Today’s correspondent asks

… a Covid emergency related question. How/when is a person considered to have notice under section 10 of Public Health Act 2010 (NSW)? How does that notice need to be served?

“10   Offence not to comply with Ministerial direction

A person who—

(a)  is subject to a direction under section 7, 8 or 9, and

(b)  has notice of the direction,”

There is no prescribed means of bringing the notice to any person’s attention so the issue would be what we lawyers call ‘a question of fact’.  Did the person who is alleged to have failed to comply have notice of the direction? Proof of that would depend on what efforts were made to bring the notice the attention of that person or the community generally, whether their behaviour indicated that they did know (even if they say they did not etc).

To understand that one needs to put s 10 in context by looking at ss 7, 8 and 9.  Section 7 says

(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2) In those circumstances, the Minister–

(a) may take such action, and

(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary–

(a) to reduce or remove any risk to public health in the area, and

(b) to segregate or isolate inhabitants of the area, and

(c) to prevent, or conditionally permit, access to the area.

(4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order….

(6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989…

Section 8 is in similar terms but it ‘applies in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 …’. That section requires cooperation and coordination between the Minister responsible for the Public Health Act and the Minister responsible for the State Emergency and Rescue Management Act.

Section 9 is about orders directed to public authorities and in context I don’t think is relevant to the discussion.

Current orders made under s 7 can be found here – NSW Government Public Health Orders.

One can see that given the broad nature of the orders and directions that can be made, it would be impracticable to require that every person affected by the order is to be given personal service. Where the order is directed to a specified group of people or people in a small area, personal service may be possible, but where orders are applicable to the whole state, s 10 cannot require that everyone receive a written copy of the order.

Equally given the broad range of matters that might be covered in an order prescribed means of bringing a notice to people’s attention would always miss some group in some foreseeable or unforeseeable emergency.  There needs to be flexibility (which is not available if there are prescribed notice provisions) to tailor the way that directions are brought to peoples’ attention in order to deal with the myriad of matters and emergencies that may arise under the Act.

In a prosecution it would be up to the Crown to prove that the defendant did have notice of the directions contained in the order.  For example, if a person was found to have arranged a gathering of 5 friends after the Public Health (COVID-19 Gatherings) Order (No 3) 2020 [NSW] was made, a prudent investigator would ask – ‘did you know that you were not allowed to have this many people here?’ If the answer was ‘yes’ that would be evidence that could be used to prove the person had ‘notice’ of the direction. If they said ‘no’ a prudent investigator (or cross-examining counsel) would not leave it at that but would explore what the person had done, how they had used the media (a forensic review of their search history perhaps) and their behaviour to try and leave no doubt that they did in fact know of the directions; but at the end of the day their knowledge would be something that the Crown would have to prove ‘beyond reasonable doubt’.