The Offence of Intentionally Coughing On or Spitting At a Public Official

by Ugur Nedim

Today, the New South Wales Minister for Health and Medical Research, Brad Hazzard, passed the Public Health (COVID-19 Spitting and Coughing) Order 2020 under the provisions of section 7 of the Public Health Act 2010.

The order was gazetted within hours, and makes it an offence punishable by six months in prison and/or a fine of $11,000 if the matter is dealt with by a court, or a penalty notice (also known as an on-the-spot fine) of $5,000 to ‘intentionally spit at or cough on a public official in a way that would reasonably be likely to cause fear about the spread of COVID-19’.

The order comes after a number of publicised incidents whereby members of the public have been accused at intentionally coughing on or spitting at public officials such as police officers.

The new rule applies only to ‘public officials’, who are defined by the order as:

  • health workers,
  • police officers,
  • other persons exercising public functions under the law of New South Wales,
  • Immigration and Border Protection workers, and
  • persons employed or otherwise engaged by the Commonwealth Department of Health.

A ‘health worker’ is defined as:

  • a person employed in the NSW Health Service,
  • a person engaged by the Health Administration Corporation,
  • a person engaged by a public health organisation,
  • a member of staff of a licensed private health facility,
  • a registered health practitioner,
  • a person who works in a pharmacy or on other premises at which a health practitioner routinely practises the practitioner’s profession,
  • a member of staff of St John Ambulance Australia (NSW), or
  • a member of staff of the Royal Flying Doctor Service of Australia (NSW Section).

It is important to bear in mind that penalty notices can be challenged in court, but it should be noted that a person who is ultimately found guilty will face the prospects of receiving a criminal record and up to six months in prison and/or an $11,000 fine for failing to comply with a public health order, unless they are able to persuade the court to deal with them by way of a section 10 dismissal or a conditional release order without a conviction.

The new order is additional to the offence of common assault under section 61 of the Crimes Act 1900 (NSW), which can capture those who spit at others.

Author

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®.

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