In Challenging COVID restrictions – part 1 (23 April 2020) I discussed the difficulty of challenging the COVID restrictions on the basis of some alleged breach of human rights. Even if that is not possible, there are ways to challenge the orders. For this exercise I will use NSW and ACT as my exemplars.

The various orders in NSW are set out at Let us take, for example, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (30 March 2020). That order is said to be made under s 7 of the Public Health Act 2010 (NSW). That section 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.

That is a very broad power. There are no limitations on what the Minister may consider or may ‘direct’. The Minister’s decisions may be subject to ‘administrative review’ (s 7(7)) but again that takes time. Further given the width of the power unless you could show ‘bad faith’ (ie he did not hold the belief required by s 7(1)) or that the decision was Wednesbury unreasonable ie ‘so unreasonable that no reasonable authority could have decided that way’ (named after the decision in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).

In Part 1, I quoted from Addisons lawyers’ blog post What is the scope of government powers in response to COVID-19? (6 April 2020) which set out the sort of powers state governments can exercise. Whilst one could go through each order, paragraph by paragraph, to ask whether the Act allows such a restriction, there is no serious question (that I can see) that the states do have the power to make the sort of orders they are making. Further the power is given to them by law, it is not the executive government simply ruling by decree, rather the need for these powers has been identified and they have put in place to be used in exactly the circumstances now confronting Australia and the world.

Again an individual may think the orders ‘go too far’ but that is not grounds to set them aside if the Minister held the necessary belief and the orders are such that it is not unreasonable to think they are necessary even if it could also be reasonable to think they are not. It is the Minister’s state of mind that is relevant and the fact that some people would have made a different decision does not mean that the Minister’s decision does not stand.

Finally there is the question of enforcing the orders. As we have seen this has been largely left to police. The orders have been written quickly and have drafting errors. Some have pointed out that in NSW it says ‘a person must not, without reasonable excuse, leave the person’s place of residence.’ It does not say that once you have done what was ‘reasonable’ you have to go home so if you leave with the reasonable excuse of undertaking exercise, there is no breach if you chose not to go home after you have finished your exercise (see The Wigs, Episode 9 – Are the NSW social distancing laws fatally flawed (and other aspects of the public health law response to Covid-19) (4 April 2020).

The NSW order says ‘For the purposes of subclause (I), a reasonable excuse includes doing an activity specified by Schedule I’. Schedule 1 contains a list of activities but others have noted that the use of the word ‘includes’ in [5(2)] means that the list is not exhaustive (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated)). There may be other things that constitute a ‘reasonable excuse’ even if we don’t know what they are.

In the ACT we are allowed to have two people visit at a time provided that ‘social distancing of 1 person per 4 square metres can be observed’ (Public Health (Non-Essential Gatherings) Emergency Direction 2020 (ACT) (31 March 2020)). Note that it provides that it must be the case that the social distancing ‘can’ be observed, not that it ‘is’ observed. Arguably there is no offence even if everyone is cuddled together provided the floor space is such that the distance ‘can’ be observed.

What happens if the police issue an infringement notice? That does not set a precedent. If a police officer issues a ticket to someone sitting on a bench eating a burger, that does not mean that the person’s conduct was unreasonable. It means in the mind of that police officer it was unreasonable. An infringement notice is just an allegation. People are entitled to deny the allegation and the police then have to prove the case, beyond reasonable doubt, before a court. The burden is on the plice to prove that there was no ‘reasonable excuse’ or whatever is alleged to be a breach of the relevant order.

If you allege you left your NSW home to go to work and the allegation is that you did not, that you are lying, that is a question of fact. If a magistrate found against you that would be the end of the matter. If on the other hand if you argued that you were going to visit your mother and the Magistrate did not think that was a reasonable excuse that would be a question of law and something that could be taken to the Supreme and ultimately the High Court of Australia. Their determination would be a precedent for future reference.

Anyone who receives an infringement notice retains the right to challenge it. For a much more detailed explanation of what the police can and cannot do and how to challenge their allegations, see again (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated).

Conclusion Part 1 and 2

If you believe that being directed to shave, or to have a flu vaccination to continue to work, or being told to stay at home is a step too far you can do something about it. What you cannot do is simply point to a rule or a document such as the International Declaration of Human Rights or the Human Rights Act 2004 (ACT) and say ‘but I have a right’. Equally writing to your local member or the Attorney-General pointing out that there are rights involved won’t help. The governments of the world have lots of lawyers who are aware of human rights obligations. Acts like the Biosecurity Act 2015 (Cth) and the state and territory public health Acts were written by people who understand law and were subject to parliamentary scrutiny. You won’t be telling them anything they don’t know.

The only place that can give a definitive ruling on law is a court so you would need to bring a legal action arguing that the various orders are beyond the powers granted under legislation or are so unreasonable that no Minister or Health Officer, having regard to the matters they are required to consider, would make such an order. Good luck to anyone who wants to bring those actions.

There will no doubt be challenges to individual infringements where people will challenge allegations that their conduct was in breach of the various orders. Those challenges may also call into question the validity of the orders but will face all the problems discussed above.

A plea

What follows is that there is no point writing long treatises to me trying to convince me that these orders are unreasonable or beyond power. Whether I agree with you or not won’t make the slightest difference. The legal principles are set out above. What is left are questions about facts – what is the evidence that the governments of the world are relying on and what is the advice they are receiving and is their response reasonable in those circumstances.