Can the cops really fine you for being out and about? Yes and no

And, as fines stack up, Illawarra legal experts have warned many could fall over if they were tested in court due to the ambiguous and open wording in the health regulations.

An example of this ambiguity was demonstrated on Tuesday night, when Illawarra Police Rescue Squad and the SES attended a rescue at Macquarie Pass canyon, after two women got lost bushwalking.

They were quickly found and guided to safety, according to IPRS which posted on Facebook about the incident, but as part of their post, which has since been deleted, the squad wrote:

"Police would like to take this opportunity to remind the public that under the current COVID-19 regulations, activities of this nature are not permitted."

However, the NSW Health regulation states it is permissable to leave your house for exercise, and does not stipulate exactly how many kilometres from home you are allowed to travel for this activity.

University of Wollongong academic Dr Julia Quilter said the public police reprimand for the two bushwalkers was a good example of how open to interpretation the health order was, and said there were a number of examples of fines being handed out across the state where it was unclear what law had been broken.

"Perhaps we might be trying to deter people to undertake activities that are dangerous, which would impose further impacts on the health system if something was to go wrong," she said. "But this isn't captured under the health order.''

"So it shows the complexity of these regulations."

Dr Quilter, a former criminal lawyer, said a penalty regime where police could exercise discretion was not new in NSW law.

"We use these types restrictions and penalties regularly," she said. "In fact, fines are the most common form of criminal offence.

"But what we're seeing here has highlighted the way in which police discretion is guided by the law, but it is significantly left to particular police to use that discretion as they see fit.

"This happens all the time, but we normally don't hear about it. But because what we're now policing is not the usual suspects of young people, homeless people, Aboriginal people, poor people, but rather the whole of NSW.

'I think there's a greater highlighting of what's going on, and while police often exercise their discretion appropriately and fairly, it is left to individual officers."

She said the list included in the public health order was open to interpretation, highlighting that Arts Minister Don Harwin had been fined for being in one of his places of residence,

"It's unclear to me why he received this fine, because number eight on the list saying it's allowable to move between places of residence," Dr Quilter said.

In other examples put out by NSW Police media, people have been fined for eating (leaving the house to buy food is generally a reasonable excuse for leaving the house), or just sitting (not a listed excuse) in their parked cars.

Dr Quilter said it was unclear whether a car would be defined as a public place.

"In these cases, I think we need to think about the intent of the law - what is the risk of this?," Dr Quilter said.

"It's a risk of spreading coronavirus, and if you've got a situation of someone sitting in their car by themselves or with one other person, it's very hard to see how this could be a risk.

"That said, those individuals might not have had one of the listed 'reasonable excuses', but it's also worth noting that that list is not an exclusive one and there are other reasons not listed that night be deemed a reasonable excuse.

"That's where I would hope the police would use their discretion to educate, rather than just issue a fine."

Dr Quilter acknowledged police and the government were in a difficult position, and that the high-penalty fines would act as a deterrent for the whole population in an effort to stop people from socialising or coming into contact with one another in public places.

"There does need to be deterrence here," she said.

"But one of the problems we're seeing is that the messaging is inconsistent and people are not clear about what they can and can't do. Why is one person issued a fine for what appears to be cautionable behaviour, and another is not fined?"

Illawarra criminal law specialist Jeff David, a partner at Hanson's in Wollongong, said the way the regulation had been worded meant many of the fines could be open to legal challenges.

However, he said unless a body like Australian Law Society decided to run a test case, it was unlikely many people would bother - or have the means - to fight their fines in court.

"The gap in NSW legislation is that it creates an offence of leaving your home without lawful excuse," he said.

"It then sets out a number of grounds that are considered to be a reasonable excuse, but the big gap is that the offence is focusing on the leaving of your premises."

"If I walk to work, and then on the way home I stop in a park to have a rest or something like that and the police come along and I get a ticket, then what have they charged me for if I have left my home lawfully to to go work?"

"The act which is set to trigger the offence is the act of leaving without lawful excuse."

Like Dr Quilter, he also highlighted that the list of "reasonable excuses" did not "purport to be a complete list of reasons to leave your home".

Despite these various holes in the regulations, Mr David said he thought it would be unlikely many of the fines being handed out would ever be tested in court.

For starters, he said fines of any kind tended to be handed out to "people who can least afford to pay", and who would not be able to fund an expensive legal challenge.

As with other fines, they would simply wear the consequences of having their vehicle registration suspended, or would end up paying the fines through some other means like a community order, Mr David said.

"On the other hand, if you take the idea of a $1000 fine for someone who has the wherewithal to pay it, would they prefer not to pay it? Yes. But are they going to make a song and dance about it? No, because I would do a cost benefit analysis and see that I would exert more money to argue about it than it's worth," he said.

"It may well be that Legal Aid or the ALS would take on a test case if they see that they have hundreds of clients across the state getting whacked with these fines, but otherwise I think it's unlikely that we will see many of these in court."