The NSW Public Health Orders Governing COVID-19 Restrictions

By Paul Gregoire and Ugur Nedim

Originally issued on 10 June, Public Health (COVID-19 Self-Isolation) Order (No 2) 2021 was amended by NSW health minister Brad Hazzard on 21 August, so that it now contains section 6A, which involves responding to police requests about who is in a “COVID-19 risk premises”.

Containing three subsections, section 6A provides NSW police with the power to require a person residing in a COVID-19 risk premises to respond to a request made by an officer regarding information about “who is residing or present at the premises”.

A COVID-19 risk premises is one where a COVID-19 diagnosed person, or a close contact of a diagnosed person, is isolating for the required 14 day period.

The section further stipulates that “if a police officer knocks at the door”, a person is required to open it and respond to their requests, which can include providing the name and contact details of anyone residing or present at the premises at that time or in general.

The amendment to the public health order was issued on Saturday, with the new powers taking effect on Monday.

And there was no need to run these new police powers via either house of state parliament as the Public Health Act 2010 (NSW) (the Act) permits the health minister to issue new laws by decree at times when there is a risk to public health.

Updating public health law

The current Public Health Act was passed by the Iemma government on 30 November 2010. When it took effect in September 2012, it replaced the 1991 legislation of the same name, and it had six broad aims, which included controlling public health risks and preventing the spread of disease.

The updating of the public health legislation drew from the 1999 NSW Health Review of the Public Health Act 1991, which recognised that there were a number of administrative requirements relating to the issuing of emergency orders that were likely to slow their application.

This included the requirement that a public health order issued by the minister in relation to a health emergency would not take effect until after it was published on the NSW Government Gazette, as well as a requirement that such an order had to be run by the state premier first.

“Amendment of the relevant provisions is therefore warranted to improve flexibility while ensuring that the appropriate balance is struck with protecting ordinary liberties and freedoms, including freedom of movement and assembly,” explained then NSW attorney general John Hatzistergos.

Emergency powers

Part 2 of the Act provides emergency powers to the minister at the time of a public health risk. Section 7 permits them to issue public health orders that declare any part of the state a public health risk area, and reduce or remove risks, segregate or isolate inhabitants, and prevent access to areas.

The order must be published in the Gazette “as soon as practicable”, but failure to do so does not invalidate it. Such orders expire after a 90 day period, unless revoked earlier. And a section 7 order does not apply to a region of the state that’s been designated as being in a state of emergency.

A state of emergency can be declared by the NSW premier under section 33 of the State Emergency and Rescue Management Act 1989 (NSW). And at these times, the health minister can issue similar public health orders under section 8 of the Act.

Section 10 of the Public Health Act stipulates that a person who, without a reasonable excuse, does not adhere to the provisions of a public health order has committed the offence of not complying with a ministerial direction.

For an individual, this offence carries a maximum penalty of 6 months imprisonment and/or an $11,000 fine. Failure to then comply with the order results in a $5,500 fine for every day the offence continues.

In terms of corporations, a $55,000 fine applies for breaching an order, with an accompanying $27,500 fine for every further day the offence continues.

The NSW health secretary has the power to close a public premises on health grounds, under section 11 of the Act. And if the premises is privately owned and is not closed in compliance with the order, the same penalties as above apply to individuals and corporations.

Issuing orders

Schedule 1 of the Act provides five categories of medical conditions, with COVID-19 listed under both category 2 and 4.

Part 4 division 4 of the Act contains sections relating to the issuing of public health orders for medical conditions under categories 4 and 5.

The health secretary may, under section 61, require a person known or suspected to have a category 4 or 5 condition to undergo testing, while, under section 62, an authorised medical practitioner may issue an individual found to have a category 4 or 5 condition with a personal public health order.

These personal orders must be written and can require an individual to refrain from certain conduct, undergo treatment or counselling, be placed under supervision, to notify the secretary of anyone they’ve been in contact with or to undergo a test.

Failure to comply with a section 62 public health order is an offence contained under section 70 of the Act, which carries a maximum penalty of 6 months in prison and/or an $11,000 fine. And section 71 provides that police can issue an arrest warrant in relation to a breach of a public health order.

A recent addition to the Act is section 71A, which allows a police officer to arrest an individual they suspect on reasonable grounds has breached a public health order relating to the COVID-19 pandemic. That person can then be returned to their place of residence.

Authorised officers

Section 126 of the Act permits the health secretary to appoint authorised officers. These appointees can be members of the NSW Health Department or state health service employees or members of a prescribed body under the Public Health Regulation 2012 (NSW), which accompanies the Act.

On being issued with a search warrant, authorised officers are able to enter and inspect a premises, under section 108 of the Act, if they consider it necessary. They can then require documents to be produced, and officers can inspect such documentation and make copies of it.

Authorised officers can also take samples of any substances, examine equipment, take photographs of a premises or take audio or video recordings, and officers are permitted to take possession of anything that may constitute as evidence.

Search warrants can be obtained under the provisions of section 109 of the Act, when it’s suspected a regulation is being contravened on a premises.

And section 135 of the Act provides that COVID emergency powers currently contained within the public health legislation will be repealed on 26 September this year, or at a later date, which is no later than 26 March 2022.