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 State of Emergency
Covid-19 Infringement Notices in Victoria


Have you received an infringement notice for breaching the "stay at home" orders (Restricted Activity Directions), or any of the other directions made by the Chief Health Officer on behalf of the Victorian Government?

Dealing with an Infringement Notice

Many Victorians, including some police, are confusing the government message that you must stay home with a legal requirement to stay home. Police are issuing a significant number of questionable fines for allegedly breaching the stay at home directions. I recommend everyone who gets a fine to lodge an application for internal review if you think you did not commit an offence. If your application for internal review is declined, or if you skip that step, you should lodge the court election form (it's given to you with the infringement notice) to have your case determined at court. In the court process you stand a good chance of getting a better result than what is on the infringement notice.  I am offering free telephone legal advice to anyone who receives a state of emergency infringement notice - 9225 8661.

Overview to the State of Emergency powers

In order to combat the Covid19 pandemic, the Minister for Health & Human Services has declared a State of Emergency pursuant to s.198 Public Health and Wellbeing Act 2008 (Victoria) (the PHW Act). Consequently, the Chief Health Officer can give directions pursuant to s.200 of the PHW Act.

Directions made by the Chief Health Officer:

The Stay at Home Directions published on
30/3/2020 can be found here.
The Stay at Home Directions No. 3 published on 7/4/2020 can be found here.
The Stay at Home Directions No. 4 13/4/20 to 11/5/20 can be found here.
The Restricted Activity Directions published on 30/3/20 can be found here.
The Restricted Activity Directions No.2 published on 7/4/20 can be found here.
The Restricted Activity Directions No.3 published on 13/4/20 can be found here.
The Isolation (Diagnosis) Direction published on 25/3/20 can be found here.
The Isolation (Diagnosis) Direction No.2 published on 13/4/20 can be found here.

Section 209 of the PHW Act permits the Secretary of the Department (or her delegate) to issue infringement notices for offences that are listed in Schedule 8 of the PHW Regulations 2019. Section 193(1) of the PHW Act is the offence provision that is most likely to be cited on infringement notices (failing to comply with a direction given by the Secretary). It carries a financial penalty of 10 penalty units, which presently equals $1652. In addition to all the usual legal technical defences and factual defences, section 193(2) of the Act allows the accused to raise as a defence that there is a reasonable excuse for the failure to comply. "I didn't know I was committing an offence" is probably not a reasonable excuse.

If your premises are open for business you need to read and comply with the Restricted Activity Directions which set out all of your obligations.

The effect of the Stay at Home directions is that every person in Victoria is prohibited from leaving the premises where they ordinarily reside other than for the following purposes:

a) Necessary goods or services, including (but not limited to):
  • obtaining food or drink
  • health or medical purposes
  • financial institution, e.g. banking
  • government agency (e.g. Centrelink)
  • post office
  • pharmacy
  • hardware store
  • petrol station
  • pet store or vet
  • a retail business that is permitted to operate
 b) Care and compassionate reasons:
  • shared parenting or to visit your children
  • to comply with a court order
  • to engage childcare or babysitting
  • to care for or support a person who has needs due to age, illness, disability or health
  • to attend an aged care facility or hospital if such an attendance is not prohibited
  • to attend a wedding or funeral
  • to donate blood
  • to avoid the risk of harm arising from family violence
c) Work and Education - if it is not practical to do your work or education from home
  • attend work (for any purpose that is not in the Restricted Activity Direction).
  • attend an educational institution
  • doing anything necessary in order to attend your place of work or education

d) Exercise

  • you must comply with social distancing of 1.5m from any  person who is not a member of your household, and
  • must not exercise with more than one other person unless they are members of your household

e) Emergencies

  • attending a police station
  • a court of any other premises relating to the law enforcement system
  • moving house
  • a non-resident leaving Victoria or leaving Australia
  • if you ordinarily reside at multiple premises, moving between them. This does not included driving to your holiday house, because you do not ordinarily reside at a holiday house.

Gatherings - the following restrictions apply to each of the above activities

  • Indoor: Generally, you are not permitted to have any person enter your house unless they live there, or they have to attend your house for work, care or education, or the attendance is required by law. So you can accept visits from tradesmen, a delivery person, removalist, carer or babysitter.  You can have prospective purchasers or tenants visit your house even though it is occupied by you. Any visitors to your house must not be in a room with more than one other person unless those people live there. So an estate agent can take a couple through your house provided the three of them are never in the same room at the same time.  After the prospective purchaser has left, you and your family of 6 can come home and be in the same room with the agent as you discuss the sale.  Tradesmen can enter your house to do work provided not more than 2 of them are in the same room at the same time. But a friend is not allowed to come over to your place for a chat.
  • Outdoors: You can not meet more than one other person in an outdoor space unless they are members of your household, or it is for a wedding or funeral, or is necessary for care, work or education.So, you are allowed to meet more than one other (non-household member) person in an outdoor space if the meeting is necessary for work, care or education. Otherwise outdoor gatherings can exceed two people only if all people are members of your household.


In the prosecution of an offence under s.193(1) PHW Act, the authorised officer needs to prove you failed to comply with the direction.  So they need to prove you were not at your residence. Whether the officer needs to prove that you were not participating in a permitted activity is not clear from the way the legislation and the direction is drafted. The prosecution might argue that the accused carries the burden of proving they come within one of the permitted categories (relying on the exception rule) and all the prosecutor needs to prove is that you were not at home. The exception rule set out in s.72 Criminal Procedure Act does not seem to apply to these directions, in which case the officer could have the burden of proving that the accused did not fall within any of the permitted activities.The most likely way they could prove that is by finding the accused unambiguously in breach of the directions, or relying on an admission from the accused.

Learning to Drive a motor vehicle.

The question whether the holder of a learners permit is entitled to learn to drive a motor vehicle has been in the news recently. Driving a motor vehicle of itself is not a permitted activity, nor is learning to drive one. Learning to drive is not attending an educational institution. However, driving a vehicle for any of the purposes stated above is permitted, so a learner driver is entitled to drive a motor vehicle for any of those purposes.

Traveling to a place of exercise

The Stay at Home Directions set out a variety of circumstances where you are permitted to leave your place of abode - see the outline above. The Directions state that you are allowed to drive a car in order to engage in a permitted activity outside your premises - see Clause 11(2)(c) of the Stay at Home Directions. This includes driving a car to a shop or other business that is open, to a doctor, to a petrol station or to a place of exercise. Driving a motor vehicle to a place where you will do exercise, such as driving to a mountain bike trail or a running track or the ocean is expressly permitted under the Directions.  Anyone who gets a fine for this should seek legal advice rather than pay the infringement. If it was unlawful to drive a motor vehicle to engage in lawful activities then anyone who drives a motor vehicle for any purpose - to the shops, to the doctor, to work, to the petrol station, to a wedding or a funeral - would be guilty of an offence.

Going to a car wash

It is lawful to leave the house to attend any business that is lawfully open. There is no restriction on car wash businesses operating, provided the social distancing directions and the sit-down cafe/restaurant directions are complied with. So it is undoubtedly lawful for a person to drive their car to a car wash. There is nothing in the law that says the activity you are engaging in has to be essential, even though it is the government's recommendation that you do not leave your home for any purpose that is not essential. It seems some members of Victoria Police are getting confused between the government's message and the actual law.

Playing outdoor cricket

Police issued fines to 5 men playing cricket in a reserve. Provided the men each maintained 1.5m distance, there is no offence committed by the men playing cricket. It is a very clear example of leaving home for the purpose of exercise, and it does not breach the outside gathering rules.

Estate Agents and house inspections

I've read the Stay at Home Directions and the Restricted Activity Directions, as at 13 April 2020, several times and failed to find anything that prevents real estate agents taking prospective tenants or purchasers through to inspect premises that are occupied, in contradiction to the media reports I've been reading all weekend. Indeed, Clause 11(3)(d) of the Stay at Home Directions No. 3 and Clause 14 of the Restricted Activity Directions No. 2 expressly permit a prospective buyer to inspect occupied premises by appointment. During the inspection there must not be more than 2 people in any one room, and they have to remain at least 1.5m apart. There is no legal requirement for the property to be cleaned before or after the inspection.  If the owners/residents of a property decide to leave the home during an inspection, and leave the property, they shall have to go somewhere in accordance with the permitted activities, such as going to an ATM or buying a coffee or going for a walk or doing some work. It is worth noting that the Minister for Consumer Affairs does not have any power to make or enforce Stay at Home Directions.

Free Legal Advice

If you have been fined for failing to comply with social distancing or stay at home directions you can contact me for free legal advice. Call 03 9225 8661 to arrange a free 15 minute telephone consultation with a criminal defence lawyer. I will be able to tell you whether you have been unfairly fined.

Our offices are open during this Corona Virus period, for telephone consultations or face to face meetings in Melbourne if that is necessary.

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