to the public. Those premises that can open are required to comply with several rules, including ensuring:
  • People who enter wearing face masks
  • Having a Covid-19 safety plan
  • Mandatory electronic check ins.
  • Keeping electronic records of people who check-in.
• Restrictions on several gatherings, including weddings, worship and funerals.
• This week, the government has also introduced new rules that mean a person who wants to leave Greater Sydney must have a permit to do so.

Stricter rules apply, in specified Local Government Areas of concern.

PENALTIES

Breaching an order made under the Public Health Act 2010, is a criminal offence and attracts heavy penalties.

If dealt with in Court, the offence of breaching a public health order carries a maximum penalty of $11,000- or 6-months imprisonment. A further penalty of $5,500 may apply for each day the offence continues.

Last week, a man from Cabramatta was arrested after travelling by train from Sydney to Armidale in northern NSW. He faced the Armidale Local Court on Monday and was sentenced to two months in prison for breaching stay at home orders.

The NSW Police now have significant powers to enforce stay at home orders and impose on the spot fines to individuals. These include:

• $1,000 for breach of a public health order
• $3,000 for participating in an outdoor gathering of more than 2 people
• $500 for failure to comply with a direction to wear or carry a mask for those aged 18 years or older
• $80 for failure to comply with a direction to wear or carry a mask for those aged 16 or 17 years old.
• $40 for failure to comply with a direction to wear or carry a mask for those aged 15 or under.
• $5,000 for failure to comply with the obligation to answer questions asked by a contract tracer, provide your name and contact details to a contract tracer, and provide true and accurate information to a contract tracer
• $5,000 for failure to comply with the obligations to self isolate if you are diagnosed with Covid-19, including staying at home or in hospital, as determined by a doctor, nurse or paramedic; providing details of contact with other persons and places you have visited; and complying with NSW health guidelines.
• $5,000 for failure to comply with obligations to self-isolate if you are a close contact of a person diagnosed with Covid-19, including staying at home up to 14 days, as determined by a doctor, nurse or paramedic, submitting to testing for Covid-19, and complying with NSW guidelines.

In the case of a corporation, the maximum penalty for breaching a public health order is $55,000 and a further $27,500 penalty may apply for each day the offence continues.

Businesses that do not allow employees, that can reasonably work from home, to do so face a fine of up to

• $10,000 for corporations
• $2,000 for individuals.

There are also heavy penalties who intentionally spit at, or cough on, a public official or another worker while the worker is at work or travelling to or from work, in a way that would reasonably be likely to cause fear about the spread of Covid-19.

• NSW police can issue an on-the-spot fine of $5,000 to individuals for this offence.

COVID-19 IN NSW JAILS

Justice advocates have expressed concern about the presence of Covid-19 in NSW prisons.

Recently, four inmates at the Silverwater Correctional Complex tested positive to Covid-19 and another inmate at Bathurst Correctional Centre tested positive to Covid-19. Each of these inmates were recently admitted, and in quarantine.

The presence of Covid-19 in jails is concerning, as the consequences of a Covid-19 outbreak in a prison would likely be devastating. One of the most effective measures of stopping the spread of Covid-19 has been social distancing. The very nature of prisons means that people are always near others, meaning social distancing is not possible.

Should Covid-19 enter the general population of a prison, the Human Rights Law Centre, is concerned it would spread like wildfire. While vaccinations have been offered to prisoners, they are generally being offered AstraZenecca. Many people in jail are declining to have this vaccination due to underlying health conditions and inadequate access to hospitals.

The presence of Covid-19 in prisons has a number of consequences:

• Almost one third of people in prison entering prison have a chronic medical condition like asthma, cancer, cardiovascular disease, diabetes or live with a disability. There is also a disproportionate amount of Aboriginal and Torres Strait Islander people in prison, who suffer higher rates of chronic health issues than non-indigenous people. Meaning the risk of serious illness or death as a result of Covid-19 is increased.
• The risk of harm is multiplied by the fact that prisons are overcrowded, unhygienic and unhealthy at the best of times, with limited access to health care.
• Solitary confinement is likely to be utilised as a response to this public health in prisons. This practice can cause long term, irreversible harm and put people, particularly Aboriginal and Torres Strait Islander people, at risk of dying in custody.

To stop the spread of Covid 19 and the harm this would call, justice advocates are calling on the government to take emergency measures to reduce the numbers of people in prisons.

The Human Rights Law Centre has called on the government to take the following measures:

• Granting leave to those most at risk of Covid-19;
• Granting early release to people in prison who are close to the end of their sentence;
• Granting parole or leave to people in prison who have been convicted of low level of offending and who pose a low risk to the community if released;
• Granting parole or leave to children and young people, so that they can be with, and supported by, their families during this public health emergency; and
• Making it more accessible for children, young people and adults on remand, who are yet to be found guilty of any criminal offending and whose pose a low risk the community if released- to access bail.

This page contains a general summary of the current Covid restrictions only. These rules vary depending on a person’s circumstances and are being updated and amended regularly. If you have a question or concern about the current rules, it is a good idea to get legal advice, that is specific to your circumstances.

At Morrisons, we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice about the current rules or penalties, you can book an appointment with one of our expert criminal lawyers here.