Churches and COVID-19 in NSW- PHO No 4 released

Following earlier announcements by the Premier of NSW, the rules regarding public gatherings in the State have been amended with effect from 1 July 2020, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (“PHO No 4”). This post comments on matters that relate to churches and other religious bodies. For my previous post on the rules under PHO No 3, see here.

Limits on public gatherings for religious services, weddings and funerals have now been changed. Limits on the use of premises are also affected.


Under cl 8(1) the headline rule is that occupiers of premises allowing indoor meetings must comply with the “sufficient space for one person per 4 square metres” rule (the “4m2 rule”). This removes the artificial limit of 50 persons under the previous form of the PHO. Exceptions to the rule apply to

  • residential premises: where the previous rule of “maximum of 20 visitors” still applies under cl 11(1)- subject to exceptions for those “at work” (which would include pastoral staff) and those engaged in childcare
  • funerals and memorial services receive special treatment under cl 9- even if the 4m2 rule would mean that church buildings or funeral parlours etc could not take 50, they are allowed to have up to 50 persons.

However, there is now a new rule about how to calculate the number of persons allowed, in clause 4.

4 Interpretation generally

(1) In calculating both the space available for each person on any premises and the number of persons on the premises, the following persons are not to be included in any calculations— (a) any person engaged in work on the premises…

(2) In calculating the space available for each person on any premises the following areas are to be included in the calculations— (a) if the size of the premises is not more than 200 square metres of floor space, the entire premises; (b) if the size of the premises is more than 200 square metres of floor space, only those areas that are open to the public

Presumably (as a rough and ready example), if a church is 160 sq m, they may have up to 40 persons; but if a church is, say, 600 sq m, they will have to exclude from their calculations store-rooms or office space not accessible by the public (say, 40 sq m) so they will only be able to have 560/4= 140 persons, not the 150 they would have had if they could count the whole floor space.


Schedule 1, item 17 now makes it clear that occupiers of “places of public worship” (in broad terms, “church buildings” or similar) must “develop and comply with a COVID-19 Safety Plan that addresses the matters required by the COVID-19 safety checklist approved by the Chief Health Officer and published on the New South Wales Government website” (see cl 7(1)(a)). For such places the current checklist seems to be this one, although as at the time of writing (Tues 30 June) the checklist doesn’t completely match the new PHO No 4 rules. (The expressed limit of 50 persons will be over-ridden by the new rules from 1 July). Perhaps it is worth noting that there is now an obligation to “comply” with this checklist, and that it includes (and I suspect will still include tomorrow) the injunction:

Avoid group singing or chanting and wind instruments (such as flute, oboe or clarinet). Solo singers should maintain at least 3 metres physical distance from other people.

This checklist does not technically apply to congregations which do not meet in “places of public worship”, but would certainly be something that would be carefully considered by such congregations in the interest of safety. In addition those congregations leasing premises for their meetings will probably, if those premises aren’t mentioned in Schedule 1, under cl 7(a)(ii) need to adopt and comply with “the general checklist applying to all other industries”.

Residential premises and religious gatherings

For those interested in running small study groups in houses, the limit of 20 persons allowed as “visitors” is still there- see cl 11. Clause 14 exempts certain persons from being counted as “visitors”, however, including those there “to engage in work” under cl 14(b)(i) (which term under cl 3(1) includes “work done as a volunteer”.) There is also an exemption under cl 14(b)(ii) for those engaged in child-care.

There are special rules that apply to weddings in places of residence. Under cl 12 it seems that if a house is large enough, for the purposes of a wedding (or “a gathering immediately after a wedding”) the 20-person limit can be exceeded, so long as the 4m2 rule is observed. For funerals or “wakes” up to 50 persons are allowed in a place of residence, or more if the 4m2 rule is observed- see cl 13.

Outdoor Public Gatherings

There is a general limit of 20 persons for an “outdoor public gathering”. However, this limit does not apply to “a gathering on premises for which a person is required by clause 7 of this Order to develop and keep a COVID-19 Safety Plan” (cl 18(3)(a)), which seems to mean that an “outdoor” gathering in an open air area outside a church building but within the limits of the church property would not be limited to 20.

The 20-person outdoor limit is also not applicable to “a gathering for a wedding, a funeral, a memorial service or a religious service or a gathering immediately after a wedding, a funeral, a memorial service or a religious service”- cl 18(3)(e).

Collecting contact details

Note that cl 22 now provides some more specific information about who is to collect contact information for people attending church services, and how. Under cl 22(1)(a) “a person entering premises to attend a service” must provide their information to the occupier (“service means a wedding, funeral, memorial or a religious service, or a gathering immediately after a wedding, funeral, memorial or religious service”- see cl 22(5)).

There are new provisions which will make this slightly easier, however:

cl 22(2) The Minister directs that the occupier of the premises must—(a) require the person to provide the person’s contact details unless—(i) the person is a member of a discreet group of people who are attending the premises together, and (ii) the occupier obtains contact details from one adult member of the group (for example a person who makes a booking or reservation)…

(3) A person who provides contact details in accordance with subclause (2)(a)(ii) must, at the request of the Chief Health Officer, provide the Chief Health Officer with the name and contact details of all other persons in the group. (emphasis added)

This procedure will presumably allow, say for a family attending church together, just one of the parents to provide their contact details. Later, of course, if “contact tracing” becomes needed, then the responsible adult will have to provide the details of other members of the party to the Chief Health Officer.

(In passing it might be politely suggested that the draftsman might have meant “discrete” [OED: “Separate; detached from others; individually distinct”] rather than “discreet” [OED: “Possessing or exhibiting sound judgement in speech or action, esp. in such a way as to avoid one’s own or another’s disgrace or embarrassment”], but the meaning seems clear!)

In general it seems this loosening up of previous limits on gatherings and use of premises will be welcomed by churches and other religious groups, although current problems in the State of Victoria mean that all will need to keep in mind that these rules can change again if the spread of coronavirus in the State becomes worse. So far, it seems, Australians in general can be grateful that court actions to enforce the religious freedom to gather together in public worship (noted toward the end of the linked paper) have not been needed.

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