Update on rules for NSW churches under COVID restrictions

Following my previous comments on the operation of Public Health Orders (PHO’s) in NSW on churches and religion groups (most recently here), this post reports on the latest amendment to the rules, which commenced operation today, Friday 24 July. The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) Amendment Order (No 2) 2020 made the relevant changes. There is a link here which may be most helpful, however, as it is the consolidated PHO including all the latest amendments (“PHO4”). In short, in light of fears about the rise in coronavirus cases in Victoria and an increasing number of local cases in NSW, the rules around church gatherings have now been tightened once again.

Most church services will now be limited to a maximum of 100 persons, or one person per 4 square metres (the “4m2” rule), whichever is the lower number. In addition, most churches must now register with the NSW government as a “COVID-19 Safe business”. There are a couple of other minor changes worth noting, but there are also a couple of uncertainties about the operation of the rules. Where I make no mention of a topic (such as residential premises) the law on that matter is as discussed in my most recent post and will not be repeated here.

Places of Public Worship

For those churches operating out of traditional “church buildings”, the amended PHO4 provides as follows:

  • Clause 9 now makes it very clear that the “occupier” of a place of public worship must limit the number of persons present on the premises to the lesser of 100 or the 4m2 number.
  • In calculating the space issues, an amended cl 4(1)(a) now provides that “any person engaged in work on the premises for the occupier of the premises” need not be counted. This highlighted clause has been added by the amending Order; its effect will be to allow church workers and volunteers not to be counted in numbers present in the church, but those present to do other work will need to be counted. (This change may not impact churches very heavily; it may be designed to clarify some issues for other premises.)
  • There was already a requirement noted previously, under “guidelines” issued by the NSW government, to “prepare” a COVID-19 Safety Plan; new cl 7(3)(d) requires occupiers of places of public worship to do a further step and “register with the NSW Government as a COVID-19 Safe business”. This seems to be the place to go to do this. (Note that while the rest of the amendments to PHO4 commenced operation on Friday 24 July, clause 7(3) does not formally commence operation until a moment after midnight on Saturday 25 July- see cl 2(2)(a) of the amending Order.) Churches who have not registered before midnight on Friday should of course do so as soon as possible.

However, the uncertainty that still lingers, and which has been queried by a number of churches, is whether the gathering limits are intended to apply across the whole church “site”, or can be applied separately to different buildings on a church property. If there is a separate “church hall”, different to the main “auditorium”, then it is acceptable to have (say) up to a 100 children in a Sunday School in the hall, while the main church service has up to 100 in the auditorium?

Sadly the wording of the PHO still leaves this unclear. Clause 9 refers to “the number of persons on the premises”. There is no formal definition of the term “premises” in the PHO. The head legislation, the Public Health Act 2010 (NSW), does define the term in s 5(1) as follows: ““premises” includes any land, temporary structure, vehicle or vessel”. But while this leaves options open, it does not clarify this issue.

The word “premises” has been held by the courts to be inherently malleable. In Molina v Zaknich [2001] WASCA 337 McKechnie J in the WA Court of Appeal at [46] quoted the words of Williams J in the High Court of Australia decision of Turner v York Motors Pty Ltd [1951] HCA 52;  (1951) 85 CLR 55, where his Honour said at 83:

“The word ‘premises’ is used in a popular sense and in this sense has a wide meaning… Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole.”

Some parts of PHO4 suggest that the word “premises” is being used to refer to one, stand-alone, building. So in cl 4(2) reference to the size of premises uses the notion of “floor space”. On the other hand, in cl 8A(1)(a) reference is made specifically to a “hospitality venue that consists of more than one separate area”; the fact that no such reference is made in relation to a “place of public worship” might suggest that the whole area is all regarded as one “place”.

Based on the purposes of the legislation (see cl 5(b), which refers to the fact that COVID-19 is “highly contagious”, and common knowledge), one can speculate that the aim of the rules is to reduce the chance of persons breathing on others too closely. If a maximum of 100 persons is allowed in one building (which would clearly be the case if there was in fact only one building), then the purposes of the law would not seem to be undermined by allowing a nearby but not directly connected building to also have up to 100 persons present. This would assume that steps can be taken not to bring the two groups together into the one enclosed space. Still, it would be preferable if in the next iteration of the rules this issue were more clearly spelled out.

Religious services in other places

Not all churches meet in formal church buildings. The amendments do affect “religious services” held in other places, but there are some odd features of the rules.

Clause 8 will apply to those who hold religious services outside a “place of public worship”. Under cl 8(1) the 4m2 rule must be observed as a minimum requirement by occupiers of premises, which would include those renting a meeting space for church services.

The Order then introduces a category of “significant event”, which events are regulated under cl 14A. Importantly, the term “significant event” is defined as follows in PHO4 cl 3(1):

significant event means—
(a) a corporate event, or
(b) a funeral or memorial service, or
(c) a wedding service, or
(d) a gathering following a funeral or memorial service or wedding service.

Under cl 14A(1), then:

The Minister directs that a person must not organise, conduct or participate in a significant event mentioned in subclause (2)—(5) if the number of persons to attend or attending the service or event exceeds the maximum set out in the relevant subclause.

Subclauses (2)-(5) then list restrictions on corporate events, funerals or memorial services, or a gathering following a funeral or memorial service, religious services (subclause (4)), and wedding services, or a gathering following a wedding service.

But what is odd is that a “religious service” as such (that is, what might be called an ordinary Sunday service) is not included in the definition of “significant event” noted above. Clause 14A does not, on its terms, impose restrictions on a religious service which does not fall into one of the explicitly named “significant event” categories such as a wedding or a funeral.

It is unclear why this is the case. There are some hints that it may, to be blunt, be a drafting error. So, if religious services are not “significant events”, it is hard to see why they are mentioned at all in cl 14A(4). (Weddings and funerals already have their own separate rules.) And the heading to Division 2A (where cl 14A appears) is “Corporate events, funerals, memorial and religious services and weddings”.

Yet at other points the Order lists the terms separately. Clause 22(1)(a) in dealing with provision of details for contact tracing refers to “a significant event or religious service”, which correctly assumes that religious services are not automatically in the category of “significant event”.

So, it has to be said that, as the Order stands at the moment, it seems that a regular church service conducted in rented premises will be subject to the 4m2 rule, but may not be subject to the tighter 100-person limit imposed by cl 14A(4). However, if indeed (as seems possible) this is a drafting error, it may be corrected the next time the Order is amended, and churches may consider it wise to comply with the 100 person limit even if it arguably is not legally imposed.

Finally, it should be noted that for “significant events”, cl 14B requires that a COVID-19 Safety Plan be prepared and kept on the premises for inspection, and also that “the responsible person for the event must register with the NSW Government as a COVID-19 Safe business before the event is held”. At the moment these requirements will clearly apply to weddings and funerals, but if the definition of “significant event” is extended in future to “religious services” generally, they will apply to those running regular church services in rented premises.