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Insights

Where a situation arises that is likely to be a risk to public health, the Health Minister is given substantial powers to deal with that risk.

This includes making public health orders, which may include directions the Health Minister considers necessary to address the risk, or its possible consequences.

Within the recent public health orders, the Minister provides “grounds for concluding that there is a risk to public health”.[1] Those are, “COVID-19 is potentially fatal and highly contagious” and there is an “ongoing risk of continuing introduction or transmission of the virus”.

As such, the Minister is allowed to make orders necessary to deal with the risk of COVID-19.

And, while those orders are not (strictly speaking) “laws”, it is an offence not to comply with requirements in a public health order.[2]

Enforcing a PHO

Police officers have been given a wide range of powers to enforce public health orders.

Under the public health order, a police officer can request that you provide evidence of your name and place of residence, to check whether you are complying.[3]

If an officer is satisfied you are breaching the public health order, they are able to issue you with a penalty infringement notice (and impose fine).[4]

While an arrest is generally an option of last resort, and we would hope an officer would exercise discretion here, a person may be arrested for failing to comply with a COVID-19 related public health order.[5]

Your Rights

In most situations, you are not required to provide any further information to a police officer other than your name and evidence of your place of residence. As with any criminal matter, and despite what a police officer may suggest to you, you are not required to answer every question a police officer may put to you.

And, if an officer believes you have breached a public health order and issues an infringement notice, you retain the right to dispute that you actually committed an offence.

You may wish to exercise that right, and elect to have the matter dealt with before a court, in which case the police will need to establish that the infringement occurred. Alternatively, the circumstances of the scenario may entitle you to leniency and despite the breach being established the court may extend leniency and order no penalty applies.

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[1] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 cl 7.

[2] Public Health Act 2010 s 70.

[3] See, eg, Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 cl 22AA.

[4] Public Health Act 2010 s 70.

[5] Public Health Act 2010 s 71A.

This article was co-authored by Law Cadet Ben Goodhew.

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