This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY JACK MCNALLY

In response to the COVID-19 pandemic, governments in Australian jurisdictions have declared public health emergencies and introduced restrictions on movement and assembly by executive action. These restrictions have not only been necessary responses to one of the greatest emergencies in modern history, but they have also been very successful in achieving their aim: slowing the spread of the virus. However, what is also clear is that the public health orders have been vague, with little guidance as to how they are to be enforced and complied with. This post focusses on the New South Wales restrictions and the way in which they have been enforced by the NSW Police Force. The rules have not been identical across Australia’s states and territories, but all public health restrictions have handed police a wide discretion to decide how and when to enforce them. The way in which that discretion has been used – both inconsistently and disproportionately – and the lack of formal accountability and oversight of that discretion should be cause for great concern, not least because of its implications for the rule of law.

Background to the health orders

As at 14 July, four public health orders restricting gathering and movement have been issued by the NSW Minister for Health. The first and most restrictive measure, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (‘the Order’) – on which this article focusses – was signed at the eleventh hour on 30 March 2020 to take effect the following day. That Order (which has now been superseded) made it illegal for a person to leave their home without a ‘reasonable excuse’. Some illustrative ‘reasonable excuses’ were enumerated in the Order, though in loose terms: work, study, obtaining medicine and supplies, providing care and assistance. While lawyers scrambled to figure out precisely what the Order meant, police went about the business of issuing fines to members of the general public considered to be in breach. As an order made pursuant to the Public Health Act 2010 (NSW), non-compliance attracted maximum penalties of $11,000 and/or six months imprisonment, or a $1000 penalty notice under the Public Health Regulation 2012 (NSW).

What do we know about how the orders have been enforced?

The orders, particularly at their strongest, were framed using language of the sort long-preferred by law-makers in drafting public order legislation: their ‘provisions are inevitably vague and open-ended, with the ‘characterisation of the behaviour left to the discretion of the police in the first instance, and subsequently to the discretion of the magistrates’. It was left to front-line police officers to make an ‘on the spot’ determination as to whether a person was in breach, and whether to issue a fine. NSW Police released no public guidelines as to how police officers would go about making such determinations. The Public Health Orders themselves were the only guide to action available in the public domain.

I raise two key points of concern as to how the orders have been enforced: inconsistency and disproportionality. With respect to inconsistency – the vagueness of the orders created a great deal of confusion. Just as with offensive language and other public order provisions, the ‘wide discretion that police officers are afforded… carries a risk of inconsistent application’. Inconsistency in the exercise of discretion was pronounced. Though the Order made clear that a person was not to leave their home without a reasonable excuse, the illustrative list of reasonable excuses in the Order was (inevitably) incomplete. The NSW Police Force was required to issue a number of clarifications, including that it would: permit the education of learner drivers, allow individuals to visit cemeteries, to exercise (but only close to home), and allow hopeful beachgoers to swim (but, not tan). Nowhere in the Order were these exceptions provided for and, concerningly, the aforementioned exceptions were issued on an ad hoc basis through the NSW Police Force Facebook page (rather than by regulation to clarify the Order). Acknowledging the significant challenges of policing a vague ministerial direction in an unprecedented pandemic, providing clarification about how the Order would be interpreted (and discretion exercised) via a pastiche of Facebook decrees carries serious rule of law implications, particularly given the impact on fundamental liberties such as the rights of the general public to move and assemble.

A second issue with respect to discretionary pandemic policing has been the disproportionate impact on certain communities and groups. Informal analysis based on police media reports collated by The Saturday Paper found that, during the height of the pandemic, 10.5% of the fines in NSW were issued in the south-western suburbs of the LiverpoolFairfield region – an area of Sydney with a lower socio-economic status and a high migrant population – despite the fact the region constituted only 2.5% of the total state coronavirus cases. In comparison, the more affluent Waverley Local Government Area recorded less than 1% of the infringements, despite being one of the ‘hotspots’ of the state’s outbreak. Communities with large Indigenous populations saw similar issues: the small towns of Walgett and Bourke, each with around 30% of their total population being Indigenous, recorded no cases but five infringements each.

This was not a uniquely NSW pattern. Victoria Police recently released data that also showed little correlation between areas of outbreak and areas of enforcement, with fines being issued primarily to communities with greater social housing density and higher migrant populations.

These data beg the question as to whether police were exercising their discretion, including to summarily impose large financial penalties, in the right places. In one context, there is a question as to whether that discretion should have been exercised at all. Fines issued for a breach of the public health orders are made pursuant not to the provisions of the Criminal Procedure Act 1986 (NSW), but pursuant to the Fines Act 1996 (NSW). The former provides that penalty notices may not be issued to persons under the age of 18, whereas the latter allows fines to be issued without restriction to all persons above the age of criminal responsibility (i.e. 10 years of age). Data obtained by Redfern Legal Centre via a GIPAA application, and provided to the author, show that 58 infringement notices were issued to young people between the ages of 10 and 17 during the peak of the pandemic, from 26 March to 2 May 2020. Of a total of 960 total infringements during that period, around 6% of all infringements were issued to minors.

What accountability issues does this type of enforcement raise?

The approach that has been taken to enforcing COVID-19 public health orders undermines the rule of law. In Australian Communist Party v Commonwealth Dixon J opined that this chameleon concept is so important that it is an ‘assumption’ of the Australian Constitution. His Honour did not go on to define what the rule of law is, but surely at its very core it requires that, in the spirit of the Magna Carta, laws are both known and knowable. How are members of the public expected to know about the provisions of an incredibly vague Order made by ministerial action and not by any Act of Parliament, signed and released to the public just over an hour before the Order comes into effect, and with conflicting ad hoc advice as to what conduct is prohibited under the provisions of that Order? How can law enforcement officers and agencies be held accountable when the boundaries as to what constitutes an appropriate exercise of discretion are both confusing and frequently changing?

The provisions of the Public Health Act may hold the answer. That Act requires individuals to have notice of a ministerial direction in order for a penalty notice for breach of that direction to be enforced. Successful enforcement in court would arguably require the Crown to prove beyond reasonable doubt that the alleged offender knew (a) that there was an order in effect; and (b) that that order prohibited the offending conduct. If the Crown can prove (b) then a fortiori it proves (a), but (a) does not necessarily prove (b). The courts have not considered the substance of this provision before. However, the problem with the enforcement method preferred by police – issuance of on-the-spot fines – is that infringement notices will be paid (or ignored) rather than contested in court, leading to an ‘invisibility of these offences from judicial consideration’. Given the significant hassle and expense of challenging a penalty notice infringement through the courts (and the risk of a higher penalty being imposed), there is every possibility that the police will never be held accountable for inconsistent and disproportionate exercises of discretion. The NSW Police Commissioner indicated that he would be reviewing each penalty notice issued for breach of the public health orders. However, such a review is not a replacement for independent oversight of police discretion and, concerningly, the benchmarks the Commissioner is using in his review of discretion are not known.

Other jurisdictions do not face this same issue. In the United States, an order such as the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 would likely fall victim to the vagueness doctrine, which requires that laws must state explicitly what they demand and what is enforceable, and must define potentially vague terms. Laws that do not meet these requirements will be unconstitutional. A law which does not specifically enumerate prohibited practices, such that the ordinary citizen does not know what the law requires, is likely to fall victim to this doctrine. Current Australian authority is against the idea of vagueness as a criminal defence.

A further consideration with respect to accountability is in data collection. In order for our police forces to be held accountable for the exercise of their discretionary powers, operational data must be available for scrutiny. State and territory police forces have released very scant data with respect to how their COVID-19 enforcement powers have been used, against whom these powers have been used, and whose penalty notices have been waived by the Commissioner. This is a particular issue with respect to Aboriginal and Torres Strait Islander persons in Australia. While it is possible to estimate the impact of public health orders by extrapolating from location-based data and cross-matching to ABS population figures, the collection and release of hard statistics on how many Aboriginal and Torres Strait Islander persons have been targeted by these laws should be of paramount concern. Victoria’s Equal Opportunity and Human Rights Commissioner has urged police to collect such data for analysis. In NSW, it is unclear whether this data is being collected, and Redfern Legal Centre has a pending GIPAA request on this question.

What could be changed to improve police accountability and the exercise of discretion?

First, the release of data on the exercise of discretion under the orders should be made an urgent priority. Though understanding that we are in a time of national crisis, if we are to accept that police now have the power to enforce significant restrictions on our most fundamental liberties, there ought to be oversight and accountability of their exercise of that power. This should start with the regular release of data pertaining to how their discretion has been used. This not only would allow for scrutiny of police actions, but would also be a valuable tool for the public to understand what is and what is not allowed, alleviating some of the significant uncertainty and associated rule of law issues.

Secondly, judicious use of discretion in the context of a formal framework should be encouraged. Other jurisdictions have done a better job in this regard. The Chief Police Officer of the Australian Capital Territory indicated that his intention was to fine or enforce the health directions in the Territory only as a matter of last resort. In the United Kingdom, the National Police Chiefs Council publicly released a comprehensive guide as to how police should exercise their discretion. Police officers were encouraged to ‘consider the four “E’s”’ – to engage to determine what the intentions of the offender are (i.e. whether they knew their activity was in breach of COVID-19 orders); explain why social distancing is important and why the public health orders should be complied with, and then encourage compliance with that order. Only after all of those measures have been undertaken should police enforce the order, and only if all other attempts to obtain cooperation have failed. New Zealand Police adopted a substantially similar framework for enforcement. A similar approach in NSW would be welcome, to constrain the use of discretion and improve transparency and accountability in its exercise.

Though restrictive ‘stay at home’ orders are no longer in place in NSW (or most Australian jurisdictions) these points are not moot. As the recent Victorian experience demonstrates, restrictive ‘stay at home’ orders may be reintroduced as states and territories deal with new outbreaks of the virus. Both policing services and governments should be conscious of these issues of discretion, accountability and the rule of law in the enforcement of public health orders should they be re-introduced. Of particular concern are the Detention Directions made with respect to certain public housing estates in Melbourne, which effectively ordered the detention of 3000 persons living in those estates and began to be enforced without warning.

Ultimately, both police and the executive are in a difficult position. The enormous challenges of responding quickly to lock the state down in a once-in-a-hundred-year crisis are undisputed. However, in a democratic society, where individuals are having their liberties restricted in a way not seen in at least a century, there must be accompanying measures to ensure accountability and restrict overreach by policing services.

A lesson from our history of pandemic policing may be illuminating. At the height of the Spanish Flu, fines of £20 were issued to those in breach of restrictions, with the Sydney Morning Herald reporting on 25 February 1919 that a nineteen-year-old woman was fined, imprisoned for 7 days and found guilty of being without mask on the Oxford Street tram. Her excuse? She was suffering from catarrh and found it too difficult to breathe with her mask on, which hung around her neck. The same report describes the similar fining of a young barman for failure to wear a mask in an unfrequented street. One lawyer wrote to the Herald complaining that those found mask-less, and otherwise with unblemished criminal records, were sent to gaol pending trial. ‘What has been the result?’ he asks. ‘For what?’ 101 years later, we are now asking the same question. For what, indeed.

Jack McNally is a penultimate year undergraduate student at the University of New South Wales, and an intern at the Centre for Crime, Law and Justice at UNSW Law. He wishes to thank Professor Luke McNamara and Professor Julie Stubbs for their guidance in preparing this piece and for their contributions to earlier drafts.

Suggested Citation: Jack McNally, ‘Accountability, discretion and the rule of law: Issues in pandemic policing’ on AUSPUBLAW (15 July 2020) <https://auspublaw.org/2020/07/accountability-discretion-and-the-rule-of-law-issues-in-pandemic-policing>