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Grant Baars

Grant Baars

Criminal Law, Covid-19 and The Constitution

Criminal Law and SARS-CoV-2 (Covid-19) 

Victorians, as well as all Australian States and Territories, are now faced with Stage 3 restrictions. For Victoria, this means a further 4 weeks of restrictions. It also means that the restrictions and associated penalties for breaching the restrictions remain in force. We understand that these restrictions have been put in place to combat the transmission and spread of SARS-CoV-2.  However, in a time of uncertainty, it is important to review the implications the imposition of fines will have, not only on individuals, but the already surmounting case load of the criminal courts. 

Currently, if you are caught flouting the Chief Health Officer’s directions and fail to comply with the Public Health and Wellbeing Act 2010 (Vic), Victoria Police have discretion to issue a fine to individuals and businesses. Currently, the fine for individuals stands at $1,652 and businesses at $9,913. 

There may be a constitutional basis to rebuke the issuing of such fines and such drastic measures, albeit unrealistic. The basis of issuing such fines to individuals and drastic restrictions on freedom of movement and association, may be considered unconstitutional. 

This argument is limited in its application. The primary test to prove unconstitutionality will be to weigh the measures taken against the public interest principle.  Conservatively writing, the preservation of the health, safety, and wellbeing of society and specifically, vulnerable classes of persons outweighs the individual liberties governed by Australia’s Constitution. 

If you have been issued with a fine or are required to attend court in relation to breach of social distancing rules, please contact our office.

1 https://www.dhhs.vic.gov.au/sites/default/files/documents/202003/Stay%20at%20Home%20Directions%20.pdf
2 https://www.premier.vic.gov.au/on-the-spot-fines-to-keep-victorians-safe/

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