By Aaron Gadiel, Partner

The NSW Government has now imposed a lock-down on the people of NSW, with the aim of reducing the spread of COVID-19.

The arrangements are set out in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 published late last night, only a short time before it came into effect this morning (on 31 March 2020).

The NSW government has not, itself, described the new arrangement as a lock-down. However, the actual terms of the order generally reflect arrangements in other countries that have been described as ‘lock-downs’ in both academic and media contexts.

Background — the short but chaotic history of COVID-19 activity regulation

In a rapid series of orders — commencing on 16 March 2020 — the NSW government has progressively introduced and widened bans on the gatherings and activities of people.

The first order  lasted two days (our article on that order is here), before it was replaced by a second order on 18 March (our article for that second order is here). That second order lasted three days, before it too was replaced by a third order on 21 March (our article on that third order is here). On 23 March the NSW Government supplemented its then numerical bans on gatherings, by also banning certain gatherings based on their land use. Our article on that fourth order is here. On 25 March the numerical and land use based orders were brought together (with material revisions) in a fifth single order here. On the 27 March that order was again replaced with an altered sixth order here.

As of today (31 March 2020) we are now up to the seventh order. This order replaces the six orders that have gone before it. On average, each order has lasted about two days before being revoked and replaced. The first order was four-pages long— and the latest version of the order is now 14-pages long.

This is plainly not a stable or predictable regulatory environment.

Direction to stay at home

In what must be the most far-reaching legal instruction in NSW’s history, the Minister for Health, Brad Hazzard, has now directed every person within the state to remain in their residence. Someone can only leave their residence if he or she has a ‘reasonable excuse’.

The list of matters that may be a ‘reasonable excuse’ is not fully defined. It is open-ended. This gives some flexibility as to circumstances in which a person may need to reasonably leave their home in the context of the COVID-19 pandemic.

Nonetheless, the order does nominate some matters that would definitely be a ‘reasonable excuse’ for someone to leave their residence. These are as follows:

• Obtaining food or other goods/services for the personal needs of the household or other household purposes (including for pets) and for vulnerable persons.
• Travelling for the purposes of work, but only if the person cannot work from the person’s residence.
• Travelling for the purposes of attending childcare (including picking up or dropping another person at childcare).
• Travelling for the purposes of facilitating attendance at a school or other educational institution, but only if the student cannot learn from the student’s residence.
• Exercising.
• Obtaining medical care or supplies or fulfilling carer’s responsibilities.
• Attending a wedding or a funeral (provided the people gathered at those events do not exceed the numerical limits).
• Moving to a new residence, travelling between different places of residence (enjoyed by the same person), inspecting a potential new residence or moving a business to new premises.
• Providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance.
• Donating blood.
• Undertaking any legal obligations.
• Accessing public services (provided by government, a private provider or a non-government organisation), including:
  • social services, and
  • employment services, and
  • domestic violence services, and
  • mental health services, and
  • victims’ services.
• For children who do not live in the same household as their parents or siblings — continuing existing arrangements for access to, and contact between, parents and children or siblings.
• For a person who is a priest, minister of religion or member of a religious order— going to the person’s place of worship or providing pastoral care to another person.
• Avoiding injury or illness or to escape a risk of harm.
• For emergencies or compassionate reasons.

The order expressly says that taking a holiday in a regional area is not a reasonable excuse. That is, taking a holiday in a regional area is now a crime.

The direction to stay at a residence does not apply to the homeless.

Reasons for leaving home are still be subject to numerical limits on gathering numbers (see below). For example, exercise activity must be limited to two people, unless all the people involved in the activity are from the same household.

Gatherings limited to two people

Again, in what must be the most intrusive direction ever given by a government in the NSW’s history, the state government has also prohibited any person from participating in a gathering in a ‘public place’ of more than two persons.

A ‘public place’ is any place that is open to the public (or used by the public). It can be an indoor or outdoor area. It includes Sydney Harbour, lakes and estuaries and the ocean waters. It can include parks, footpaths, roads, vehicles or a vessels (that are open to, or used by, the public). A place may be ‘open to’ or ‘used by’ the public even if there is an entry fee.

There is a list of gatherings which are still permitted, even when more than two people are present. These are:

• a gathering for the purposes of work (this includes work done as a volunteer);
• a gathering of people who are all from the same household;
• a gathering for a wedding at which there are no more than five people present (including the person conducting the service);
• a gathering for a funeral service at which there are no more than 10 people present (including the person conducting the service);
• a gathering to facilitate a move to a new residence;
• a gathering to facilitate a move of a business to new premises;
• a gathering to provide care to a vulnerable person;
• a gathering to provide emergency assistance; and
• a gathering necessary for the person to fulfil a legal obligation.

Additionally, the pre-existing list of ‘essential gatherings’ has been kept with minor changes. Participating in an ‘essential gathering’ is also not subject to the two-person limit. The ‘essential gatherings’ are set out below:

• A gathering at an airport (that is necessary for its normal business).
• A gathering for transport purposes, including in vehicles or at stations, platforms or stops or other public transport facilities.
• A gathering at a hospital or other medical/health service facility (that is necessary for its normal business).
• A gathering for emergency services purposes.
• A gathering at a prison, correctional facility, youth justice centre, etc.
• A gathering at a disability or aged care facility (that is necessary for its normal business).
• A gathering at a court or tribunal.
• A gathering at Parliament (for its normal operations).
• A gathering at a:
  • supermarket;
  •  market that predominately sells food;
  • grocery store;
  • retail store; and
  • shopping centre,
    (that is necessary their normal business).
• A gathering at an office building, farm, factory, warehouse or mining or construction site (that is necessary their normal operation of the tenants).
• A gathering at a school, university or other educational institution or child care facility (that is necessary for their normal business) but does not include a school event that involves people other than staff and students.
• A gathering at a hotel, motel or other accommodation facility (that is necessary for their normal operation).
• A gathering at an outdoor space for the purposes of transiting through the place. An example is Pitt Street Mall. (This would also include a footpath, so long as people are using it to go somewhere.)

Bans on certain premises being open to the public

The previous bans on certain premises being open to the public have been carried forward into the new order. These bans are outlined in our previous articles (see links in the background section above). However, there are some new additions, namely:

• any outdoor playground equipment in a public place;
• any outdoor gymnasium equipment in a public place; and
• a skate park.

In practice, most (if not all) outdoor playgrounds and skate parks should have been closed on 26 March, as most would have been ‘community facilities’. However, some public authorities do not appear to have complied with the earlier order, so presumably the more explicit additions are to make things clearer.

Previous special exceptions for outdoor fitness classes and social sporting activity have been dropped.

More onerous obligations on the owners, occupiers and operators of premises

Individuals are now subject to the two-person gathering limit (see above). As result, there has been a re-styling of existing limits on gatherings of 100 more or more people (for certain indoor spaces), limits on gatherings of 500 or more people (for certain outdoor spaces) and having people in premises that do not allow for at least four-square-metres-per-person.

The above limits are no longer described as limits on ‘gatherings’. They instead operate as directions to the owners, occupiers or operators of ‘premises’ to prevent assemblies of people occurring.

This change seems to have been made because, within a given space, there may be scattered groups of two (or scattered household groups), but the government wants to ensure that the owner, occupier or operator of that space has an obligation to ensure that the these small gatherings, taken together, do not exceed certain overall numbers.

These overall numbers are as follows:

• for ‘premises’ that are an outdoor space — 500 or more people must not be allowed to enter or stay on the premises at the same time;
• for ‘premises’ that are an indoor space —100 or more people must not be allowed to enter or stay on the premises at the same time; and
• for all ‘premises’ (whether outdoor or indoor) — the number of people must be limited to ensure that there is at least four square metres of space for each person allowed on the premises.

‘Premises’ includes an occupancy/tenancy within a building, but also includes land, temporary structures, vehicles or vessels (noting exclusions for transportation).

Previously, the above numbers only applied to either:

• a single undivided outdoor space; or
• a single undivided indoor outdoor space.

The requirement that numbers of people only be totalled when a space is ‘undivided’ has been removed. This will probably have the most significance for an outdoor area, which is often divided by fences, structures and landscaping. Now, if that outdoor space comprises a single ‘premises’ the numerical caps will be calculated by reference to the whole space.

Most public parks, beaches, etc should probably have been closed as banned ‘community facilities’ under the order that took effect on 26 March. However, the extent that these places have not yet been closed by public authorities, these further restrictions would seem to make such closures unavoidable (unless arrangements are in place for rigorous monitoring and control of persons present).

The list of ‘essential gatherings’ that are exempt still applies (see earlier in this article for the list). The cap of four square metres of space for each person allowed on the premises also applies to non-food retail stores (even through they are on the ‘essential gatherings’ list).

Ministerial exemptions

The NSW Minister for Health retains the ability to provide exemptions (with or without conditions). These exemptions do not need to be made public.

Penalties for breaching the directions

It is a criminal offence under the Public Health Act 2010 for individuals or corporations to breach the above directions.

Government officials (including the police) have the discretion to decide whether to issue on-the-spot fines or prosecute alleged offenders directly in the courts. If a fine is issued it is:

• $1,000 for individuals; and
• $5,000 for corporations.

If a prosecution is launched in the courts, 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.

Directions in force for 90 days

The ban is in force for the maximum 90-day period permitted under NSW law (until 29 June 2020). However, this does not prevent a new order being made if the COVID-19 situation is continuing.