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COVID-19 Travel Ban – the Enforcement Right vs Right to Freedom of Movement

An infringement notice recently issued by Victorian Police has been brought into the public, especially the libertarians’ attention.  On 5 April 2020, a local high school student Hunter, was fined for over $1652 for practising driving on one of the State’s Highways with her mother sitting next to her. The basis for the “extraordinary” fine was that Hunter’s conduct constituted “non-essential travel” during the COVID-19 pandemic period, in breach of the “social isolation rules” published by the Department of Health and Human Services.

Although it has now been confirmed that the fine has eventually been withdrawn as a result of an internal review within the issuing authority, the libertarians have expressed their concerns about the enforcement rights vested on the Police Force being inappropriately applied for these constantly changing times. Senior Vice President at Liberty Victoria made a comment to the incident that “When extraordinary measures are being taken, they’ve got to be exercised with significant restraint.”

On 16 March, as a response to the continual spread of the pandemic the Victorian Government issued a State of Emergency Declaration which gave the Minister of Health and Human Services the power to promulgate laws guiding the behaviour of the general public in order to suppress the spread of the virus and protect the safety of the public.

Subsequently, the Minister issued a series of decree including hospital visit directions, patient isolation directions, care centre management directions, cruise disembarkation directions, airport entry directions, restrictions on activity directions and the famous “Stay At Home Directions”.

With the growth of the pandemic, the Minister expressed that the Department would continue to introduce new measures or new previsions to supplement/replace any existing ones. For example, any subsequent mandatory quarantine directions would replace the “old” cruise disembarkation directions and the airport entry directions that came in force not long ago. The “Stay At Home directions” and the restricted activity directions will also be constantly adjusted and “upgraded” to meet any urgent requirements.

On April 7, 2020, the Victorian Government announced that students who were about to commence their second semester would need to study at home after the start of school (unless there were special circumstances), and the VCE examination would also be postponed. Considering that many students will have to comply with those directions, the Minister of Health issued the Directions Order No.3 and the activity restriction directions on the same day. The new decree included provisions on child-care to meet the practical needs of the public in implementing the directions. The Stay At Home Directions and Restricted Activities Directions are considered the government’s response most closely related to our general public. Below we will explain and review the important clauses of the two directional instruments and the newly added clauses.

Stay At Home Directions No. 3

The Stay At Home Directions No. 3 basically maintains the original requirements from their predecessor. From the period of April 7 to April 13 2020, no one can leave their place of residence, unless for following reasons or in the following circumstances:

  1. a) Article 6-Obtaining necessary goods or services;
  2. b) Article 7-Caring for others or other special reasons;
  3. c) Article 8-Work or education;
  4. d) Article 9-Exercise;
  5. e) Article 10-Other authorised reasons.

The specific clauses corresponding to each stipulation also have more detailed regulations. If you want to know more, you can download the full set of guidelines from the official website:

https://www.dhhs.vic.gov.au/stay-home-directions

The newly added components in version 3 of these orders are, for example:

  • Taking care of others or other special reasons, has been inserted into article 7;
  • Article 7 (1) (b) (iii) allows parents to place children at other people ’s places so that they can perform the activities under Articles 6, 7, 8, 9 and 10;
  • Clause 7 (1) (k) allows one to take care of children at other people ’s homes, so that the children ’s parents can carry out the activities under Articles 6, 7, 8, 9, and 10.
  • New Sub-paragraph has been added to Article 8 (Work or Education) – 8 (1) (c) allow parents to send their children to schools, educational institutions or other people ’s homes for care purposes.

The indoor and outdoor gathering regulations in the new Directions continue to use the original regulations, that is:

  • The limit of the number of people allowed to be in an indoor commercial environment (such as a supermarket) is measured by dividing the total space of the area by 4;
  • The number of people attending weddings should not exceed 5
  • The number of people attending funerals cannot exceed 10
  • The number of private indoor and outdoor gatherings must not exceed 2 people, with each must maintain a social distance of 1.5 meters from another (* Family and people with intimate relationship who live together may be exempted*)

You can download the full set of guidelines from the official website: https://www.dhhs.vic.gov.au/restricted-activity-directions

Restricted Activity Directions No.2

The Restricted Activities Order No. 2 continues to restrict the operation of most commercial premises, and only some basic services such as medical services, supermarkets, banks, pharmacies, gas stations and convenience stores can continue to operate. Freight, logistics and home delivery are also considered essential and will remain open during these times. The activity restriction order does however introduce some new rules such as:

  • Article 10 (3) (c) (vi), which allows specific businesses to provide food for long-distance bus drivers to continue to operate;
  • The Restricted Activities Order No. 2 also added provisions allowing some religious and educational institutions to broadcast live online.

Individuals who violate the above regulations will be fined by 120 punishment units (equivalent to $ 1,652), and the company will be fined by 600 punishment units (equivalent to $ 9,913). At the same time, the Victoria Police has recently increased the members of its police force to supervise the compliance with those Directions and restrictions on activities during the outbreak.

What to do when you have an infringement notice

If you are unfortunately issued a ticket by the police when being out from home, according to the law, you would have the right to request the authority who issued the ticket to conduct an internal review of the decision made at the time by making a written application. Alternatively, you could also appeal the decision to a Court.

Usually people receiving an infringement notice will have a few weeks’ time to submit their request for internal review. However, most of the time they will only be given one opportunity to that request for the review of the decision.

In order to avoid the only opportunity being wasted, the applicant must give as much and convincing basis as possible, including specifying, for example, that 

  • the person who issued the ticket at that time did not follow the relevant laws or regulations; or
  • you did violate the rules, but it was due to a special or emergency situation (and explained that situation); or
  • it was not you who violated the regulations at that time as someone had misused your name and personal information and submitted to the enforcement officer.

After the relevant agency receives your application internal review, the most common outcomes are:

  • Withdraw the notice and inform the person/company that “no further action will be taken” (this is the most ideal situation); or
  • Waive the fine, but give a official warning (this is usually for first time contravention for less serious traffic violations, for example); or
  • maintain the fine, but adjust the amount payable; or
  • maintain fines, but postpone payment of fines or allow installment payments; or
  • in special circumstances, the relevant agency may direct the case to the local courts.

We hereby appeal to everyone that what the Police officers have been working hard on is for everyone’s interest, and minising non-essential travels during the pandemic is showing responsibility for yourself, the people you love and the community we are living in.

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