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.
OFFENCES
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.
|
