By Aaron Gadiel, Partner

Yesterday (18 March 2020), as part of a co-ordinated federal-state action, the Australian Government declared a ‘human biosecurity emergency’ and the NSW government significantly widened its ban on the use of premises to host large groups of people. The state government’s ban applies to private land and buildings, as well as public land (including beaches and parks).  It affects both commercial and personal activity.

Human biosecurity emergency

It may sound like something from a science fiction movie, but the Australian Government really has declared a ‘human biosecurity emergency’.  The potential for such a declaration has existed for some time under the Biosecurity Act 2015.  However, this is the first such emergency to be declared. This declaration applies for the maximum period of three months.  However, a new declaration can be made, if the emergency is still exists when this period expires.

The emergency has been declared in relation to the COVID-19 pandemic.  Mills Oakley published an article foreshadowing the possibility of such a declaration on 2 March 2020, read here. That article contains some background information.

The declaration of this emergency allows the federal Health Minister, Greg Hunt, to respond to the pandemic by making ‘determinations’. The determinations may impose ‘emergency requirements’ that businesses and individuals must comply with. These requirements could be used to quarantine cities, or ban or regulate business and personal activities.

However, at this time, the Australian Government has kept its powder dry. Initially it is only using the new emergency powers to implement its ban on international cruise ships. At this point, the regulatory heavy-lifting has been left to the states.

The new state ban on ‘gatherings’

On Sunday (16 March 2020) the NSW Government banned ‘public events’ where there are likely to be 500 or more people in attendance.  The ban did not apply to private events.  (Mills Oakley published an article about that ban here.  That ban only lasted for two days. It has been replaced by a new ban under an order known as the Public Health (COVID-19 Mass Gatherings) Order 2020. The new ban is more wide-ranging.  The new ban took effect at 5pm yesterday (18 March 2020).

Rather than applying to just ‘events’ the new ban now applies to ‘gatherings’. It is not limited to public gatherings. It applies to private gatherings as well (unless exempted).

The ban has two thresholds.

Firstly, the ban applies to a gathering if it is in a single undivided ‘indoor space’ and there will be 100 or more people present.  An ‘indoor space’ is a space ‘substantially enclosed by a roof and walls’.  It does not matter if the roof or walls are permanent or temporary, or open or closed.  For example, the interior of a marquee would be an ‘indoor space’ as would a roofed terrace enclosed by tightly spaced louvered slats.

Secondly, the ban applies to a gathering if it is a single undivided ‘outdoor space’ and there will be 500 or more people present.  An ‘outdoor space’ is defined as any ‘space’ that is not an indoor space.  This is very broad.

The ban applies to three different categories of people:

1. Operators/occupiers of any ‘premises’ (ie any land, temporary structure, vehicle or vessel).
2. Organisers of gatherings on ‘premises’. (Even if they are not the occupier or operator of the ‘premises’.)
3. Attendees of gatherings on such premises. (Even if they are not the organisers of the gathering.)

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 each day the offence continues.

The ban is in force for the maximum 90-day period permitted under NSW law (until 17 June 2020). However, this does not prevent a new order being made if the COVID-19 situation is continuing.

What is (and is not) excluded from the ban?

There are some exclusions from the ban on ‘gatherings’. In simple terms they relate to:

• airports
• public transport;
• hospitals;
• emergency services;
• disability or aged care facilities;
• prisons;
• courts or tribunals;
• parliament;
• supermarkets, food markets, groceries or other retail stores or shopping centres;
• office buildings, factories or mining or construction sites;
• schools, universities, educational institutions generally or child care facilities (but there is no exclusion for school events that extend beyond staff and students);
• hotels, motels or other accommodation facilities (but only for the normal operation of accommodation facilities); and
• a gathering at an outdoor space where people are present so that they can move through the place (eg Pitt Street Mall).

It is clear that this ban will have the potential to impact some:

• restaurants;
• pubs;
• clubs;
• cinemas;
• theatres;
• places of worship;
• amusement centres;
• premises used to sell only intangible products (such as ‘experiences’, tours, etc);
• sporting activities;
• weddings;
• funerals;
• private parties;
• beaches;
• parks;
• swimming pools;
• harbour cruises;
• static political protests;
• conferences; and
• conventions.

It is important to highlight that the ban directly applies to attendees. This means an individual may be guilty of a criminal offence if, say, the individual:

• attends a 200-guest wedding reception in a single undivided indoor space; or
• attends a beach as part of, say, a sporting competition of 500 or more people on that beach.

The NSW Minister for Health, Brad Hazzard, has the discretion to exempt some gatherings in writing (conditionally or otherwise).  There is no requirement for those exemptions to be made public. (This is odd given that attendees may be prosecuted if they attend a gathering whose organisers told them it had an exemption from the Minister. It is also odd given the recent move, more generally, to promote greater transparency in land use decisions.)

The order giving effect to the ban 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 by the NSW Government. 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.

What next?

In announcing the above decisions, Australia’s Prime Minister, Scott Morrison, said: ‘we are going to keep Australia functioning.

‘It won’t look like it normally does but it is very important that we continue to put in place measures that are scalable and sustainable,’ Mr Morrison said.

‘There is no two-week answer to what we’re confronting. There is no short-term quick fix to how this is dealt with in Australia.

‘The idea that you can just turn everything off for two weeks and then just turn it all back on again and it all goes away, that is not the evidence. That is not the facts. That is not the information and it’s not our way through this. And it’s not what you see in the measures that we’ve already announced and the measures that we will continue to announce.

‘They need to be scalable and they need to be sustainable’.

It seems that, further regulatory measures are likely. If what is happening overseas is any guide, such further measures may emerge in a matter of days and weeks, rather than months.