We’ve probably seen the videos of people being belligerent with Victoria police and shop staff – and if not, here are some:
- Melbourne woman threatens to sue police who questioned her for not wearing mask news.com.au (26 July 2020);
- Woman films herself refusing to wear a face mask in Victoria shopping centre during argument with police 7 News (27 July 2020); and
- Bunnings mask woman seen arguing with Australia Post staff in new video 9News, (27 July 2020).
A correspondent has also written to me saying
I read your with interest your blog regarding the current situation in Victoria and specifically police powers and the Public Health and Well Being Act 2008.
I must say, after reading the Act, I too arrived at the same conclusions as you did though I am not a barrister.
Police have no powers under the Act to enforce anything.
In fact, a person has no legal obligation to provide name and address to Police if requested – only an “authorised officer” has the power to request such and police are NOT authorised officers for purposes of the Act.
Amazingly, I have asked they produce their identity card which authorised officers are obliged to do, and they simply state that being in uniform is enough!!!
Finally, threats of arrest by police would constitute assault (I recall case law to the effect), and arresting any person for questioning is unlawful as you rightly pointed out.
I was arrested for refusing to provide my details and released after questioned and provided my details (conversation was recorded).
Appreciate your blog!!
Lest I be misquoted I’ll try again. In my post Policing the public health response – Victoria (July 10, 2020) I said that the police could not use force to take a person who was subject to the general lockdown that what was then in force, to return a person to their apartment. That is not the same as saying that the police could not ‘enforce anything’. It is an offence to fail to comply with a public health order. In that earlier post I said:
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).
Just because the ‘Secretary may issue an infringement notice’ it does not mean that the Secretary must do so or that police have no authority. To again quote the Crimes Act 1958 (Vic) s458:
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;
My point in my earlier post is that if police arrest a person breaking a lockdown with an intention of returning them to ‘the place where the person is required to be under the order’ that is not justified by this section. But that doesn’t mean they cannot arrest for the purposes set out in that section. And the primary purpose of arrest has to be to put the person before a court or otherwise commence proceedings.
It follows that if a person who is required to wear a mask is not doing so then they are committing an offence (Public Health and Well being Act 2008 (Vic) s 203). If they refuse to wear a mask police can arrest them for the purposes set out in the Crimes Act 1958 (Vic) s 458(iii) and (iv). If they refuse to give their identification details then an arrest could also be justified under s 458(i), because if the police don’t know the person’s name and address they cannot issue a summons or infringement notice and cannot, should it be necessary (eg if they ignore the summons or infringement notice) ‘ensure the attendance of the offender before a court of competent jurisdiction’.
Further the Crimes Act 1958 (Vic) s 456AA says:
(1) A police officer … may request a person to state his or her name and address if the police officer … believes on reasonable grounds that the person—
(a) has committed or is about to commit an offence, whether indictable or summary…
(2) A police officer …who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.
(3) A person who, in response to a request made by a police officer or a protective services officer in accordance with this section—
(a) refuses or fails to comply with the request; or
(b) states a name that is false in a material particular; or
(c) states an address other than the full and correct address of his or her ordinary place of residence or business—
is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
(4) A person who is requested by a police officer or a protective services officer under subsection (1) to state his or her name and address may request the officer to state, orally or in writing, his or her name, rank and place of duty.
(5) A police officer or a protective services officer who, in response to a request under subsection (4)—
(a) refuses or fails to comply with the request; or
(b) states a name or rank that is false in a material particular; or
(c) states as his or her place of duty an address other than the name of the police station which is the police officer’s or the protective services officer’s ordinary place of duty; or
(d) refuses to comply with the request in writing if requested to do so—
is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
It’s not clear to me whether the first two videos that I’ve linked to are the same incident or different incidents. In one of the videos the police officer says that the requirement to provide a name and address is under ‘Commonwealth law’ and that is not correct. The obligation is under the Victorian Crimes Act, but just because the officer got the source wrong does not deny that the authority exists. Lawyers spend a lot of time chasing down provisions and laws, police on the street are not required to give people legal advice. The assertion that she was required to provide her name and address was correct.
The police in the news.com.au video are on the ball. They hand over their details when requested (s 456AA(4) and (5), they tell the woman that they think she has committed an offence for not wearing a mask (s 456AA(2)) and they require her to provide her name and address. Her failure to do so appears to be an offence (ie an offence separate to the offence of not wearing the mask) and that again triggers their power to arrest (s 458). Her assertion that she does not consent is irrelevant, the whole point of arrest is that it is depriving a person of their liberty. No-one ‘consents’ to being arrested.
A critical question is ‘is it an offence to not wear a mask in Victoria?’
The Stay at Home Directions (Restricted Areas) (No 4) has been issued by Dr Finn Romanes, Deputy Public Health Commander pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).
Section 199 says that the Chief Health Officer may authorise various persons to exercise emergency powers. I will assume that Dr Romanes is duty authorised. The powers in s 200(1)(b) and (d) are powers to:
(b) restrict the movement of any person or group of persons within the emergency area;
(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.
This particular order applies to ‘everyone who ordinarily resides in the Restricted Area’ (as defined by the Area Directions (No 4) (see The Stay at Home Directions (Restricted Areas) (No 4), cl 13). Clause 5(6) says that a person may not leave their premises within the restricted area unless they
(a) wear a face covering at all times; and
(b) if subclause (7) (other than subclause (7)(a) or (c)) applies, carry a face covering at all other times.
Subclause (7) does provide exemptions but none of them appear to be relevant in any of the scenarios shown.
I cannot see that there is an obligation to wear a mask if you enter the restricted area from outside the restricted area.
The critical question becomes, at least for the first two videos, whether the woman ‘ordinarily resides’ in the restricted areas. I don’t know where the video was shot, but one can immediately see the problem for police. If we assume that the video was shot in one of the restricted areas, then prima facie she lives in that area but if she doesn’t produce ID they cannot know that.
An arrest, or a demand for ID is not unlawful because it turns out the person is not guilty of any offence. Police only need to have reasonable grounds to suspect the person is guilty of an offence to arrest (Crimes Act 1958 (Vic) s 461) or demand identification (s 456AA)..
It may be that the woman in videos (1) and (2) has not committed an offence. She may not ordinarily reside in a restricted area; she may have an exemption under cl 5(7); Dr Romanes may not have been duly authorised to issue the Stay at Home Directions (Restricted Areas) (No 4). Police cannot resolve all of that at the time. First they cannot address the issue of her address if she doesn’t tell them what it is. Second just because a person has an defence that does not make the arrest illegal; police do not determine guilt or innocence, courts do. Provided police have ‘reasonable grounds’ to believe an offence has been committed that is sufficient. A person may be able to challenge Dr Romanes’ appointment but I don’t think anyone would question that a police officer would have ‘reasonable grounds’ to believe he is duly authorised by the very terms of the order made. As for a legitimate reason under cl 5(7) again if that is not offered to police they cannot form a view as to whether it applies.
As with most circumstances if one thinks police are acting ultra vires, it is usually better to cooperate and deal with it later rather than assert that ‘I’m right; you’re wrong’. Getting arrested and spending two years in court is a high price to pay to climb the moral high ground.
As for asserting that she’ll sue each officer personally for $60 000 that is rubbish. When you sue for ‘unliquidated damages’ (ie damages that cannot be quantified) you make a claim and ultimately a court assesses your actual losses. You can claim $60 000 but damages may be assessed at $6. Further if she alleges a tort (eg assault or false imprisonment) by a police officer, it is the State of Victoria that is liable (Victoria Police Act 2013 (Vic) s 74). She cannot simply chose to avoid that section. If she tries to sue the police officers personally it will still be the state of Victoria that is the defendant and that is there, no doubt, in part to stop people threating to take action against individual police in order to stop them performing their duties.
As always, we don’t know all the facts from a short video but from what we can see I would suggest:
- If she was in a restricted area and not wearing a mask that would give police reasonable grounds to suspect she was committing an offence contrary to the Public Health and Well being Act 2008 (Vic) s 203.
- That belief would justify making a demand that she provide details of her name and address. Failure to comply with that demand is also an offence.
- There being reasonable grounds to suspect the commission of two offences, police could choose to exercise their powers of arrest to stop further breaches, to protect public safety and to take steps to put her before a court.
- It is wrong to say that the ‘Police have no powers under the Act to enforce anything.’
Video 3 is a different story. In that video the person is in Bunnings and an Australia Post outlet. These are private premises (even though Australia Post is a Commonwealth agency). They can set the terms and conditions of entry to their store. They don’t need authority to question the person or to ask them to leave. Trying entering Bunnings or Australia Post naked and test whether they have to let you in.
That is not unlawful discrimination on the basis of gender as alleged. It may be unlawful discrimination if the person lived in a restricted area and was not required to wear a mask because (cl 5(7)(c)):
the person has a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable…
Examples: persons who have obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness, or who have experienced trauma.
But the shopkeeper/employee would have to have some notice of that before it could be said they were discriminating on the grounds of disability by refusing to serve the person.
There is no ‘right’ to insist on not wearing a mask any more than there is a right to insist on the right to not wear a helmet when riding a motorcycle or a right to walk the street naked. Provided the Deputy Chief Health officer really holds the requisite belief that the actions are ‘reasonably necessary to protect public health’ then the order can be made and it’s a criminal offence to fail to comply.
If someone wants to challenge the ‘reasonableness’ of those orders getting arrested may be a good start. If a person is arrested and charged, they would have standing to raise those issues and take the matter to the High Court. If you want to get arrested, fine – get arrested but don’t try to argue the police out of arresting you. That just makes everyone’s life difficult for no good purpose.
Posting videos on facebook of half-baked legal understanding just demonstrates that the person is a [insert what you think is an appropriate descriptive statement here].
- Challenging COVID restrictions – part 1 (April 23, 2020); and
- Challenging COVID restrictions – part 2 (April 23, 2020).
A really good summary as usual Michael.
It appears to me that the requirement to provide name and address applies only in cases of indictable or summary offences (s456AA) – is this not the case ?
If not, why the need to tag on the “whether indictable or summary” in s456(1)(a)?
Secondly, the requirement to provide name and address under the Public Health and Well being Act is stated to an “authorised officer” (s190(1)(d)), which does not include Police unless the person is appointed by the Secretary as an Authorised officer pursuant to s30.
Additionally, the Act prescribes that the Authorised officer MUST produce his/her Identity Card before exercising a power under the Act ….. (s166(1)).
If Police arent authorised officers for the purposes of the Act, how can they exercise powers under the Act?
Finally, would it be necessary for Police to have the authority to issue infringement notice, it would need to have been delegated by the Secretary as prescribed by s19?
There are only two categories of offences. Indictable offences heard by a judge and jury, and summary offences heard by a magistrate (and sometimes a judge) alone. The words ‘whether indictable or summary’ is perhaps unnecessary but it certainly removes any question. I note that the same words are used in s 458 power to arrest and s 459 further powers of police are limited to indictable offences. I would infer the words ‘whether indictable or summary” have been put there to make sure there is no unnecessary argument.
The requirement to provide a name and address under the Public Health and Wellbeing Act may well refer to an “authorised officer” but police exercising their powers under the Crimes Act are not relying on the Public Health and Wellbeing Act so what that Act says is not relevant. The police authority is not found in the Public Health and Wellbeing Act.
One would have to check in detail, but police can demand the name and address and an authorised officer could then issue an infringement notice; and police can choose to arrest and prosecute in which case the power of the secretary to issue an infringement notice is not relevant.
Thanks for the response.
What is the meaning and/or effect of section 2, s458 Crimes Act Vic 1958?
Section 458(2) says “For the purposes of paragraph (a) in subsection (1) “offence” means offence at common law or a contravention of or failure to comply with a provision of an Act of Parliament and unless otherwise by Act of Parliament expressly provided does not include a contravention of or failure to comply with a rule regulation by-law or other law made under an Act of Parliament.”
If a regulation says that there is an offence that does not justify an arrest. For example the Public Health and Wellbeing Regulations 2019 (VIc) r 15 ‘Duty to control mosquito breeding grounds’ creates an offence punishable by a fine of 10 penalty units. That is an offence created by a ‘rule regulation by-law or other law made under an Act of Parliament’. Section 458(2) would not justify an arrest for that ofence.
That is not what is happening here. The Public Health directions are made under the authority of the Act but the directions do not create the offence. The offence of failing to comply with a public health direction is an offence created by s 203 of the Public Health and Wellbeing Act that is the offence is a ‘failure to comply with a provision of an Act of Parliament’.
“Posting videos on facebook of half-baked legal understanding just demonstrates that the person is a [insert what you think is an appropriate descriptive statement here].”
Its a bit of a stretch to say ‘half baked’, I think all examples shown haven’t even reached the oven to become half baked!
Sorry should’ve added also (tried to find original to edit with no luck);
Similarly, if having friends over when directive is no visitors, and police do pay the occupier a visti to investigate the breach, can one not deny entry to Police, that is to say, they would be trespassing if they ignore?
As i understand the legislation, the purpose of an “authorised officer” is to grant legal authority to override any trespass hurdle (Part 9).
That’s probably correct; see https://www.legalaid.vic.gov.au/sites/www.legalaid.vic.gov.au/files/vla-resource-police-powers_0.pdf p. 8 (but of course that has nothing to do with the videos the subject of this post).
thanks for the legal lesson
Hi Nick, the contentions you have expressed here seem very familiar. I’m just wondering, is this you in this video?
Michael you have the patience of a saint.
Another very well written informative article Michael. I like the “Try entering Bunnings or Australia Post naked and test whether they have to let you in.”
I often suggest this strategy to OPCA adherents. If they don’t want a hearing to continue, they don’t have to play all the “all-capitals name” game at all, they just have to walk into the courtroom completely starkers and watch how quickly the matter is adjourned to another date lol. 😛