By Aaron Gadiel, Partner

The  ever-widening COVID-19 bans on activity were taken to a new level last night (25 March 2020).  These new restrictions on commercial, non-profit and personal activity apply from today.  The NSW Government has published two new orders under public health legislation just hours before they came into effect at midnight.  Additionally, special legislation was rushed through state parliament this week giving the Planning Minister sweeping powers to approve pandemic-related development — with those powers being put to immediate use yesterday.  In a further measure, a new order has been published which could facilitate the compulsory mass housing of COVID-19 diagnosed persons away from their normal homes.

‘Gatherings’— general cap on numbers

In a rapid series of orders — commencing on 16 March 2020 — the government has progressively widened its bans on gatherings 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).  That third order has now been replaced by the latest (fourth) order, known as the Public Health (COVID-19 Gatherings) Order (No 2) 2020. Struggling to keep up?  Don’t worry, you are not alone.

The most recent directions on general gathering numbers have now been changed in two further material ways.

Firstly, the ban on gatherings of 100 or more people (in single undivided indoor spaces) or 500 or more people (in single undivided outdoor spaces) will now not apply to farms.  Farms were not previously excluded.  They are now.

Secondly, the rule capping those present to one-person-per-four-square-metres of available space will now apply to retail stores (other than supermarkets, food markets or grocery stores).  Previously such (non-food) retail stores were exempt.

‘Places of social gathering’

On 23 March 2020 the NSW Government supplemented the above numerical bans on gatherings, by also banning certain gatherings based on their land use.  This involved banning certain services from being open to the public (either outright or in particular respects).  Our article on that order is here.

After just two days, that order has now been revoked and its substance has been incorporated (with changes) into the new Public Health (COVID-19 Gatherings) Order (No 2) 2020 referred to above.

The material changes can be summarised as follows:

• While places of public worship (churches, etc) were not able to be open to the public, there was a general exception for weddings and funerals. This exception has been narrowed.  Weddings are now limited to no more than five persons.  That is, the two people getting married, two witnesses and the person conducting the service.  Funerals are limited to 10 people (the person conducting the service and nine others).
• Business premises that are spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours now also cannot be open to members of the public.
• Business premises that are barber shops or hairdressing salons cannot be open to members of the public, other than for the purposes of providing services to clients that last no more than 30 minutes per client per day.
• Business premises that are auction houses or betting agencies are now also prohibited from opening to the public.
• Markets that do not sell food are prohibited. (Markets are open-air areas, or within existing buildings, that are used for the purpose of selling goods by independent stall holders.)
• The ban on opening to the public has been extended to information and education facilities (including art galleries, museums, libraries and visitor information centres).
• Caravan parks and camping grounds for short stay visitors must now be closed to the public.
• Certain community facilities (run by not-for-profits or public authorities) that are used for the physical, social, cultural or intellectual development or welfare of the community cannot now be open to the public. This extends to buildings and places.  Read literally, this would appear to include local council owned/controlled places such as beaches and parks.
• Sex services premises (brothels) and strip clubs cannot be open to the public.
• Outdoor public swimming pools must be closed to members of the public (previously only indoor swimming pools were closed).

New extended ban on certain activities

The latest order now also identifies certain activities that are now prohibited:

• Conducting an open inspection for the purposes of the sale or lease of property (but it is still be possible to show a single party the property by appointment).
• Conducting an auction at which people attend in person (except a livestock auction conducted outside for food supply purposes, which is still permitted).
• Conducting or participating in a fitness class (including personal training or a boot camp) other than a class that is:
  • conducted outside; and
  • has no more than 10 persons participating (including the trainer).
• Participating in a social sporting activity, other than activity that:
  • takes place outside; and
  • has no more than 10 persons participating in the activity.
    (This ban applies to private organised social activities in the home, as well as activities organised elsewhere.)

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 bans

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

Yesterday (25 March 2020), the government also changed regulations to allow on-the-spot fines of:

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

This means that government officials (including the police) now have the discretion to decide whether to issue on-the-spot fines or prosecute alleged offenders directly in the courts.

The ban is in force for the maximum 90-day period permitted under NSW law (until 18 June 2020). However, this does not prevent a new order being made if the COVID-19 situation is continuing.

Appeal rights

The order giving effect to the bans has not been made using the state government’s emergency powers. This means that it is still possible for impacted people or businesses to seek an independent merit review of the bans (so long as there is no state of emergency). This would need to be dealt with by the NSW Civil and Administrative Tribunal.

New power for the Planning Minister to approve pandemic-related development

The NSW Parliament has passed — in just  one day — the COVID-19 Legislation Amendment (Emergency Measures) Act 2020.  The changes became law yesterday (25 March 2020).   The NSW Government immediately used the new powers to allow retail premises to trade and operate 24 hours-a-day.

The overall package of legislation amends a series of existing laws to allow NSW to better cope with the current pandemic. One of those laws is the Environmental Planning and Assessment Act 1979 (the EP&A Act).

New ‘COVID-19 pandemic’ provisions have been inserted into the EP&A Act.  The Minister for Planning (Rob Stokes) now has the power make an order that authorises development to be carried out on land without the need for any development consent, state significant infrastructure approval, etc.

An order under this provision can have a very broad reach.  The order is able to set aside any regulatory requirement, including other legislation, in order to ensure that the development may be carried out.  For example, heritage, biodiversity, water legislation could all be overridden, if necessary.

The order may be given conditionally. Going forward, the order has the status of a development consent, and its conditions are taken to be the conditions of a development consent.

The only express pre-conditions to the issue of the order are that:

• the Minister has consulted the Minister for Health; and
• the Minister is reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic.

An order can be issued only during the ‘prescribed period’.  This period is at least six months (from yesterday), but may be extended up to 12 months by the government.  Any extension beyond 12 months would require further legislation from the parliament.

Importantly, an order of this kind is not a general licence for the Minister to approve urban developments in the name of boosting the economy.  An order authorising development under this provision can only be made when the Planning Minister considers that the carrying of the development is necessary to protect the health, safety and welfare of the public during the pandemic.  This only allows for the approval of development that contributes to the health and safety of the public.  It does not allow for the approval of a development whose benefits would only be realised after the health crisis has passed.

‘Development’ is not just the carrying out work.  It also includes the use of land.  The first order that the Government has made (under these provisions) allows any retail premises that is the subject of development consent (and not otherwise prohibited by law or by an order under the Public Health Act) to trade/operate 24 hours a day. (This extended trading is a form of ‘development’.)

The new order builds on the Government’s amendment the exempt development code last week.  That change extended the 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 (details of that change are in our article here).

The new order allowing 24-hour trading/operation is subject to the following conditions:

• all conditions of the development consent must be satisfied — other than the conditions that restrict the hours of operation of the premises; and
• when operating outside of the normal hours, steps must be taken to reduce noise (the nature of such steps is left to the proponent to work out).

The order has also relaxed rules for the carrying out of home-based businesses and industries.

In due course, it is likely that these powers under the EP&A Act will be used to authorise new or temporary medical and health-related facilities necessary to respond to the pandemic.  For example, the state’s pandemic plan nominates schools, warehouses, convention centres, hotels or sports arenas as sites for potential overflow health facilities (see our 2 March 2020 article here). Ordinarily, a change of use for such premises would require development consent.  The new provisions allow this change of use (and any necessary works) to be authorised by a simple order.

Persons diagnosed with COVID-19 must now live where they are told to live

Yesterday (25 March 2020) the NSW Government published the Public Health (COVID-19 Self-Isolation) Order 2020.

This order allows a medical practitioner, a registered nurse or a paramedic to instruct a person who has been diagnosed with COVID-19 to live at a location determined by that medical practitioner, registered nurse or paramedic.  This location may not be the person’s normal home.  The person must live at that place until medically cleared.  No criteria are set out in the order setting out the circumstances when an infected person may be prevented from returning to his or her own home.

This order provides a means of detaining, on mass, persons who are diagnosed with COVID-19.  Unusually, the power of detention does not necessarily need to be at the instruction of a doctor.

Additionally, unlike the long-standing powers under the Public Health Act 2010 there is no need for a decision to be justified by reference to the way the infected person behaves.

Furthermore, this new order does not expressly require that consideration be given to the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health.  The conventional (long-standing) scheme for dealing with infected persons mandated consideration of this principle.

As there is currently no state of emergency in NSW there is a right to a merit review of such a decision in the Civil and Administrative Tribunal.  However, if a state of emergency is declared, and the order is re-made under emergency powers, that right of merit review ceases to exist.