By Aaron Gadiel, Partner 

The NSW Government has today (23 March 2020) published an order preventing a wide range of service-providers from being open to the public.  The ban took effect only moments after the order’s formal publication, at midday today.

The ban is set out in the Public Health (COVID-19 Places of Social Gathering) Order 2020.  It applies in addition to (and not in replacement of) the Public Health (COVID-19 Gatherings) Order 2020 that was published on Saturday 21 March 2020 (see our article here for more on that order).

The order prevents the following service-providers from being open to the public at all:

• Entertainment facilities, that is, theatres, cinemas, music halls, concert halls, dance halls and the like.
• Indoor recreation facilities, that is, any place used predominantly for indoor recreation, including gyms, health studios, indoor swimming pools, squash courts, bowling alleys, ice rinks and the like.
• Amusement centres, that is, places used for playing games, billiards, pool and the like.

The following service-providers are prevented from being open to the public generally, with the exception of some specific services:

• Pubs and registered clubs — the exception is for selling take away food or drink and providing accommodation (and food or drink for consumption in accommodation rooms).
• Food and drink premises — the exception is, also, for selling take away food or drink and, where the premises are part of hotel or motel accommodation, the provision of food or drink for consumption in accommodation rooms.
• Casinos, the exception allows for the provision of accommodation and an associated in-room meal services.
• Micro-breweries or small distilleries, the exception allows for the provision of take away product.
• Places of public worship (eg churches, mosques, synagogues and temples), the exception allows for the conduct of weddings and funerals (although the separate ‘Gatherings’ order referred to above, limiting the number of people present, would still apply).

The ban does not prevent the operating activities that do not involve the premises being made open to the public.  For example, cleaning and maintenance, office administration, etc can continue uninterrupted.  In our view, staff of an organisation are not ‘members of the public’ (although the although the separate ‘Gatherings’ order referred to above, limiting the number of people present, would still apply to gatherings that are not otherwise exempt).

The NSW Minister for Health, Brad Hazzard, has the power to grant an exemption from the order, which may be subject to conditions.  There is no obligation to make the details of that exemption public.

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 21 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 service-providers to seek an independent merit review of the ban.  This would need to be dealt with by the NSW Civil and Administrative Tribunal.

The intent of this order is to suspend the social life of NSW to limit the spread of COVID-19.  It will have profound social and economic consequences.  Plainly our state’s leaders are deeply concerned and are prepared to take very strong steps to try and bring the situation under control.