Barristers say NSW coronavirus laws ‘unenforceable’
Some of the state’s top lawyers are questioning the NSW government’s laws which allow police to fine residents for being outside without a reasonable excuse, slamming them as shoddy and unenforceable.
NSW Coronavirus News
Don't miss out on the headlines from NSW Coronavirus News. Followed categories will be added to My News.
Top legal minds are questioning whether the stay-at-home coronavirus laws, which have seen police arrest and fine NSW residents, are solid enough to hold up in court.
It comes as NSW Health scrambles to correct a glaring contradiction it published in its latest health order.
Police have spent the last week approaching people around NSW's beaches, parks and streets to ask why they're out and about.
Those who don't provide a "reasonable excuse" - such as work, exercise or gathering essential supplies - are being warned and sent home.
People repeatedly found outside or flouting the law in particularly egregious ways are fined $1000 on the spot.
But NSW barristers, speaking on The Wigs podcast last week, have suggested people who leave their homes using a reasonable excuse are under no obligation to return home.
In other words, the podcasting barristers hypothesised, a lawyer could argue it's legal to hang around in public after you finish work or food shopping.
"Let's assume I have to go to work tomorrow... When I finish work, I don't have to go home, there's no law in NSW as far as I can see that requires me to return home," Emmanuel Kerkyasharian said.
The barrister said the laws in NSW were "completely unenforceable" if people just remained silent when approached by police.
That's because, he said, the law required police to prove someone didn't have a reasonable excuse - a person didn't need to provide one.
"Right now people are co-operating but once people cotton on to this order just doesn't work," Mr Kerkyasharian said.
"People won't say why they're out, there's no power to compel answers to those kinds of questions nor should there be in my view."
The lawyer called it a "half-baked order" and "public relations document" with a $1000 fine as a threat attached to it.
Barrister Felicity Graham said Queensland's order contained a crucial difference - it says people should only leave their homes to "accomplish" specific and limited necessary tasks.
"The Queensland order or direction only permits specified purposes in terms of leaving and remaining out of your home... you have to go home after you have accomplished that purpose," she said.
Barrister Stephen Lawrence told The Daily Telegraph the latest order under the Public Health Act, which allows NSW authorities to enforce social distancing, contained a contradiction around funerals.
One part of the order says only 10 people can attend including the person officiating the service - a minister or priest for example.
But another part of the same order says only 10 people, not including the official, can attend.
"It's just an oversight but it shows the people writing these laws are not working together across the states," Mr Lawrence said.
“They should be identical where the underlying policy is identical, they should be working together and inconsistencies should be avoided where possible."
The state government was last night scrambling to fix the error.
Health Minister Brad Hazzard clarified the rules on the weekend, saying that ten people could attend a service, in addition to funeral staff.
Mr Lawrence was also critical of the Police Commissioner Mick Fuller’s comments that he’d not seek to extend the laws beyond the 90 day time frame.
The barrister questioned what role police should have in enforcing public health orders.
“It was an implementation of the national cabinet’s decision about social distancing and I don’t understand why the commissioner would have a role at all in deciding whether it would be renewed,” he said.
NSW Police, on Monday, announced they’d handed out 98 penalties and issued eight court notices related to breaches of the Public Health Act since March 17.