The weekly briefings are prepared to assist you with keeping up to date with the effects of any legislative, regulatory or general changes as a consequence of Coronavirus (COVID-19).

Also, Clyde & Co also has a dedicated COVID-19  Information Hub which hosts many articles from around the world that provide different perspectives and in-depth analysis on many of these issues.

Aged Care Facilities, AHPPC and Update to Restrictions

With the lifting of restrictions throughout Australia, consideration regarding access to, and the management of persons within, Residential Aged Care Facilities (Facilities) remains of particular concern. The Australian Health Protection Principal Committee (AHPPC) and the Department of Health continue to emphasise the significant health risk of COVID-19 for the elderly and individuals with co-morbidities or low immunity within these Facilities.

Accordingly, while visitation from family/friends and external service providers remains an important aspect of residential care, the AHPPC maintains that restrictions should remain inforce in respect to prohibiting access by visitors and staff who fulfil the following criteria:

  • Individuals who have returned from overseas in the last 14 days; and/or
  • Individuals who have been in close contact with a confirmed case within the last 14 days; and/or 
  • Individuals who are unwell, particularly those with fever or acute respiratory infection (for example, cough, sore throat, runny nose, shortness of breath) symptoms; and/or
  • Individuals who have not been vaccinated against influenza.

In addition to these restrictions, National Health guidelines remain in force with respect to infection control at the Facilities. These guidelines include the recommendation that visitors are limited to two persons at one time; social distancing protocol is followed; and personal protective equipment and hygiene practices are enforced. 

AHPPC also recommends that all Facilities only allow staff and visitors who have received the yearly influenza vaccination to enter the premises, due to the high mortality rate associated with the influenza viruses and the elderly and immunocompromised residents within the Facilities. 

Finally, all persons entering the Facilities should be screened for COVID-19 symptoms as recommended by the Aged Care Quality and Safety Commission. The screening includes visitors and staff. Any person displaying symptoms should be excluded from the Facilities and staff members are recommended to undergo testing for COVID-19. 

The above restrictions are recommended nationally, and under the Public Health Act 2010 (NSW) the NSW Minister for Health and Medical Research, Brad Hazzard, has enacted the Public Health (COVID-19 Aged Care Facilities) Order (No2) 2020 (NSW) (the Order) to reflect these recommendations. The Order came into effect on 23 June 2020, and is to be repealed on 21 September 2020. During the period of enforcement, the Order provides authority for the Minister to restrict persons entering or remaining on the premises of any facility for a period of 90 days, if such an exemption is necessary to protect the health and well-being of residents or staff. 

Pursuant to section 10 of the Public Health Act 2010 (NSW), should any person fail to comply with a Ministerial direction under the Order, then their action creates an offence which holds a maximum penalty of imprisonment for 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply with a direction are liable to a fine of $55,000 and a $27,500 each day the offence continues.

Operators of Residential Aged Care Facilities have a duty of care to ensure the health and safety of staff, visitors and residents. Accordingly, in line with the AHPPC recommendations and section 7 of the Order, operators are required to take all reasonable steps to ensure that all visitors and staff entering Facilities do not remain on the premises if they show symptoms of COVID-19 and/or have fulfilled the abovementioned criteria for exposure risk to COVID-19.  Should an operator fail to enforce the restriction of access as directed by the Order, then they may be found to be in breach of the Order and liable for penalties.   

Public Health

The National Cabinet considered the situation in Victoria during their most recent meeting on 26 June 2020, in the context of how to ensure that, moving forward, there is a co-ordinated cross-jurisdictional response to any localised outbreaks.This is particularly important given the planning to open up interstate borders in the near future.The National Cabinet agreed to a new plan, developed by the Australian Health Protection Principal Committee (AHPPC) which sets out six actions for the State, Territory and Commonwealth governments. In particular, the plan will involve establishing a national training program for a surge workforce and considering options for developing a formal public health workforce training program. 

The National Cabinet also clarified that under Stage 3 of the Roadmap to a COVID-Safe Australia, the State and Territory governments will be able to allow small premises to apply a 'one person per two square metres of floor space' rule. Generally, larger premises are only permitted to have one person per four square metres of floor space. However, the National Cabinet has agreed to this less restrictive rule after receiving advice from AHPPC. 

The States and Territories continue to amend their public health orders and directions and planning, in light of the local health conditions and the outbreak in Victoria. Notably, South Australia has confirmed that it will not be opening its border to travellers from Victoria on 20 July 2020, as previously planned. Whether travellers from NSW and the ACT will be able to enter without restrictions on this date is still being considered. When Queensland's borders open on 10 July 2020, Victorians, or anyone who has been in Victoria in the past 14 days, will also not be permitted to enter. The Northern Territory has adopted a similar approach for its border opening (17 July 2020). Anyone who has been to a COVID-19 hotspot, including those in Melbourne, will not be permitted to enter without isolating for 14 days upon arrival at their own expense. 

At the time of writing, NSW has not closed its borders with Victoria. However, NSW has amended and updated several of its public health orders in the past week. Notably, on 1 July 2020, the Public Health (COVID-19 Interstate Hotspots) Order 2020 commenced. Under this order, an 'affected person' (being a person who has been in a COVID-19 hotspot in the past 14 days) must not enter NSW unless their usual place of residence is in NSW or they are entering NSW to obtain care, fulfil a legal obligation or provide an essential service. At the moment Schedule 1 of the order, which lists COVID-19 hotspots, only contains 10 postcodes in Melbourne. The maximum penalty for breaching this order is imprisonment for 6 months and/or a fine of up to $11,000 (plus a further $5,500 for each day the offence continues). Corporations which fail to comply will be liable to higher penalties, including a fine of $55,000 and a further $27,500 for each day the offence continues. 

NSW has also updated/commenced the following public health orders: 

  • Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 on 30 June 2020; 
  • Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020 on 29 June 2020; 
  • Public Health (COVID-19 Maritime Quarantine) Order (No 2) 2020 on 29 June 2020; 
  • Public Health (COVID-19 Aged Care Facilities) Order (No 2) 2020 on 22 June 2020; and 
  • Public Health (COVID-19 Self-Isolation) Order (No 2) 2020 on 16 June 2020. 

Relevantly, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) sets out in Schedule 1 the premises which are required to have a COVID-19 Safety Plan. A COVID-19 Safety Plan is set out in Clause 7 of the order as one which addresses the matters required by the COVID-19 safety checklist approved by the Chief Health Officer and published on the NSW Government website (available at  https://www.nsw.gov.au/covid-19/covid-safe-businesses#industries).  

In the employment space, the Fair Work Commission (FWC) has published its Annual Wage Review Decision for 2019-20, which reviews the national minimum wage and the modern award minimum wages each financial year. In its decision, the FWC had regard to the effect that the restrictions have had on the economy. The FWC stated, "The COVID-19 pandemic casts a large shadow over the current economic climate...[The restrictions] have significantly reduced domestic activity and resulted in a 'large and near simultaneous contraction across the global economy." In particular, the decision identified three categories where jobs and/or wages have declined, labelling them the lower, central and upper clusters. Interestingly, the lower cluster, which experienced the least decline, includes financial and insurance services, and electricity, gas, water and waste services. In contrast, the FWC acknowledged that industries where workers are award-reliant have been, and will continue to be, heavily affected. 

After having regard to the COVID-19 pandemic and the submissions presented before it, the FWC determined that the national minimum wage will be increased from $740.80/week to $753.80/week. 

Environment and Planning

Accelerated Infrastructure Fun

On 3 April 2020, the Minister for Planning and Public Spaces announced the Accelerated Infrastructure Fund ('AIF') as part of the Planning System Acceleration Program.

The AIF provides $75.9 million of funding for local infrastructure in the high growth areas Blacktown and the Hills Local Government Areas (LGAs) in North West Sydney.

The objectives of the funds are to:

  1. fund infrastructure that unblocks development approvals and enables development activity;
  2. stimulate construction activity by investing in 'shovel-ready' infrastructure projects;
  3. reduce local developer contributions;
  4. encourage developers to enact development approvals and invest in construction.

The AIF will allocate $45 million to Blacktown City Council and $30.96 million to The Hills Shire Council with close to co-fund and accelerate the delivery of 14 community infrastructure projects worth $145.99 million.

The 14 projects to be funded by the AIF include:

  • 8 local road projects – Rouse Road Upgrade, Glengarrie Road Upgrade, Railway Terrace Upgrade, Grange Avenue, Loftus Street Upgrade, Regent Street Upgrade, Hezlett Road Upgrade and signalisation at Samantha Riley Drive and Hezlett Road;
  • 3 stormwater drainage projects - Little Creek South Street Basin, Bioretention Monitoring and Optimisation Project at the Kudgee and Street stormwater detention basin in the Alex Avenue Precinct;
  • 3 open space facilities - Park 885 Neighbourhood Park, Jerralong Drive Schofields regional sports park and Balmoral Road Reserve.

Construction of these projects will be underway by December 2020 and will support the construction of 40,000 new homes and 115 hectares of employment land.

NSW Showgrounds obtain additional $10.77 million in funding

Last month, the NSW government allocated $12.5 million to support 137 showgrounds across the State. On 29 June 2020, the Minister for Water, Property and Housing announced that a further $10.77 million will be allocated to support upgrades to another 129 projects this financial year.

The additional funding allocated to more showground upgrade projects, brings total spending up to $35.77 million, and aims to create jobs and support community growth to recover from the COVID pandemic. 

NSW Land and Environment Court Coal Mining Judgment

In a case between Mangoola Coal operations Pty Ltd and Muswellbrook Shire Council, which debated whether the land Mangoola was operating on was used for agricultural purposes or coal mining activities, the Council was successful in claiming that the land in which Mangoola Coal Operations Pty Ltd were operating on was in fact a coal mine.

Glencore's Mangoola Coal Operations argued that 4150 hectare of 6600ha site near Wybong was in fact used by their agricultural company Colinta Holdings for the purposes of grazing cattle. However, part of Council's successful argument was highlighting the lack of cattle on the property, and that Colinta's financial accounts did not reflect a profitable farming enterprise and the fact the land contained mining monitor equipment including air quality and water monitors pointed to the land being used for coal mining activities.

This decision will have significant financial implications as land used for coal mining purposes has a higher rateable charge in comparison to land used for agriculture. The outcome of this case, if it is not subject to a successful appeal, could see mining companies have to pay higher rates on much of their land.

Australian National Cabinet – outbreaks in Victoria

Victoria is experiencing significant community transmission of COVID-19.  On 26 June 2020, the Australian National Cabinet met to discuss the outbreaks in Victoria and how best to ensure a coordinated, cross-jurisdictional response to localise future outbreaks. The National Cabinet agreed to a new plan developed by the AHPPC which provides for actions for state, territory and Commonwealth governments to improve the sustainability of the public health workforce by:

  • strengthening a formal surge plan for the public health response workforce and reviewing the ongoing structure of the public health units;
  • progressing the national interoperable notifiable disease surveillance system (NINDSS) project and prioritising appropriate interfaces;
  • establishing a national training program for surge workforces;
  • better supporting the Communicable Disease Network of Australia (CDNA), including shared costs; 
  • prioritising enhancing the public health physician workforce capacity; and
  • considering options for developing a formal public health workforce training program.

https://www.pm.gov.au/media/national-cabinet-statement-0

On 30 June 2020, due to a spike in positive COVID-19 cases, the Victorian State government announced that from 11.59pm on 1 July, ten postcodes linked to outbreaks will go into local lockdown.  The "hot zones" will be required to return to Stage 3 restrictions until 29 July. For people living in those locations, there will again only be four reasons to be out: Shopping for food and supplies, care and caregiving, exercise, and study or work (if it cannot be done from home).  The businesses and facilities in those areas that recently reopened will again face restrictions. $5,000 in dedicated support is being made available for businesses previously eligible for a Business Support Fund grant or a payroll tax refund.

https://www.premier.vic.gov.au/statement-from-the-premier-47/

Originally published June 29, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.