Unpacking the new regime - defined public activities and prohibited gatherings

1 June 2020

Today, the Emergency Management (Public Activities) (COVID-19) Direction 2020 has come into effect (‘the Direction’). It revokes the previous Non-Essential Business and Other Activities No 7 and the Gatherings No 3 Directions.

The Direction has been drafted to apply ‘across the board’ to a whole range of public activities, resulting, in our view, in it not being the clearest of instruments to read and understand.

Below is our summary of what we consider to be the relevant provisions for councils in respect of various forms of meetings.

Prohibited Gatherings

A person must not allow, organise or attend at a prohibited gathering. This is a gathering of more than 20 people at any one place, unless it is:

  • an excluded gathering, as set out in Schedule 1, or
  • a gathering which occurs as part of a defined public activity.
Defined Public Activity

A defined public activity is any of the activities set out in clause 4 of the Direction and, relevantly, includes indoor public meetings.

A public meeting is a meeting, lecture or presentation that is open to members of the public. In our view, this definition is sufficiently wide to include council assessment panel meetings, and informal gatherings.

Density and Occupancy Requirements

Under the Direction, a council is permitted to:

  • facilitate a defined public activity but, in doing so, is required to meet the density and maximum occupancy requirements;
  • the density requirement is that the total number of persons present does not exceed 1 person per 4 square metres. However, in calculating this, only the part(s) of the place used by members of the public is/are included and persons employed or engaged to work, or undertake official duties, for the purposes of the defined public activity are not counted;
  • the occupancy requirements provide that, whilst the number of people present for the defined public activity (as a whole) cannot exceed 80 at the place, there must (regardless of the density requirement) be no more than 20 people present in any single room or enclosed area. Again, in meeting these requirements, persons employed or engaged to work, or undertake official duties, for the purposes of the defined public activity are not counted;
  • councils are also required to use best endeavours to comply with the physical distancing (1.5m) principle for persons present at a defined public activity; and
  • councils are required to download and complete the COVID Safe Plan at covid-19.sa.gov.au and undertake ‘contact tracing’ in commencing these public activities – noting that more than one business or activity can be included in the Plan.
Contact Tracing

A council is required to make and retain contact tracing records for persons attending at indoor public meetings. The records must include the time and date of the activity and the name, phone number or email address of the person attending (unless the person refuses to provide the information). The records are to be retained and produced for inspection on request by an authorised officer. A contact tracing form is available for download at www.sa.gov.au.

Council, council committee or subsidiary meetings – and informal gatherings

What the above means, in a practical sense, is the following –

1.   a gathering of elected members (or members of a committee or subsidiary board), and other persons working or otherwise engaged in official duties, at an ordinary or special meeting of the council (or the committee or subsidiary) are excluded from the prohibited gathering controls;

2.  however, for members of the public in attendance at an ordinary or special meeting, the density and occupancy requirements (i.e. no more than 20 persons present, subject to meeting the 1 person per 4 square metre rule) are required to be met and best endeavours must be used to comply with the physical distancing principle (i.e. spaced at a minimum of 1.5m);

3.   an informal gathering is outside of the arrangements for ordinary or special meetings;

4.   if it is a confidential informal gathering, it is not a public meeting and so not a defined public activity. However, it is a gathering to which the maximum number of persons in attendance is limited to 20 (and without any exceptions for persons working or engaged in official duties) and subject to the use of best endeavours to comply with the physical distancing principle; and

5.   if it is an informal gathering which is open to the public, it is a defined public activity which is subject to compliance with the density and the maximum occupancy requirements (noting the relevance of the exception for persons working or engaged in official duties) and the use of best endeavours to comply with the physical distancing principle. Further, as a defined public activity it is also subject to the Safe Plan and contact tracing requirements and all members of the public in attendance must be seated.

It has been put to us that, given the content of the Direction, it is difficult to see what real work the exclusion for ordinary and special meetings of a council/committee/subsidiary has to do, as they are, necessarily, within the definition of an indoor public meeting, and, hence, a defined public activity for the purposes of the Direction. The answer, of course, is that under the Direction, ordinary and special meetings are not subject to the levels of prescription (the density and maximum occupancy requirements, the Safe Plan and contact tracing requirements for members and staff), but are subject only to the use of best endeavours to comply with the physical distancing principle – noting, of course, the requirements, as above, that apply to members of the public.

If you have any questions regarding the operation of the Direction please contact Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au; Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au; or Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au.