NSW COVID rules for churches- numbers increase

There has been a recent increase in the number of persons allowed to meet together for religious services in NSW. The current rules are to be found in the amended Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 (NSW) (“PHO 5”), effective 22 October 2020.

Number of people in church services

Under cl 11(1), where a church service is held in a place of public worship, then the maximum number who can be present is now 300 persons, or the number of persons that is equivalent to 1 person per 4 square metres of space in the area (the “4m2” rule). This is a welcome increase from the previous limit of 100. Of course, not all churches will be able to make full use of the new limit, as the 4m2 limit will often be the one that constrains the capacity.

(There is also an allowance for churches who operate in more than one building on the same property, in cl 11(1)(a), so that the maximum of 300 can meet in each separate building. But the meetings in those different buildings must not start and finish at the same time- see cl 11(2).)

Note that calculation of the numbers under the 4m2 rule is affected by cl 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 for the occupier of 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.

This means that staff and volunteers involved in making the service run do not have to be counted (noting that “work” under cl 3(1) “includes work done as a volunteer”.) For larger premises office space, storage cupboards, etc need to be excluded from calculations.

It is worth noting that, while cl 11 specifies a maximum number for any one set of premises (in broad terms, this means a whole building), that clause does not determine where those persons should be seated within the premises.

There is no formal legal rule requiring “physical distancing”. However, the Government guidance recommends that persons who are not from the same household ought to stay 1.5 m apart. In the requirements laid down by the “COVID-19 Safety Plan” prescribed by the Government for places of public worship, COVID-19 Safety Plan: Places of worship and religious gatherings (as at 22 October 2010), we read:

Move or remove tables and seating as required, where possible. Members of the same household do not need to physically distance.

Thus it would seem to be sensible to space seating so that those not from the same household are sitting 1.5 m apart.

The fact that those who occupy places of public worship must have, and comply with, a “COVID-19 Safety Plan”, is spelled out in cl 7. The occupier of a place of public worship must go a further step and “register with the NSW Government as a COVID-19 Safe business”- cl 7(3)(d).

Similar rules apply to church services that are not in formal church buildings– held in rented premises or elsewhere. There is now a new clause 26A dealing with those services:

26A Direction of Minister for religious services held on premises other than place of public worship

The Minister directs that the person principally responsible for organising a religious service on premises other than a place of public worship must—

(a) have and comply with a COVID-19 Safety Plan that addresses the matters required by the approved COVID-19 safety checklist set out opposite the type of event in column 3 of Schedule 1 approved on the date specified in column 4 of Schedule 1, and

(b) keep a copy of the COVID-19 Safety Plan on the premises and make it available for inspection by an authorised officer or a police officer as requested.

Previously there was some doubt as to whether these requirements applied to religious services not held in places of public worship- these doubts have now been removed by cl 26A.

Wearing Face Masks?

The rules applied by the Government do not currently make the wearing of face masks mandatory in church services, but they are to be encouraged. The Safety Plan provides as follows on this topic:

Encourage congregants to wear a mask during attendance at places of worship. Wearing a mask is not mandatory but is highly recommended. Mask wearing is not a substitute for physical distancing, but may further reduce risks.

Congregational singing?

One of the things that deeply disappoints church-goers about the current rules is the prohibition on congregational singing. It is to be hoped that some clearer medical advice on this might be provided soon, including whether the wearing of masks while singing might make the practice safe. Nevertheless, at the moment the rules are fairly clear.

PHO 5 cl 7(1)(a) says that an occupier of premises including a “place of public worship” must “develop and comply with a COVID-19 Safety Plan” (emphasis added). In the NSW Covid guidelines for places of public worship, in the plan template, we find: “Group singing (either choirs or congregants) or chanting and musical instruments should comply with the most recent advice from NSW Health” (emphasis added). It seems that the “most recent” advice from NSW Health is as follows: “Singing in groups (whether by choirs or by congregants) or chanting is a particularly high risk activity and must not take place at this time, irrespective of whether singers or chanters are wearing masks. The only COVID-Safe singing that is permitted is a solo singer distanced at least five metres away from other people and not directly above the audience.” This is their advice as of 14 August 2020.

Now this has been updated on the most recent general page to read: “In accordance with advice from the Chief Health Officer, NSW Health recommends the following measures for singing and chanting. A small group of up to 5 people may sing together in a large well-ventilated (preferably outdoor) area if: all singers face forwards and not towards each other, have physical distancing of 1.5 metres between each other, and any other performers, and 5 metres from all other people including the audience and conductor. Ensembles and other musical groups should rehearse and perform outdoors or in large, well-ventilated indoor spaces.”

For the moment, then, it seems that while “items” from small groups up front may be allowed, ordinary congregational singing is not allowed. Hopefully this might change soon.

Small Groups

The limit on numbers who are allowed to gather in private homes is still set at 20 (see cl 15), but given that restaurants may now take bookings for 30 people (see cl 9(5)(b)) another option may be for bible study groups to meet for a meal at restaurants, if more size is needed!

Outdoor gatherings

Finally, it is interesting to note that an outdoor religious service may be held with large numbers. While there is a general rule forbidding outdoor gatherings of more than 30 in cl 22(1), this rule is explicitly said not to apply to “a gathering for a wedding, a funeral, a memorial service or a religious service” under cl 22(5)(e). While there are restrictions on those who organise a “significant event” under clauses 17 & 18, the definition of “significant event” in cl 3(1) does not include a “religious service” which is not a funeral, memorial or wedding service, so there would seem to be few current legal limitations on an outdoor church service at the moment. (Limitations imposed by unpredictable weather, of course, are another matter!)

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