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  • Writer's pictureDaniel Meyerowitz-Katz

Is it a crime to stand in the water?

I'm not normally in the habit of writing posts of this type, but in recent days I have really felt the need to respond to the way that authorities seem to have been interpreting the current social distancing measures.

Yesterday I read this report in the Daily Mail* about people in the water at Coogee beach being moved along:

"'We do not consider it essential exercise to just congregate in the water,' a Randwick City Council lifeguard announced.

'Please exercise, start swimming, don't just stand around in the water.'

The lifeguards warned that beach may have to be closed again if residents did not abide by the rules.

'We want to keep the beach open, please don't ruin it for everyone else. It's not just about you, it's about the whole community.

'If you don't start doing the right thing we will have to close the beach. Lifeguards do not want to do that, the council does not want to do that, but these are the measures we will take.

'Remember why we are doing this - it is to stop the spread of this virus.'"

I also have personally seen people who are sitting on the grass in a park being "moved on" by the authorities because they were not exercising.

There are a couple of things about this that really irk me.

The first is that I cannot see how someone sitting on the grass or standing around in the water could possibly be spreading the SARS-Cov-2 virus any more than someone doing pushups on the grass or swimming in the water. As long as the person is keeping an appropriate distance from other people, being stationary is no more or less a risk than being mobile.

More to the point, though, I also cannot see how (in New South Wales at least) the person is doing anything illegal [PLEASE SEE DISCLAIMER**].

The current movement restrictions in New South Wales are imposed by the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was issued on 30 March 2020 under the Public Health Act 2010.

Section 7 of the Act relevantly provides if the Minister (in this case Health Minister Brad Hazzard) "considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health", then the Minister can, by order "give such directions as the Minister considers necessary to deal with the risk and its possible consequences." Under s 10, a person who has notice of a ministerial direction "must not, without reasonable excuse, fail to comply with the direction", or the person is committing an offence.

The reason there is an issue with people being at the beach or in the park is because of cl 5(1) of the Order, which includes the following direction: "The Minister directs that a person must not, without reasonable excuse, leave the person’s place of residence."

Schedule 1 of the Order sets out things that, pursuant to cl 5(2), constitute reasonable excuses to leave your home. However, cl 5(2) says that a reasonable excuse includes the things in Schedule 1. It does not say that Schedule 1 exhaustively sets out every reasonable excuse. Nor could it. The offence itself is limited by the carve out for reasonable excuses, regardless of what the Order says. All that cl 5(2) does is to say that the things in Schedule 1 are among the reasonable excuses carved out of the direction in cl 5(1).

Item 5 of Schedule 1 is "exercising". This means that exercising is a "reasonable excuse" to leave your home in accordance with cl 5(1) of the Order. So if you leave your home for the purpose of exercising then you have not contravened the direction.

Let's consider the scenario at Coogee which prompted this post: people left their places of residence and went to the beach. That would be a contravention of the direction in cl 5(1) of the Order unless the people had a reasonable excuse. But they did have a reasonable excuse, which was that they were exercising. Accordingly, they have not contravened the direction, and have not committed an offence.

Now, what happens if, having left their homes with a reasonable excuse, and having exercised, they decide to stand still for 5 minutes? Are they now committing an offence?

It seems unlikely to me that they would be doing anything illegal. The Order does not say that if something is your "reasonable excuse" for leaving your home then you have to be doing it for the entire time that you are outside of your home. There is nothing that says it is illegal to take a 5 minute break from exercising.

Obviously there are limits to this. If you walk somewhere for 5 minutes and then spend 3 hours lying in the sun then it seems unlikely that you could maintain that you had left your home to exercise rather than to sunbake. But if you're swimming for 20 minutes and then you take a 5 minute break, I cannot see how that would be a contravention of the Order. To the extent that the lifeguards at Coogee seem to have taken a different view, I would say that they are being overzealous.

*I apologise profusely for linking to the Daily Mail. It's not something I'd normally do, but there was an overriding public interest.

** DISCLAIMER: This is not legal advice and should not be used to justify any particular conduct. There may be local restrictions applying to a particular public place that do not apply state wide, and public authorities have powers to order people to move on in certain circumstances that apply separately to any of the current public health measures. If you have any doubt then you should seek advice in relation to your own particular circumstances.

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