There are a number of restrictions on church activities in NSW at the moment under rules introduced to manage the current outbreak of cases in Sydney. In this post I will try to briefly summarise what I think is the best interpretation of the rules. These rules are generally in place until midnight Friday 9 July. Keeping up with the various version of the Public Health Orders is not easy. The two main ones at the moment are the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (No 282 of 2021) (“the TMGR Order”) and the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (No 279 of 2021) (“the Face Coverings Order”).

Rules governing Greater Sydney

As the main centre of the current outbreak of COVID-19, the rules governing Greater Sydney (which for these purposes includes the Central Coast, the City of Shellharbour and the City of Wollongong) are the toughest. I will set these out and then move on to the rules applying in the rest of NSW.

The “lockdown” rules in Greater Sydney are found in Part 4 of the TMGR Order. It is important to note the scope of these restrictions, however, which apply to anyone who is an “affected person”:

19 Meaning of “affected person”

(1) In this Part, affected person means—
(a) a person whose place of residence or usual place of work is in Greater Sydney,
and
(b) a person who is staying in temporary accommodation in Greater Sydney.
(2) However, affected person does not include a person who has not been in Greater Sydney during the previous 14 days.
(3) Also, affected person includes any person who was in Greater Sydney at any time starting at the beginning of 21 June 2021.

Note that someone may be an “affected person” if they live or work in Greater Sydney, and “work” by definition includes study at a tertiary institution. These rules will apply to someone who is now outside the Greater Sydney area who was in Sydney at the relevant time.

The rules mean that affected persons must not leave home (see cl 20) except for particular reasons which are set out in Schedule 1. The main reasons are summarised as follows in a note:

Note. Examples of a reasonable excuse in Schedule 1 include leave for reasons involving—(a) obtaining food or other goods and services in Greater Sydney, or
(b) for the purposes of work or education if it is not possible to do it at home, or
(c) exercising in Greater Sydney, or
(d) medical or caring reasons, including obtaining a COVID-19 vaccination.

These reasons, of course, do not include attending a church service or bible study. Under cl 24(1)(g) of the TMGR Order, premises that must be closed to members of the public include:

(g) places of public worship, except for the purposes of—…
(ii) a funeral or memorial service, or a gathering following a funeral or memorial service, at which there are no more than 100 persons, including the person conducting the service,
(iii) providing educational services or childcare,

Can a church, then, offer a “live streamed service” which is broadcast from a church building, and if so can it film some people singing live? In my view these are legitimate activities. Schedule 1, item 2, provides that a lawful reason to leave one’s home is: “For the purposes of work if the person cannot work from the person’s place of residence”. The definition of “work” in cl 3 says that: “work includes—(a) work done as a volunteer or for a charitable organisation”. In addition note that Schedule 1, item 14 provides that another lawful reason to leave home is:

For a person who is a priest, minister of religion or member of a religious order—going to the person’s place of worship or providing pastoral care to another person

Schedule 1, item 14, TMGR Order

What about a few people singing for the live stream? I think this is permitted under a rule that applies across the State, cl 14:

14 Direction of Minister about singing on non-residential premises

(1) The Minister directs that the occupier of non-residential premises must ensure that persons in an indoor area of the premises do not sing.
(2) Subclause (1) does not apply if—(a) the persons singing are performers engaged in a performance or rehearsing for a performance,

It seems to me pretty clear that people performing for a live stream are “performers” and would be allowed to do under this provision. Indeed, this rule applies in the rest of NSW where church services are still permitted, and so while congregation members may not sing, this would seem to allow a couple of musicians on a stage up front to perform music for the congregation.

In Greater Sydney there is also a limit in cl 23 on numbers of persons (only up to 10) allowed at an “outdoor public gathering”, but one exemption that may be relevant to churches is:

(d) a gathering for a funeral or memorial service, or a gathering following a funeral or memorial service, at which there are no more than 100 persons, including the person conducting the service…

Rules applying across the whole of NSW

Other rules under these Public Health Orders apply across the whole state. As they affect churches, they provide that

• a maximum of 5 visitors is allowed in any residence (cl 8);
• non-residential premises generally must not have more than 1 person per 4 square metres (cl 11);
• singing is not allowed on non-residential premises other than subject to the exceptions in cl 14, which include “performers” (discussed above)
• face-coverings must be worn in non-residential premises (cl 17).

Clause 17(3) allows certain circumstances where face-coverings are not required. Relevantly for churches, these include:

(d) the person is at work and the nature of the person’s work—…
(ii) means clear enunciation or visibility of the person’s mouth is essential,…

(g) the removal of the fitted face covering is necessary for the proper provision of the goods or service,

In my view this means that a person leading a church service in regional NSW may remove their mask while speaking and preaching at the front, and that singers who are performing for a congregation may remove their masks while doing so.

There are more matters covered by the relevant Orders, but I think these are the main ones that will affect the operation of churches.