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‘Social Distancing’, the new norm (for now at least)

‘Social Distancing’, the new norm (for now at least)

Published on April 14, 2020

The impact of the Coronavirus (COVID-19) pandemic on both businesses and individuals in Australia cannot be understated. COVID-19 has presented challenges to businesses and individuals in Australia in such a short span of time and forced them and the community at large to adapt quickly to introduced measures such as working from home and ‘Social Distancing’.

So much so that ‘Social Distancing’ has become a norm in our lexicon courtesy of COVID-19.  A lot has happened since those infamous pictures were captured by the media (on Friday, 20 March 2020) of large crowds gathering at Bondi Beach on a sunny Sydney March day despite government directions not to do so and indeed the conduct was labelled by some at the time as irresponsible behaviour.  We have, since then, been periodically informed on the news of the increase of confirmed COVID-19 cases and deaths in the State of NSW and in Australia as a whole.  As of 6:00 am on 14 April 2020 there are 6,366 confirmed cases of COVID-19 (2,870 in NSW alone) and 61 deaths.

Further restrictions on gatherings and on our movements to ramp up Social Distancing measures have been announced in NSW at the end of March in accord with trying to stop the spread of COVID-19 in our community, ‘flatten the curve’, and save lives and livelihoods.

Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW)

On 30 March 2020, the Minister for Health and Medical Research, Brad Hazzard made the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) (the ‘Order’) pursuant to section 7 of the Public Health Act 2010 (the ‘Public Health Act’).  The Order commenced on 31 March 2020.  The Order was amended by the Minister on 3 April 2020 by the Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order 2020 (NSW). The Amendment to the Order commenced on 4 April 2020.

The object of the Order (as outlined in the Order’s Explanatory note) is to give certain Ministerial directions to deal with the public health risk of COVID-19 and its possible consequences.

Restrictions on Movement

The Order directs that a person must not, without reasonable excuse, leave the person’s place of residence (Clause 5).  Schedule 1 of the Order lists “Reasonable excuses” to leave a person’s place of residence, including:

(a) obtaining food or other goods and services for the household or other household purposes (including for pets) and for vulnerable persons, or

(b) travelling for the purposes of work or education if the person cannot do it at home, or

(c) travelling for the purpose of attending childcare, or

(d) travelling to attend school or other educational institutions if the person cannot learn from the person’s place of residence, or

(e) exercise, or

(f) obtaining medical care or supplies or fulfilling carer’s responsibilities, or

(g) attend a wedding or funeral (in accordance with prescribed  social distancing requirements referred to in the Order), or

(h) moving to a new place of residence (or new business premises), or

(i) providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance, or

(j) donating blood, or

(k) undertaking legal obligations, or

(l) accessing public services including social services, employment services, domestic violence services, mental health services and, services provided to victims (including victims of crime), or

(m) for children who do not live in the same household as their parents or siblings, or one of their parents or siblings – continuing existing arrangements for access to, and contact between, parents and children or siblings, or,

(n) for a person who is a priest or minister of religion – going to the person’s place of worship or providing pastoral care to another person, or

(o) avoiding injury or illness, or to escape harm, or

(p) for emergencies or compassion reasons.

For anyone thinking of a weekend getaway anytime soon, it should be particularly noted  that Clause 5(4) of the Order explicitly states that Taking a holiday in a regional area is not a reasonable excuse.”

Restrictions on Gatherings in Public Places

In addition, the Order directs that a person must not participate in a gathering in a public place of more than 2 persons (Clause 6).  A public place means:

(a) a place (whether or not covered by water), or

(b) a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.

 Exceptions to the Order against gathering in a public place include:

(a) gatherings of members of the same household (household is defined by the Order as persons living together in the same place of residence), and

(b) gatherings essential for work or education, and

(c) “Essential gatherings” referred to in Schedule 2 of the Order.

Schedule 2 of the Order lists types of “Essential gatherings” including:

(a) a gathering for the purpose of transport, or

(b) a gathering at a hospital or other medical or health facility that is necessary for the business of that facility, or

(c) a gathering at a disability or aged care facility, or

(d) a gathering at a court or tribunal, or

(e) a gathering at supermarket, grocery store or market that predominantly sells food, or

(f) a gathering at a retail store that is necessary for the normal business of the store, or

(g) a gathering at an office, factory, warehouse, farm, mining or construction site that is necessary for the normal operation of the tenants within those places, or

(h) gathering at a school or educational institution, or childcare facility that is necessary for the normal business of those places (but does not include a school event that involves members of the community in addition to staff and students).

Section 10 of the Public Health Act creates an offence if an individual fails to comply with the Order with a maximum penalty of imprisonment of 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply with a direction are liable to a fine of $55,000 and $27,500 each day the offence continues.

Section 7(5) of the Public Health Act provides that, unless it is earlier revoked, an order under that section expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. Accordingly, the Order will expire at the end of 29 June 2020 unless it is revoked earlier. For now at least, Social Distancing is here to stay.

Flattening the Curve

Before Easter NSW Police said that they would be making a concentrated effort to enforce the Order and the relevant provisions of the Public Health Act, and issue what could possibly be hefty penalties to persons not complying with the Order and who leave their place of residence without reasonable excuse. Over that period NSW Police said that they issued 111 fines for breaches of Social Distancing rules.[1]

A discussion on the impact on our civil liberties and freedoms (as well as the discretionary use of policing powers to enforce the Order and the relevant provisions of the Public Health Act) are best left for another time, save to say that the way we used to live life here in NSW and in Australia is significantly changed because of the COVID-19 pandemic.

Whilst we might be burdened with the effect of being ‘stir-crazy’ in our homes, we need to keep a level of perspective that the Social Distancing measures put in place by our elected officials are ultimately there for our protection, and for the protection of our community.  Experiences abroad reflected in other countries’ COVID-19 infection and mortality rates serve as a reminder of our ‘lucky country’, and the current modelling that indicates the progress of the flattening of our nation’s epidemiology curve.  It is up to us individually and as a community to do our part to stop the spread of COVID-19 and to stay at home except for the necessary purposes allowed.  Let us continue to support and be kind to one another and reach out to our family, friends and colleagues (and importantly, to those isolated) using electronic platforms throughout the period the Order and the relevant provisions of the Public Health Act) are enforced. This is our immediate future and stark reality of the current circumstances. We’re in this together. This too shall pass.


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