This is a brief update to my previous post on recently announced changes to restrictions on gathering and movement in NSW (now, in fact, dealing with “gatherings” rather than movement) as they affect churches. The NSW Government has now (as of 31 May) put up online guidance on how “Places of Worship” should be managed. This contains a link to what is called a “COVID-19 Safety Plan” for churches.

While the guidance is generally very helpful, there are unfortunately some inconsistencies between the linked guidance and the formal provisions of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (“RGM Order No 3”). It is this order that provides legally binding obligations on NSW citizens, being an order of the Minister for Health and Medical Research, made under section 7 of the Public Health Act 2010 (NSW), breach of which amounts to a criminal offence under s 10 of that Act.

There are two inconsistencies. The first is that the linked guidance on “Places of Worship” asserts, under the heading “Physical Distancing”, that

The assertion that the “one person per 4 square metres” rule applies to all religious services conducted in a place of public worship is incorrect. As noted in my previous post, this “4m2” limit is imposed where there are a number of “private worshippers” in a church building, but Sched 1, item 18 does not impose the rule on other uses of a place of public worship. As noted previously:

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”.

The second inconsistency is that the recently published “guidance” asserts in general terms that: “Under Public Health Orders, you must have a COVID-19 Safety Plan for how you will keep staff, volunteers and visitors safe”, and links to such a form. But a moment’s examination of the RGM Order No 3 will show that, while other activities are required in Schedule 1 to provide a “COVID-19 safety plan” (such as “aquariums” in item 2), no such requirement is imposed on “places of public worship” under item 18. Clause 5(3) only imposes the obligation to prepare and hold such a plan if that obligation is spelled out in a “condition” in Schedule 1. There is no such condition attached to places of public worship.

Let me be clear. The suggestions made in the guidance are not unreasonable. But they should be seen for what they are, suggestions, and not be presented as legal obligations incurring a criminal penalty, which they are not. If the “rule of law” in our community means anything, it means that public servants cannot impose legal obligations on citizens without using the formal processes our society has put in place for such.

How should churches respond? That is a matter for consideration for each congregation. Some might take the view that, since it seems these additional requirements are desired by public servants, and since the law in this area can be changed by the Minister for Health issuing an amendment to his Public Health Order at short notice, it may be best to comply with these elements of the guidance even if they are not part of the law. But others may hold off unless and until the law is actually changed.