Given the fact that we face another full week of lockdown here in Sydney. We here at ‘Thrive50plus’ thought would be a good idea to have our resident legal beagle, walk us through one of the more important things that we all should understand during this locked down period, and that is what is “essential” when it comes to leaving our home.
– The Editor.
So back into Lockdown !! And the overriding rule is stay-at-home.
The exception promulgated loud and far is: We can leave home for “essential” (That being the keyword) reasons for 4 areas of our life: medical treatment, work, shopping, and exercise, and then we have the overriding rule of “distancing”
So, the key question is: what does the word “essential” mean? Then we run into a further question of how the law applies it. At the moment this really means- how do the police apply it? And they are given a very difficult job to do here.
Normally their job is to enforce the law (and this includes an overriding discretion in how they do so) on the basis that the law is clear and well-established and generally accepted by the community
Hence, we have another overriding rule that “ignorance of the law is no defence”. But that presumes that the “law” is clear, well established, and generally understood by the community. This derives from hundreds of years of the Common Law (first in England and now here and elsewhere) going through a whole series of cases to establish what the law is
Unfortunately, 18 months with covid is too short a period to establish the proper definition of “essential”. This leaves the police and other authorities to simply do their best.
Here are examples of police trying to do their best in two very different circumstances.
First, the client who had to travel from Balmain to Alexandria to inspect two properties and advise a client in relation to the appearance, condition and the surrounds etc (going there sounds pretty essential). He was pulled over by the police because he seemed to be a long way from home. He was then put through a rigorous interrogation and asked lots of questions about why was there.
In this case it’s a bit hard to imagine why a physical presence was not “essential” for his work.
In the second case another client phoned the local police station and asked would it be OK for him to drive 12 km to a friend’s place to borrow a trailer and drive back to his home then drive 15 km in another direction to a tip and unload and then drive back to the friend and return the trailer and go home ? He was told that that was OK !!
This isn’t meant to criticize the police who were trying to do a very difficult job. Rather to point out that the idea of “certainty” in the law, just doesn’t exist in this new area created by covid.
So then let’s go to the issue of whether people should be penalised if they have what they believe to be a “reasonable” purpose in travelling somewhere away from their home
How does “reasonable” stand against “essential”? On what basis does one form a “reasonable” opinion that their travel is “essential” for the purpose of work, shopping, medicine, or exercise ??
Oh Boy (and Girl) !!!
Leaving Home
So, I went to the government website, which is quoted below. First, it’s interesting that is titled: “Reasonable Excuse to Leave Home”.
Note, it’s not “essential”, but “reasonable”.
So, it’s even more complex because the government is saying that to leave home it has to be “essential” for one of the four reasons, and
Then it gives us a whole list of things that are “Reasonable” to leave home.
In other words, even before a court could look at the issue, the government language is all over the place. This comes back to my earlier question of: “essential” v “reasonable”. And the government appears to be using those words interchangeably.
So, under both the common law and common sense, where we’re attempting to impose a criminal sanction on people for leaving home, we would have to take the lower threshold and that of course is “reasonable”.
Which probably means that the word “essential” now has no further role
but of course, prosecutors and police will continue to use it.
Government website re covid sites:
“Reasonable excuse to leave home”.
“A reasonable excuse is if you need to”:
- obtain food or other goods and services
- for the personal needs of the household or for other household purposes (including pets)
- for vulnerable people
- if the food or goods and services are not available in the local government area that you live in
- travel for work or education if it is not possible to do it at home
- exercise and take outdoor recreation in Greater Sydney
- go out for medical or caring reasons, including obtaining a COVID-19 vaccination
- donate blood
- access childcare
- continue existing arrangements for access to, and contact between, parents and children
- attend a funeral
- provide care or assistance (including personal care) to a vulnerable person or to provide emergency assistance
- access social services, employment services, services provided to victims (including as victims of crime), domestic violence services, and mental health services
- move to a new place of residence, or between your different places of residence
- undertake legal obligations
- avoid injury or illness or to escape the risk of harm
- in case of emergencies
- for compassionate reasons, including where two people are in a relationship but do not necessarily live together
- to provide pastoral care if you are a priest, minister of religion or member of a religious order.
“Taking a holiday is not a reasonable excuse”.
Face masks
I left in Face Masks so that you can see you got the whole government statement unedited.
So back onto the street after we’ve left home !!
Where does that leave Joe Blow when a policeman give him $1,000 fine ?? The practicalities and costs of challenging it are out of all proportion, so he probably has just to cop it! (No pun intended)
That isn’t how our law should work. It’s almost as if we’ve gone back to the Sheriff of Nottingham days, and the rule of power
COVID REGIME: Unfair to Police:
Taking an analogy of the village and we have a fence around it; people who want to live with in the village abide by the rules. If they don’t like the rules, then they attempt to have the rules changed. But while they live in the village, they must accept the rules, otherwise they live outside that Village and that fence, i.e. in the jungle.
It is our police who administer the rules within the village.
Which are based on that development through the common law system as accepted by the community generally.
What we are now living with is Chaos.
