Selected personal observations for public disclosure on ‘Communal singing and chanting should not occur’

In Aevum Morsus
Selected personal observations
for public disclosure on
‘Communal singing
and chanting should not occur’
A public policy perspective
Alexander Weilsmann JP MPP (USYD) MA (UNSW)
June MMXX

Contents
Summary
Amendments to the Public Health (COVID-19
Restrictions on Gathering and Movement)
Order
COVID-19 Rules
Changes for worship, weddings and funerals
Physical distancing
Exemptions to Public Health (COVID-19
Restrictions on Gathering and Movement)
Order 2020 [NSW]
Penalties
Collecting personal information

Summary
A NSW Government Order is a legal mandatory direction and must be published in the
Government Gazette of New South Wales. All Orders have a statutory limitation of 90 days
unless revoked earlier. The NSW Minister for Health and Medical Research is responsible
for public health orders under the Public Health Act 2010. The Public Health (COVID-19
Restrictions on Gathering and Movement) Order 2020 [NSW] commenced on 31 March
2020 and expires at of 29 June 2020, unless revoked earlier.
Usually, the interpretation of legislation and sub-ordinate legislation is a straightforward
convention. For example, a NSW Government Order prescribes regulations and they
MUST be implemented. Rules are drafted to support the regulation and are guidelines or
suggestions. If the rules are referenced in the regulation they are not prescribed,
therefore, NOT mandatory. This is the approach that I applied to undertake a public
policy review of the Public Health (COVID-19 Restrictions on Gathering and Movement)
Order 2020 [NSW] and accompanying COVID-19 Rules.
COVID-19 Rules are published on the NSW Government’s website. The normative
approach is that unless the COVID-19 Rules are prescribed under the Public Health (COVID-
19 Restrictions on Gathering and Movement) Order 2020 [NSW]. The rules are not
mandatory but are suggestions.
Caution is advised when considering the media release published by the NSW
Government on 29 May 2020 to differentiate between commentary on clauses contained
in the Order, which are mandatory, and sections of the COVID-19 Rules, which are
suggestions. The media release titled Changes for worship, weddings and funerals are not
prescribed and nor are they mandatory under the Public Health (COVID-19 Restrictions on
Gathering and Movement) Order 2020 [NSW]. The statement contained in the media
release that ‘‘communal singing and chanting should not occur because of the high risk of
transmission of the virus’’ is an assertion. It is not mandatory, a direction or requirement.
NSW Government has not ordered that ‘‘communal singing and chanting
should not occur because of the high risk of transmission of the virus’’.
Over the past 48 hours as I have been reviewing the Public Health (COVID-19 Restrictions
on Gathering and Movement) Order 2020 [NSW] and COVID-19 Rules, it has become
apparent that a policy conundrum exist and there are drafting anomalies. As a result, I
have suspended the usual norms and assumptions associated with policy and legislative
interpretation. Seeking legal counsel on the application of the COVID-19 Rules is
mandatory, in my view.
There is obvious confusion as the implementation of the NSW Government Order is
leading to an arbitrary application of the COVID-19 Rules. The NSW Police Commissioner
has cancelled a significant number of COVID-19 related fines. Anyone who breaches a
COVID-19 Rules can be reported to the NSW Police and be financially penalised and/or
imprisoned. The NSW Government’s COVID-19 website is difficult to navigate, it’s
ambiguous and unnecessarily complex. If I was invited to provide advice on the
implementation of the Public Health (COVID-19 Restrictions on Gathering and Movement)
Order 2020 [NSW] and COVID-19 Rules, I would also seek legal counsel on the interrelationship
between the regulation and the rules, including the perceived over-reach by
the NSW Government, including the NSW Police.
Alexander Weilsmann JP MPP (USYD) MA (UNSW)

Amendments to the Public Health (COVID-19
Restrictions on Gathering and Movement) Order
On 29 May 2020 the Public Health (COVID-19 Restrictions on Gathering and Movement)
Order (No 2) 2020 [NSW] was amended, directing gatherings and use of premises, and
records and exchange of information.
Coming into effect from 1 June 2020, the Public Health (COVID-19 Restrictions on Gathering
and Movement) Order (No 3) 2020 with the objective to revoke and remake the Public
Health (COVID-19 Restrictions on Gathering and Movement) Order (No 2) 2020 to ease
certain restrictions.
Detailed information on gatherings for weddings, funerals, memorial services and religious
services directed by the NSW Minister for Health and Medical Research are contained in
the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 in Parts
5, 7, 11.
The below unamended text references places of worship as articulated in the Public
Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020.

COVID-19 Rules
There are specific ‘Rules’ relating to places of worship and are published on the NSW
Government’s COVID-19 website. The COVID-19 Rules came into effect from 1 June
2020. The ‘Rules’ are subordinate to the Public Health (COVID-19 Restrictions on Gathering
and Movement) Order 2020 [NSW]. Effectively meaning that unless the ‘Rules’ are
referenced in the Order, the ‘Rules’ are suggestions, therefore, not legally binding. It might
be a useful exercise to cross reference the ‘Rules’ with the Order and establish a
corresponding Schedule identifying the clauses that are legally binding and others that are
suggestions.
Weddings
In addition to the couple, the
people conducting or assisting in
the conduct of the wedding, a
photographer, videographer, and
up to 20 guests (including adults
and children) may attend a
wedding. People attending will
be required to provide their
name and contact details so that
they can be used for contact
tracing.
Worship and religious gatherings allowed with restrictions
A maximum of 50 people (adults and children) can attend a religious
service at a place of worship, plus the people necessary to
conduct or assist in the conduct of, the service.
A maximum of 50 people can attend a place of worship for private
worship however the capacity must not exceed 4 square metres per
person. The maximum applies to the whole of the venue, even
where men and women worship in separate areas.
Services can be streamed or recorded to enable people to engage in
worship.
People attending a religious service at a place of public worship will
be required to provide their name and contact details when they
enter so that they can be used for contact tracing.

Changes for worship, weddings and funerals
On 29 May the NSW Government published the media release Changes for worship,
weddings and funerals. Regrettably, the media release included the following statements
and, amongst other.
“Places of worship will be asked to find alternatives to
practices that might spread the virus like singing, sharing
books and even passing around the collection plate to
reduce infection risks.”
“Communal singing and chanting should not occur because
of the high risk of transmission of the virus. Instead,
measures such as one singer standing at least three metres
away from others would be safer.”
The tone of the text indicates that the statements are optional and are not legally binding.
Disappointingly, the NSW Government appears not to have publicly disclosed the
research methodology and/or any peer review supporting the assertion that ‘‘communal
singing and chanting should not occur because of the high risk of transmission of the virus’’ and
how the hypotheses would relate in the context and demography of the Commonwealth
of Australia and other empirical research.

Physical distancing
The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 is silent
on physical distancing and as such, there is no legal requirement to maintain physical
distance.
The COVID-19 Rules makes regarding physical distancing using the four-square metre rule
and isn’t mandatory.
Collecting personal information
The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 requires
the relevant person for the wedding, funeral, memorial or religious service or gathering
must record the names and contact details, including telephone numbers and email
addresses, of all persons at the service.
The COVID-19 Rules makes suggestions regarding collecting personal physical information
and they are not mandatory.
Exemptions to Public Health (COVID-19 Restrictions
on Gathering and Movement) Order 2020 [NSW]
In the event that the Public Health (COVID-19 Restrictions on Gathering and Movement)
Order 2020 [NSW] ordered that ‘‘communal singing and chanting should not occur because
of the high risk of transmission of the virus’’, and it hasn’t, the direction would be contained
in the Order. Surprisingly, that if it was to be a part of the Order and/or COVID-19 Rules,
that it was not introduced at the commencement of the Regulation on 31 March 2020.
The Minister may and has granted exemptions under the Public Health (COVID-19
Restrictions on Gathering and Movement) Order 2020 and/or specified provisions of the
Order. The Minister recently exempted registered clubs or pubs that have bowling greens
on their premises to allow lawn bowling.

Penalties
The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 [NSW]
includes penalties for breach of Orders made under the Public Health Act 2010. A breach
of an Order is a criminal offence and attracts financial penalties up to $11,000 plus a
further $5,500 fine each day the offence continues or imprisonment for 6 months (or
both). Corporations that fail to comply with a direction are liable to a fine of $55,000 and
$27,500 each day the offence continues.
NSW Government has not ordered that ‘‘communal singing and chanting
should not occur because of the high risk of transmission of the virus’’.
The COVID-19 Rules invites reporting the breach of any of the rules to the NSW Police or
via a direct link to Crime Stoppers. Crime Stoppers is the nominated reporting agency for
the public to provide information to police about individuals, businesses and corporations
not complying with Public Health Orders. The link to Crime Stoppers does not, however,
proceed to a specific portal to report a breach.
The causation and the leading towards of what is defined as a breech of the Public Health
(COVID-19 Restrictions on Gathering and Movement) Order 2020 [NSW] and COVID-19
Rules must be identified with corresponding penalties. The current link between breeches
of the COVID-19 Rules and penalties are ambiguous and requires clarification.
1. A Schedule of COVID-19 Rules to be prepared.
2. A Schedule of prescribed penalties to be prepared and referenced in the Public
Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 [NSW].
3. The NSW Crown Solicitor to be engaged and provide an opinion on the legality
of non prescribed COVID-19 Rules supporting the Public Health (COVID-19
Restrictions on Gathering and Movement) Order 2020 [NSW].