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Byron Shire
October 25, 2021

NSW govt’s Health Order lacks clarity

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More than a million people tuned into the live stream of  Kassam v Hazzard; Henry v Hazzard via the NSW Supreme Court’s YouTube channel over the past couple of weeks, many hoping for a judgment which invalidates public health orders which mandate vaccines for certain industries, such as healthcare, aged care and construction.

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Confused and anxious when it comes to ambiguous and complex COVID-19 laws? You are not alone.

Local businesses have expressed confusion and resistance at being expected to act as defacto police and ascertain the vaccination status of people on their premises.

The Public Health (COVID-19 General) Order 2021 is 53 pages long, and outlines how a wide range of businesses – and individuals – should self-regulate and operate within COVID-19 rules.

Yet there is no clarification in the order regarding the ‘reasonable steps’ a business owner must take to ensure that an unvaccinated adult is not on the premises.

‘Reasonable steps’ is mentioned within sections 5.3 of the order (COVID Safe Check-in), 2.12 (certain outdoor events) and section 2.19 (Premises closed to unvaccinated adults).

Retired local magistrate, David Heilpern, told The Echo that the term ‘reasonable steps’ will eventually need to be determined by the courts.

He said, ‘The government appears to be relying on the posters that they have issued, which business owners can download to go up in shop windows’. Mr Heilpern added that courts would likely decide on the ‘reasonable steps’ definition depending on the size of business.

The Echo asked local Detective Chief Inspector, Matt Kehoe, if police will be checking people’s vaccination status on behalf of businesses that are required to, if there’s an issue from the business owner’s point of view, such as a disruptive customer? And if so, will this mean extra/increased policing numbers for the area? 

He replied, ‘There are no extra police numbers to our district’. 

No proactive policing

‘At present, police will not be proactively checking vaccination status of patrons and business owners. That being said, if we are called for Crime Stoppers reports or 000 calls, then there is a responsibility for police to investigate and ask those questions. I would encourage people to comply with the current Public Health Order’.

‘Please be respectful to business owners trying to navigate these challenging times and be kind to each other’.

Meanwhile, the bipartisan Cross Border Taskforce, comprising Members from both the NSW and Qld Parliaments, has called on the NSW Premier to delay double vaccination requirements until the end of October in regional areas.

While the Order currently says a fully vaccinated person has to have two doses of a COVID-19 vaccine to enter certain premises, the Premier announced on October 7 that regional workers (not customers) will only require one shot.

The Taskforce wrote to the new premier about their concerns for the region, and asked for an outline of his plans for this region, ‘so we are able to relay this to our communities and alleviate any unnecessary growing anxiety around this issue’.

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  1. Yes indeed, what are “reasonable steps”? Here’s the part of the legislation where it’s referred to.
    Public Health (COVID-19 General) Order 2021 under the Public Health Act 2010 s2021-446.d08 I, Brad Hazzard, the Minister for Health and Medical Research, make the following Order under the Public Health Act 2010, section 7. Dated 3 October 2021 (original order). Time 7:23pm. As amended on 8 October 2021.
    Dated 3 October 2021 (original order). Time 7:23pm. As amended on 8 October 2021. Minister for Health and Medical Research Explanatory note The object of this Order is to repeal and remake the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 as part of the roadmap for easing restrictions when 70% of the population of New South Wales who are over 16 years of age are fully vaccinated against COVID-19. This Order also incorporates matters that were in the Public Health (COVID-19 Safety) Order 2021 and the Public Health (COVID-19 Spitting and Coughing) Order (No 3) 2021 and repeals those Orders.
    Division 5 Unvaccinated adults—additional restrictions 2.18 Premises closed to unvaccinated adults (1) The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises— Page 14 Public Health (COVID-19 General) Order 2021 [NSW]
    Part 2 Directions applying to general area (a) higher risk premises, (b) business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours ……


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