It is important to remember at this time of uncertainty that we all have a duty to behaviour in a way that prevents or minimises the harm to public health where we can.

In doing so, we must take all reasonable steps to prevent the commission of offences – particularly those concerning the COVID-19 pandemic.

The power regarding this specific general duty is outlined in s56 of the Public Health Act 2011.

But with the responsibility of acting in a responsible way, also comes penalties for those who do not.

Is in offence against general public health if: (s57)

  • A person who causes a material risk to public health intentionally or recklessly and with the knowledge that harm to public health will result is guilty of an offence. (Maximum penalty: $250 000 or imprisonment for 5 years or both.)
  • A person who causes a material risk to public health in circumstances where the person ought reasonably be expected to know that harm to public health will result is guilty of an offence. (Maximum penalty: $120 000 or imprisonment for 2 years or both.)
  • A person who causes a material risk to public health is guilty of an offence. (Maximum penalty: $25 000. Expiation fee: $750.)
  • For the purposes of this section, a material risk to public health occurs if the health of 1 or more persons has been, or might reasonably be expected to be, harmed by an act or omission of another, but does not include a case where the harm, or risk of harm, is trivial or negligible.

There are more significant penalties for those who cause a serious risk to the public health intentionally or recklessly.

Namely: (s58)

  • A person who causes a serious risk to public health intentionally or recklessly and with the knowledge that harm to public health will result is guilty of an offence. (Maximum penalty: $1,000,000 or imprisonment for 10 years or both.)
  • A person who causes a serious risk to public health in circumstances where the person ought reasonably be expected to know that harm to public health will result is guilty of an offence. (Maximum penalty: $500,000 or imprisonment for 7 years or both.)
  • A person who causes a serious risk to public health is guilty of an offence. (Maximum penalty: $120,000)

For the purpose of this section concerning serious risks to public health – a serious risk is a material risk that substantial injury or harm to the health of 1 or more persons has occurred or might reasonably be expected to occur.

There are defences available to those found charged with such offending.

These include but are not limited to proving that the person took all reasonable precautions an exercised all due diligence to prevent the commission of the offence. (s59)

Additional to the above, it should be noted that purposefully threatening someone that you will infect them or actively doing so may also amount to a criminal offence under the Criminal Law Consolidation Act 1935.

It could potentially be classified as an assault, or even an assault causing harm.

The interplay between the various Acts and powers referred to in our other posts is unclear, given they have not had to be used by enforcement agencies in matters like this.

However, what is clear is that we all have a duty to respect each other and be responsible with making sure we don’t risk the health and well being of others.

If you have been detained or need any advice regarding these restrictions, you can organise a free first appointment by calling us on (08) 8110 7900

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