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Mixed messages and the real pandemic of confusing laws

web_Kyle-Kutasi_The-Australian-Business-Executive

We’ve all been shocked and, indeed laughed at, government regulations concerning the humble sausage sizzle. Sadly, such overreach is nowhere near the ‘bottom of the pit’. 

One could write entire volumes on government stupidity viz COVID-19 regulations. But we don’t have room to cover the whole breadth of that here. Instead, I’m going to focus on one discrete aspect – face masks. 

Under the Victorian Summary Offences Act it is prohibited to disguise, blacken one’s face; or have in one’s possession an article of disguise with ‘unlawful intent.’ The NSW Crimes Act says something very similar. And indeed, such laws are a recent innovation, mostly aimed at stopping persons from committing crimes whilst clothed in burqas. 

The problem being that, now some governments are mandating the wearing of masks for public health and safety reasons, how then do the Police distinguish against masks being worn with ‘unlawful intent’? What if someone is dressed as a cat burglar for a Halloween party and just happens to stop at a petrol station on the way?

There have been many examples of silly policing of public health orders during this pandemic. Men swimming alone at Bondi Beach being arrested and fined, whilst 30,000 could march through the streets for BLM with impunity. Brothels were reopened at Stage 3, yet churches remain closed or heavily restricted. 

The wide discretion and broad interpretation with which these orders are being enforced across the country gives rise to notable ambiguity, equally as perplexing as wearing a cat burglar outfit on Halloween, in addition to the tirade of public frustration which is inevitably yet to come. 

From the confusion around how far one may distance themselves from their homes to buy groceries or to exercise, to more puzzling rules surrounding hair-cuts being limited to a maximum of 30 minutes per customer (as if a hair-cut ever took that long), Australians are more than a little confused as to what may or may not be lawful.

Admittedly these orders were implemented post-haste amidst the emergent nature of this global crisis, and in doing so the Government may be forgiven for not clarifying their position.

But now that the dust seems to have settled, would this not be a prudent time to readdress the public restrictions and provide a more flavourful definition? This would hopefully provide not only individuals but businesses with a more definitive understanding of both their rights and obligations at this time.

Most should be aware of the order made on the 30 March by NSW Minister for Health, Brad Hazzard, directing persons to not, without reasonable excuse, leave their homes.

The directive outlines reasonable excuses to include activity such as:

“(a) obtaining food or other goods and services, or 

(b) travelling for the purposes of work or education if it is not possible to do it at home, or 

(c) exercise, or

(d) medical or caring reasons.”

However, even after months now, ambiguity remains as to what qualifies as a reasonable excuse, an inherently overlooked issue when this order was made in the absence of parliamentary debate. No reading speech, no deliberation or discourse, public participation, open forum, nor census conducted. 

The NSW Police Force has been granted quite a broad discretion with enforcing the order, all the while leaving the public’s perception of legality very much up in the air. 

Earlier in April a woman stopped for an RBT in Moree received a $1,000 fine after failing to inform police the nature of her travel, thus failing to provide a ‘reasonable excuse’. A Newcastle man received a similar fine when he went for a run, bought a kebab and sat alone on a park bench to eat it.

During the Easter long weekend, it was estimated that over $1,000,000 in fines were handed out in relation to the order.

Interestingly enough, many of the more controversial fines dished out over the Easter period that hit the headlines have since seen dropped. Perhaps the NSW Police Force is not necessarily immune to a public relations escapade, albeit I hope not.

In addition to the restrictions on movement, the order directed specific businesses to close that are considered to be of high risk of spreading the virus and of non-essential purpose. 

Many businesses have been left in limbo in all the surmounting confusion. The Government has directed that all non-essential businesses be closed, and employees to work from home if possible. 

Once against what may be defined as an essential-service remains somewhat unclear. 

But what are small businesses to do in this uncertain climate? In particular, sole traders dependant upon their craft to make a living. 

Many businesses have managed to acclimatise. pubs have begun selling groceries from the bar, other services have turned to online sales and delivery to maintain cash flow.

Perhaps a more nuanced development arising from the dramatic changes to our work lives will be a permanent shift in the work environment in the years to come. Can we indeed work from home more or equally as efficiently as we did in the office? Will office space become a redundant business expense? 

Needless to say, in many respects, this pandemic has far-reaching, momentous and unintended consequences yet to be revealed. But one thing remains certain from the mess – the government has done nothing to help it. If anything, it’s made it worse. 

Kyle Kutasi is a solicitor with Solve Legal, www.solveonline.com.au.

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The Australian Business Executive (The ABE) provides an in-depth view of business and economic development issues taking place across the country. Featuring interviews with top executives, government policy makers and prominent industry bodies The ABE examines the news beyond the headlines to uncover the drivers of local, state, and national affairs.

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