New NSW laws prohibit leaving a place of residence, and limit public gatherings of more than 2 persons: an explainer

This post has been updated to include a discussion of what is a “vulnerable person” (31 March 2020 7:50am)

On Sunday evening the Prime Minister announced further restrictions on social gatherings, limiting them to two persons, or to the members of a household. It was up to the individual states and territories whether or not these restrictions would be merely advisory, or whether they would be made mandatory by government regulation. At a press conference on Monday morning, the Premier of NSW announced that these restrictions would be mandatory in NSW from midnight tonight.

The NSW Government Gazette has just (ie at around 11pm) published the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, the effect of which is described below.

Definitions

Firstly, some important definitions:

  • household means any persons living together in the same place of residence.
  • indoor space means an area, room or other premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of the roof or walls are permanent or temporary, or open or closed. NB “Premises” is defined by section 5 of the Public Health Act 2010 (NSW) to include any land, temporary structure, vehicle or vessel.
  • parent, in relation to a child, includes a person who is not a parent of the child, butwho has parental responsibility for, or who has care of, the child.
  • place of residence includes the premises where a person lives together with any garden, yard, passage, stairs, garage, outhouse or other area or thing attached to, or used in connection with, the premises.
  • public place, regrettably for an instrument that is supposed to tell people what they can and can’t do, is defined by reference to the Summary Offences Act 1988. It means a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.
  • work includes work done as a volunteer or for a charitable organisation.

Many of the exemptions from the general prohibitions in this Order depend upon whether or not a person is a “vulnerable person”. None of the Order, the Public Health Act 2010, or the Interpretation Act 1987 contains a definition of “vulnerable person”, or even the word “vulnerable”. The various Acts of Parliament and Regulations made in NSW that use “vulnerable person” define that concept differently. Most, but not all, include children and minors. Thry all include people with cognitive impairment. Some, but not all, include people with physical impairments, from ATSI backgrounds, and some icnlude people from non-English speaking backgrounds. Only one includes advanced age. It is again regrettable that such an important concept is left undefined, and therefore left in the hands of NSW Police to determine in the way they enforce the laws, at least in the first instance.

The term “vulnerable person” falls to be construed having regard to the ordinary meaning of the term having regard to the context in and purpose for which it is used. Having regard to the current health advice, one would think that it obviously includes persons over the age of 70, persons over 60 years of age who have existing health conditions or comorbidities, and Indigenous Australians over the age of 50 who have existing health conditions or comorbidities. The extent to which it extends byond those categories is uncertain. There are sound reasons to think that it ought extend to those in the community who may not be aware of or understand important public health information, such as those with cognitive impairment or language difficulties.

The basic prohibition on leaving one’s place of residence

The Order commences with the basic prohibition: a person must not, without reasonable excuse, leave the person’s place of residence.

This prohibition does not apply to a homeless person.

What are reasonable excuses?

There is a long list of things contained in Schedule 1 to the Order that are deemed to constitute a “reasonable excuse”. I have set out the full text of Schedule 1 at the end of this post, but they include: 

  • obtaining food or other goods or services for the personal needs of the household or other household purposes (including for pets) and for vulnerable persons
  • travelling for the purposes of work if the person cannot work from the person’s place of residence
  • travelling for the purposes of attending childcare (including picking up or dropping another person at childcare)
  • travelling for the purposes of facilitating attendance at a school or other educational institution if the person attending the school or institution cannot learn from the person’s place of residence
  • exercising
  • obtaining medical care or supplies or health supplies or fulfilling carer’s responsibilities
  • providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance
  • donating blood
  • accessing public services (whether provided by Government, a private provider or a non-Government organisation)
  • for children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings.

You can still attend a wedding or a funeral (subject to the limits of 5 persons at a wedding and 10 persons at a funeral).

Importantly (or so the draftsperson seemed to think) taking a holiday in a regional area is not a reasonable excuse for leaving a place of residence. It is not entirely clear whether or not taking a holiday in an urban are would be a reasonable excuse, but it would seem doubtful.

Gatherings of 2 or more persons

Where a person is allowed to leave their place of residence (ie because they have a reaosnable excuse to do so, as discussed above), they “must not participate in a gathering in a public place of more than 2 persons.”

This does not prohibit larger gatherings in a private residence, although attendance at such a gathering might involve a contravention of the prohibition on leaving a place of residence (for example, attending a party at someone else’s residence).

There are exceptions to this prohibition as well.

Importantly, the prohibition on gatherings in public places of more than 2 persons does not include a gathering of persons who are all members of the same household. So members of the same household can still go shopping or exercise without breaching this particular prohibition.

Expressly allowed are the following gatherings:

  • a gathering of persons for the purposes of work,
  • a gathering of persons all of whom are members of the same household,
  • a gathering for a wedding at which there are no more than 5 persons (including the person conducting the service),
  • a gathering for a funeral service at which there are no more than 10 persons (including the person conducting the service),
  • a gathering to facilitate a move to a new place of residence (including a business moving to new premises),
  • a gathering to provide care or assistance to a vulnerable person,
  • a gathering to provide emergency assistance,
  • a gathering necessary for the person to fulfil a legal obligation (including attending a court or tribunal, satisfying bail requirements or participating in legal proceedings).

There is also a long list of what are described as “essential gatherings” set out in schedule 2 which essentially replicates the earlier exemptions from the previous gatherings prohibitions enacted by the Government, and to some extent overlaps with the earlier list of allowed gatherings:

  • gatherings for the purposes of transportation (so one can still drive a car or catch a bus, train or ferry);
  • gatherings at a hospital or other health facility (NB there is another Order made under the Public Health Act that limits visitation to aged care facilities);
  • a gathering at a supermarket, food market, grocery store or shopping centre (but only a supermarket, food market or grocery store within that shopping centre);
  • a gathering at a retail store (which must comply with the one person for every 4 square metres restriction);
  • gatherings at a workplace, school, university, educational institution or child care facility;
  • a gathering at a hotel, motel or accommodation facility;
  • a gathering at an outdoor space where 500 or more persons may be present for the purposes of transiting through the place (the example given is Pitt Street Mall, although Martin Place would perhaps be a better example).

Other gatherings and closures

Finally, the Order re-enacts the earlier prohibitions on mass gatherings and closures of premises in substatially the same terms.

DV

Schedule 1 Reasonable excuses

  1. obtaining food or other goods or services for the personal needs of the household orother household purposes (including for pets) and for vulnerable persons
  2. travelling for the purposes of work if the person cannot work from the person’s place of residence
  3. travelling for the purposes of attending childcare (including picking up or dropping another person at childcare)
  4. travelling for the purposes of facilitating attendance at a school or other educational institution if the person attending the school or institution cannot learn from the person’s place of residence
  5. exercising
  6. obtaining medical care or supplies or health supplies or fulfilling carer’sresponsibilities
  7. attending a wedding or a funeral in the circumstances referred to in clause 6(2)(d) and (e) or 7(1)(h)
  8. moving to a new place of residence (including a business moving to new premises) or between different places of residence of the person or inspecting a potential new place of residence
  9. providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance
  10. donating blood
  11. undertaking any legal obligations
  12. accessing public services (whether provided by Government, a private provider or a non-Government organisation), including—
    •  social services, and
    •  employment services, and
    • domestic violence services, and
    •  mental health services, and
    • services provided to victims (including as victims of crime)
  13.  for children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings
  14.  for a person who is a priest, minister of religion or member of a religious order— going to the person’s place of worship or providing pastoral care to another person
  15. avoiding injury or illness or to escape a risk of harm
  16.  for emergencies or compassionate reasons

One thought on “New NSW laws prohibit leaving a place of residence, and limit public gatherings of more than 2 persons: an explainer

  1. I’m fairly well versed at reading and interpreting legislation (but I’m not a lawyer) and I’m still confused about 2 things; firstly, what is a place of residence? Is my partner’s journey home from my apartment considered travelling between 2 places of residence? These rules came in at 11pm and there was no time to plan. Does the necessity to go home to look after cats, who are fine for a night but not long term, make the journey less contentious than it being between 2 places of residence? I know there’s no right answer to this.

    My next knowledge-gap is around what constitutes a ‘holiday’ in a regional area. If somebody has an apartment in the city and a coastal house, where is the line between 2 places of residence and a holiday? If the person is working from home, is it suddenly a lot less holiday-like?

    These rules are so worryingly discretionary. Not a problem in many cases I’m sure, but where police can issue $11,000 fines or 6 months in prison, it’s a bit concerning. I trust the police are well trained, but they’re human too – I once received a fine and points for not fully stopping at a stop line when I was avoiding getting in an ambulance’s way. I got over it, but how do we avoid that lack of critical thinking turning in to 6 months in prison and the life-shattering effect that history might have?

    Like

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