Question – COVID-19 Infringements

Questions by Hon Meg Webb MLC on 29 April 2020 answered for the Government by Hon Mark Shelton MP Minister for Police, Fire & Emergency Management on 30 April 2020  

In regards to Tasmania Police and the enforcement of the Public Health Act 1997 and Emergency Management Act 2006 and COVID-19 related Directions:

Question (1a)  What training has been provided to Tasmanian police officers on enforcing the COVID-19 Directions made under the Public Health Act 1997 and Emergency Management Act 2006?

ANSWER: Although the restrictions resulting from the COVID-19 emergency are unprecedented in terms of the limitations they impose on the public, the legal enforcement of restrictions by police is not. Police officers routinely enforce restrictions that require the exercise of judgement and consideration of reasonable excuses.

This applies in the law generally, for example:

• the offence of trespass is only committed where the entry onto land  is without reasonable excuse; and
• restrictions that may be applied under a legal authority, including bail conditions, restraint order conditions, family  violence order conditions,

Police officers are able to apply their training from the routine enforcement of restrictions to this situation, including the exercise of judgement as to when action should be taken or should not.

In addition, in the context of this emergency, daily guidance is provided to police through internal communication channels on the current state of restrictions and the approach to enforcement. This includes through the maintenance of a living COVID-19 response manual, which details information regarding the restrictions, the offences for non-compliance, and the enforcement approach.

Tasmania Police’s approach to enforcement  of the restrictions  has  been to  prefer education and guidance to  enforcement. Ideally, police seek to not charge anyone, but rather gain the voluntary cooperation of the community. Enforcement has been limited to circumstances where people are clearly and knowingly non-compliant, which is necessary to  provide both general and specific deterrence to future non-compliance.

Question (1b)  How is it ensured that all Tasmanian police officers maintain a current understanding of the Directions?

ANSWER: Updates are published daily on the internal police intranet as to the current state regarding the COVID-19 response.

In addition, a dedicated COVID-19 section has been built within that intranet to provide a consolidated and indexed source of contemporary information, including the previously mentioned COVID-19 response manual, which is continually updated as circumstances change.

This resource contains links to the actual directions that are currently in place, which are also available to the public on the resources page of the Government’s Coronavirus Web site – coronavirus.tas.gov.au.

Question (2a)   What specific guidelines or instructions have been provided to police officers on the practical interpretation of what might be considered a reasonable excuse, which forms the basis of determining whether or not a person has breached a Public Health Act 1997 or Emergency Management Act 2006 Direction?

ANSWER:  The directions themselves contain exemptions and these are considered by police whenever action may be considered against a person for non-compliance.

Beyond this, there is no list of criteria for what amounts to a reasonable excuse. Circumstances can be many and varied, and it is not practical to provide black and white criteria around when charging is appropriate. However, as detailed in my answer to the first question, police officers are accustomed to exercising judgement in considering the reasonableness of conduct in the context of the restrictions.

I would again reiterate that the overarching position of Tasmania Police has been to approach any non-compliance from an educative perspective to encourage compliance whenever possible.

Question (2b)   Are the infringements issued due to not having a reasonable excused based on a set of criteria, and if so, what are those criteria?

ANSWER: Tasmania Police do not currently have the authority to issue infringement notices for breaches of the restrictions and consequently none have been issued. Amendments to provide for police officers to issue infringement notices are due to be considered by the Parliament.

Question (2c)  What steps are being taken to provide clarity to the public on what might be a reasonable excuse in the eyes of an officer enforcing the Directions?

ANSWER:  The Government has been very clear in its messaging as to what the restrictions and exemptions are. This has  been a consistent  focus of media attention every day of this emergency, and people should have little doubt as to what they should be doing.

The Government has also made the actual direction documents publicly available on the Coronavirus Web site, where any member of the public is free to review the restrictions and the exemptions.

Ultimately, we expect people to exercise some degree of common sense, which the police will also exercise when considering enforcement.

Question (3a)  How many COVID-19-related fines have been issued to date under either the Public Health Act 1997 or Emergency Management Act 2006?

ANSWER: As I mentioned previously, Tasmania Police have not issued infringement notices for these offences, so no fines have been imposed.

However, from the 25 March 20020 to 27 April 2020, Tasmania Police had arrested 73 people for non-compliance and summonsed a further I 04. What penalty will be imposed on any of these  individuals is a  matter for the courts, assuming the individuals in question are convicted of the offence.

Question (3b)  How many fines have been issued in each Tasmanian region or local government area?

ANSWER: As mentioned previously, Tasmania Police have issued no fines to date.

In regards to the summons and arrest  matters,  it is  not  possible to provide a breakdown by local government area without manual counting, which cannot be prioritised at this time.

Question (3c)  Of the fines issued, what proportion have been issued in conjunction with another charge or penalty that is unrelated to COVID19?

ANSWER: The answer to this question cannot be provided without manual counting, which cannot be resourced in the context of the  response  to  the emergency.

Question (3d)  What demographic data or statistics are or will be available on the fines that have been issued, categorised by traits such as age, gender, citizenship status, ethnicity, or socioeconomic background?

ANSWER: As no infringement notices have been issued to date, there is no data that can be provided. Should police be authorised to issue  infringement notices following the amendments to be considered by the Parliament, a statistical breakdown could be provided by age and gender, however information on citizenship, ethnicity and socioeconomic background is not captured.

Regarding the charges by arrest and summons, any statistical analysis at this time would require manual counting, which cannot currently be prioritised.

Question (4a)  Is every infringement notice issued reviewed by the Police Commissioner to determine whether there has been a genuine breach of a Public Health Act 1997 or Emergency Management Act 2006 Direction?

ANSWER: No infringement notices have been issued to date, so there have been none to review.

In regard to the charges  by arrest and summons, the circumstances  of each incident is reviewed by the investigating officer’s  immediate supervisor and again by the regional police prosecution area. It is intended that a further review will be undertaken by the Office of Legal Services within the Department of Police, Fire and Emergency Management.

Should police be authorised to issue infringement notices in the future, there will be a review mechanism put in place. At this stage it is anticipated that any infringement notices issued in respect of COVID-19 would be reviewed by an Inspector of Police.

Question (4b)  If so, how many of these fines have already been reviewed, and how many remain outstanding for review?

ANSWER: As there have been no infringement notices issued to date, no reviews have taken place.

Question (4c)  Of the fines reviewed, how many have been determined to be invalid or cancelled?

ANSWER: Again, as no infringement notices have been issued to date, no determinations have been undertaken.

Question (4d)  What additional accountability mechanisms have been put in place to ensure there is no police overreach in their use of the broad discretionary powers conferred under the COVID-19-related Directions?

ANSWER: Before answering this question, I will again point out that the preferred approach by Tasmania Police is not to  charge people at all, but to gain their willing cooperation with the restrictions through education. This message has been strongly communicated to operational police members.

In ordinary times, we entrust police with significant authority and discretion, and I have no doubt that every member of Tasmania Police takes the authority they have seriously. We can similarly entrust them to exercise judgement and compassion in these circumstances.

But given the unprecedented nature of the restrictions, additional review mechanisms have been put in place. As I said, every arrest and summons matter is being reviewed, and should police be given the authority to issue infringement notices, these will also be reviewed for COVID-19 related offences.

Question (5a)  What measures have been taken to ensure that the infringements issued by officers are not disproportionately or unfairly targeting specific community groups?

ANSWER: Again, police are not issuing infringement notices at present. However, we have a highly trained and professional police service underpinned by strong values that does not discriminate against any sector of the community.

Question (5b)  What consideration has been given to the increased impact of the significant COVID-19-related fines on financially disadvantaged persons?

ANSWER: In answer to  this question, I will reiterate the position of Tasmania  Police is not to charge people wherever their voluntary cooperation can be achieved. Prosecutions are, and will, only occur by exception. Where people are proceeded against through the courts, the penalty is a matter for the court.

Should police be authorised to issue infringement notices in the future, if  a person disputes they committed the offence for which an infringement notice was issued, they can write to the Department to request it be withdrawn. Detail on how to  do this  is printed  on any infringement notices issued by police. This process is also detailed in section 15( I )(b) of the Monetary Penalties Enforcement Act 2005.

 A person who receives an infringement notice can also elect, within 28 days of its issue, to have the matter heard and determined by a court. Again, detail on how to do this is printed on the infringement notices issued by police.

Question (5c)  What steps have been taken to ensure that homeless persons in Tasmania, who cannot self-isolate due to not having a home, are not being unfairly targeted by the Public Health Act 1997 or Emergency Management Act 2006 Direction infringement notices?

ANSWER: If a person is homeless, that will be a reasonable excuse to not be at home. Police understand this in enforcing the restrictions, and should some lapse occur where someone is charged, this will be identified in a review.

I will also highlight, that the police are not the sole part of the process. Police only charge  people where they determine  that  it is  necessary,  and in addition to internal and administrative review options, every person charged ultimately has the right to have the  matter  heard  and determined by a court.

Question (6a)  How many of the infringement notices issued under either the Public Health Act 1997 or Emergency Management Act 2006 have resulted in court action or have been subject to appeal?

ANSWER: Again, there have been no infringement notices issued to date.

Question (6b)  Of the infringements issued, how many have been successfully cancelled, appealed or revoked, and what were the reasons for invalidity?

ANSWER: Again, as there have been no infringement notices issued, there has been no necessity to conduct cancellations or revocations.

Question (7)  What consideration has been given to the significance of an accused person having to provide a reasonable excuse when it comes to why they are leaving their home, rather than the police having to prove they do not have a reasonable excuse?

ANSWER: An accused person does not have to prove anything. They have to be in breach of a direction to be charged, and it is only that, if acting contrary to a restriction, that a reasonable excuse amounts to a defense.

This is a common feature of the law. Many offences provide exceptions for reasonable or lawful excuse. The circumstance of the current restrictions does not impose any additional evidentiary burden on an accused person.

However, where a person approached by police does have a genuine and reasonable reason for being out, I would  encourage  them  to  tell  the police. Our police are compassionate people and  are  working  to  protect the public in the course of this emergency. People should absolutely have  no fear of an adverse outcome if they are acting in accordance with the spirit of the restrictions.

Question (8a)  Have Legal Aid Tasmania and Community Legal Centres experienced an increase in demand for advice or assistance due to COVID-19-related Directions?

ANSWER: The Tasmanian legal assistance sector in general  is experiencing  an increase in the demand for services due to COVID-19, whilst at the same time adjusting the manner in which it delivers services and interacts with clients and the justice system, in  response to  social  distancing requirements.

Based on feedback received from Community Legal Centres to date, the impact of unemployment, isolation and social restrictions have started to take effect and requests for advice in relation to family law and domestic violence matters have increased. There has also  been  a spike  in the number of requests for assistance from tenants.

There have also been a large number of COVID-19 related enquiries to the Legal Aid Commission of Tasmania’s advice service. Demand for assistance has remained steady across the range of services provided by the Commission. The Commission anticipates an increase in demand for family violence, family law and criminal law services over the short to medium term.

There has also been a sharp rise in tenancy related calls to the Commission, which has been working with the Tenants’ Union of Tasmania to assist to meet the demand for these services. There has also been an increase in questions concerning Wills.

Question (8b)  If so, how have these agencies been supported to meet demand for COVID-19-related legal assistance?

ANSWER: The Attorney-General and the Department of Justice continue to actively work with the Commonwealth Government to consider what additional support can be provided by both levels of government to address the increasing pressures on the legal assistance sector arising from

COVID-19, and ensure that justice services and the justice system can return to normal as quickly as possible. This has been the subject of a number of Council of Attorneys-General meetings, held with the Commonwealth, state and territory Attorneys-General by teleconference, with input from the state and federal courts.

The Tasmanian Government is committed to ensuring legal assistance services can meet the rapidly growing number of people with legal needs and who are otherwise unable to afford legal advice.