The Offence of Failing to Comply With a Public Health Order

It has been reported that at around 9.20am on Wednesday, 1 April 2020, a 41-year old woman from Queanbeyan in south eastern New South Wales was walking along a street in Cooma when she allegedly “stepped in front of another woman and intentionally coughed in her direction”.

According to police, the woman continued walking and intentionally coughed at other members of the public as she passed them, including a woman with a young child.

Police were called and attended the scene, arrested the woman and took her to Cooma Police Station where they charged her with failing to comply with a public health order and two counts of stalking or intimidation with the intention of causing fear of physical or mental harm.

The woman was refused bail at the police station and will appear in Wollongong Local Court this morning, when she is expected to make an application for bail.

The Public Health Act

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
• 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.

Similar legislation applies in other parts of the nation.

Current directions under the Public Health Act

The Minister for Health and Medical Research, Brad Hazzard, has made several directions and orders over the past fortnight ostensibly aimed at reducing the risks of spreading COVID-19.

These directions and orders, which have been covered in our previous articles, range from restrictions on movements and gatherings to distancing and conduct requirements, and cover a range of activities from leaving the home without a reasonable excuse, to being in the company of others, to entering the state and isolating.

The offence of failing to comply with a public health order

Section 10 of the Public Health Act provides that a person who, without reasonable excuse, fails to comply with such a direction faces a maximum penalty of 6 months in prison and/or a fine of 100 penalty units, which is currently $11,000.

Any continued failure to comply is punishable by a fine of 50 penalty units, or $5,500, for each day the offence continues.

The maximum penalty for companies is 500 penalty units, or $55,000, and 250 penalty units, or $27,500 for each day the offence continues.

Police are also empowered to issue criminal infringement notices of $1000 to individuals and $5000 to businesses. Receiving these ‘on-the-spot’ fines does not result in a criminal record, and the recipient can elect to take the matter to court. However, if the offence is ultimately proved in court, the maximum penalties outlined above come into play and a finding of guilt will lead to a criminal record, unless you (or your lawyer on your behalf) can persuade the court to grant a ‘section 10 dismissal’ or a conditional release order without a conviction.

Does coughing breach a public health order?

There is currently no specific direction relating to intentional coughing, which has led the police minister to call for additional measures to punish such conduct, including a specific criminal offence backed up with harsh penalties.

That said, the case-law makes it clear that such acts can amount to the offence of common assault, which comes with a maximum penalty of 2 years in prison and/or a fine of 50 penalty units, which is currently $5,500.

In the current environment, the act of intentionally coughing at another person could potentially also amount to an offence under section 13 of the Crimes (Domestic and Personal) Violence Act 2007 (‘the Act’).

But it is important to be aware that the mental elements of these offences – namely that your actions were intentional or reckless in the case of common assault, or that you intended by your actions to cause fear of harm in the case of ‘stalk/intimidate’ – can be difficult to establish.

The offence of stalking or intimidation

Section 13 of the Act prescribes a maximum penalty of 5 years in prison and/or a fine of $5,500 for any person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.

For the purposes of the section:

• causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship,
• a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person,
• the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm, and
• an attempt to commit the offence is enough to establish the offence.

‘Intimidation’ is defined by section 7 of the Act as:

• conduct (including cyberbullying) amounting to harassment or molestation of the person,
• an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
• any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

The court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour when determining whether conduct amounts to intimidation.

‘Stalking’ is defined by section 8 of the Act as including:

• the following of a person about,
• the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, and
• contacting or otherwise approaching a person using the internet or any other technologically assisted means.

Again, the court can consider any pattern of violence when determining whether conduct amounts to stalking.

A person with who there is a ‘domestic relationship’ is someone who:

• is or has been married to the other person,
• is or has been a de facto partner of that other person,
• has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
• is living or has lived in the same household as the other person,
• is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre or detention centre),
• has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person,
• is or has been a relative of the other person, or
• in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Defences to the charge include:

• Self-defence,
• Duress, and
• Necessity.

Going to court for an alleged criminal offence?

If you are going to court for alleged criminal offence, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first consultation with an experienced criminal defence lawyer who will advise you of your options, the best way forward and fight to achieve the optimal outcome in the circumstances.