The COVID Law Monitor project covers changes in legislation, directives and emergencies powers that affect civil liberties and freedoms of people in Australia across all jurisdictions. There have been significant changes in legislation and policy in other areas such as social security, taxation and economic management and industry, and while important, these changes fall out of scope of this project.


New and Amended New South Wales Laws 

 

Last update: 18 September 2020

This page has not been updated since the date listed above. We are currently focusing on monitoring COVID measures in Victoria due to the decrease in significant changes in other jurisdictions. 

Contents

1. Public Health Act 2010 (NSW)

1.1 Background

1.2 Orders under the Public Health Act 2010 (NSW)

1.3 Restrictions on Gathering and Movement

1.4 Penalties

2. COVID-19 Legislation Amendment Acts

2.1 COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020

2.2 COVID-19 Legislation Amendment (Emergency Measures—Treasurer) Act 2020

2.3 COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020

3. Crimes (Administration of Sentences) Act 1999 (NSW)

4. Environmental Planning and Assessment Act 1979 (NSW)

 


1. Public Health Act 2010 (NSW)

1.1 Background

The COVID-19 Legislation Amendment (Emergency Measures) Act No 1 2020 (NSW) amended the Public Health Act 2010 No 127 (NSW).

The power to make Directions is found under sections 7 and 8 of the Public Health Act 2010 (NSW), where the Minister considers on reasonable grounds that a Direction is necessary to deal with a public health risk, or where a state of emergency has been declared.  Directions are made by way of public health order.

The NSW amending legislation amends the Public Health Act 2010 (NSW) to the following effect:

- Public health orders of indefinite length may be made:  The amendments allow public health orders of any length to be made in relation to the COVID-19 pandemic generally, and additionally in relation to people who are at risk of contracting COVID-19.  Previously, a public health order would ordinarily expire at the end of 3 business days unless confirmed by the NSW Civil and Administrative Tribunal.

- Police may arrest persons who contravene COVID-19 public health orders without a warrant:  Police can arrest a person suspected on reasonable grounds to be contravening a COVID-19 related public health order.  Once arrested, the person may be returned to their home or usual residence, a place specified in the public health order, or their place of detention if the person is a public health detainee.  Previously, Police were required to obtain an arrest warrant after obtaining a certificate from an authorised medical practitioner confirming that the person was breaching a public health order. 

- Police may demand name and address of specified persons:  The Police may direct a person suspected of contravening a public health order or the Public Health Act 2010 (NSW), or a person who is apparently in charge of premises where such a contravention is occurring or evidently has occurred, to provide their full name and address.  Previously, only ‘authorised officers’ under the Act had such powers. 

The amendments are temporary, and will expire 12 months from commencement, on 25 March 2021. 

1.2 Orders under the Public Health Act 2010 (NSW)

The following relevant public health orders are in force:

Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020: The object of this Order is to revoke and remake the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 to ease certain restrictions. Please see section 1.3 Restrictions on Gathering and Movement below for more information on gathering restrictions in NSW.

Public Health (COVID-19 Self Isolation) Order (No 3): This order repeals the  Public Health (COVID-19 Self-Isolation) Order (No 2) 2020. Under this order, close contacts of persons diagnosed with COVID-19 must self-isolate for the period of time, not exceeding 14 days, as determined by an authorised contact tracer.

Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020: The object of this Order is to deal with the public health risk of COVID-19 and its possible consequences by giving a Ministerial direction that a person who arrives in New South Wales by aircraft and has been in a country other than Australia within 14 days before that arrival must undertake mandatory quarantine for a period of 14 days. The Order makes a different direction for the flight crew of aircraft allowing those persons to quarantine at their residence or accommodation before departing from New South Wales by aircraft.

Public Health (COVID-19 Maritime Quarantine) Order (No 2) 2020: The object of this Order is to deal with the public health risk of COVID-19 and its possible consequences by giving a Ministerial direction that a person who arrives in New South Wales by maritime vessel must undertake mandatory quarantine for a period of 14 days.

Public Health (COVID-19 Aged Care Facilities) Order (No 3) 2020: This order prohibits a person entering or remaining on the premises of residential aged care facilities unless they are a specified person, such as employees or contractors of the facility or is providing a medical or personal care service. Specified persons may enter a facility for prescribed purposes only, such as providing health or pharmaceutical services.

Public Health (COVID-19 Lord Howe Island) Order 2020: which restricts access to Lord Howe Island to residents of the Island and persons required to enter the Island to provide or support the provision of health services and other essential services to the Island. Non-residents leaving the Island and aircraft and ship personnel are exempt from this Order. Any person that arrives on the Island must travel straight to premises suitable for them to quarantine in. Note that this Order is set to be repealed on 18 June 2020. 

Public Health Amendment (COVID-19 Spitting and Coughing) Regulation (No 2) 2020: The object of this Regulation is to allow for the issue of penalty notices for an offence against section 10 of the Public Health Act 2010 involving a contravention of a Ministerial direction under the Public Health (COVID-19 Spitting and Coughing) Order (No 2) 2020 about intentionally spitting or coughing on a public official or other worker in a way that is likely to cause fear about the spread of COVID-19.

Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment (Real Estate) Order 2020: The amendment order amends the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 to enable persons to gather at premises that is real property to view or inspect the premises for the purposes of the sale or lease of the premises; to enable persons to gather at display homes or display premises to view or inspect the display homes or display premises for the purposes of the sale or lease of real property; to enable persons to gather at premises for the purposes of conducting an auction of real property, and to provide that it is a reasonable excuse for a person to leave the person’s place of residence to inspect a potential new place of business, a potential investment property, a display home or other display premises or attend an auction of real property.

Public Health (COVID-19 Interstate Hotspots) Order 2020: This order came into force on 2 July. The object of this Order is to deal with the public health risk of COVID-19 and its possible consequences by giving a number of Ministerial directions in respect of persons who have been in certain COVID-19 hotspots in Victoria within the previous 14 days. Such persons must, immediately on entering NSW, travel directly to their place of residence or another place that is suitable for the person to reside in. They must remain there until 14 days have passed since they were in a COVID-19 hotspot. The order does not apply to a person who transits through a hotspot by road or rail, provided the person does not exit the vehicle or train they’re travelling in while in the hotspot. The list was further amended on 6 July 2020 to add a list of local government areas to schedule 1 (COVID-19 hotspots) rather than postcodes (as in previous direction).

Public Health (COVID-19 Border Control) Order 2020: The object of this Order is to restrict entry into New South Wales of persons who have been in Victoria within the previous 14 days before entry. Section 10 of the Public Health Act 2010 creates an offence if an individual fails to comply with a direction with a maximum penalty of imprisonment for 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply with a direction are liable to a fine of $55,000 and $27,500 each day the offence continues. The Public Health Regulation 2012 also enables authorised officers to issue penalty notices for offences against clause 6 by individuals for an amount of $4,000 and $1,000 in other cases. The order includes the category of persons who have authority to enter NSW, requirement for relevant COVID-19 Safety plans and to allow NSW residents to use the critical service (agriculture) entry permit to travel to Victoria to provide agricultural services under certain conditions.

Exemption - Remote Communities to the Public Health (COVID-19 Border Control) Order 2020: allows persons living in or near selected Remote Communities to cross the border in order to obtain essential services. The current list of communities and conditions is outlined in the exemption order.

Exemption - Students and Teaching Staff who Live Outside the Border Zone to the Public Health (COVID-19 Border Control) Order 2020: allows students enrolled in year 11 and 12 and the staff who teach them to travel in order to attend school, both ways across the NSW / Victoria border. The exemption is only valid if they have not been in a restricted area or another area of concern in Victoria within the previous 14 days.

Public Health (COVID-19 Border Control) Amendment (Ongoing Medical Services) Order 2020: This object of this order is to allow people who are a NSW resident to return after entering Victoria for medical or hospital services except in emergency situation, where:a medical practitioner has certified that the medical or hospital services are necessary to treat or maintain the person’s health; the service is not available locally and cannot be accessed remotely; the person must travel by the most practicable direct route; and the person must self-isolate if the person has, within the previous 14 days, been in an area that is a restricted area in accordance with an Area Direction made under the Public Health and Wellbeing Act 2008 of Victoria.

1.3 Restrictions on Gathering and Movement

1.3.1  Background

The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 is made under section 7 of the Public Health Act 2010 (NSW). The order eases certain restrictions. 

Employers must allow employees to work from home if it is reasonably practicable to do so.

The occupiers of premises listed in Schedule 1 must develop and comply with a COVID-19 Safety Plan.  Schedule 1 premises include amusement centres, aquariums, auction houses, betting agencies, caravan parks and camping grounds, nail salons, beauty salons, waxing salons, tanning salons, spas, tattoo parlours, massage parlours, casinos, community centres, drive-in cinemas, entertainment facilities, food and drink premises, food courts, function centres, information and education facilities, markets, micro-breweries, places of public worship, public swimming pools, pubs, small bars and registered clubs, indoor recreation facilities, major recreation facilities, strip clubs, brothels, vessels used for commercial animal watching tours, snorkelling and scuba diving, and zoos. 

Premises may not be used for the purpose of a nightclub or music festival.

1.3.2 Significant Events

The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 creates specific requirements for venues that host significant events. A significant event means any: 

- corporate events;

- funerals and memorial services;

- wedding services; and

- gatherings following a funeral and memorial, or wedding service. 

All venues hosting any significant event must ensure that no individual booking or reservation for a group exceeds more than 10 persons, there is a COVID-10 Safety Hygiene Marshal, and that there is enough space in the premises to ensure the equivalent of one person per 4 square meters of space. 

In addition to the above requirements, there are also maximum limits on the total number of attendees. On 11 September 2020, these limits were relaxed to: 

- 150 persons for a corporate event;

- 100 persons for a funeral or memorial service or gathering following a funeral or memorial service;

- 100 persons for a religious service; and

- 150 persons for a wedding service or a gathering following a wedding service. 

A venue is allowed to take future bookings for events that exceed the allowable number limit in this Order, but needs to comply with all up to date restrictions at the time of the scheduled event. 

1.3.3 Household visitors

Households are allowed no more than 20 visitors at any one time. This does not apply to a household that is hosting a wedding, funeral or memorial service or a gathering immediately after a wedding, funeral or memorial service.

A person is not counted as a ‘visitor’ for this purpose if they are a member of the household/residence visited, or if they attend the house for the following purposes: 

- to engage in work,

- for childcare,

- to fulfil carers’ responsibilities,

- to provide care or assistance, including personal care, to a vulnerable person,

- to give effect to new or existing arrangements for spending time with, and providing contact between, parents and children under the age of 18 or between siblings,

- to assist a person moving to or from the place of residence,

- to avoid an injury or illness or to escape a risk of harm,

- because of an emergency or for compassionate reasons,

- to view or inspect real property for sale or lease or participate in an auction of real property.

1.3.4  Outdoor public gatherings

This Order affirms the rule that  people are allowed to participate in gatherings of no more than 20 in public places. As an exceptions to this, the order does not apply to:

- a person who is:

- engaged in work, or 

- providing care or assistance to vulnerable persons;  or 

- the following:

- a gathering on premises in Schedule 1, which are required to register a COVID-19 Safety Plan (includes corporate events, beauty salons, food and drink premises, gyms, markets, places of public worship, function centres, and centres providing significant event services);

- a gathering of persons who are all from the same household, 

- a gathering for a wedding, a funeral, a memorial service or a religious service or a gathering immediately after a wedding, a funeral, a memorial service or a religious service, 

- a gathering to move to a new place of residence or a business moving to new premises,

- a gathering to provide emergency assistance to a person or persons,

- a gathering necessary to allow a person to fulfil a legal obligation, 

- a gathering of persons on real property to enable persons to view or inspect the real property for the purposes of the sale or lease of that property, 

- a gathering of persons at a display home or other display premises to enable persons to view or inspect the display home or display premises for the purpose of the sale or lease of real property.

1.4 Penalties

Under the Public Health Act 2010 (NSW), for breaching a Ministerial Direction or public health order:

- an individual is liable if found guilty for a maximum penalty of imprisonment for 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine for each day the offence continues; and

- a corporation is liable to a fine of $55,000 and $27,500 for each day the offence continues.


2. COVID-19 Legislation Amendment Acts

2.1 COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020

The COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 Act amends a broad range of legislation to implement further emergency measures as a result of the COVID-19 pandemic.

2.2 COVID-19 Legislation Amendment (Emergency Measures—Treasurer) Act 2020

The COVID-19 Legislation Amendment (Emergency Measures - Treasurer) Act 2020 amends legislation administered by the Treasurer to implement further emergency measures as a result of the COVID-19 pandemic.

2.3 COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020

The COVID -19 Legislation Amendment (Emergency Measures - Attorney General) Act 2020 amends a number of Acts administered by the Attorney General to implement further emergency measures as a result of the COVID-19 pandemic.

 

3. Crimes (Administration of Sentences) Act 1999 (NSW)

New regulations have been introduced in response to COVID-19:

Crimes (Administration of Sentences) Amendment (COVID-19) Regulation 2020: which amends the Amendment of Crimes (Administration of Sentences) Regulation 2014 to allow inmates who are deemed as having a higher health risk (due to an existing medical condition or vulnerability) or whose earliest possible release date is within 12 months to be eligible for release on parole by the Commissioner. 

 

4. Environmental Planning and Assessment Act 1979 (NSW)

New regulations have been introduced in response to COVID-19:

Environmental Planning and Assessment (COVID-19 Development - Health Services Facilities) Order 2020: which directs that designated buildings or places can be used as health service premises. Also allows for health services facilities currently under construction to be completed sooner.

 


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