Yesterday I saw this video that went viral (click here) - a Melbourne woman filmed herself refusing to reveal her name and address, threatening to sue police officers who questioned her why she wasn't wearing a mask in public.
It is controversial in many ways. This prompted me to do some research on the relevant laws that apply to this scenario. The woman said a lot things that sounded logical but not, and this blog gives you a summary of what she hasn't done right.
She insisted that she didn't need to give to the two police officers her name and address. Incorrect - she was obliged to give her name to the police given that that she has breached the new Stay At Home Directions (click here) (i.e. not having face coverings). Not giving name when requested by police is a Victorian offence, not Commonwealth offence. The relevant law is section 456AA of the Crimes Act 1958 (Vic) (see below sections if you are interested to learn more).
Then the police said she was under arrest. Can a police officer arrest her without warrant? The answer is yes in this case, because the woman has committed an offence (summary offence in this case) and the arrest was necessary to "prevent the continuation or repetition of the offence or the commission of a further offence". Section 458 of the Crimes Act 1958 (Vic) gives the two police officers the right to arrest her, since her conduct was persistent.
Last but not least, not wearing a mask - is it an offence? Yes it is. Clause 5(6) of the Stay At Home Directions states that a person may only leave his/her home if he/she "wear a face covering at all time". Exemptions to this clause are listed in Clause 5(7).
These directions were issued pursuant to the State's emergency powers under the Public Health and Wellbeing Act 2008 (Vic), specifically, section 200(1)(b) and (d). The State of Victoria can restrict the movement of any person or group of person within emergency area and give any other direction that the authorised officer considers is reasonably necessary to protect public health.
These Stay At Home Directions must, I emphasise, MUST be complied with. And it is a punishable offence if a person refuse or fail to comply with the directions. This is stated in Section 203 of the Public Health and Wellbeing Act 2008 (Vic).
Conclusion:
What happens if you don't wear a mask and you are not exempted from wearing a mask?
The police can question you and ask you to give them your name and address (s 456AA, Crimes Act), because you committed an offence (s 203, Public Health Act; Clause 5(6), Directions issued under s 200 Public Health Act). If you don't do so then you committed another offence and they can arrest you until you do (s 456, Crimes Act).
Relevant Laws, the jargon ---
Section 456AA of the Crimes Act 1958 (Vic)
(1) A police officer or a protective services officer on duty at a designated place may request a person to state his or her name and address if the police officer or the protective services officer believes on reasonable grounds that the person –
a. has committed or is about to commit an offence, whether indictable or summary; or
b. may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having committed.
(2) A police officer or a protective services officer who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.
(3) A person who, in response to a request made by a police officer or a protective services officer in accordance with this section -
a. refuses or fails to comply with the request; or
b. states a name that is false in a material particular; or
c. states an address other than the full and correct address of his or her ordinary place of residence or business –
is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
(1 penalty unit is $165.22)
Section 458 of the Crimes Act 1958 (Vic)
(1) Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court be dealt with accordingly to law or deliver to a police officer to be so taken, any person –
a. he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely –
i. to ensure attendance of the offender before a court of competent jurisdiction;
ii. to preserve public order;
iii. to prevent the continuation or repetition of the offence or the commission of a further offence; or
iv. for the safety or welfare of members of the public or of the offender;
Section 203 of the Public Health and Wellbeing Act
Compliance with direction or other requirement
(1) A person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person in the exercise of a power under an authorisation given under section 199.
Penalty: In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units
(2) A person is not guilty of an offence against subsection (1) if the person had a reasonably excuse for refusing or failing to comply with the direction or requirement.