NSW COVID-19 Emergency Measures

NSW has implemented emergency legislative measures in response to COVID-19, giving the NSW Government powers in areas including child protection, land development and the public, private and mental health sectors. Read on to find out if these powers will affect your organisation.

This alert applies to public and private health providers, mental health service providers, subscribers who work with children, subscribers who attend correctional premises, subscribers who carry out developments and subscribers who operate supermarkets.

COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW)

Please be advised that the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) (the Bill) passed the NSW Parliament on the 24th of March 2020 and was assented to on the 25th of March 2020. The Bill commenced on the day of assent.

The Bill has amended several Acts to implement emergency measures as a result of the COVID-19 pandemic.

Amendments to the Child Protection (Working with Children) Act 2012 (NSW)

The Bill has amended the Child Protection (Working with Children) Act 2012 (NSW), by inserting the new section 54. Subscribers should be aware that, in accordance with this new provision, the period for which a working with children check clearance is in force may be extended at the discretion of the Children’s Guardian.

Amendments to the Children (Detention Centres) Act 1987 (NSW)

The Bill has amended the Children (Detention Centres) Act 1987 (NSW) by inserting the new section 110 into that Act, which provides that the Secretary of the Department of Justice may prohibit or otherwise restrict persons, or classes of persons, from entering or visiting a detention centre during the prescribed period if the Secretary is satisfied that it is reasonably necessary to protect the health of a detainee, any other person or the public from the risk posed by the COVID-19 pandemic.

This new provision remains in force for a minimum period of 6 months after the commencement of the new section 110, or if a later day is prescribed by the regulations, a maximum period of 12 months.

Amendments to the Crimes (Administration of Sentences) Act 1999 (NSW)

The Bill has amended the Crimes (Administration of Sentences) Act 1999 (NSW) by inserting the new section 275, which provides that the Commissioner of Corrective Services, Department of Justice, may prohibit or restrict any person or class of persons from entering or visiting correctional premises, if the Commissioner is satisfied that it is reasonably necessary to protect the health of an inmate, any other person or the public from the public health risk posed by the COVID-19 pandemic.

This provision applies for a minimum period of six months or, if the regulations prescribe a longer period, a maximum period of 12 months.

Amendments to the Environmental Planning and Assessment Act 1979 (NSW)

Subscribers should note that the Bill will also amend the Environmental Planning and Assessment Act 1979 (NSW) by inserting the new sections 10.17 and 10.18.

The new section 10.17 provides that the Minister may authorise development to be carried out on land without the need for approval under the Environmental Planning and Assessment Act 1979 (NSW) or consent from any person, if the Minister has consulted the Minister for Health and Medical Research and is reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic. This provision applies for a minimum period of six months or, if the regulations prescribed a longer period, a maximum period of 12 months.

Additionally, the new section 10.18 provides that documents usually required for inspection at a physical location under the Environmental Planning and Assessment Act 1979 (NSW) may be made available on the NSW planning portal or any other website approved by the Planning Secretary instead.

Amendments to the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)

Subscribers should also be aware that the Bill amends the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) by inserting the new clause 7A in Schedule 5F of Schedule 1[25] of that Act. The new clause 7A provides that the Secretary of the Ministry of Health may exempt particular premises used for the storage and distribution of vaccines and other medicines, referred to as State Vaccine Centres, from some or all of the requirements of Schedule 5F of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW).

State Vaccine Centre is defined in the Bill as premises designated by the Secretary of the Ministry of Health for the storage and distribution of vaccines or medicines, or both.

Amendments to the Mental Health Act 2007 (NSW)

The Bill also amends the Mental Health Act 2007 (NSW) by inserting the new section 202. This section gives the Mental Health Review Tribunal several new powers, including:

  • the power to conduct a mental health enquiry for an assessable person, or any other person, by telephone;
  • the power to adjourn a mental health inquiry for up to 28 days;
  • the power to extend the period of a community treatment order that is in force by a period of up to 3 months (even if the extension of the order results in the order being in force for more than 12 months).

The Mental Health Review Tribunal is permitted to exercise these new powers only if it considers that it is necessary to do so because of the COVID-19 pandemic. These new provisions are in force for a period of 6 months from the date of commencement, or a later day prescribed by regulation provided that day is no more than 12 months from the date of commencement.

Amendments to the Private Health Facilities Act 2007 (NSW)

Subscribers should be aware that the Bill will amend the Private Health Facilities Act 2007 (NSW) by inserting the new section 70, which provides that the Secretary of the Department of Health may exempt a private health facility licensee, or a class of licensees, from certain licence conditions and requirements if the Secretary is satisfied that it is reasonably necessary because of the COVID-19 pandemic, and that patient care and safety are to be properly maintained.

Amendments to the Public Health Act 2010 (NSW)

The Public Health Act 2010 (NSW) has also been amended by the Bill to provide for an increase in the period of time for which a public health order remains in force. New subsections 63(2A), 63(2B) and 63(2C) provide that a public health order made by an authorised medical practitioner in regards to a person in relation to the COVID-19 pandemic remains in force for the period specified in the order, rather than the usual period of 3 business days. Additionally, a public health order relating to the COVID-19 pandemic does not need to be confirmed by the New South Wales Civil and Administrative Tribunal in order to remain in force.

The Bill also provides for increased powers for police officers under the Public Health Act 2010 (NSW), including the power to arrest a person if the police officer suspects on reasonable grounds that the person is contravening a public health order relating to the COVID-19 pandemic, and the power to require a person suspected of contravening a provision of the Public Health Act 2010 (NSW) to provide the person’s name and address and for the purposes of issuing penalty notices.

Finally, the Bill amends the Public Health Act 2010 (NSW) to provide that the Minister for Health and Medical Research or the Minister for Mental Health, Regional Youth and Women may impose conditions on the exercise of an authorised officer issuing a penalty notice.

Amendments to the Retail Trading Act 2008 (NSW)

Subscribers who operate supermarkets should also be aware that the Bill amends the Retail Trading Act 2008 (NSW), inserting the new section 8A to enable supermarkets to open on Good Friday, Easter Sunday and Anzac Day in 2020, however only if the supermarket is staffed only by persons who have freely elected to work on those days.

Conclusion

Subscribers should familiarise themselves with the suite of amendments provided for in this Bill and update relevant processes and systems to ensure effective compliance in the event that the above powers are exercised. Additionally, subscribers should be aware of any new exemptions provided for by the Bill that may impact compliance and administrative procedures.

Please click here to access the full Bill.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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