Public Health Orders and the Requirement to Wear a Mask

by Ugur Nedim & Sonia Hickey

A 38-year old woman has been accused of assaulting a Victorian police officer after an interaction over her alleged refusal to wear a mask.

According to police, a female officer approached the woman at a Shopping Centre earlier this week because she was not complying with the public health order which makes the wearing of masks mandatory for everyone who is in Victoria when they are outside the home.

Police say that after being approached, the woman became violent and attacked the officer, bashing her head into the concrete several times and causing head injuries.

The woman was arrested and charged with a range of offences, including assaulting a police officer in execution of duty and refusing to provide her name and address when legally required to do so.

She was also fined $200 for not wearing a mask.

As coronavirus cases continue to surge in Victoria, police are maintaining a hard line stance when it comes to enforcing public health orders.

Public health orders in New South Wales

The Public Health Act 2010 (NSW) (‘the Act’) empowers state officials to make a range of enforceable directions and orders with a view to dealing with public health risks.

The power to deal with these risks is contained in section 7 of the Act, which provides that where the health minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health, the minister may take such action or give such directions that are necessary to deal with the risk and its possible consequences.

The section makes clear that actions and orders can be made in order to:

  • Reduce or remove any risk
  • Segregate or isolate inhabitants, or
  • Prevent, or conditionally permit, access to areas.

The section says that such an order must be published in the Gazette as soon as practicable after it is made, but that failure to do so does not invalidate the order.

Under the section, a wide range of orders can be made without the need to seek approval from parliament, including the wearing of masks.

Similar legislation applies in other parts of the nation, including in Victoria.

Failing to comply to a public health order in New South Wales

Failing to comply with a public health order is an offence under section 10 of the Public Health Act 2010 which comes with a maximum penalty of 100 penalty units (currently $11,000), or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units ($5,500) for each day the offence continues.

In the case of a corporation, the maximum penalty is 500 penalty units ($55,000) and, in the case of a continuing offence, a further 250 penalty units ($27,500) for each day the offence continues.

These penalties apply where the case is dealt with in court, and police and public health officials have the option of issuing a criminal infringement notice of $1,000 in the case of individuals or $5,000 in the case of corporations.

There is currently no public health order in New South Wales which makes it mandatory to wear a mask. There is also no law which prohibits a business from imposing the requirement as a condition of entry.

The situation in Victoria

Victoria has issued a public health order which made it compulsory for a person to wear a face covering outside the home, regardless of where they live. The order came into effect at 11.59pm on Sunday, 2 August 2020.

Currently around the state, there are about 1500 police and PSOs patrolling and enforcing coronavirus restrictions every day. Australian Defence Force Personnel are also undertaking home checks to make sure that anyone who is supposed to be self-isolating actually is.

Figures released recently showed that one in four Victorians who had tested positive to Covid-19 were not self-isolating. And, as community transmissions rise, with now more than 439 new cases recorded in the past few days, the fine for anyone not complying with self-isolation orders has been increased to $4957.

Assaulting a police officer in New South Wales

The offence of assaulting a police officer in their execution of duty is contained in section 60 of the Crimes Act 1900  which prescribes maximum penalties that depend on the severity of the alleged assault.

These offences, which are listed in the subsections of section 60, provide that:

(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.

(1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.

(2) A person who assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.

(2A) A person who, during a public disorder, assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.

(3) A person who by any means:
(a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and
(b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 12 years.

(3A) A person who by any means during a public disorder:
(a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and
(b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 14 years.

An officer off-duty

There are circumstances in which an offence under this section can be made out even if the officer was not on duty at the time. These are:

  • If the assault occurred as a consequence of or in retaliation for actions taken whilst the officer was in execution of their duty, or
  • If the assault occurred because that person is a police officer.

Going to court for a criminal offence?

If you have been charged with a criminal offence, call Sydney Criminal Lawyers any time on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options, the best way forward and fight for the optimal outcome.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Your Opinion Matters