Covid-19 originated in December 2019 in Wuhan, China. The disease has continued to spread exponentially on a global scale. The effects of the disease are causing unprecedented pressure on our health system and the economy. The major health concerns affect those over 40 and those who have pre-existing illnesses. For these vulnerable people, there is an elevated risk of fatal consequences of this disease.
The government has put in place measures in a bid to slow the spread of this disease by imposing border closures and lockdowns. Currently, the government has implemented stage 2 restrictions which will come into force from Midnight on Wednesday 25 March. Some of these restrictions include:
- restricting movements outside of shopping for necessities;
- only going to work in situations where you cannot work from home;
- limiting only five people at a wedding;
- limiting only ten people at a funeral;
- observing the social distance;
- refraining from social gatherings, bbq’s in-home;
- travel ban leaving Australia; and
- closure of facilities involving large crowds of people (Stage 1 restrictions)
With the number of cases of Covid-19 increasing on a daily basis along with its detrimental effects on our livelihood, you may find yourselves asking should these people spreading this disease be charged?
The Law
Under section 52 of the Public Health Act 2010, it is an offence to spread certain medical conditions. The Novel Coronavirus 2019 (COVID19) disease has been included as a medical condition to which this section applies.
Therefore, if you have Coronavirus and are in a public place, you must not fail to take reasonable precautions against spreading the condition. If you do fail to take reasonable precautions to prevent spreading Coronavirus when you have been diagnosed, then the maximum penalty you may face six months imprisonment and 100 penalty units equivalent to $11,000.00.
The elements of the offence
For a person to be found guilty of this offence, the prosecution must prove beyond a reasonable doubt that all elements of this offence have been proven:
- A person who
- Has a Category 2,3,4 or 5 condition
The Novel Coronavirus 2019 is listed as a Category 2,3 and 4 medical condition under Schedule 1 of the Public Health Act 2010. Therefore, this element is automatically satisfied by the classification of the disease.
- Is in a public place
A public place is broadly defined under section 5 of the Public Health Act 2010 to mean a place that the public or a section of the public is entitled to use, or open to use or does use regardless of whether the user requires payment. This includes shopping centres, parks, churches, airports etc.
Must not fail to take reasonable precautions against spreading the condition
Reasonable precautions may be considered in light of the current circumstances including government and medical advice provided to individuals to prevent the spread of Coronavirus.
The Department of Health and further the government, have imposed that a 14-day self-isolation must occur if:
- You have recently traveled overseas and returned to Australia; or
- You have come into close contact with a confirmed case of Coronavirus; or
- You have been diagnosed with Coronavirus.
Self-isolation must involve good hand hygiene, avoiding physical contact and taking reasonable steps to minimise exposure to others. This includes maintaining social distance, staying at home and not going into a public place, not seeing visitors, maintaining good hygiene and not spreading germs.
- It is a defence if the defendant satisfies the court that at the time of the commission of the alleged offence, the defendant was not aware that they had the said medical condition.
This means that you may escape liability for this offence if you can prove you were not aware that you had Covid-19 at the time you failed to take reasonable precaution to prevent the spread of this disease.
This awareness may be difficult to prove if you fall into the categories mentioned above requiring social isolation. This is also to be considered in circumstances where the Prime Minister has confirmed that Australia has the highest testing rate for Covid-19 and the medical advice is clear.
However, as there have been a small number of cases where the transmission of this disease has occurred within the community, it may not be as clear whether you were aware that you had Covid-19. This may be in circumstances where you have not been diagnosed, have not come into close contact with a confirmed case or recently returned from overseas as there is said to be approximately five day period before symptoms manifest.
In circumstances where you have been diagnosed with Covid-19 and still go out into a public place without taking reasonable precautions to reduce the transmission of the disease, it is unlikely you will succeed in defending this charge.
What does all this mean for us?
The NSW government will continue to implement measures to enable the Police to enforce and govern self-isolation and social distancing restrictions imposed by the government.
For the sake of the wellbeing of Australia, it is imperative that reasonable precautions are taken to flatten the growing curve as our health system and economy cannot cope. Rest assured that if individuals are committing this offence, the justice system will intervene.
If you have been charged with a criminal offence, give Pannu Lawyers a call to speak to one of our experienced criminal lawyers on (02) 9920 1787 to find out how we can assist with your case. Some of our staff are working remotely and have the resources to facilitate telephone and skype conferences to ensure we do our part in flattening the curve whilst delivering quality legal services to those in need.
