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Contents
1. Public Health Act 2010 (NSW)
1.1 Background
1.2 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 7) 2020: This order contains directions on gatherings, and the number of persons allowed on non-residential and residential premises. The Order requires certain premises and events to have a COVID-19 safety plan that addresses the matters in a checklist approved by the Chief Health Officer. Generally, the number of people allowed on premises will be determined by the ‘one person per 2 square metre rule’ once more than 25 people are on the premises. Gyms and nightclubs must ensure there is at least 4 square metres of space for each person on the premises. The Order lists gatherings that are exempt from the 2 square metre rule.As of 7 December, the following restrictions have changed:
- There will no longer be an upper limit on the number of people at corporate events, weddings, funerals, religious services. Premises must comply with the ‘one person per 2 square metre rule’ and have an appropriate COVID-19 safety plan.
- The prohibition on nightclubs and music festivals has been removed.
- Indoor dance floors will be limited to 50 people while outdoor dance floors will be limited to 500 people.
- There are requirements for gyms, nightclubs and hospitality venues to have COVID-19 safety marshals.
- The maximum number of visitors allowed at residential premises is 50, though NSW Health recommends that there is no more than 30 if the residence does not have any outdoor space. The visitor limit does not apply to weddings, funerals, memorial services (or a gathering after a wedding or funeral or memorial service) or a gathering for an auction or viewing of the property.
- The limit on people at holiday homes or short-term rentals is no more than 50 people.
- Outdoor public gatherings are restricted to 100 people, subject to a number of exceptions including:
- up to 3,000 people (subject to 1 person per 2 square metres) can gather for community sport, outdoor performances and rehearsals, and outdoor protests.
- controlled outdoor community events (i.e. enclosed/fenced, tickets and seated) can have up to 3,000 people where people are allocated to a seated area, or 5,000 people with people allocated to specific seats.
- regional agricultural shows and field days have no upper limit of people allowed on the premises, but are restricted to 1 person per 2 square metres.
The Order commenced on 7 December 2020.
Public Health (COVID-19 Self Isolation) Order (No 4): Under this Order, a person diagnosed with COVID-19 must self-isolate in their residence and comply with the self isolation guidelines. They must notify the authorised contact tracer of the place they will be self-isolating and a phone number. Furthermore, a person who has been identified, by an authorised contract tracer, as a close contact of a COVID-19 case must self-isolate for the period of time determined by the authorised contact tracer (being no more than 14 days) at their residence or other suitable premises; notify the authorised contact tracer of the place the person will be self-isolating and a phone number; and comply with the NSW Health self-isolation guidelines for close contacts.
Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 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 or New Zealand 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 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 Spitting and Coughing) Order (No 3) 2020: This order, commencing 25 September 2020 directs that a person must not intentionally spit at or cough on public officials or other workers in a way that is reasonably likely to cause fear about the spread of COVID-19.
Public Health (COVID-19 Border Control – South Australia) Order 2020: This order commenced at 12.01am 19 November following recent community transmission of COVID-19 in South Australia. The order applies to people entering NSW who have been in South Australia in the last 14 days. An affected person will not be able to enter NSW if they have been in a COVID-19 area of concern, unless they are: a NSW resident (if they are a NSW resident who has been in an area of concern, the Public Health (COVID-19 Self-Isolation) Order (No 4) 2020 is taken to apply and they will need to self-isolate) or transiting through NSW (in which case, the person must travel directly out of NSW).
1.2 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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