By Aaron Gadiel, Partner
In a rapidly evolving regulatory response to the COVID-19, the NSW Government has revoked and replaced its most recent order on gatherings. This is the third iteration of this order within seven days.
Additionally, the NSW Government now seems to be aggressively interpreting the gatherings order, as well as creating the first ‘public health risk area’ (quarantine) area within NSW.
It has also introduced new temporary planning provisions to free-up the delivery of goods to retail premises.
New gatherings order
On Saturday 21 March 2020 the NSW Government published the Public Health (COVID-19 Gatherings) Order 2020. This order revoked and replaced the order made on 18 March 2020. Mills Oakley published an article on the last order [here].
Mills Oakley also anticipated the use of the current regulatory powers in a [2 March 2020 article]. That article contains the general background to this issue.
The new order applies to ‘gatherings’ not just ‘mass gatherings’. It extends to ‘existing’ rules (that were all of three days old) to further regulate gatherings. In simple terms, the ‘existing’ rules ban gatherings where there are:
- 100 or more people present in a single undivided indoor space; and
- 500 or more people present in a single undivided outdoor space,
with some exceptions (as outlined in my [18 March 2020 article]).
These rules have now been extended. For gatherings of people that are not otherwise banned, the number of people must be limited — depending on the space that is available for each person on the ‘premises’. The cap on people present is calculated based on taking the space available for each person and dividing it by four.
For example, if the ‘premises’ has 100 square metres of space available for people to use, the occupier or owner of those ‘premises’ must not allow more than 25 people to gather in those ‘premises’.
In this context, the word ‘premises’ can be defined in different ways. It can mean just a single occupancy/tenancy within a building that has multiple occupancies/tenancies. It can also mean the whole building. It can mean an area of land, temporary structure, a vehicle or vessel. (There is an exclusion, however, for gatherings related to transportation.)
This four-metres-per-person rule applies to both indoor and outdoor spaces alike. It applies to ‘premises’ irrespective of whether the premises are divided into rooms or distinct sections.
It is a criminal offence under the Public Health Act 2010 for individuals or corporations to breach the ban. 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 for each day the offence continues.
The ban is in force for the maximum 90-day period permitted under NSW law (until 19 June 2020). However, this does not prevent a new order being made if the COVID-19 situation is continuing.
The order giving effect to the ban has not been made using the state government’s emergency powers. This means that it is possible for impacted people or businesses to seek an independent merit review of the ban. This would need to be dealt with by the NSW Civil and Administrative Tribunal.
New aggressive interpretation of the order
When the policy decisions behind the first and second orders were announced, it was not apparent that the order(s) would apply to spontaneous crowds. The focus was on gatherings of people that had been organised for some common purpose.
From Saturday 21 March 2020, media reports indicate that the NSW Government is now interpreting the order aggressively. Based on public statements reported in the media, it seems that the Government believes that the order also prohibits spontaneous gatherings of people who are not organised (‘gathered’) by some person or group. The Government announced that Bondi Beach (and other beaches) would be closed if it appeared that 500 or more people were gathered there at once. It apparently does not matter — to the government — whether the presence of a beach crowd has been organised or is spontaneous.
This interpretation of the order is not obvious from its text. In my view, the word ‘gathering’ ordinarily implies some sense of organisation or collaboration between participants. It is a criminal offence to breach the order. It is well-established in law, that interpreting a criminal statute, if the language is ambiguous, or doubtful, the ambiguity or doubt must be resolved in favour of the person who would otherwise be guilty of a criminal offence.
If the NSW Government’s apparent interpretation of the order is correct, it would mean that individuals attending Bondi Beach on Saturday in small numbers, were guilty of an offence (that may result in imprisonment) merely because they should have seen that at least 500 people (unrelated to them) were present. To us, this seems to be a step too far, based on the written terms of the order. Given the rapid succession of orders that we have seen, it is possible that the government will soon move to update the language of the order to embrace this broad interpretation. Until then, I think it is open for serious legal debate whether the government’s interpretation is correct.
If the government’s interpretation is correct (or it changes the order to reflect this new interpretation) individuals in our community will face an onerous legal obligation to:
- be aware of the order;
- be across its many exclusions; and
- where the exclusions do not apply — count the people that are around them in an undivided outdoor or indoor space,
so to be sure that they are not committing a criminal offence when a crowd is around them.
Temporary relaxation of retail development restrictions
On Friday 20 March 2020 the NSW Government published an amendment to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
The amendment is a response to the COVID-19 pandemic and expires on 1 October 2020. It is now in force.
It extends the exempt development code to allow the use of ‘retail supply chain premises’ at any time for the purpose of supplying goods directly or indirectly to retail premises without a new development consent or a modification to an existing consent.
This provision does not allow an extension of trading hours by which members of the public can shop. It only permits an extension of hours for the delivery of goods to retail premises.
‘Retail supply chain premises’ means:
- port facilities,
- warehouse or distribution centres,
- retail premises.
The provision is subject to the following conditions:
- the premises concerned must have a development consent;
- all conditions of that development consent must be satisfied — other than the conditions that restrict the hours of operation of the premises or the frequency or movement of vehicles; and
- when operations are taking place outside of the hours that would normally be permitted, steps must be taken to reduce noise (the nature of such steps is left to the proponent to work out).
However, the existing general exclusions from the exempt development code still apply. In brief terms, this has several implications.
Firstly, the exemption does not include certain mapped areas. Large parts of the former local government area of Botany Bay are excluded, including the significant Patrick Terminal facilities at Port Botany. Parts of the former Wyong local government area are also excluded.
Secondly, the new temporary exemption does not apply to state heritage listed sites unless a separate exemption is in place under the Heritage Act 1977. This could mean shopping precincts such as Greenwood Plaza in North Sydney (a shopping centre equipped with a supermarket) would not benefit from the new temporary exempt development provisions.
Thirdly, the exemption will not apply to a building that does not have a current fire safety certificate (or, if there is no certificate, no fire safety measures are currently implemented, required or proposed for the building).
First ever ‘public health risk area’
The NSW Government has created the first ‘public health risk area’ in the state (using long-standing dormant powers).
Under the newly-published Public Health (COVID-19 Lord Howe Island) Order 2020 the state’s first ‘public risk area’ is Lord Howe Island. In simple terms, the order establishing the risk area prohibits access to the island for tourists — and other non-residents (who are not providing essential services to the island).
This has been done to prevent the spread of COVID-19 to the island, on the basis that local health services have limited capacity to provide critical medical care to patients with severe COVID-19 infections.
There has been some suggestion from the Prime Minister, Scott Morrison, that suburbs of Sydney could be quarantined. If this is done, it could happen using these ‘public risk area’ powers under the NSW law. It could also be done by the Australian Government directly using its powers under the Biosecurity Act 2015.
Where to next?
A difficulty is that the regulatory environment is changing so quickly, members of the public and businesses are not getting enough time to implement their obligations, before the next set of rules are announced. It seems further changes may only be days away.