Australian Criminal and Family Lawyers explain the legal position in clear terms.
Since 26 June 2021, New South Wales has been subject to the longest and harshest lockdown the State has experienced since the start of the Pandemic.
While the restrictions and conditions have increased substantially with time, surprisingly so have the powers that have purportedly been given to the NSW Police Force.
Never before has the State of New South Wales, experienced such a large and unchecked increase in police powers. Unsurprisingly, many now referring to it as a “police state” with the Premier at the whims and desires of the Police Commissioner.
While some may not see the concern that such overarching powers powers have, the reality is that such powers can and will be exploited and often they are exploited against the most marginalised members of the community.
According to the latest Public Health Order, police have purportedly been given the power to:
Stop and ask any person for their identity without any suspicion that the person has done something wrong.
Ask a person for their medical documents including vaccination status, covid test results, and mask exemptions.
Ask a person for proof of their employment.
Request a person to go home.
The question however remains, are these powers lawful?
No matter what the Police Commissioner wants to name the operation, our view is that almost all of the police powers under the current Public Health Order are unlawful and legally invalid.
We equally believe that almost all of the fines that have currently been issued by the NSW Police are equally unenforceable at law.
While this may all sound good, unlike many, we did not want to make bold assertions about the law without explaining the fundamental legal basis and logic behind those assertions.
We have therefore set out a detailed explanation of why we have come to this view. To be clear, this is not intended as legal advice and we are not encouraging people to rely on this article as legal advice. This article is the opinion of the writer as to the interpretation of the law. This interpretation might not necessarily be accepted by a court, however we think it is certainly an argument that requires ventilation.
How does the Public Health Order work
To properly understand the legalities, it is important to first understand how the Public Health Orders work.