What is a Public Health Order?
As a civil liberties lawyer, I thought it was important to clear up some of the confusion that seems to be arising from the various different incarnations of these new Public Health Orders.
Many very intelligent people are confused about what they mean and to be honest, even I have had to read them daily for the past few weeks. They change daily and there is ambiguity in how they feel.
I was fed up at how poorly this information had been conveyed and then realised that, “Jahan, you are an expert at Administrative law and taught it at the university, maybe you should actually do something about this”
Before we begin, this is general advice only and specific legal advice can always be obtained if you reach out and contact us. Secondly, I do not necessarily agree with everything, but to challenge the law you have to understand it.
I wrote this post to give some insights into how they work and to provide some general information that may assist you in understanding how they work a little bit better. I think the best way to work through them is to deal with the most common questions that I have been asked
1) What is a Public Health Order?
A public health order is an order made by the government pursuant to legislation which deals with public health. What that means is that the government as part of its mandate for leadership is allowed to take steps to protect the general population and can make orders dealing with situations like COVID19. These Public Health Orders are the Governments way of conveying and enforcing behaviour that they say is necessary in the public interest.
2) Does the government really have the power to enforce these orders?
Yes they do. I could (and might) dedicate a whole post to the powers of the constitution and the relationship between the state and federal government, but
States have an exceptional amount of power when it comes to public order and particularly in terms of health. The orders are strictly speaking, entirely lawful
3) What about the police response ? Is that lawful ?
The police have the power and the responsibility for maintaining lawful order and since there has been a spike in cases in certain local government areas (such as Fairfirled), they are within their rights to send resources to that area.
Is it appropriate to send riot police to suburbs where people speak English as a second language and intimidate them senseless, probably not. Is it lawful, unfortunately yes.
4) What about these infringement notices?
If you break the law, the police have a number of options in relation to punishing you. One of these ways is to issue a penalty infringement notice and that is the number that is being referred to by the police commissioner on a daily basis.
5) Can I challenge these infringement notices?
Absolutely! You have a variety of tools at your disposal to challenge these infringement notices including taking the matter to Court. We currently have some matters where we are advising clients in relation to this. Police are doing things for the first time and that means they are likely to get it wrong, get some advice in relation to this for sure.
6) Do I need to receive a warning?
Police have discretion to issue a warning or not when faced with what they believe to be unlawful conduct. I have not seen a particular rhyme or reason when it comes to the issuing of warnings vs the issuing of infringement notices. It really comes down to the individual officer and like ANY public official (think about the politicians you love versus the politicians you hate), there is an enormous range in terms of competence, compassion and capability.
7) Can the government close down my industry temporarily (construction)?
This breaks my heart because I act for so many tradespeople and some of our major clients are construction and engineering firms. My research over the past few days seems to suggest that they do in fact have the power to do this (although from a technical perspective, this may be open to challenge). The power afforded by these orders is such that they can close down an industry temporarily.
8) What is an essential worker/essential businesses?
The Government has been slow to bring up what is an essential worker because the reality is that any definition will fail some persons or parties. We have all seen examples of businesses that we know should absolutely not be open (luxury goods, really?), but the definition has been tightened somewhat. This is open to interpretation, but this list gives you a bit of an idea around what the term is likely to mean https://www.nsw.gov.au/covid-19/rules/authorised-workers
Fun fact, lawyers are considered essential workers today even though the politicians are happy to treat as like pond scum when it suits them.
9) How about this vaccine rollout thing ?
The Vaccine rollout is a FEDERAL initiative which means it is being run by the federal government and not the states. This means that whilst the states are involved, the purchase and distribution is being done at the federal government. This means that in terms of deciding who gets the vaccine, how much is given to each state etc; this is done outside of the states. From a practical perspective, this makes sense, if you organise the purchase and distribution from one party then you can control logistics, pricing etc. Unfortunately, this has been flubbed up pretty badly and that’s why there is not enough vaccines in the hands of the states to properly vaccinate the population.
10) What about financial support like Jobkeeper etc?
Financial support can come from the federal, state or local government. Jobkeeper was a federal initiative which has come to an end, but there is discussions about a similar scheme being utilised again in the future. The government is acutely aware that people are hurting and they are trying to come up with a plan of action that supports peoples and businesses. Accountants and experts can give you guidance in relation to how these financial supports will work better then I can, but there is options out there.
11) How about Martial Law and food restrictions etc ? Is that possible
Anything is possible, but I think it is highly unlikely. For all of the problems we are facing, the logistical backbone of the country is fine and we can still get access to food, water, power and internet. The move from these public orders to martial law is a big jump and one that I do not see occurring without there being a huge shift in what is occurring?
12) Will we be okay?
Of course we will. Lockdown sucks, it is unpleasant and not fun, but we will overcome it and hopefully we can use it as a reminder of better times. For anyone who wants legal advice, I am available on [email protected] and the team at Executive Legal have increased their commitment to providing support to the local community during this time. Never hesitate to reach out if we can help, we need each other more then ever.
What is a Public Health Order?