Once again things are changing rapidly, and the new “tougher” restrictions are causing more confusion than ever. What is more concerning, is that Police will be responding in greater force and their presence will be ramped up even more, especially in the Canterbury Bankstown, Liverpool and Fairfield Local Government Areas.
Can Police stop, ask questions and search people and their possessions to determine compliance?
The current health orders are enacted by Mr Brad Hazzard, The Minister, which you have seen at the press conferences. He has power under section 7 of the Public Health Act 2010, to order & give such directions, as he considers necessary to deal with the risk and its possible consequences. Of course, this is done in consultation with Glady and her team.
Police will now most likely stop you and ask questions to determine compliance with the orders, and in particular if you have left your home for work, they will want to know if are you from the Fairfield, Bankstown, Canterbury and Liverpool Local Government areas or NOT.
In summary, the order under clause 24E, is that if you live in those LGAs, you are not allowed to leave those LGA for work, except for healthcare workers or members of the emergency services, or if you are an authorised worker (click here to see full list). This applies from midnight Saturday 17 July until 30 July.
What do you do if you are stopped by NSW Police?
Under Clause 24D, the Minister has ordered that you MUST, if requested by Police, to provide information, including your name and address, AND proof of residence, so they can determine whether or not you have left the house from the affected Local Government Areas for work purposes or if exercising outdoors that you are within 10kms from your home. Click here to read the actual Public health orders relating to Temporary Movement and Gathering Restrictions.
This requirement to provide such information applies to everyone in Greater Sydney, not just those from the affected LGAs.
Do not argue, do not try and talk your way our of it, it wont help – I have seen people try this and it backfires. Remember, you can still:
1. ask them to state their name, rank, and police station they are from
2. ask them to turn on their body worn camera.
3. You can take out your phone and tell them that you will be recording as well -just don’t stick it in their face or in their way or use it to stop them from doing their job. Do it from a safe distance.
More importantly, “YOUR RIGHT TO REMIAN SILENT” does not apply anymore, because of the new orders that started from 14 July, forcing people to provide information and prove the area they are from (see clause 24D).
You need to be careful and make sure you are giving the police – true and accurate information, because if you don’t, it’s a breach of the orders and you will be incriminating yourself.
However, you can exercise your right to silence when it comes to answering questions about other things unrelated to the compliance with the restrictions, for example if they are probing you about committing a criminal offence, or carrying anything illegal.
Can Police randomly start searching individuals and their cars or possessions?
The short answer is no – this power has not been granted under the Public Health Act or the orders, BUT under a different piece of legislation called LEPRA (click here to read the Act), police have power to stop and search or detain you (or your car, boat or possessions) if they suspect on reasonable grounds that the person is carrying:
• An item that is stolen or unlawfully obtained, for example: someone else’s ID card, stolen credit card
• An item obtained or used in a crime for example, housebreaking tools (crowbar); or
• Carrying a knife, weapons; or
• Carrying a laser pointer.
Police can also search you and your car if they have reasonable grounds to suspect that:
• It contains stolen goods or anything unlawfully obtained.
• Carrying or in possession of prohibited drugs.
• Anything that gives rise to a serious risk to public safety.
• Someone in the car is wanted for an arrest.
• Or if you give them consent to search your items.
Public Disorder & Unauthorised Protests
If there is a large-scale public disorder, then emergency powers may be authorised by the Commissioner of Police to act accordingly. These powers include:
> issuing directions
>searching people and vehicles
> requesting identification
> cordoning off areas
> setting up road blocks
> seizing and detaining things including vehicles and mobile phones
> declaring alcohol-free zones
> prohibiting the sale or supply of alcohol
> dispersing people
This power extends to police stopping and searching people, their belongings and vehicles in the ‘target’ area even if they have not done anything wrong.
Unlawful assembly
Under Section 545C(1) of the Crimes Act, makes it a criminal offence to knowingly take part in an unlawful assembly. This carries a maximum of a fine of $550 or imprisonment for six months, or both. If the accused person has a weapon, the maximum penalty is a fine of $1100 or imprisonment for 12 months.
An unlawful assembly includes an assembly of five or more persons whose goal is to compel a person to do something they are not legally bound to do by way of intimidation or injury.
For a protest to be legal, section 23 of the Summary Offences Act 1988, sets out the requirements, where an organiser can lodge a form with the police commissioner to give notice of the intention to run a “public assembly”, so that it can be done in cooperation with police.
Move along directions
Police can give you a move along direction if you are in a public place and they believe on reasonable grounds that you are:
> obstructing traffic or another person
> causing, or likely to cause, fear to another person or persons
> harassing or intimidating another person or persons
> likely to cause injury to any other person or persons or damage to property, or, otherwise gives rise to a risk to public safety, or, is disorderly.
If they can do so, they must tell you their name and place of duty and the reason for the direction.
It is an offence not to comply with the direction. It is also an offence to be intoxicated in the same or another public place within 6 hours of being given a move on direction for being intoxicated and disorderly in a public place.
At the end of the day, you don’t want things to get worse and I suggest that you exercise common sense, be polite but alert, and be informed about the new restrictions and you rights when it comes to answering questions, being stopped and searched by police.
Don’t give them a reason to charge you with an infringement, or even arrest you. There are ways to fight or challenge every behaviour and every infringement – that time is not when interacting with police on the streets of Sydney.
What I have said in this blog and the video is not legal advice and should be used for information purposes only. The information is accurate at the time when these restrictions are in force and may change at any time.
Please feel free to share this blog and video with family and friends, look out for each other and share your thoughts and comments in the post below.
Please stay safe and lets hope these restrictions work.
We are always here to help. Please call 1800 100 529 if you need assistance with your interaction with NSW Police or if you have been charged with an offence.!
Written by Mr Chadi Irani
Principal Solicitor and Director of Powerhouse Law Australia
Accredited Specialist in Criminal Law