I have previously commented on the rules concerning movement from home, gatherings in public places and opening of public premises which have been applied in Australia while we deal with the COVID-19 crisis. The NSW Minister for Health has just released the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (“RGM Order No 3”), which commences operation on Monday 1 June 2020 and repeals and replaces the previous orders. In this post I want to outline what the new rules will be in their effect on churches. (These comments will apply in similar ways to other religious groups, of course.)

The purpose of the Order, of course, is to continue contain the spread of COVID-19 in the community by limiting “up close” physical interactions, while loosening up the previous tight limits so far as this can be done safely. These limits have had a range of serious impacts on different sectors of the economy, but in particular have led to radical changes in the way that churches operate. Regular Sunday services have mostly been cancelled and often replaced by online video content, either “live-streamed” or pre-recorded or a mix of both. Small bible study and fellowship groups, or evangelistic or training course, have often moved to being conducted over Zoom or other video-conferencing options.

The latest Order will open up the possibility for more face-to-face meetings, but needs to be read carefully. There are also a number of issues that are not directly addressed in the Order itself, which it has been suggested will be covered by a “checklist” issued by the government (such as the question of whether congregational singing can resume in church services, as to which see this interesting discussion). It seems that so far these guidelines have not been formally drafted, but some hint for what they will contain can be gained from reported comments of the NSW Chief Medical Officer:

NSW Chief Health Officer Dr Kerry Chant said while people would be familiar with many general measures in the plan, others are more specific to places of worship.

“Places of worship will be asked to find alternatives to practices that might spread the virus like singing, sharing books and even passing around the collection plate to reduce infection risks,” Dr Chant said. 

“Communal singing and chanting should not occur because of the high risk of transmission of the virus. Instead, measures such as one singer standing at least three metres away from others would be safer.”

NSW Health Department website as of 29 May 2020

The RGM Order No 3

In broad terms, the latest Order now contains:

• Restrictions on gatherings and use of premises (Part 2)
• Requirements for keeping of records (Part 3).

Unlike the initial version of the Order, it no longer imposes formal restrictions on “movement”, in the sense that there is no longer any requirement that someone have a “reasonable excuse” for leaving their home. But it does restrict the circumstances in which persons can gather together, and it imposes limits on how premises can be used. In other words, even though people are free to leave home, there are still a number of limits on what they can do in the company of other persons once they have left home!

I will spell out these limits as they apply to common church and church-related activities.

1. Church services

One of the most obvious manifestations of the local church is the regular weekly gathering, most commonly on Sunday for Christian churches. The rules here have been eased up but the situation is still far from “normal”.

(a) Meeting in “church buildings”

One of the factors that becomes relevant is whether a church service is held in an official church building. The formal terminology used in the Order is “place of public worship”. This term is defined for the purposes of the Order (see the Note to cl 3(2)) as follows:

Place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

This definition is taken from the local planning provisions, so the intent seems to be that if something is classified as a “place of public worship” for town planning purposes, it will be so treated under the RGM Order No 3.

Under cl 5(1), limits on the use of premises are imposed, referring to specific limits for different types of premises set out in detail in Schedule 1. In Sched 1, column 1 lists the type of premises, column 2 the maximum number of persons who may be present, and column 3 any other conditions that are imposed on the use. Clause 5(1)(b) imposes an additional requirement which will be noted below, but as we will see it is not directly relevant to most church services.

“Places of public worship” are listed as item 18 in Schedule 1:

Column 1: Premises	Column 2: Limitation on number of persons on premises	Column 3: Restrictions or conditions
18. Places of public worship	For a wedding, funeral, memorial or religious service—as per clause 11(1). For private worship, the lesser of— (a) 50 persons, or (b) the total number of persons calculated by allowing 4 square metres of space for each person on the premises.	(a) may be open to the public only for a wedding, funeral, memorial or religious service or for private worship (b) for a wedding, funeral, memorial or religious service—as per clause 11(2)

This somewhat enigmatic content can, I think, be unpacked as follows:

1. For a traditional “church service” on a Sunday, or for a wedding, funeral, or “memorial” service, the limit on numbers is that contained in clause 11(1). While clause 11 imposes obligations on “participants” in religious gatherings, the intent seems to be that the numbers used there also apply to govern those who control the use of the premises.
2. For a Sunday service, cl 11(1)(c) imposes a maximum attendance of “50 persons, excluding the persons necessary for the conduct of, or assisting in the conduct of, the service”. (Depending on the religious tradition, this would seem to allow a minister, service leader, “servers”, music group, and “AV team” organising sound or visuals or video recording or live-streaming not to be counted as part of the 50.)
3. For a wedding, cl 11(1)(a) allows a maximum of 20 persons, but this applies also to a gathering immediately after a wedding service (presumably the “reception”), and excludes from the 20-person count—”(i) the persons being married, and (ii) the persons necessary for the conduct of, or assisting in the conduct of, the service or gathering, and (iii) one photographer and one videographer.”
4. For a funeral or memorial service, cl 11(1)(b) (which also applies to a “gathering immediately after”, so what some would call the “wake”) allows up to 50 persons, “excluding the persons necessary for the conduct of, or assisting in the conduct of, the service or gathering, including, for example—(i) the funeral celebrant or minister of religion, and (ii) the funeral directors”.
5. There is then what seems to be an odd category of “private worship“. This is not a term with a generally recognised legal meaning, as far as I can tell. However, I think in the context, where it is contrasted to some extent with “public worship”, that it may refer to the practice of allowing individuals to come into a church building and sit there quietly on their own while praying. The Order then recognises that a church building may be open for this purpose, but it imposes a numerical limit again on the number of such persons who may come into the building for this reason: the smaller of either 50 or “the total number of persons calculated by allowing 4 square metres of space for each person on the premises”.
6. In addition to these numerical limits, there are two conditions attached to the use of a place of public worship in column 3. Condition (a) states that, apart from the permitted use for weddings, funerals, religious services or private workshop, the premises must not be open to the public. Condition (b) is even more enigmatic at first glance, but its meaning seems to be: for a wedding, funeral, memorial or religious service, the record-keeping requirements of clause 11(2) must be observed. Under cl 11(2)(a) persons attending such events must “provide the person’s name and contact details, including a telephone number or email address, to the relevant person”, and that person must record these details. But lest it be thought that this is a move towards some oppressive regulation of church-goers, cl 12 notes that the information need only be kept for 4 weeks, and is only to be provided on request to the Chief Health Officer (for COVID-19 contact tracing).

To come back to cl 5(1)(b)- in addition to the limits in Sched 1, the clause says that there is a “condition that no person may be on the premises as part of an individual group of more than 10 persons”. But then immediately cl 5(2)(b) says that this provision does not apply to the sort of church services mentioned above, and all they have to do is to comply with the cl 11 limits. It seems that the purpose of cl 5(1)(b) is to prevent large “table groups” at cafes and restaurants, and it will not impact how many worshippers can sit on a pew.

Are there other constraints on church services in a church building, then? Sched 1 does not on its own terms impose a “4 square metre” (“4m2”) limit on churches, nor does it officially impose a “social distancing” limit of 1.5 meters between persons. While cl 8(1)(c) at first glance imposes a 4m2 limit on indoor gatherings, cl 8(2)(b) says that this limit does not apply to “premises referred to in Schedule 1, unless otherwise specified in that Schedule”.

So, while there may be guidance about this issue from the yet-to-be-released “checklist”, the formal legal situation is that this 4m2 limit does not apply to a church service in a church building. Those organising such services, however, will want to carefully consider any guidance and other medical advice about what are safe practices to follow in church services. And of course there would always be a danger of a civil damages claim of some sort in the future if a church did not follow government “best practice” advice and this led to someone acquiring COVID-19 and suffering harm.

(b) Church meetings in other premises

Many churches do not have their own dedicated premises, and so rent or use other public buildings. Putting to one side for the moment any condition that may be imposed by the owners of such buildings, what rules will apply to church services for those churches?

The limits on use of “places of public worship” in Sched 1 will not apply, but there are relevant rules which achieve a similar result.

1. Under cl 8, indoor premises must not be used by more than an absolute maximum of 100 persons at a time. In addition, the 4m2 rule will apply to church services not held in a “place of public worship”.
2. There is a general prohibition under cl 10 against “public gatherings” of more than 10 persons. But under cl 10(c) this prohibition does not apply to “participating in a gathering for a wedding, funeral, memorial or religious service, or a gathering immediately after a wedding, funeral or memorial service, at which no more than the number of persons permitted at the service or gathering under clause 11 are on the premises”. These limits, referred to above, are 50 persons for religious services (on top of those needed to conduct the service), 50 for funerals and 20 for weddings. Under cl 11(2) appropriate records of all those attending must be kept by the organisers. Clearly the lower 50-person limit will apply to church services, rather than the more generous 100-person upper limit under cl 8 noted above, on the legal principle that a more specific rule over-rides the more general.

To sum up, the rules that apply to churches meeting in rented premises are in effect the same as those that apply to those running services in “church buildings”, with the additional requirement that services in rented premises must comply with the 4m2 space rule. Just to be clear, however, this rule does not mean that every single person in the building must be seated in a 2m x 2m “bubble” apart from everyone else. The rule, in cl 8(1)(c), simply requires that “the size of the premises is insufficient to ensure there is 4 square metres of space for each person on the premises”. It is a rule about the overall size of the premises and the number of persons at the meeting; while it assumes that good faith efforts will be made to ensure social distancing, it does not impose the more onerous “bubble” rule.

2. Small groups

How do the rules apply to small bible study or other groups?

(a) Meeting in private homes

There is a specific clause of the Order, cl 7, which applies to “residential premises”. The primary rule is that only a maximum of 5 “visitors” may be allowed in private homes at the moment.

Interestingly this rule is waived in cl 7(2)(b)(v) to allow “participat[ion] in a gathering for a wedding or funeral or memorial service or a gathering immediately after the service at which no more than the number of persons permitted at the service or gathering under clause 11 are on the premises”. But this does not apply to “religious services” in general. So while one can have 20 people to a wedding in one’s house and a reception afterwards, or 50 to a morning tea after a funeral, the RGM Order No 3 will still not allow regular meetings in a private house for church services or bible study groups.

Still, there is some leeway in cl 7. There are exceptions for “child care” in cl 7(2)(b)(ii) and for someone present “for the purpose of engaging in work” under cl 7(2)(b)(i). If a group decided to meet in someone’s house they could arrange for child-care helpers to look after children while the group of 6 (host plus 5 group members) attended. If a church engaged someone as a part-time pastoral assistant or ministry apprentice (even voluntarily, as under cl 3(1) “work includes work done as a volunteer or for a charitable organisation”) they could come to the house and conduct a study group along with the residents of the house and 5 others. (This would also apply, clearly, to one of the full-time paid staff.)

But there is no general provision yet for a small group of 10, say, to regularly gather in a private home.

(b) Group meeting in another building

The rules may allow a small group to meet in a public building for bible study, but this is not certain.

Suppose a group of 11. Could this group meet in the “church building” if there is one? Under Sched 1 a “place of public worship” has to be closed except for the specified purposes. It may be that a small bible study group could be regarded as being engaged in a “religious service”. While this might not be the natural characterisation of the event, the term is not a “technical term”, and so it could be plausibly argued that a bible study group was such a service. Alternatively, it could be argued that when Sched 1 item 18 refers to “private worship”, it includes not just individuals quietly praying on their own, but a small group interacting with each other. This might be suggested by the fact that “private worship” is said to have a limit of 50 persons (or less under the 4m2 rule). The interesting difference between these two characterisations would be that if the bible study meeting in the church building was a “religious service”, then records would have to be kept of attendance under cl 11(2), whereas if it were regarded as “private worship” no such records would have to be kept.

Suppose the church does not have a formal church building, but rents other premises for mid-week activities? Then the 4m2 rule under cl 8(1)(c) would apply, and the gathering (if regarded as being “in public”) cannot be more than 10 persons, under cl 10(1). However, there is an exception here for someone “engaged in work” under cl 10(2)(a), so again a pastoral worker could lead the group and not have to be counted in the group of 10.

The “engaged in work” exception under cl 10(2)(a), incidentally, would seem to apply so as to allow those who gather to work mid-week to provide a video recording or live stream as part of church activities, not to be counted in the limit of 10 who can gather in public.

Conclusion

The varieties of church life and experience mean that there may be a number of situations not discussed here, and perhaps some where the Order will not be clear. But hopefully these comments on the major activities of church life will prove helpful.