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DISCREPANCY BETWEEN OFFICIAL STATEMENTS AND COVID LEGISLATION CREATES CONFUSION

Posted on 6th May 2020

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The recent slew of ministerial orders under the Prevention and Control of Infectious Diseases Act 1988 demonstrates how subsidiary legislation should not be passed or applied. Dissimilarities between the language of the CMCO5 and statements made by government ministers on sport and consumption of alcohol suggest a lack of legal discipline and have created confusion for those seeking a clear legal basis for organising their lives and businesses.

Like many starved of recreation, golfers and sports enthusiasts took to the fairways and outdoors on Monday, 4 May 2020 in the belief that golf and other outdoor activities were officially sanctioned under the recently gazetted Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas (No 5) (Amendment) Regulations 2020 (“CMCO5″). This followed an announcement made by the Prime Minister the previous Friday when he stated that the government was reopening most business sectors and was permitting outdoor activities that did not involve crowds or gatherings. In the process he named amongst others, golf, jogging and tennis involving small groups of less than 10 people. Therefore, it may come as a surprise to these sport enthusiasts that the CMCO5 regulations make no mention of these activities or the 10 person limit on gatherings.

More recently, the Minister for the Federal Territories was reported to have said that pubs and restaurants serving alcohol would not be allowed under the new rules even though the CMCO5 makes no mention of the sale of alcohol, pubs or restaurants being prohibited but only the restriction on crowds and gatherings. The health and medical rationale for this arbitrary prohibition was also unclear. Without this exclusion, the law should permit any business to reopen so long as they were not “prohibited activities”.

The CMCO5 is the latest in a series of gazetted subsidiary legislation that reduces the ambit of previous movement restriction orders by permitting activities other than “prohibited activities”. These are scheduled activities that cannot be carried out, organised or undertaken. The most notable of which include entertainment, leisure and recreational activities, activities relating to religious or cultural and art festivities and  business activities if they are activities “which may cause a crowd to gather”. This qualification is important as it means that these mentioned activities are not prohibited, per se, but become illegal only if the qualification is not met. Regulation 6 of the CMCO5 also prohibits participation or involvement in any “gathering or procession” whether for economic, religious, educational, sports or cultural purposes, but does not mention any specific type of activity.

Activities that are expressly prohibited in the CMCO5 schedule include trying on clothes and clothing accessories, services normally conducted at clothes stores, services in barbershops and beauty salons, filming, tourism services  and financial and commercial activities in public areas.

The CMCO5 also removes the 10 kilometre travel restriction and the one person per vehicle restriction, which many have welcomed.

Although the overall intent and objective of the CMCO5 seems clear, its specific legal meaning and effect leaves much to be desired because of a lack of definitions for the ambiguous terms and expressions used. This leaves a large part of it subject to statutory interpretation and the perceptions of law enforcement agencies.

In a constitutional democracy governments do not rule by decree. Ministerial pronouncements do not become law unless they form part of valid legislation. In order to determine if any activity is permitted or prohibited under the CMCO5, it must be determined as a matter of fact if they are activities that “cause a crowd to gather” or not. Therefore, rather than prohibiting or permitting certain activities, the CMCO5 merely provides a basis for determining which activities are prohibited or permitted. This means that in enforcing the law the prohibition must be established as a matter of fact. This in itself will be difficult as no definition or guidance has been provided for what constitutes a “crowd” or a “gathering” under CMCO5. It remains to be seen how law enforcement officers will determine which point of a collection of people becomes a crowd, a gathering or a procession and deemed unlawful. The suggested “less than 10 persons” criteria mentioned in the PM’s speech, could have easily formed part of the prescription in the CMCO5, but was omitted as a yardstick for reasons unknown.

Another difficulty is the status of so called official procedures applicable after a reopening of the economy. Whilst it has been reported that the government has prepared standard operating procedures and protocols for different industries to supplement the CMCO5, none of these standard operating procedures and protocols are prescribed in the CMCO5 and so it is difficult to see how they can be enforced as law or simply treated as optional best practices.  

Given the discrepancies between government statements and the language of the CMCO5 it is easy to see how confusion and differences in viewpoints on the application of the law arise and will continue to create enforcement problems as long as the MCO lasts. Regrettably, the CMCO5 suffers from the same lack of clarity as did the earlier MCO regulations, perhaps more so with the frequent amendments and legislative postscripts and after-thoughts that appear to follow each regulation compounded by imprecise drafting.

Several bills are expected to be tabled at the July sitting  of Parliament following the effects of Covid-19 on the general public, businesses and companies.  It is hoped that the proposed enactments will bring needed regulatory certainty in a critical chapter of the nation’s history.

RLSE Regulations Team (admin@rlse.law)

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