Social Distancing Law: can I still spearfish?

As a keen spear fisherman and a member of numerous spearfishing social media sites, I have been asked on numerous occasions whether or not it is legal to spearfish under the new Social Distancing Law as a result of COVID-19 and social distancing requirements.

The short answer……. yes it is.

The rules relating to social distancing can be found in the Government Gazette of New South Wales No. 65 dated Monday, 30 March 2020.

The purpose of the Gazette is to give a ministerial direction in relation to reducing the public health risk of COVID-19 and more specifically it directs that a person “must not, without reasonable excuse, leave the person’s place of residence”.

The Gazette goes as far as providing examples of what a reasonable excuse is within Schedule 1 setting out a range of acceptable reasonable excuses. In relation to spearfishing, we consider the following apply:

• Subsection (1) contains obtaining food
• Subsection (5) is for exercise,

I have also been asked “where can you go to spearfish and what if the beach is closed?”

By way of “where”, consideration must be given how far you can go from your residence, it must be reasonable. This has not been exactly defined however a level of common sense by the spear fisherman and a level of discretion by the police will be utilised in these circumstances. For example, if you live in the most northern tip of Sydney, we do not consider it would be reasonable excuse if you are spearfishing off a beach in Kiama. However, if you are from Wollongong and stopped in Kiama, it is more of a “grey” area.

In relation to closed beaches, we have seen that numerous people have still been exercising along the beach by running and surfing. It is our interpretation that by a beach being closed, as long as you are using it for one of the reasonable excuses as provided by Schedule 1, then you can enter by that beach. Again a level of common sense needs to be observed and if there is fencing or temporary tape preventing access, it would be advisable to find an alternative entry route into the water. In addition, if a National Park is closed, then the entire area is closed.

Should it be that you do want to go spearfishing, then the other social distancing rules apply. There can only be two people and you must stay at 1.5 metres apart at all times.

In consideration of above, it is fair to say that spearfishing falls within the definition of “reasonable excuse”, however, the greater rationale behind the directive is the underlying principle that we are to stay home unless necessary.

Please note that Section 10 of the Public Health Act 2010 creates an offence if an individual fails to comply with the direction with a maximum penalty of imprisonment of six months or a fine of up to $11,000 or both plus, a further fine of $5,500 for each day the offence continues.

If you are new to spearfishing and want to take it up as a way to obtaining exercise and to gather food, we strongly suggest that you become familiar with the Department of Primary Industries website as to the legal bag size, limits and species, as there are significant and heavy penalties if those restrictions are breached (in addition to the social distancing directive).

In summary, spearfishing is an excellent way to get exercise and to source fresh food however, it must be done in accordance with the ministerial direction and also a level of common sense needs to be adopted given that it is a very new and different time that we are currently living.

Patrick is a former police officer and police prosecutor and has the unique insight and experience from both perspectives. If you require further information, please contact Patrick Schmidt on 0410 593 059.

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