Social Distancing Infringements & Challenges from A-Z

What’s the law about standing too close?

By Abolfazl Moghadam

On 29 January 2020, the Queensland Government made an order pursuant to section 319 of the Public Health Act 2005 (“Act”) declaring a public health emergency in relation to coronavirus disease (COVID-19). The public emergency area specified in the order is for all of Queensland and its duration has been extended by regulation to 19 May 2020 and may be further extended. But is it lawful?

Following the making of the order, various directions have been made under section 362B of Act to give efficacy to it including directions in relation to home confinement, movement and gathering.   The current direction in relation to social distancing is the Home Confinement, Movement and Gathering Direction (“Social Distancing Direction”) given by the Chief Health Officer for Queensland on 2 April 2020. The Social Distancing Direction replaces the following earlier directions:

• Home Confinement Direction is given on 29 March 2020;
• Mass Gatherings Direction (No 2) given on 21 March 2020;
• Restrictions in Private Residences Direction is given on 27 March 2020.

While we are thankful to the police for keeping us safe, this article aims to clarify a few grey areas in the Social Distancing Direction and the police’s enforcement of it.

What does home confinement mean?

A person, who resides in Queensland must not leave their principal place of residence except for, and only to the extent reasonably necessary for the following permitted purposes:

• To obtain food or other essential goods or services;
• To obtain medical treatment or other health care services; 
• To engage in physical exercise; 
• To perform work or volunteering, or carry out or conduct an essential business, activity or undertaking, and the work, business activity or undertaking to be performed is of a nature that cannot reasonably be performed from the person’s principal place of residence;
• To visit another person’s residence provided that person (who is an owner, resident, tenant, occupier, temporary occupier or person in control of the residence) only allows up to two visitors who are not ordinarily members of the person’s household; 
• Education and early childhood workers travelling to and from their home centre over the term 1 break; 
• To visit a terminally ill relative or to attend a funeral or wedding, subject to any applicable restrictions under other relevant Public Health Directions;
• To provide assistance, care or support to an immediate family member; 
• To attend any court or tribunal of Australia or to comply with or give effect to orders of the court or tribunal of Australia; 
• To attend a childcare facility, school, university, or other educational institution, to the extent care or instruction cannot reasonably be obtained in the person’s principal place of residence; 
• To assist with or participate in an investigation or other action by a law enforcement authority, whether voluntarily or not; 
• For children under 18 years who do not live in the same household as their biological parents or siblings or one of their parents or siblings, continuing existing arrangements for access to, and contact between, parents and children and siblings, but not allowing access or contact with vulnerable groups or persons; 
• Avoiding injury or illness or to escape the risk of harm; and 
• To comply with or give effect to the exercise of a power or function of a government agency or entity under the law.

What is an example of a vulnerable group or person?

A person over 70 years or a person with a medical condition that makes them vulnerable to COVID-19.

What is an example of escaping a risk of harm?

Escaping a risk of harm related to domestic and family violence.

What are the limits to outdoor gatherings?

A person who leaves their principal place of residence for permitted purposes discussed above may be accompanied by members of their household or, alternatively, by no more than one person who is not a member of their household. 

That said, if a person requires physical assistance to leave their principal place of residence or if it is necessary for the safety of the person or the public, and there is no other reasonable way for the permitted purposes discussed above to be achieved, a person may be accompanied by more than one person who is not a member of their household and who is a carer or support worker for that person.

What is the limit to receiving visitors at a residence?

A person who is an owner, resident, tenant, occupier or temporary occupier or person in control of a residence may allow up to two (2) visitors who are not ordinarily members of the person’s household.

What is an example of visitors?

Family members and close friends.

What are the exceptions to receiving visitors at a residence?

Workers or volunteers entering a place of residence, or, people who enter a residence to assist a person with a disability if it is necessary for more than two (2) people to attend the residence to provide services to the person with a disability to meet their support needs. In addition, a residential aged care facility, corrective services facility or detention centre are excluded from the receiving visitor’s limitation. 

Are there any other exceptions to the Social Distancing Direction?

Yes, the Queensland Chief Health Officer may grant an exemption to part or all of the Social Distancing Direction on compassionate grounds or for other exceptional circumstances.

What is social distancing?

Remaining at least 1.5 metres away from another person, regular washing of hands and avoiding handshaking, kissing or hugging.

What is a household?

Persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences.

What is the principal place of residence?

For persons:

• Who permanently resides in Queensland, the residence where the person ordinarily resides; and
• Who temporarily resides in Queensland, the residence where the person ordinarily resides when the person is present in Queensland.

What is gathering?

A gathering of more than two (2) persons in a single undivided outdoor or indoor space at the same time.

What is not a gathering?

A Gathering:

• At an airport that is necessary for the normal business of the airport; 
• For the purposes related to public transportation; 
• At a medical facility; 
• For the purposes of emergency services; 
• At a prison; 
• At a court or tribunal; 
• At a workplace; 
• At Parliament; 
• At a food market; 
• At a school; 
• At a hotel that is necessary for the normal operation of accommodation services; 
• At a wedding or funeral permitted under the Non-essential business activity and undertaking Closure Direction (No. 4), or its successor, or another Public Health Direction; 
• At an indoor or outdoor place where persons may be present for the purposes of transiting through the place.

What is an outdoor space?

A space that is not an indoor space.

What if I receive an incorrect infringement notice? 

There has not been a lockdown similar to what Queensland is experiencing at the moment. Likewise, there can be some confusion as to what may, or may not, constitute an infringement of the social Distancing Direction. Take an example of a family living in an apartment block with not much space to move around and no proximate outdoor either. If they decide they would need to get some fresh air and possibly have some change in the environment for the purposes related to their health and exercises, how far can they really travel from their principal place of residence is a question that depends on the individual circumstances. If you feel that you have incorrectly or unreasonably been given an infringement notice and cited for not following the Social Distancing Direction, we encourage you to discuss your case with us to see if you have an arguable case to appeal the decision. 

What penalties can be imposed for failing to follow, or ignoring the Social Distancing Direction?

A person to whom the Social Distancing Direction applies commits an offence if the person fails, without reasonable excuse, to comply with it. Section 362D of the Act provides as follows:

Failure to comply with public health directions

A person to whom a public health direction applies must comply with the directions unless the person has a reasonable excuse. Maximum penalty—100 penalty units.

How much is the value of one (1) penalty unit in Queensland?

The penalty unit value in Queensland is $133.45 (current from 1 July 2019). Therefore the maximum penalty available is $13,345.00

How to dispute a social distancing infringement notice? 

If you disagree with an infringement notice by police, you are encouraged at first instance, to resolve the situation with the agency which issued the original infringement before the due date recorded on the infringement notice. You must dispute a fine within 28 days of the date of the infringement notice or you will face penalties for an overdue fine. Unpaid infringement notices will be sent to the State Penalties Enforcement Registry who may take enforcement action to recover the amount of the fine from you, including additional fees incurred in the course of that enforcement. 

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