How the New South Wales Government’s Emergency Restrictions on COVID-19 (Coronavirus) work

23 November 2020

This resource explains the basis for, and extent of, the COVID-19-related restrictions in New South Wales as at 23 November2020.

Most of these restrictions are allowed under the Public Health Act 2010 (NSW) (the Act).[1]

The NSW Government has also established the State Emergency Operations Centre (SEOC), comprising of experts from over 20 critical agencies such as Police, Education and Transport. SEOC is led by the Deputy Police Commissioner and will be operating 24/7 to respond efficiently to the ongoing risk of COVID-19.

  Not in New South Wales?

This resource explains emergency powers in New South Wales. We also have resources for the following jurisdictions:

FEDERAL | VIC | QLD | SA | ACT | NT | WA | TAS

Public Health Powers under the Act

The NSW Government has the power to deal with public health risks generally where a situation arises that is a risk to public health.[2] A state of emergency does not need to be declared to use these powers.

The NSW Health Minister has very broad powers to do take any action and give directions necessary to deal with the risk and consequences of COVID-19 (Public Health Powers).[3]

These Public Health Powers allow the Health Minister to make any direction necessary to:

  • reduce or remove the risk of COVID-19 in the area;
  • segregate or isolate people within NSW; and
  • prevent, or give on a conditional basis, access to any part of NSW.

Orders made under the Public Health Powers expire after 90 days, unless they are withdrawn or made to expire sooner.[4]

Who can use the Public Health Powers?

The Secretary of the Ministry of Health may appoint Authorised Officers, such as members of the Department of Health, members of the NSW Health Service or members of a local government authority such as a council.[5]

Once appointed, Authorised Officers may also exercise certain powers under the Act, including to:

  • enter and inspect any premises, inspect documents (including making copies), take photographs and video, take samples and take other steps to collect evidence relevant to public health;[6]
  • require that a person answer questions;[7] and
  • require documents and information be provided to the Officer, including names and addresses.[8]

Authorised Officers must:

  • produce a certificate of authority that states the nature of the powers conferred and the person to whom it is issued;[9]
  • give reasonable notice where possible;[10] and
  • if seeking to enter a residential property, require the consent of the occupier, or have the authority of a search warrant.[11]

Refusing or failing to comply with an Authorised Officer’s direction without a reasonable excuse could result in a fine of up to $550.[12]

What restrictions are in place in response to COVID-19?

The Public Health Powers are being used to

See the linked NSW Government explanations of these directions for further details.

If you are a community organisation, find out about how these restrictions impact your duties to employees and volunteers.

There are additional restrictions made through Federal Government powers. To understand those restrictions, see our Federal Government resource.

Penalties

Refusing or failing to comply with a direction given by the NSW Health Minister without a reasonable excuse is an offence, and could result in a fine of up to $11,100 for individuals, six months’ imprisonment, or both. Further fines of $5,500 apply for each day the offence continues.[21]

Businesses face fines of up to $55,000 and up to a further $27,500 for each day the offence continues.[22]

In addition, the NSW Government has passed an order directing that you must not intentionally spit at or cough on any worker in a way that causes fear about the spread of COVID-19.[23] The above penalties apply to a breach of that order.

If you receive a fine, you may choose to seek legal advice. You may have a defence if there was a reasonable reason for you being unable to follow the instruction.

What to do if you or your family receive directions under the Act

If you or your family are directed to do something using the Emergency Powers, you can get legal advice through Justice Connect.

Apply for legal help

If you have a legal problem related to COVID-19, apply for free legal help from Justice Connect.

Apply now

Accuracy

This resource is accurate as at 23 November 2020. You should review the NSW Government website for the most up to date information.

Jurisdiction

This is a New South Wales resource.

References

[1] Public Health Act 2010 (NSW) (the Act) s 7(1).

[2] The Act, s 7(1).

[3] The Act, s 7(2).

[4] The Act, s 7(5).

[5] The Act s 126.

[6] The Act s 108.

[7] The Act s 110.

[8] The Act ss 111 and 112.

[9] The Act s 108(2) and (3).

[10] The Act s 108(2) and (3).

[11] The Act s 108(4).

[12] The Act s 113

[13] The Act s 7; Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5), 22 October 2020.

[14] As above; Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5), 22 October 2020; Exemption under the Public Health (COVID-19 Restrictions on Gatherings and Movement) Order (No 3) 2020, 22 June 2020; Exemption under Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 2) 2020, 19 May 2020; Exemption under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020, 14 July 2020.

[15] As above.

[16] Public Health (COVID-19 Maritime Quarantine) Order (No 3) 2020, 21 September 2020.

[17] Public Health (COVID-19 Air Transportation Quarantine Order (No 3) 2020), 15 October 2020.

[18] Public Health (COVID-19 Self-Isolation) Order (No 4) 2020, 20 October 2020.

[19] Public Health (COVID-19 Residential Aged Care Facilities) Order (No 3) 2020, 18 September 2020.

[20] Public Health (COVID-19 Border Control – South Australia) Order 2020, 18 November 2020/

[21] The Act, s 10.

[22] As above.

[23] The Act s 7; Public Health (COVID-19 Spitting and Coughing) Order (No 3) 2020, 25 September 2020.

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