Are the police lockdown powers lawful? How about the 5kms radius travel limit?
Do you have to speak to the police if they try to ask you questions?
We think you do not have to speak to the police and here are some reasons why.
You don’t have to speak to the police officer, but we recommend that you do state your name and address. One reason is that it is contrary to the ruling of the 25 Nov 2011 Supreme Court Case of the DPP vs Hamilton, where Justice Kaye clearly stated that you don’t have to stop and speak to the police unless you’re under arrest. Before you are arrested you should be given warning for the offence you would be arrested for. Once under arrest you have the right to remain silent, so even when you are under arrest you don’t have to speak to the police.
The interpretation of law must be accepted by a court. Other opinions and reasons as to why the law is unlawful and legally invalid are given by the Australian Criminal & Family Lawyers (ACFL), the Interpretation Act
If the link above does not work download the PDF below
Another good reason is, have you personally been issued a public health order in writing?
(The example below is for Victoria, just read it, how do you interpret it)
Are lockdowns healthy? How about all the stress, suicides they have caused. This is no small matter, everyone has a personal story to share!
Refer section 117 of the Victorian Public Health order
Views below expressed by an anonymous solicitor
How does the Public Health Order work
To properly understand the legalities, it is important to first understand how the Public Health Orders work.
The Public Health Order is not an Act of Parliament, it is not legislation, nor is it a regulation. The Public Health Order is an instrument that is made by the Health Minister (Brad Hazzard) under the powers provided under Section 7 of the Public Health Act (The Act).
So, the starting point is to consider the scope of the power given to the Health Minister under the Public Health Act to make Orders.
Under Section 7 of the Public Health Act if the Minister considers on reasonable grounds that Covid-19 is a risk, or is likely to be a risk, to public health, the Minister can take such action and by order give such direction that the Minister considers necessary to deal with the risk and its possible consequences.
It is undisputable that the Minister has a wide power under Section 7 to make orders and give directions to deal with the public health risk. However, does that power also include enforcement power.
The answer is no and we will explain why.
What is the offence of breaching the Public Health Order?
The starting point is to identify the legal source for the offence in order to then consider how it might be enforced.
Despite common misconception, the Health Minister does not have power to create offences. The offence is not contained in the Public Health Order itself. Rather, the offence is contained in Section 10 of the Public Health Act.
For relevant purposes, section 10 of the Public Health Act states that a person who is subject to a direction under Section 7 and fails to comply with the direction without a reasonable excuse is guilty of an offence.
Therefore, if a person fails to comply with the Public Health Order they are committing an offence under Section 10 of the Public Health Act. They are not committing an offence under the Public Health Order.
What are the enforcement powers?
Part 8 of the Public Health Act is titled “Enforcement of Act”. That is that it contains all the sections enacted by Parliament that deal with Enforcement of the Public Health Act.
It is important at this stage to note that the offence provision, being Section 10 of the Act, is subject to these enforcement provisions. That is that Part 8 of the Act gives the powers to enable the enforcement of Section 10.
So, what are the actual enforcement powers under the Act?
Well interestingly, the only power given to the police under Part 8 to enforce the Act is under Section 112 of the Public Health Act.
The power in Section 112 allows a police officer to request that a person state their name and residential address if they suspect that the person has breached the Public Health Order.
It is important to highlight that section 112 uses the word state. There is nothing in Section 112 that requires a person to provide their identification documents to the police.
What is however most important to note is that Section 111 of the Public Health Act, which provides the power to request other information or documents from a person is not a power that has been given to the Police.
Under Section 111 an authorised officer may request information and documents from a person by giving them notice in writing. However, the definition of authorised officer in the Act does not include a police officer.
Unlike Section 112, where police officer has specifically been included into that power in the section, the same has not been done in Section 111. Clearly indicating that Parliament did not intent to give police the power to request documents or information.
Secondly, in regards to the power under Section 111 which allows an authorised officer to request information and documentation, such a request may only be made by notice in writing.
So to conclude, the only power that has been given to the police under the Public Health Act to enforce Section 10 (the offence provision of not complying with the Public Health Order) is Section 112, and that is the power to ask a person to state their name and address but only if the police officer suspects that the person has breached the Order.
The question to turn to now is whether the Minister can provide the police with additional powers that exceed the powers given to the police under the Public Health Act.
The answer is no.
Section 32 of the Interpretation Act provides as follows:
(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
The Public Health Order is an instrument that is made under the Public Health Act. Therefore, the enforcement powers given to the police under the Public Health Order cannot exceed the enforcement powers under the Public Health Act.
The only enforcement power given to the police under the Act is under Section 112 and that is to ask a person to state their name and address if they suspect that the person is in breach of the Public Health Order.
Accordingly, any enforcement power that is given to the police that exceeds the power under Section 112 is unlawful and invalid.
Which police powers under the Public Health Order are unlawful?
Basically, any power that exceeds Section 112 is unlawful in our view. This includes the following powers purported to be given to the police under the Public Health Order:
1) The power to ask for a person’s name and address to determine if they are from a Local Government Area of Concern or if they are exercising outside of their relevant radius,
2) The power to ask a person for their medical documents including vaccination status, covid test results, and mask exemptions.
3) The power to ask a person for proof of their employment.
4) The power to request a person to go home.
What happens if a police officer asks me for this information
There is nothing in the law that stops a police officer asking a person these questions. The question is what happens if a person does not comply with answering them.
There is nothing that a police officer can do compel a person to answer question outside of the power under Section 112. However, the police officer might then decide to fine the person.
Just because a police officer issues a person with a fine does not mean that the fine is valid. A person is entitled to challenge the fine at Court.
What is important to note that it at all times it is for the New South Wales Police to prove that a person is guilty of an offence. There is nothing in our reading of the Order that reverses the onus of proof so that a person must prove that they are not guilty.
Take for example a situation where a person refuses to provide a police officer with their vaccination status. The police officer fines that person for breaching Section 10.
The person elects to go to Court, it will be incumbent on the police to prove that the person was not vaccinated at the time. The police will need to place that evidence before the Court. In doing so, the police will not be able to rely on the powers given to them under the Order if they are deemed invalid.