Page 3233 - Week 11 - Wednesday, 10 November 2021
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However, the bill clarifies that strict liability applies in relation to the first element of the offence, that a COVID-19 direction is in force. Applying strict liability means that the prosecution will not be required to establish a fault element in relation to the existence of the direction and whether the accused person was aware of it.
As a safeguard to the application of strict liability, the amendments include a requirement that a COVID-19 direction that is not given to a particular person, for example a direction that applies to a class of people or activities, is a notifiable instrument under the new section 120A.
This formalises the current practice of notifying directions on the ACT Legislation Register and provides an additional level of formal transparency that to date has been substantively delivered throughout the public health emergency. The notification of directions, together with administrative arrangements to communicate their impacts on the community or sections of the community, means that anyone affected has a reasonable opportunity to understand their obligations.
The bill also introduces a requirement that, before requiring a person to comply with a COVID-19 direction, an authorised officer must, if reasonably practicable, warn a person that failure to comply with a direction without reasonable excuse is an offence. This serves as an additional safeguard for the community where they may be unclear of their obligations to follow a direction. A failure to comply with this requirement does not affect the liability of the person to follow a direction and does not prevent an authorised officer taking enforcement action.
Amendments also include technical amendments to support authorised officers to issue infringement notices to people aged 18 years and older for failing to comply with a COVID-19 direction, or to people aged 16 years and older in relation to a face mask direction. The infringement penalty unit amounts remain unchanged.
The technical provisions are further detailed in the explanatory statement as presented with the bill. As the bill creates a new strict liability offence for failing to comply with a COVID-19 direction, the bill has undergone a comprehensive human rights compatibility assessment as a significant bill. The bill engages and supports the right to life under the Human Rights Act 2004 in that it aims to reduce the risk of COVID-19 spread and reduce impacts on the community. In particular, it seeks to protect vulnerable members of the community.
The bill also engages the right to privacy in that it strengthens mechanisms supporting authorised officers’ powers to require a person to comply with COVID-19 directions. The right to be presumed innocent is also engaged due to the use of strict liability in elements of the COVID-19-related offences. The ACT Attorney-General has considered the bill and issued a statement of compatibility with the Human Rights Act 2004.
The limitations on rights made by the bill are necessary and reasonable in a free and democratic society and go no further than necessary to achieve the required public health outcomes. That said, as an added protection, the proposed changes expire 12Â months after the repeal of the COVID-19 emergency declaration.
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