Following on from my recent post outlining COVID-19 restrictions that will impact NSW churches, the NSW Health Minister has now issued an exemption under the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (the “TMGR Order”), cl 25, dealing with singing in live-streamed services and in places of public worship outside Greater Sydney (where gathering for church in limited numbers and with face masks is still permitted). The Minister is to be commended for responding to concerns that have been raised by advice given by officials of his Department to some churches (for the content of the advice and some comment, see this article from 2 July from Eternity.) In my view, however, the advice given was wrong, and the exemption that has been issued today was unnecessary- the official TMGR Order already allowed the activities that were wrongly said to be prohibited by Health Department advice. I will try to unpack these things here.

The particular issues at stake relate to how churches can conduct singing, and who must wear face-masks. Churches in Greater Sydney want to be able to “live stream” services since they are currently unable to meet in person due the TMGR Order. Some would like to have their singers in a church building be streamed as part of the service. Churches outside Greater Sydney are allowed to meet in person, and some would like to allow singers up front to sing Christian songs, while not allowing the congregation to sing with them. I set out my views on these matters in my recent post, and I discussed these issues in a video interview with the Rev Dominic Steele on “The Pastor’s Heart” this week.

As Eternity reports in the above-linked article, advice was given during the week to some churches from the Health Department that the rules in place prevented all singing in church buildings, including during a live stream. The relevant part of the advice read:

NSW Health has now confirmed that singing is not permitted in indoor areas of places of public worship. This includes during a live stream, and in regional NSW. This rule will protect people who may be involved in assisting in livestreaming an event, for example technical assistance, or who may be in regional communities attending a service. 

The advice also went on to say:

The requirement is to wear a face mask in all indoor areas of non-residential premises. This rule applies across the whole of NSW.  A service leader may temporarily take off their mask to deliver a speech for accessibility reasons. For example to ensure viewers who may lip read are able to understand the service leader. As soon as they have finished their speech, the service leader should put their face mask back on

The advice that the “no singing” rule applies to all livestreams is in my view contrary to the terms of cl 14 of the TMGR Order, which while it provides for a ban on singing in non-residential premises, says that the ban does not apply where “the persons singing are performers engaged in a performance or rehearsing for a performance”. The fact is that, while the views of Departmental officials are entitled to respect, under the Australian legal system they do not have the power to authoritatively determine the legal meaning of legislation. That meaning is to be determined in accordance with the usual rules governing statutory interpretation and ultimately would fall to be interpreted by a court if necessary.

After a number of complaints about this issue, the Health Minister’s exemption (issued at 12:20 pm on a Saturday) does offer some relief from the draconian view of the law provided previously by the Department. The exemption allows two singers, and up to two other persons, to be present in a place of public worship in Greater Sydney for live streaming. In relation to places of public worship outside Greater Sydney, it allows up to five persons to sing at the front of a meeting (though there is a slight confusion in the document as to whether those persons must keep face-masks on while singing- on balance I think the exemption allows singers to remove face masks while singing, but the document is not entirely clear.) The singers should be 1.5 m separate from each other and 3 m separate from the congregation.

While, as I say, the Health Minister’s action is a commendable response to concerns generated by the advice given by his Department, in my view the exemption was not necessary, as singers are already exempted under cl 14 as “performers”. The issuing of the exemption does indicate that this is a view that might not be shared by the Health Minister. But again, until the Health Minister follows the formal processes required to make an official amendment to the Public Health Order, his view of the meaning of the Order is not legally binding.

It is also worth noting in passing that the Minister’s exemption, if it were necessary, would not assist those who run church services in rented halls or other buildings that are not officially “places of public worship”. But, as I say, since the Minister’s exemption is actually not necessary, this is probably not a matter of great concern. I should also add that the Minister’s exemption does not deal with the wearing of face masks by service leaders who are speaking (not singing), but for the reasons spelled out in my previous post, I think service leaders whose role it is to speak and be heard by congregation members already fall within the exemptions to face-mask wearing under the PHO.