By Aaron Gadiel, Partner
The NSW Government has today (16 March 2020) published an order criminalising public events where there are, or are likely to be, more than 500 people in attendance. The order forms part of a potential rolling regulatory response to the COVID-19 pandemic. It applies immediately.
The Public Health (COVID-19 Public Events) Order 2020 follows a meeting of the ‘national cabinet’ yesterday (15 March 2020) and an announcement by the Prime Minister, Scott Morrison. The ‘national cabinet’ consists of the Prime Minister and each state and territory leader. It is a new forum to make key decisions about Australia’s response to the COVID-19 pandemic.
Mills Oakley published an article foreshadowing the possibility of orders of this kind on 2 March 2020. This article contains the background to today’s decision.
A ‘public event’ is likely to include any event that is reasonably accessible to members of the public. An event is still a ‘public event’ even if entry to the event requires the purchase of a ticket or the payment of an entry fee. It includes any sporting, musical, cultural, entertainment, political or religious event. It also includes any festival.
However, the following are expressly excluded as ‘events’:
- the ordinary conduct of a court;
- the ongoing, day to day provision of educational services in educational institutions (being schools, universities, TAFE establishments and educational colleges);
- the ongoing provision of transport services; or
- workers attending a workplace.
The order is in force for the maximum 90-day period permitted under NSW law (until 14 June 2020). However, this does not prevent a new order being made if the COVID-19 situation is continuing.
It is a criminal offence under the Public Health Act 2010 for individuals or corporations to breach the direction. Individuals face a penalty of imprisonment for up to six months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations may be fined up to $55,000 and $27,500 each day the offence continues.
The order has not been made using the state government’s emergency powers. At the time of writing this article no ‘state of emergency’ has been declared in NSW. This means that it is possible for impacted people or businesses to seek an independent merit review of the direction (in relation to an event or a class of events). This would need to be dealt with by the NSW Civil and Administrative Tribunal.
The order published today is likely to be the first of many ongoing restrictions.
The ‘national cabinet’ is scheduled to meet again this week to consider further restrictions on events held indoors and in other closed spaced environments. It could lead to a new, lower cap on attendees for such events. For example, the United States Government’s public health agency (the Centres for Disease Control and Prevention) has now recommended that any event with 50 or more attendees be postponed for the next eight weeks. The ‘national cabinet’ will also be considering further measures in relation to the operation of aged care facilities.
The Federal Government says it has also imposed a ‘universal precautionary self-isolation requirement on all international arrivals’ effective as at 11:59pm 15 March 2020. The government says that all people — whether they are citizens, residents or visitors — will be required to ‘self-isolate’ for 14 days upon arrival in Australia. At the time of writing this article no legal instrument documenting this measure was available.