Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown

Published date01 September 2021
Date01 September 2021
DOI10.1177/0067205X211016576
2021, Vol. 49(3) 465 –495
Article
Can I Leave the House? A Coded
Analysis of the Interpretation of
the Reasonable Excuse Provision
by NSW Police During the
COVID-19 Lockdown
Ben Mostyn* and Niamh Kinchin**
Abstract
This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement)
Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The
order allowed police to fine people who left their houses without a ‘reasonable excuse’. This
article considers the confusion around the order in the community and upper levels of the
government. Publicly available information about the fines issued by the police is analysed and it is
argued that an overly narrow application of the order by police meant that its application was not
reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is
concluded that if future lockdowns are required, care will need to be taken to ensure that
Ministerial orders are crafted in line with the legislation and that police officers clearly under-
stand their operation.
I Introduction
In response to the COVID-19 pandemic, the New South Wales (NSW) Government introduced
what were probably the most wide ranging police powers since Federation. The government issued
the Public Health (COVID-19 Restricti ons on Gathering and Movement) Order 2020 (NSW)
(Covid Order’), which stated that people could not leave their house without a ‘reasonable
excuse’. The order, which was in force from 31 March 2020 to 14 May 2020, was in the form
of an executive order authorised by Parliament under s 7 of the Public Health Act 2010 (NSW)
(‘Public Health Act’).
1
An examination of both the form and application of the order reveals that a
* Lecturer at the School of Law, Faculty of Business and Law, University of Wollongong, New South Wales, Australia. The
author may be contacted at bmostyn@uow.edu.au.
** Senior Lecturer at the School of Law, Faculty of Business and Law, University of Wollongong, New South Wales,
Australia. The author may be contacted at nkinchin@uow.edu.au.
1. Public Health Act 2010 (NSW) s 7 (‘Public Health Act’).
Federal Law Review
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466 Federal Law Review 49(3)
lack of interpretive guidance and a poorly defined legislative scope encouraged an overly narrow
application of the powers by police, leading to questions around validity based reasonable pro-
portionality. The orders, drafted in haste to meet the demands of the growing pandemic, provide a
salutary lesson for the essentiality of clear, coherent delegated legislation in times of emergency,
particularly where that legislation is pecuniary in nature and relies upon a discretionary interpreta-
tion by the police.
The first order, the Public Health (COVID-19 Gatherings) Order 2020 (NSW),
was made on 20 March 2020 and came into effect the following day. It primarily banned public
gatherings of 500 people or more. With the escalating global pandemic, the first order was revoked
10 days later by the Covid Order, which came into force on 31 March 2020.
2
The primary purpose
of the Covid Order was to prevent people leaving their house without a reasonable excuse,
3
which
was supported by a list of ‘reasonable excuses’.
4
It also banned public gatherings.
5
This analysis
will reveal that this list, although inclusive in nature, was enforced by the police as though it were
exhaustive. It was not always clear, from the police summaries, whether fines were issued for an
illegal gathering or because the person had left home without a reasonable excuse.
The Covid Order was revoked on 14 May 2020.
6
During the time the Covid Order was in force,
approximately 1200 people were issued fines by NSW Police. From media reports, it appeared that
police were enforcing the Covid Order as though the list of excuses provided in the order was an
exhaustive list, that is, that it provided the only acceptable reasonable excus es. If people had
reasonable excuses to leave their house that were not on the list—perhaps to let their children
play, to have a mental health break, to buy a present for a friend—they risked being issued a fine by
a police officer who did not consider their excuse ‘reasonable’, because it was not on the list.
This article will consider the haste in which the COVID-1 9 orders were implemented, the
confusion that came from top levels of government in interpreting those orders, the reasonable
excuse provision and how police interpreted the orders. It will be argued that both the form and
application of the Covid Order raise questions of invalidity and could have been challenged for
being ultra vires the enabling Act on the grounds of reasonable proportionality.
This research is important because it sits at the interface of public law and policing, an area that
is often overlooked. Often researchers focus on police powers but not the administrative decisions
that police make. The imposition of fines is administrative in nature, rather than a policing matter,
given that it involves a ministerial order, officer interpretation and decision-making. The majority
of fines will not be dealt with through the criminal justice system but will be paid as administrative
fines. Applying principles of public law provides important lessons for the future—whether it be a
second wave of the current pandemic or a future outbreak. Lessons from the way the current
pandemic has been policed may help us ensure that in future, lockdown orders are policed in a way
which ensures that the community understands the law, the government ministers understand the
2. Of relevance, the new order also used new language in some places. Under s 8, rather than banning gatherings, it
proscribed operators of outdoor spaces to ‘allow 500 or more persons to enter or stay on the premises at the same time’.
This suggests that there is difference between gatherings and crowds under the orders.
3. Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) pt 2 (‘Covid Order’).
4. Ibid sch 1.
5. Ibid pt 3.
6. Public Health (COVID-19 Restrictions on Gathering and Movement) Order (no 2) 2020 (gazetted on 14 May 2020,
commencing 15 May 2020).
2Federal Law Review XX(X)
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wide ranging
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