Most states say police will use discretion over potential social distancing violations, but rights advocates argue public messaging on new laws can be unclear

Police powers to issue fines for gathering or going outside without a “reasonable excuse” have prompted civil liberties concerns among human rights advocates, who say citizens must be given additional latitude to comply with fast-changing rules designed to curb the spread of coronavirus.

Several Australian states and territories have issued public health orders and directions to implement a recommendation of the national cabinet on Sunday to ban gatherings of two or more people, while New South Wales and Victoria have gone further than the “strong guidance” to stay home by also banning non-essential outings.

Breaching the orders is punishable in New South Wales by fines for individuals of up to $11,000 or six months in prison, or both, and in Victoria by fines of up to $19,800 through courts and $1,652 on the spot.

Most states say police will be empowered to use discretion, but there is concern among advocates about enforcement in circumstances where regulations have changed and public messaging has often not been consistent and clear.

The NSW Greens health spokeswoman, Cate Faehrmann, said measures to ensure physical distancing needed to be taken but it was “unacceptable these latest restrictions have been brought in overnight with scarce detail and such harsh penalties”.



“People cannot be expected to know what to do in order to avoid massive fines when the government’s information campaign is so inadequate,” she said. “It’s extremely difficult to find the relevant public health order on NSW Health’s website and then the fine print of what is defined as acceptable behaviour and by whom.”

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The Queensland human rights commissioner, Scott McDougall, said: “When human rights are limited it is important that lawmakers use clear language so citizens are able to understand what is required of them.

“In the context of rapidly changing rules and widespread uncertainty about some interpretations, fairness dictates that police approach enforcement with some degree of latitude.”

McDougall said police “should be mindful of the options available to them to achieve the purpose of preventing socially spread infections, and on-the-spot fines and criminal charges should not ordinarily be considered as a first resort.”

Julian Burnside, a human rights barrister and spokesman for Liberty Victoria, told Guardian Australia that “on the surface, these measures interfere appallingly with human rights – but for good reason”.

“My instinct is that it’s a pretty serious health crisis,” he said. “[Directions] like this are probably justifiable in order to minimise the extraordinary acceleration of infection and in some cases death.”

Burnside said the measures were designed to “address a specific problem, and once the public health crisis has passed the measures ought to be repealed”.

“The government has to be guided by genuine, impartial medical advice. If the number of people with antibodies gets to be sufficiently great that the health risk around being outdoors or meeting with more than one other person diminishes, then human rights considerations ought to carry the day.”

The legal director of the Human Rights Law Centre, Shahleena Musk, also said police must show restraint. “It is vital in this time of crisis that police temporarily adjust their practices so that people are not charged with low-level offending that traps them in the criminal legal system.

“Any targeted policing efforts during this time need to be proportionate and justifiable, and policing decisions must not be based on generalisations or stereotypes about marginalised communities. There should also be a moratorium on low-level prosecutions so that people are not needlessly detained and put at risk of contracting Covid-19 in prison.”

As of midnight on Monday, the NSW government would be issuing fines to people who leave home without a “reasonable excuse’”.

Acceptable reasons to leave home include to buy food or other essential goods and services; work or education that cannot be done remotely; exercise; or for medical or caring purposes.

Police would be allowed to use discretion and judgement to determine whether citizens had left home for an essential purpose.

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A similar direction was published by Victoria. The state’s police deputy commissioner, Shane Patton, said on Tuesday: “We deal with people every day who tell us the truth, who don’t tell us the truth ... police officers are very good at determining whether someone is legitimately going to one of those areas where they legitimately are allowed to.

“I want to be absolutely clear that there’s a lot of discretion word being used, and in certain circumstances, police officers will still use discretion. But my expectation moving forward from here today [is] that this is very cut and dry…This discretion word, we will use it because we always have, but that will be a rarity.”

Police would also be given powers to fine anyone leaving their home for non-essential reasons, along with law prohibiting gatherings of more than two.

On Sunday evening, Queensland police released a statement clarifying that officers now had the power to issue fines for breaches of directions by the state’s chief health officer.

“An integral part of the [police] response is to ensure compliance with directions, particularly around self-isolation, mass gathering, borders, non-essential business activity and now private-residence gatherings,” the statement said. “During the implementation of this new compliance option, officers will consider the circumstances and context of each incident and apply a decision-making model prior to issuing any notice.”

Under emergency legislation passed by the Queensland parliament, and similar measures in other states, an “emergency officer” can order the detention of a person for 14 days without a right of review by a court.

The president of the Queensland Council for Civil Liberties, Michael Cope said last week that if the government wanted people to obey these laws, citizens needed to have confidence they were fair.

“If there is no right of review, many people may not accept the fairness of the orders,” he said. “The QCCL accepts that in a time of contagion the government may need powers that trump individual rights. But it is important to ensure that our civil liberties are protected by making sure that the government does not get powers that are not needed.”

Other states and territories are yet to announce how public health regulations would be policed in the coming weeks.

The Australian Capital Territory chief minister, Andrew Barr, said capital officials “will be making people aware of the new requirements and issuing warnings in the first instance”.

“The ACT, along with the other states and territories, will be moving to implement stronger enforcement measures in the near future, such as fines, to ensure consistency across jurisdictions.”