COVID-19 offences are set out in the Emergency Management Act 2005 (WA)('the Act') and are governed by the Emergency Management Regulations 2006 (WA).
Failure to Comply with a Direction:
Failure to Comply with a Direction is an offence contrary to section 86(1) of the Act. Prior to 4 April 2020, the offence was one of the most prosecuted COVID-19 related criminal offences in Western Australia.
A person could, and still can, be charged with the offence of Failure to Comply with a Direction if that person is given a direction under section 47, 67, 70, 71, 72A or 75(1)(i) of the Act and does not comply with that direction. General information with regards to what the above sections are is set out below for guidance.
- Section 47 of the Act sets out when the local government may require an owner or occupier of land to take certain actions.
- Section 67 sets out when a Hazard Management Officer or other authorised officer may give directions in relation to movement and evacuation.
- Section 70 sets out the powers of officers in relation to giving directions to persons exposed to hazardous substances.
- Section 71 outlines the powers of Police to direct closure of places and give direction with regards to movement and evacuation.
- ection 72A sets out the general powers of a Hazard Management Officer, or authorised officer, in giving directions during a state of emergency.
- Section 75(1)(i) sets out the general powers of an authorised officer to direct the owner or occupier or the person apparently in charge of any place of business, worship or entertainment in the emergency area to close that place to the public for a period of time, as specified in the Direction.
Common examples of the offence of Failure to Comply with a Direction:
Common examples of the offence of Failure to Comply with a Direction include, but are not limited to, if a person fails to isolate as required to do so after testing positive to COVID-19, does not disclose a positive COVID-19 result to the correct authority, does not comply with travel restrictions or fails to wear a mask in accordance with government direction.Maximum Court Penalties:
If a person pleads guilty to, or is found guilty of, the offence of Failure to Comply with a Direction the maximum penalties the Court could impose upon that person are:
- A fine of up to $50,000.00; and
- A term of imprisonment for a period of up to twelve (12) months.
The offence is taken seriously by the Courts with the need for community protection a prevalent concern in a time of State emergency.
Defence Available for an Offence to Failure to Comply with a Direction:
Section 86(3) of the Act sets out that it is a defence if a person charged with an offence under subsection (1) can prove that they had a reasonable excuse for failing to comply with the direction at the time it was given.
"Reasonable excuse" is not defined in the Legislation. Emergency Management Act Infringement Notice:
Emergency Management Act Infringement Notice:
As of 4 April 2020, amendments to the Regulations have enabled the Western Australian (WA) Police Force and other officers approved by the State Emergency Coordinator to issue an individual person who has failed to comply with a Direction with a modified Infringement Notice in the sum of $1,000.00.
Where the offender is a body corporate a modified Infringement Notice in the sum of $5,000.00 can also be issued.
This amendment gives offenders the option of having the matter dealt with outside of the criminal justice system and results in no conviction being recorded against that person for the offence.
If you, or a family member, are charged with an offence of Failure to Comply with a Direction and require legal advice or assistance our team of experienced legal practitioners are here to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.