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  • Writer's pictureKatrina Favre

COVID-19 Restrictions: Why and How Can The Government Restrict My Right to Freedom of Movement?

As we come out of lockdown and emerge as survivors of an unprecedented global pandemic, the question that remains on our minds is “how and why could the government restrict my right to freedom of movement?” Indeed, many countries around the world responded by locking down a number of institutions, forcing people to stay at home, and closing down businesses. Thankfully, this lowered the spread of the coronavirus but some ask the question, what power does the government have to lockdown an entire country. The Public Health Orders restricting freedom of movement and essential gatherings are expected to expire on 29 June 2020, unless the government decides to extend those orders. The purpose of this article is to explain how this right to a freedom of movement can be restricted, and whether or not the correct checks on power have been implemented to enable government bodies to restrict our civil right. On a broad view, a carefully planned utilitarian approach ought to be taken when encroaching this right.

Rise of the Pandemic

The Covid-19 pandemic surfaced on about 30 January 2020 when the World Health Organisation (WHO) declared the outbreak of the coronavirus an international concern. In April 2020, Australia had 5224 reported confirmed cases of Coronavirus.[1] As of June 2020, Australia had 7,265 reported cases of coronavirus, and of those cases, 6,706 persons recovered and 102 persons died.[2]

The statistics illustrating the rate of transmission of infection and deaths was alarming, and called for a global response. Many countries reacted by encouraging people to practise strict hygiene, maintain a social distance of 1.5 metres, closing borders, restricting travel, and now stay at home unless it is necessary for a person to leave their home. The measures have progressively became stricter in the interests of protecting health of everyone, especially persons who are vulnerable. As there is now a lower rate of transmission and lesser cases in Australia, we are seeking a relaxation of the restrictions. That said, it does not mean the government cannot return to the previous lockdown situation.

The NSW Government responded to the COVID-19 pandemic by introducing a suite of legislation intended to enforce the measures, encouraged by the WHO, which regulated the way people, courts and businesses operate. The main legislative instruments affecting the livelihoods of persons and businesses include (“the Public Health Orders”):

  • Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020.

  • Public Health (COVID-19 Self-Isolation) Order 2020.

The Public Health Orders are expected to expire on 29 June 2020 unless further extended by the NSW Government.

Where do we get the right to freedom of movement?

The right to freedom of movement is contained in Articles 12 and 13 of the International Covenant on Civil and Political Rights (ICCPR), a treaty which Australia is a party to. The right may be restricted, either by way of derogation under Article 4 of the ICCPR, or to protect national security, public order, public health or morals or the rights and freedoms of others, as allowed by Article 12(3). During the COVID-19 Pandemic, governments around the world were able to restrict this right in the interest of protecting public health.

Under Article 4(1) of the ICCPR, countries may relax their obligations under the Covenant, including the right to freedom of movement “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”. Such measures may only be taken “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”. The Human Rights Committee stated that restrictions should not only serve the permissible purposes; they must also be necessary and proportionate to protect them and must be the least intrusive means of achieving the desired result.[3]

In light of the COVID-19 pandemic and the biosecurity risks posed by the virus in the absence of a known vaccine, governments could (and still can) impose rules and regulations to restrict the right to our freedom of movement, in the interests of protecting the community as a whole from the virus i.e. a utilitarian approach. The question is, what checks are they placing on the powers (for example the military or police) who are subsequently permitted to control your personal autonomy. Where are the boundaries? How might balance be achieved? Following the inception of the Public Health Orders in NSW, there appeared to be an imbalance of power between civilians and enforcers, which may suggest the restrictions were disproportionate and intrusive. That said, the implementation of the restrictions required an exercise of “common sense”.

Penalties for Breaching Public Health Orders

The Public Health Orders introduced to restrict movements and gatherings, and force people into 14-day isolation caused widespread outrage amongst the community. Many were confused about whether they could see loved ones, go to the shops, get fresh air and attend school (amongst other matters). A small group of people in NSW were also issued with fines for not having a “reasonable excuse” to be outside of their home.

Section 10 of the Public Health Act 2010 (NSW) creates an offence if an individual fails to comply with a ministerial direction (i.e. the Public Health Order) with a maximum penalty of imprisonment for 6 months or a fine of up to $ 11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply with a direction are liable to a fine of $55,000 and $27,500 each day the offence continues. These fines undoubtedly reflect the seriousness of breaching Ministerial directions and intend to achieve deterrence.

While the spirit and rationale of both Public Health Orders is utilitarian (for the greater good) and intended to stop the spread of coronavirus, there were negative social, legal and economic consequences flowing from the enforcement of these restrictions. For example, there have been increasing unemployment rates, and increase in domestic violence related offences.[4]

The NSW population has seen infringement notices issued where they probably should not have been. For example, it is reported that on 1 April 2020, at about 1:30am, police officers stopped a vehicle in Moree for a roadside breath test and issued the 34-year-old female driver with an infringement notice after she was unable to provide them with a reasonable excuse for leaving her home. A week prior, police were checking whether a 28-year-old man who arrived in Australia from New Zealand was self-isolating. Upon attending the home, they found was not there. As such, he was issued with a Penalty Infringement Notice. It is unknown whether this man was given the fair opportunity to explain the absence from his home.[5] While these are examples of concerning scenarios, we are at least seeing police issue cautions or warnings before imposing infringement notices in accordance with section 203 of LEPRA.[6]

There is some proper use of police power, but as the discretion exercised is broad, the community is left with uncertainty and unease about what they can and cannot do during the enforcement period of the Public Health Orders. Queensland Human Rights Commissioner, Scott McDougall, said “In the context of rapidly changing rules and widespread uncertainty about some interpretations, fairness dictates that police approach enforcement with some degree of latitude.”[7] Police are empowered to use discretion, “but there is concern among advocates about enforcement in circumstances where regulations have changed and public messaging has often not been consistent and clear.”[8]

The “Reasonable Excuse” Defence

The test of leaving one’s home and gathering with other persons in a public place during the operation of both Public Health Orders is having a “reasonable excuse” and that the gathering is “essential”. Schedule 1 provides a list of sixteen reasons which may be regarded as a reasonable excuse:

1. Obtaining food or other goods or services for the personal needs of the household or other household purposes (including for pets) and for vulnerable persons.

2. Travelling for the purposes of work if the person cannot work from the person's place of residence.

3. Travelling for the purposes of attending childcare (including picking up or dropping another person at childcare).

4. Travelling for the purposes of facilitating attendance at a school or other educational institution if the person attending the school or institution cannot learn from the person's place of residence.

5. Exercising.

6. Obtaining medical care or supplies or health supplies or fulfilling carer's responsibilities.

7. Attending a wedding or a funeral in the circumstances referred to in clause.

8. Moving to a new place of residence (including a business moving to new premises) or between different places of residence of the person or inspecting a potential new place of residence.

9. Providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance.

10. Donating blood.

11. Undertaking any legal obligations.

12. Accessing public services (whether provided by Government, a private provider or a non-Government organisation), including:

(a) social services, and

(b) employment services, and

(c) domestic violence services, and

(d) mental health services, and

(e) services provided to victims (including as victims of crime).

13. For children who do not live in the same household as their parents or siblings or one of their parents or siblings--continuing existing arrangements for access to, and contact between, parents and children or siblings.

14. For a person who is a priest, minister of religion or member of a religious order going to the person's place of worship or providing pastoral care to another person.

15. Avoiding injury or illness or to escape a risk of harm.

16. For emergencies or compassionate reasons.

The exceptions or “reasonable excuses” are open to interpretation and they are subject to the exercise of police powers. For example “compassionate reasons” is quite subjective. It is concerning that determination of whether a person’s excuse is regarded as reasonable and otherwise falling into one of the above categories is a matter for police determination. It is more concerning that no corresponding change to the Law Enforcement (Powers & Responsibilities) Act 2002 or the introduction of other provisions that would practically guide police discretion in determining whether a person has a reasonable excuse. To enforce the Public Health Orders, police simply need to form a “reasonable suspicion” that a person is breaching the order, and if they are satisfied there is a breach, by virtue of no explanation of a “reasonable excuse” then the person is issued with an infringement or, it the worst case scenario, a Court Attendance Notice.

The threshold for police to be satisfied that they reasonable suspect a person to contravene the Public Health Orders is fairly low. Accordingly, the power to arrest under section 99 of LEPRA is enlivened and anyone could be questioned about their movements or gatherings. Police then question the alleged offender about their movements. Failure to answer, and an exercise of that person’s right to silence, would then possibly result in a penalty. While NSW is seeing some police officers issue warnings at first instance, the practise is not legislated and therefore not uniformly applied. The writers would argue that police should be first obliged to give a warning under section 202 of LEPRA and provided that warning or caution is ignored, then police would have justification to issue the infringement.

While the above is an analysis of the broad concept of the government’s power to restrict movements, the writer is of the view that the urgent response implemented achieved the “utilitarian” objective. To the credit of the community, the collective response has also yielded positive results.

[1] WHO Coronavirus disease 2019 (COVID-19) Situation Report – 74, 3 April 2020, page 3. [2] [3] [4] The Women’s Safety NSW organisation recently released a report titled “Impact of COVID-19 on Women and Children Experiencing Domestic and Family Violence and Frontline Domestic and Family Violence Services”. This report contains findings from surveys completed by support services and support workers in domestic and family violence. As a result of the outbreak of Covid-19, a concerning 44.9% of respondents identified escalating and worsening violence. This study also reports that at least 36.2% of respondents identified that women were reporting violence and abuse related to the Covid-19 crisis whether this be as a result of the added financial or other pressures. Alarmingly, 15.9% of respondents identified violence occurring for the first time. [5]

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