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: 16 May 2020

Contents

1. Public Health Act 2010 (NSW)

1.1 Background

1.2 Orders under the Public Health Act 2010 (NSW)

1.3 Freedom of Assembly and the ten person rule

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. 2 2020, which directs that:

- Employers must allow employees to work at home where it is reasonably practicable to do so;

- Persons may participate in gatherings of not more than 10 persons in public places (Rather than 2 persons);

- Weddings can have 10 persons attend;

- Indoor funerals and memorial services can have 20 persons attend; Outdoor funerals and memorial services can have 30 persons attend;

- Religious services can have 10 persons attend; and

- Cafes, restaurants, pubs and registered clubs can have 10 people consume food and drink on the premises. 

- It is now considered a ‘reasonable excuse’ to visit another person’s place of residence for the purpose of providing care or support to the person whose residence is being visited (including for the mental, physical or emotional health or wellbeing of the person). 

Public Health (COVID-19 Self-Isolation) Order 2020which directs that a person diagnosed with COVID-19 must immediately travel to a hospital or residence or other place determined to be suitable by a designated health practitioner.  The diagnosed person must, except in specified circumstances (such as an emergency), remain at the residence or place and not permit any other person to enter the residence until the diagnosed person is medically cleared.  Any other person who lives at the residence may enter the residence. 

Public Health (COVID-19 Air Transportation Quarantine) Order 2020which directs that a person who arrives in NSW by aircraft from a country other than Australia must immediately undertake mandatory quarantine for a period of 14 days in a designated quarantine facility or medical facility.  The order does not apply to flight crew of aircraft.  No one must enter a quarantine facility or a part of a medical facility unless the person is a police officer, entering at the direction of a police officer, providing medical treatment, entering because of an emergency, or carrying out necessary functions for the operation of the facility.  

Public Health (COVID-19 Maritime Quarantine) Order 2020:  which directs that a person who arrives in NSW on a vessel originating from a port outside of NSW must not disembark unless authorised by the Commissioner of Police or unless required because of an emergency. Once authorisation is provided, that person must then disembark and go directly to a quarantine facility or a hospital or other medical facility.  Certain persons (such as dock workers and border security personnel) are exempt from this order. 

Public Health (COVID-19 Residential Aged Care Facilities) Order 2020:  which directs that a person cannot enter a residential aged care facility, except for specified persons such as employees or contractors of the facility. Specified persons may enter a facility for prescribed purposes only, such as providing health or pharmaceutical services.  Additionally, those specified persons (such as employees and contractors) are directed to not enter a residential aged care facility in certain circumstances, such as if they have been exposed to COVID-19, are within the 14 day quarantine period, or if the person has a temperature of higher than 37.5 degrees celsius. These specified persons must also have an up-to-date influenza vaccination. No one aged under 16 years can enter these facilities, other than for the purposes of providing end-of-life support for a resident of the facility. 

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 (COVID-19 Spitting and Coughing) Order 2020: which directs that a person must not intentionally spit at or cough on any public official or another specified worker (including retail workers and those working in a transport-related industry) in a way that is reasonably 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.

1.3 Freedom of Assembly and the ten person rule 

1.3.1  Background

The ‘ten person’ rule is implemented in New South Wales via the ‘Public Health (COVID-19 Restrictions on Gathering and Movement) Order No. 2 2020’ made under section 7 of the Public Health Act 2010 (NSW).

This order revokes and remakes the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (which imposed a two person rule) to ease certain restrictions.

In particular, this Order makes changes to allow persons to participate in gatherings of 10 in public places.The order allows for:

- Ten people in attendance at a wedding; 

- Twenty people in at an indoor funeral or memorial service;

- Thirty people at an outdoor funeral or memorial service;

- Ten people at a religious service; 

- Ten people at cafes, restaurants, pubs and registered club to consume food and drinks on the premises, provided there is 4 square metres of space for each person on the premises; and

- Ten people at outdoor public swimming pools.

Under this order, outdoor public swimming pools, outdoor playground equipment and outdoor gymnasium equipment can re-open.

The prohibition on taking holidays in regional areas of NSW remains until 1 June 2020. 

Under the order, households may have 5 visitors. 

1.3.2  Exceptions

Under the order, the 10 person gathering rule does not apply to:

- a gathering for the purposes of work;

- truck drivers and their passengers to use facilities at truck stops; 

- essential gatherings referred to in Schedule 1 (such as a gathering in an airport necessary for the normal business of the airport) or a gathering at a court or tribunal;

- a gathering for persons all of whom are members of the same household;

- to provide care or assistance to a vulnerable person;

- to provide emergency assistance;

- to move to a new place of residence (including a business moving to a new premises); and

- to fulfil a legal obligation (such as attending court or satisfying bail requirements).

Amendments commencing on 14 May 2020 under the Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order (No 2) 2020 allow 5 visitors to enter or stay in a place of residence. 

- a person is not counted as a ‘visitor’ for this purpose if they are a member of the household/residence visited, if they are under the age of 18 and a child of a visitor, or the person has another reasonable excuse to be present; and

- ‘providing care or support’ includes providing care or support for the mental, physical or emotional health or wellbeing of another person.

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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For people who have an experience with the policing of covid measures you would like to report you can do so at this website: covidpolicing.org.au. You can find suggestions for legal support here