COVID-19 - Government Directions, Police Powers, and what that means for criminal court matters
COVID-19 means that a lot of things are changing in society right now. It also means that the government has declared a State of Emergency and Public Health Emergency and has issued a number of ‘directions’ for us to follow.
These directions cover a lot of things - such as to self-isolate, to avoid gatherings of more than two people outside our homes, and to practise social distancing. Ignoring or disobeying these directions may result in fines or even imprisonment.
But - what does this actually mean? How will the police have the power to enforce these directions? And what exactly will happen if you ignore them?
Andrew Williams Barrister and Solicitor remains open during Covid-19 and ready to assist those who need legal advice and representation.
What does it mean to be in a State of Emergency or Public Health Emergency?
States of Emergency and Public Health Emergency can only be declared where an emergency is occurring or is imminent and extraordinary measures are required to prevent or minimise damage due to that emergency. The main purpose of the current states of emergency are to implement measures and restrictions to prevent the spread of COVID-19.
When states of emergency are declared the government has wide-ranging ‘emergency powers’ that it can use. These powers allow government to do extraordinary things that it cannot otherwise do in order to protect the public health. The most relevant of these is to pass ‘directions’.
What is a ‘Direction’?
A ‘direction' is an instruction made by the Minister of Health, the Chief Health Officer, the Minister for Emergency Services, or someone authorised by them to exercise the same powers that they have. These people might include the Commissioner of Police and State Emergency Coordinator and other emergency officers.
A direction must state how long it will apply for and what happens, and the penalties that will be imposed if someone fails to comply with the direction.
It is important to remember that a “direction” is different to a “recommendation” or being ‘strongly urged’ to do something - because a direction is legally enforceable and you may face large fines and/or jail time if you ignore them.
Directions under the Emergency Management Act or the Public Health Act during COVID-19 may be about things such as:
- Obtaining information about a person’s identity;
- Restrictions on the movement of people - such as social distancing, self-isolating, remaining in quarantine, or staying in a designated area;
- The closure of places or venues;
- undergoing medical observation, treatment, vaccination; or
- undergoing decontamination procedures.
What directions and penalties are currently in place?
There are a number of directions currently in place in WA with the purpose of limiting the spread of COVID-19.
Some of the key directions include:
- Closure of places like gyms, swimming pools, museums, the zoo and places of worship;
- Not disembarking various cruise ships into WA;
- No gatherings of more than 2 people (unless it is members of your household);
- Not to travel outside of WA or into WA; not to travel within the regions of WA;
- Not entering or staying in an aged care facility;
- To self-isolate following overseas or interstate travel;
- Avoid contact with someone who has travelled.
Penalties for breaching the above may result in fines from: $20,000 - $50,000 or 12 months imprisonment.
Do the police have the power to enforce directions?
The short answer to this is yes. The reasons are as follows:
- A Public Health State of Emergency has been declared by the Minister for Health under sections 167 and 170 of the Public Health Act 2016. This will be in place until at least 11 April 2020, and the Chief Health Officer may authorise the use of emergency powers for as long as the Public Health State of Emergency is in place.
- A State of Emergency has also been declared by the Minister for Emergency Services, under section 56 and 58 of the Emergency Management Act 2005. The State of Emergency will be in place until at least 16 April 2020, and the Minister for Emergency Services may enact emergency powers for as long as the State of Emergency is in place.
- While we are in a States of Emergency, the Chief Health Officer and the Minister for Emergency Services have the power to appoint “emergency officers” to assist in exercising their powers by authorities such as the WA Police and the Australian Army.
- Critically - reasonable force is permitted to ensure compliance with some directions (such as to self-isolate in your home). This also means that police officers may enter a vehicle or a premises without a warrant or consent if they believe it is necessary and reasonable to manage the spread of COVID-19.
All this means that a breach of the directions may result in fines being issued or charges being laid. Recently in Perth there have been a number of people who have been arrested and charged for failing to comply with an order to quarantine.
What do these directions mean for the operation of the courts and criminal proceedings?
The COVID-19 directions are having a huge impact on how the courts themselves are functioning.
WA courts and tribunals are considered “essential workplaces” and so they are exempted from the prohibition on large gatherings of 2 + people. However, courts are limiting the number of people attending to the minimum necessary for services to be provided.
Each court have implemented their own set of procedural guidelines. This procedure varies between each court.
Supreme Court of Western Australia
- All jury trials scheduled to begin in April - June are being vacated (postponed), and will be listed to be dealt with from July 2020 onwards. Bail will be extended to the next hearing date.
- Judge-alone trials will be continuing as scheduled.
- An accused who has a jury trial listed to commence in 2020 and who wants to apply for a “Judge alone” trial will have their application heard as a priority, and if their application is granted the “judge alone” trial will be heard and determined as soon as practicable.
District Court of Western Australia
- All trials are vacated until at least 3 July 2020. Bail will be extended to the next hearing date. Compulsory Case Conferences will be held if a further trial date is not allocated for COVID-related vacations.
- A Judge-alone trials may proceed in substitution for a vacated jury trial - but only on application from an accused who is already in custody. Applications by an accused on bail may only be made in exceptional circumstances. If a Judge-alone trial is held then social distancing rules will apply for those trials.
- Sentencing Hearings will continue - but only for those already in custody. Accused persons and counsel may appear by video or audio link to the court and social distancing rules will apply in court.
- Sentencing Hearings for those on bail will not proceed unless there are exceptional circumstances and satisfactory arrangements can be made to comply with COVID health requirements. The sentencing hearing will be adjourned and bail will be extended to the next court date.
- Duty Judge Hearings, Trial Listing Hearings and Directions Hearings in the metro-area will continue unless there is a COVID-related reason not to. Prosecution and Counsel may appear by video link, and an accused may answer their bail by attending court or their lawyer’s office.
- Pre-recordings are vacated, but may be relisted in exceptional circumstances.
- Call Over hearings will be held for vacated trial dates from July 2020. But there will be a new system for call-overs and compulsory case conferences.
- For matters in the circuit sittings of the court - all trials will be vacated, judge-alone trials will generally not be held as a substitute for vacated jury trials, and sentencing will only proceed for accused persons currently in custody. Accused on bail awaiting sentencing will have their bail renewed to the next court date. Pre-recording matters are vacated, and some caller hearing dates may change.
- The courts remain open and lists and trials will operate as usual - however it is requested that only legal practitioners, parties, witnesses and media attend the courts.
- All parties may appear by video or audio link - where consent has been reached with the Prosecution. However - the accused must appear in person for trials; bail variations; appearances where surety will not extend and sentencing.
- Restraining order matters will continue as listed. Hearings may be conducted by telephone at the discretion of the magistrate - unless it is a final order hearing.
- New Drug Court referrals will cease until further notice. Existing Drug Court matters will continue as listed.
- Extraordinary Drivers Licence matters will continue as listed - the applicant must appear in person however Counsel may appear by video or audio link.
- “Not Before” times may be given to parties attending the court to limit the number of people in the court buildings at one time.
- Safety and hygiene rules must be complied with - including hand washing upon entry and exit; appropriate social distancing and ensuring to cover a cough or sneeze and dispose of tissues appropriately.
- Anyone who is experiencing COVID symptoms and has been overseas, or in contact with a confirmed or unconfirmed case is directed to not enter the court building - in these cases adjournments may be sought and are encouraged.
Andrew Williams Barrister and Solicitor remains open during these changing times and is ready to assist those in need of criminal legal advice and assistance. He represents clients in all courts for criminal and traffic related charges.