Today’s correspondent asks about
… the highly publicised lockdown of nine public housing towers in Melbourne. Amongst my friends and peers there seems to be widespread acceptance that the lockdown of these towers and their inhabitants is necessary, but there also seems to be considerable outrage over the use of the Victorian Police to enforce and monitor the lockdown.
My questions for you are, disregarding all logistical or manpower considerations:
- Does this lockdown need to be carried out by police?
- What are the legal implications of health professionals enforcing this lockdown?
- Would a health professional be able to issue fines for non-compliance or stop, with reasonable force, an individual that chooses not to abide by the lockdown orders?
I’d be grateful if you could shed some light onto the relevant legislation.
The lockdown is authorised by the Public Health and Wellbeing Act 2008 (Vic). That Act, in Part 10, gives the Chief Health Officer extensive powers to take action ‘to investigate, eliminate or reduce public health risks’. These powers include the powers in s 200 to
(a) detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
(b) restrict the movement of any person or group of persons within the emergency area;
(c) prevent any person or group of persons from entering the emergency area;
(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.
The Stay at Home Directions (Restricted Areas) issued on 8 July 2020 is made pursuant to s 200. (You can see all the Directions at https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19 under the heading ‘Directions issued by Victoria’s Chief Health Officer’.
To return to the question I was asked, the critical question is ‘who is an authorised officer?’
The Public Health and Wellbeing Act 2008 (Vic) s 30 says
(1) The Secretary by instrument may appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act.
(2) The Secretary must not appoint a person to be an authorised officer under this section unless the Secretary is satisfied that the person is suitably qualified or trained to be an authorised officer for the purposes of this Act.
(3) An appointment of a person to be an authorised officer may—
(a) specify the functions, duties or powers under this Act or the regulations to which it relates; and
(b) be made subject to any conditions that the Secretary considers to be appropriate….
(6) The Secretary may give a direction to an authorised officer appointed by the Secretary in relation to the performance of the authorised officer’s functions or duties or the exercise of the authorised officer’s powers under this Act or the regulations.
(7) A direction given under subsection (6) may—
(a) be of a general nature; or
(b) specify that the direction relates to a specific matter or specified class of matter.
It’s not all or nothing. It’s not that an authorised officer can exercise all the powers under the Act, only those that he or she is authorised to exercise and on the terms set out in any direction. But anyone employed under Part 3 of the Public Administration Act 2004 (Vic) can be appointed an authorised officer. Council officers can also be appointed (s 189(b)).
Part 3 of the Public Administration Act 2004 (Vic) deals with employment in the ‘public service’ that is Departments and Administrative offices (ss 10 and 11). What are the departments and administrative offices that make up the Victorian Public Service? That is explained on the Victorian Public Sector Commission website at https://vpsc.vic.gov.au/about-public-sector/employer-public-sector-bodies/. It includes Ambulance Victoria and Victorian health services.
The use of force – Public Health Orders
A public health order is an order made under s 117 (see s 1, definition of ‘public health order’). Section 123(4) says:
A police officer may use reasonable force to detain the person subject to … a public health order and take that person to—
…(b) the place where the person is required to be under the order.
That would be fine save that the orders relating to the covid lockdown say they have been made under s 200 ‘Emergency Powers’, not s 117 ‘Public Health orders’.
The use of force – Public Health Risk and Emergency Powers
Section 200 is triggered by the declaration of a state of Emergency (see s 198). That declaration has been made. That declaration allows the Chief Health Officer to authorise an authorised officer to exercise the powers listed in ss 190 (Public Health Risk Powers) and 200 (Emergency Powers) (see s 199(2)). An authorised officer may be assisted by police (ss 192 and 202). Apart from s 123(4) there is no provision allowing the use of force to ensure compliance with directions made under s 190 or s 202. Section 123 is not relevant as the orders are not ‘Public Health Orders’ as defined by ss 1 and 117.
It is an offence to fail to comply with a direction made under s 190 or 200 (see ss 193 and 203). It is the police that usually enforce the criminal law but in this case, the Secretary may issue an infringement notice (s 209).
To be honest I cannot see where there is a power to use force to ensure compliance. The Crimes Act 1958 (Vic) s 458 says
Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a police officer to be so taken, any person—
(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—
(i) to ensure the attendance of the offender before a court of competent jurisdiction;
(ii) to preserve public order;
(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or
(iv) for the safety or welfare of members of the public or of the offender;
Detaining someone who is breaching an order may well be relevant to subparagraphs (a)(ii), (iii) and (iv) but the overarching purpose of arrest under this section is to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’ not to return them to where they are meant to be or ensure compliance with a direction under the Public Health and Wellbeing Act 2008 (Vic). Arresting them for the purposes of returning them to the area of detention would not be justified by the Crimes Act 1958 (Vic) s 458; see also Bales v Parmeter (1935) SR(NSW) 182; Williams v R (1986)161 CLR 278.
It may be that the use of the word ‘detain’ and ‘detention’ in s 200 implies a power to use force, but the Act does not say that. Equally one might find a right to use force in some ancient common law on the power of a constable to preserve the peace, a power that is retained by Victorian police by virtue of the Victoria Police Act 2013 (Vic) s 51which says (unhelpfully):
A police officer who has taken and subscribed the oath or made and subscribed the affirmation under section 50 has—
(a) the duties and powers of a constable at common law; and
(b) any duties and powers imposed or conferred on a police officer by or under this or any other Act or by or under any subordinate instrument.
A section that requires a person to go back through history to identify what are the duties and powers of a constable at common law is unhelpful for both members of Victoria police and the citizens of Victoria. A pamphlet on the Office of Constable (2018) produced by the Police Federation of England and Wales says:
In England the office of constable was in existence during Henry I’s reign. The principal duty of the constable, which was a military term at this stage, was to command the army.
The term constable first appeared after the Norman conquest, and towards the end of the 12th century acquired the local significance it has held ever since.
The Statute of Westminster 1285 enshrined the principles of two high constables appointed in every hundred with responsibility for suppressing riots and violent crimes and for the arming of the militia to enable them to do so.
Henry I reigned from 1100-1135 so one would have to trace over 900 years of case law in both England and Australia to identify the ‘duties and powers of a constable at common law’. It follows that no-one really knows what those duties and powers are and the Victoria Police Act 2013 (Vic) doesn’t help.
Discussion
This has been a really interesting outcome. First, I cannot see any provisions in the Public Health and Wellbeing Act 2008 (Vic) that allow the use force to ensure compliance with the Chief Health Officer’s Directions. The penalty for non-compliance is a fine (ss 193 and 203). A person could walk out of the building and receive an infringement notice. The Act provides for no other enforcement unless the order is made under s 117 and none of the directions that I have seen refer to s 117.
Police could arrest a person who breached the order on the basis that their arrest was necessary to ‘to preserve public order’, ‘prevent the continuation or repetition of the offence or the commission of a further offence’ or it was necessary ‘for the safety or welfare of members of the public or of the offender’ but that arrest would only be lawful if at the time fo the arrest the police officer intended to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’.
If there is a power to use force it is implied by the word ‘detain’ in s 200 or to be found in 900 years of case law. That is not satisfactory.
What follows in my view, is that if police or anyone used force to detain a person who chose to leave the ‘locked down’ apartment block and returned them to the block, rather than taking them to the police station to charge them and then perhaps release them on bail with conditions that they return, then the person arrested would have a good argument to bring a claim for assault and false imprisonment.
Conclusion
So where does that leave my correspondent’s question? It follows that the lockdown does not have to be enforced by police as they have no specific power. Any member of the public service including health officials or members of Ambulance Victoria could be ‘authorised officers’ and they could give directions to a person to remain in their premises and they could, if authorised, issue an infringement notice. Even they could arrest someone under s 458 and hand them to police for prosecution.
The use of police, I suspect, deals with the ‘logistical or manpower considerations’ that I have not considered. And Police carry a great moral suasion. People are used to doing what they are told to do by police because, whether the police have the legal power or not, complying is easier than testing both their patience and their legal authority. Getting arrested, charged and appearing before a court is a big price to pay even if 2 years later a court agrees with you that there was no power to use force. And given there’s 900 years of history to troll through, a court could probably find a relevant power if it really wanted to.
This is clearly an unsatisfactory situation and in my view brings out some very poor drafting in the Public Health and Wellbeing Act 2008 (Vic) and lazy drafting in the Victoria Police Act 2013 (Vic).
POSTSCRIPT (12 July 2020)
Since writing the post, above, I have given it some more thought.
A public health order is made under s 117 of the Public Health and Wellbeing Act 2008 (Vic). That section says, relevantly:
(1) The Chief Health Officer may, after having regard to the factors specified in subsection (2), make a public health order if the Chief Health Officer believes that—
(a) a person has an infectious disease or has been exposed to an infectious disease in circumstances where a person is likely to contract the disease; and
(b) if a person is infected with that infectious disease, a serious risk to public health is constituted by—
(i) the infectious disease; or
(ii) the combination of the infectious disease and the likely behaviour of that person; and
(c) if infected with that infectious disease, the person needs to take particular action or refrain from taking particular action to prevent, as far as is reasonably possible, that infectious disease constituting a serious risk to public health; and
(d) a reasonable attempt has been made to provide that person with information relating to the effect of the infectious disease on the person’s health and the risk posed to public health or it is not practicable to provide this information before making the order; and
(e) it is necessary to make the public health order to eliminate or reduce the risk of the person causing a serious risk to public health.…
(3) A public health order must—
(a) be in writing;
(b) identify the person to whom the order applies;..
(5) A public health order may require the person to whom the public health order applies to comply with any of the following as specified in the order and subject to any specified conditions that the Chief Health Officer considers are appropriate—…
(f) reside at a specified place of residence at all times or during specified times;…
(k) submit to being detained or isolated or detained and isolated as specified.
The difference between an order under ss 190 and 200 and an order under s 117 is that an order under s 117 is personal, it is directed to an individual. It therefore makes sense that none of the orders published on the website at https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19 refer to s 117 as they are orders of general application. It would be wrong to publish orders that are directed to an identified individual.
The power to issue a Public Health Order is given to the Chief Health Officer, not an authorised officer, but the Chief Health Officer may delegate her authority to a relevant medical practitioner (s 22). Presumably as part of the lock down it’s been possible to identify everyone who lives in the relevant blocks. If the Chief Health Officer or her delegate has then issued a written public health order addressed individually to each person who resides in the locked down apartment block directing them to reside at their address and/or to ‘submit to being detained or isolated’ in their apartment then they must comply or face a penalty of a fine of 120 penalty units. ‘The current value of a penalty unit is $165.22’ so the maximum fine is $19826.40.
Importantly if they have received a personal public health order, police can use force to ensure compliance (s 124(3)).
I do not know, but would not be surprised if that is the process that has been followed. If that is the process that has been followed then to return to the original question, the lock down does not have to be enforced by police, it can be enforced by any authorised officer (s 124(1)) but it is only the police who are authorised to use force. That means one could opt to enforce the order by deploying lots of ‘authorised officers’ backed up by some police, or by deploying lots of police. Making that decision requires an assessment of how likely it is that force will be required, whether the threat of force is more likely to ensure compliance and the ‘logistical or manpower considerations’ that have been put to one side. There are probably a lot more police officers who Victoria could call upon and roster to ensure a 24-hour presence, than public health officials.
Conclusion
In my original post I said
What follows in my view, is that if police or anyone used force to detain a person who chose to leave the ‘locked down’ apartment block and returned them to the block, rather than taking them to the police station to charge them and then perhaps release them on bail with conditions that they return, then the person arrested would have a good argument to bring a claim for assault and false imprisonment.
That is true unless the person has been served with a public health order, addressed to them and they have failed to comply with that order. Because those orders are personal it is not surprising that they are not publicly available. It follows that I cannot confirm whether individual public health orders have been issued, but I think at least at the level of generality that is blog writing, we can assume (or perhaps hope) that they have.
Australian Emergency Law 
Section 462A, Crimes Act may be relevant, which states:
Use of force to prevent the commission of an indictable offence
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.
Yes but these are not indictable offences. They are infringement notice, fine only offences. They are not going to be tried before a jury.
My understanding is that the last part of s.462A applies to any offence and that echoes s.458(1)(a) that includes both summary and indictable offences.
That might be true but it is saying one can use force to make a lawful arrest. That takes you back so s 458 and an arrest is not lawful under that section unless it is made in order to take the accused ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’. Section 462A does not justify the use of force to ensure compliance with a direction.
Is failing to follow a direction by a police officer to ‘get back to your room’ an offence under these circumstances? You seem to be saying that it is not. It certainly doesn’t make sense that it should be, but of course ‘making sense’ and the law are not necessarily synonimous.
I assume in my argument that the person being so directed is going about their orderly, lawful business; let’s say shopping for baby formula. What, then, is the basis – and legal justification, which I agree is not the same thing – for the police issuing infringement notices.
Will, I think you misunderstood what I wrote. It is an offence to fail to obey a direction made under ss 190 or 200 and it can be enforced by an infringement notice (s 209). What I wrote was that I cannot see that the police has authority to use force to ensure compliance. So it’s an offence to fail to comply with the Chief Health Officer’s directions and a police office may warn you to ‘get back to your room’ but its not actually the police giving you the direction, it’s the police telling you what the Chief Health Officer’s direction requires. And if you fail to comply you may get an infringement notice.
Got it. Thank you for the explanation. Subjectively, it seems like a heavy-handed way of ensuring compliance, but objectively I can see that the police are the Chief Health Officer’s agents.
Thank you for your posts, and for your prompt response.
Will.
Regarding your post scriptum, I don’t wholly agree with your analysis that s 117 could be used in the way you describe (to enforce a lockdown by issuing a health orders for each resident). I believe it’d all come down to (1)(a) and what you’d consider to “circumstances where a person is likely to contract the disease”. Obviously, if someone tests positive for COVID than it is very likely that the people sharing their immediate residence would contract the disease. A similar thing would apply to colleagues they work closely with. I don’t think this would extend to an entire workplace, nor residents of neighboring units in an apartment complex – I would say these would be at risk of contracting COVID, but are not likely to have.
Issuing an individual health order against you because you live in one of these apartment towers, without evidence that you have been in close contact with an infected individual, seems arbitrary.
From news footage I have seen, I believe that your initial conclusion is true, individuals that attempt to leave the lockdown are instructed verbally by police to return to their residence, if they persist a fine can be issued, and if they persist still the individual is detained and taken away by the police.
Further insights would be welcome.
I agree that whether or not a public health order has been issued to each individual must depend on s 1(a) and whether the Chief Medical Officer believes ‘the people in the tower have ‘been exposed to an infectious disease in circumstances where a person is likely to contract the disease’. Neither you nor I can say what the Chief Health Officer believes but the Department website says “Due to the high number of cases of coronavirus (COVID-19) at 33 Alfred Street, North Melbourne, all residents will be treated as close contacts and are required to isolate within their apartments until 11:59pm on Saturday 18 July 2020” (https://www.dhhs.vic.gov.au/information-and-supports-public-housing-restrictions-covid-19) If all residents are to be ‘treated as close contacts’ the Chief Health Officer may well have the belief required by s 117, even if you would have a different opinion.
One has to remember this is a blog about principles and less about the facts. That means I don’t know I don’t know whether the Chief Health Officer holds the necessary belief or the evidence she may have to form that belief or whether orders have been made under s 117.
If we remember the original question was ‘does this lockdown have to enforced by police?’ the answer from all of the above is that if there are no orders under s 117 then no, it doesn’t have to be enforced by police. Police are only necessary if there are s 117 orders in place and it is intended to use, or to threaten, force to ensure compliance. In the absence of s 117 orders, a few police could be there to back up public health officials or other authorised officers if it was determined that someone should be arrested and charged rather than dealt with by way of infringement notice. But as noted we’re ignoring the staffing and logistics issues so police may be the only available rapid response workforce of sufficient size and with sufficient experience in directing people and bringing the persuasion of their uniform to the issues.
As regards those 900 years of common law, is there really no text or body of knowledge that attempts to summarise even the most significant points? Surely it was important for police to know what they can and can’t do before they had specific statutory powers.
Sure there are books and texts and histories on the office of constable, but it doesn’t mean that some clever lawyer won’t find some old case and make an argument about what the common law powers are. I agree it’s important for police and everyone to know which is why that seemed like ‘lazy’ drafting – compare it to the comprehensive Law Enforcement (Powers and Responsibilities) Act in NSW.
To ensure a persons appearance at court, police must confirm their identity, hence the power to demand name and address.
As you have stated, S 458 Crimes Act provides Police the power to arrest someone and present them to a court. What you missed is that a penalty notice is a way of expediting that process, it isw not an alternative course of action. If the alleged offender accepts the circumstances, they pay the fine and the matter is completed. If the alleged offender doesn’t accept the circumstances, then they elect to go before the Magistrate. But if the person refuses to provide their name and address when a member of the police force reasonably believes that they have committed an offence, they can be arrested in order to confirm their details. Once that person provides their details , there is no longer any power of arrest and they must be released, with either a summons of a penalty notice.
The second half of s462A Crimes Act states in regard to the use of force; ” or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.” This includes summary offences. So a member of the police force arresting someone for a summary offence can use force.
If you check s 203 Public Health and Wellbeing Act (PHW Act) creates the offence section for failing to comply with the CHO directives, and as stated in both s 458 and 462A above, the use of the terms “for any offence” will include the offence under s 203 PHW Act.
Therefore the police are automatically empowered to enforce this offence, as they are for any state offence, and if that person refuses to confirm their identity, the member of the police force may use force to execute that arrest and if that person resists arrest.
Coming in a little late to this but the question of who can enforce orders made by the CHO under the Public Health & Wellbeing Act is pretty clear. It’s authorised officers, these include Environmental Health Officers (each Council has to have at least one), others can only be authorised by the Secretary by an Instrument. Only authorised officers can then ask for the assistance of police in certain instances. The CHO can himself authorise already authorised officers (done so by the Secretary or by Councils), but no one else.
The question would be answered if we knew whether the Secretary had authorised all Victoria Police officers by way of Instrument. Has that been confirmed?
Yes Victoria Police have been authorised under the State of Disaster – see https://www.parliament.vic.gov.au/file_uploads/Finalised_-_Parliamentary_Report_on_State_of_Disaster_-_for_lodgement_t7NC0GDv.pdf at p. 7 and p. 16 (Appendix D).
I’m also a little bit late to the game but just wanted to know what your views are regarding infringement notices. I understand that Victoria Police has been issuing on the spot fines for breaching the COVID directions. Under s.209 of the PHWA, only the Secretary and Councils have power to issue infringement notices. The Secretary may delegate that power under s.19 by way of an instrument. However, I can’t seem to find that ‘instrument’ anywhere. If such an instrument doesn’t exist, would it then mean that all infringement notices which have been issued thus far by Victoria Police are not legally valid?
I cannot answer that as I only have what information is available on the public internet pages. The claimed authority arises from directions made under the Emergency Management Act 1986 (Vic) s 24 but whether that is sufficient remains to be tested.
It’s definitely interesting. If they rely on the Emergency Management Act as the source of policing power, then at best, Victoria Police only had the power to issue infringement notices from 2nd of August onwards (up until the State of Disaster expired). I understand that Victoria Police has been issuing infringement notices since March. Any infringement notices issued before the 2nd of August are definitely legally dubious!
PoPo, a quick bit of background. A Penalty Notice is not a stand alone process, a PN is an alternative way of bringing a person before the courts, normally by way of a summons. Please see the Under the Infringement Act 2006. https://content.legislation.vic.gov.au/sites/default/files/2020-02/06-12aa056%20authorised.pdf
Generally a summons is only be signed by a solicitor or a member of the police force as the informant. There are not many other classes of person authorised to be the informant. The authority to issue a PN under the PHW Act creates a new class of persons authorised to act as the informant. Since police normally hold the authority to commence a legal process, they do not require special authorisation to issue a PN, or a summons.
Under the Infringement Act 2006, the various classes are defined as Enforcement Agency.
If I am not correct, happy to be informed.
Hi Colin,
That is definitely an interesting take, however, under the PHWA, I do not see any provision that automatically creates a new class of people who can issue infringement notices (and I say “infringement notices” because that’s the language used by the statute). There’s nothing in the Victoria Police Act that gives police officers the power to enforce the health directions, and neither is there anything under the PHWA that transfers enforcement powers vested in the DHHS Secretary/Councils to Victoria Police (aside from s.13 of the PHWA). Nothing that I can see in the Infringements Act addresses the power transfers from DHHS to Victoria Police.
Michael makes a good point that perhaps the enforcement power comes from the Emergency Management Act. However, even if that is correct, Victoria Police only had the power to issue infringement notices from 2 August to 2 September. I understand that they’ve been issuing fines since March. In the absence of a delegated instrument, there’s definitely doubt as to whether any infringement notices issued before 2 August are legally valid.
Hi , This is really useful link under the powers and S199 if an infringement notice is issue to a person, what does this classify as eg: no mask , out of 5km. Would this mean that now you have a police record that can cost you a job, a international visa – if you wish to work in states? I would like to know what does this legally mean. All the words here special powers. state of emergency, public health warning seem very scary. Literally the fines were being treated as life imprisonment at home.
An infringement notice does not (usually) equate to a conviction. I cannot say how others would view an infringement notice for these offences – that would be a matter for them. See https://emergencylaw.wordpress.com/2018/10/10/traffic-infringements-and-paramedic-registration/ and https://emergencylaw.wordpress.com/2019/08/26/on-the-spot-fines-v-court-penalties/
Thanks Mr Eburn for detailed explanation of the conditions. I checked on the condition for Infringement vs Court ordered penalty , would it be a case where because these covid fines are court order penalty would it be seen as a infringement fine that was settled in court, a friend of mine recently received a covid fine as he was outside of 5km had to gone to a beach which was 1.2km outside of the permitted travel zone. He is a international traveler planning to apply for permanent residency and eventually citizenship. Is this now an issue for him also has a speeding ticket which he got 3 years ago.
I’m not sure I understand your question, or that you understand my earlier response. When an infringement notice is given, it is an allegation that a person has committed an offence. The person can choose a ‘short cut’ and pay the fine and that’s the end of it. In most jurisdictions most of the time that is not the equivalent of a criminal conviction. It is not a ‘court ordered penalty’ as no court has ordered anything. If a person chooses to defend the allegation – that is if they deny they are guilty – then the matter goes to court and if a court find the offender guilty THEN there is a court ordered penalty. A court-imposed penalty may be more, less or the same as the penalty on the infringement notice. Receiving and paying an infringement notice has nothing to do with a court.
What the Department of Immigration (or whatever they call themselves these days) makes of traffic and covid infringement notices I cannot say. If your friend needs advice he would have to see a solicitor or a migration agent.
An interesting article. I live in NSW and have been given an authority under our Public Health Act. In my usual role, I am aa government safety inspector.
When I am doing covid-related work I am not allowed to use my Inspector authorities as I must use my Public Health Act authority.
If I see an urgent safety issue, I cease the Public Health inspection and effectively re-enter the location using my safety Inspector authorities, and tell the person as much.
In reading your article, I wonder how police are allegedly able to use two instruments of authority at the same time.
Thanks Mark but I don’t really understand your position. If you are an authorised officer under the Public Health Act and an inspector under some other Act you are both. If you are invited in as a public health inspector and detect another breach you may have to make some formal declaration in the interests of fairness so the person knows that anything they say to you may be used in that other context and it may be that the person would not have allowed entry if they knew of your second office. But even so if you enter premises for one purpose and detect an offence under another Act that you are empowered to enforce you can still take that action – see https://emergencylaw.wordpress.com/2016/07/19/discovering-crime-during-an-emergency-response/
As for police they are (usually) in uniform or otherwise have to identify themselves as police. If you know they are police then there is no need for them to act as if you did not. And their authority under the public health legislation in Victoria is given to them because they are police. It is an added string to their bow. Their powers are not something additional to their police powers, it is now part of their police powers.
Very, very late to your post, but it’s been interesting to read. My question relates to the original Victorian Quarantine system. Based on what I have read from your posts, does the fact the neither of hotel staff or security guards seem to be “authorised officers” and now via the Royal Commission we heard that Brett Sutton did not sign off on the decision, does this put the Victorian Government, these hotels and security guards in a precarious position for false imprisonment as they were never authorised?
I’m not going to try to go through the ins and outs of what impact any of those findings might have, assuming they are the findings. I haven’t read the report. But if I assume that there was a legal defect in setting up the quarantine it won’t be the security guards that would be liable for false imprisonment (again without exploring in detail the elements of the tort). If anyone was imprisoning anyone it was the state so it would be the state that would be liable. In the same way, if the state passed legislation creating an offence and police arrested someone for that offence, but on appeal the High Court ruled that the legislation was beyond the power of the state, the police officer would not be liable for false imprisonment.
Thanks for the response, appreciate the insight.
It’s good to hear that security guards, etc will be spared the potential additional concerns that their actions would be classified as unlawful.