Latest NSW amendments to gathering rules for churches, weddings and funerals

Following a good run of low COVID-19 numbers in NSW, limits on rules around numbers for church services, weddings and funerals have been eased again. The latest amending Public Health Order, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) Amendment Order (No 3) 2020 has been made available on the NSW Legislation website. (A bit early this time! Most of it comes into effect at 12:01 am on Monday 23 November; some provisions noted below relating to weddings and funerals commence on 1 December.) I will aim to briefly outline the main changes relating to churches.

1. Increased numbers allowed for outdoor services

Unless otherwise mentioned, the current rules under PHO5, which I discussed in a previous post, are still applicable.

The new rules will allow increased overall numbers to attend where a religious service is held in an “outdoor area”. The new definitions in clause 3 set out what this term means:

indoor area includes an area in a building or other structure, whether or not temporary, which has a roof, ceiling or other top covering, but does not include an area with at least 2 sides open to the weather.

outdoor area means an area that is not an indoor area

Where a service is held in an outdoor area, then the new limits on numbers attending, in new cl 11A, will depend on whether the people in the outdoor area have been “assigned to a specific seat”. If so, then the limit on numbers is 1 person per 2 square metres of space in the outdoor area, as opposed to the 1 person per 4 square metres allowed indoors. This will of course allow more people to attend- an indoor area of 400 square metres could only have 100 people, whereas an outdoor area with allocated seating of 400 square metres could now have 200 people. However, there is an overall cap of 500 attendees applying under cl 11A(2)(b)(iii). (Note that, as previously, the cap refers to people attending and excludes those working to provide the service.)

(Note that this does mean that if “assigned seating” cannot be arranged, and people are sitting randomly in the area or on the grass, for example, then the 4 square metre rule will still apply, not the more general 2 square metre rule.)

Clause 11A(3) provides that any outdoor service must not “commence or end at the same time as another service, rehearsal, performance, activity or event at the place.” Presumably this is to reduce the “mingling” of large crowds that might otherwise happen.

I should note that in my previous post of October 25, I indicated that there seemed to be no upper limit on outdoor religious services. Whether this was the intention of the rules or not (I suspect not), the current amendments make it clear that there are limits as noted above, though now reasonably generous limits. For those interested in the technicalities, this is the result of clause 17 now explicitly applying to “religious services” as well as to “significant events”.

It is worth noting that there is an even more generous limit of 3000 now applicable to what is called a “controlled outdoor public gathering” under cl 22A, a feature of which is that there is clear fencing around the area and access is controlled by ticketing. However, cl 22A(6) notes: “This clause does not apply to a significant event or a religious service.” So 500 will be the limit for an outdoor religious service, it seems, even if a church has the resources to provide fencing and ticketing. I think there is some ambiguity here as to whether a church could run an outdoor “Christmas Carols” event as a cl 22A gathering- if put on with an open invitation to the community and not at the usual time for church services, one could argue that it was not a “religious service”. But would it depend on the proportion of “religious” carols as opposed to “Jingle Bells”-like ditties? Given how late it is now in the year it may be unlikely that any churches would want to take on the challenge!

2. New provisions about registration

A key feature of the fight against COVID-19, of course, is “contact tracing”- the ability to find out quickly who has been in contact with someone who is diagnosed with the disease. The new amendments have moved to a general expectation that most community venues will now allow registration by electronic means. However, perhaps in recognition that many smaller and older churches may find it hard to implement such procedures, there is some leeway allowed for churches.

Clause 28(1) now links to a list of venues that must record the details of entrants, in new Schedule 3 to PHO5. Sub-clause 28(3)(b) provides that for most venues this must be done electronically (either to Service NSW through their app, or otherwise to the occupier who will have made their own arrangements.) But cl 28(3)(a) provides:

(3) A person is to provide the person’s contact details as follows— (a) for a person entering premises to attend a significant event at a place of public worship or entering premises for a religious service— (i) directly to the occupier of the premises, or (ii) by electronically registering the person’s contact details with Service NSW by means of a mobile phone or other device at the time the person enters the premises,

It seems clear that the intention is that someone attending a religious service may provide their details either electronically (to the occupier of the relevant premises or to Service NSW) or in “hard copy form” by filling in a piece of paper. Under cl 28(3)(b), however, for all other premises the means must be electronic, although again this can be done either through the Service NSW app or “directly” through an app provided by the occupier.

I should make it clear that the above interpretation depends on reading the word “directly” in cl 28(3)(a)(i) as including “by electronic means as well as by hard copy”. I think this is what must be intended, even though it might have been argued that the reference to “electronic” registration in cl 28(3)(a)(ii) means that the Service NSW app is the only electronic option for churches. But to take that view would make no practical sense- many larger churches already collect data electronically, so this view of the provision would mean imposing a new, restrictive and unnecessary requirement. My interpretation views the key difference between clauses (a) and (b) as the introductory words in cl (b) requiring all venues other than churches to have electronic check-in of some sort.

There is, however, another important change which will impact churches. Under cl 28(4)(b) arrangements must now be put in place so that the occupier of premises will be able to provide information as to who was present on the premises to the Chief Health Officer within 4 hours of the request being made. (This amends the previous time-limit of 12 hours). Hence whether churches collect the information in hard copy form, or electronically, someone in the church must be available to be called up (perhaps in the middle of the night) and provide the information sought within that very limited time-frame. Presumably this means that it would be sensible, even for smaller churches who may keep paper records, to make sure those records are entered in some easily accessible electronic form as soon as possible (to avoid someone having to make a midnight trip to the church office!)

To facilitate this, cl 28(4)(c) now requires the occupier of the premises to:

(c) ensure that a person is— (i) responsible for requiring contact details to be provided in accordance with this clause, and (ii) authorised to provide records to the Chief Health Officer under paragraph (b).

3. New rules for weddings and funerals (from 1 Dec)

Schedule 1.2 of the Amending Order, which commences operation on 1 December 2020, eases rules around weddings and funerals. The current limit under cl 17(3)(b) for “a funeral or memorial service, or a gathering following a funeral or memorial” will be raised from 100 to 300 persons (still subject to the 4 square metre rule).

For “a wedding service, or a gathering following a wedding service”, under cl 17(5), the overall cap becomes 300 persons (raised from the current 150), with the “meterage” requirement being maintained at the 4 square metre rule for indoor events, but being eased to a 2 square metre rule for a service or gathering in an outdoor area. If the event is held partly indoors and partly outdoors, the respective limits of those areas are applicable and can be added together.

To give an example, if a wedding service is held where there is an almost enclosed marquee (with three sides closed off to the weather) and then the service happens in an outdoor area where some other guests are seated, then the numbers allowed would be calculated by adding together (1) the capacity of the marquee calculated at 1 person per 4 square metres, plus (2) the capacity of the outdoor area calculated at 1 person per 2 square metres, subject to the overall cap of 300 being applied.

4. What about singing?

There seems to have been a decision to ease the restrictive rules on singing for Christmas, though the details are unclear. Press reports quote the Premier of NSW as saying that:

From November 23, up to 30 people will be allowed to sing in a choir, meaning Christmas carols have the green light. But if the audience wanted to participate, attendees would have to wear a mask, Ms Berejiklian said.

Those of us who are longing to return to singing together would relish the chance to do this, even from behind a mask. However, as of today (Nov 21) there seems to have been no change to the official Health Department guidance on singing. Perhaps this will be made clearer by Monday.