4 June 2020
Introduction
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
Residents of aged care facilities are at increased risk of COVID-19 infection due to the environment of communal living facilities. The residents are also more vulnerable to serious complications if they do become infected due to their age and comorbidities.
Globally, as many as half of all coronavirus deaths in Europe are residents of aged care facilities, the World Health Organization (WHO) says. Dr Hans Kluge, WHO's regional director for Europe, described the number of aged care deaths as a "deeply concerning picture".
From an Australian perspective, on 24 April 2020, following the national cabinet meeting, Australian Prime Minister, Scott Morrison warned that any aged care facilities which were imposing visitor rules beyond the nationally recommended coronavirus advice, would face interference from the Commonwealth Government. While Mr Morrison acknowledged there would be situations when bans on visitors were necessary for the safety of residents and staff, he confirmed in all other circumstances facilities must follow the national COVID-19 advice.
As of 19 May 2020, there are 65 confirmed COVID-19 cases in residential care recipients in Australia and 31 cases associated with 'in-home' care recipients. Of the 65 cases in residents of aged care facilities, there have been 22 recoveries recorded and 27 deaths, with 16 active cases. Noting that there have been a total of 100 deaths in Australia associated with COVID-19, the deaths linked to aged care represent a significant number. Due to the large cluster of cases, it is therefore likely that plaintiff firms will begin to explore a mass tort class action for personal injury. In addition, individual claims are likely to be brought by patients or their family members for compensation in respect of bodily injury arising out of the provision of/or failure to provide adequate medical, health care related and aged care related services.
Depending on the nature of the claim, General Liability, Medical Malpractice and/or a Professional Indemnity polices may respond. For more information please click here.
Education – NSW
Following expert advice from the Australian Health Protection Principal Committee (AHPPC) and others, on 25 May 2020 school students in New South Wales started returning to school on mass.
Recent outbreaks
Despite this move to return, we have already seen several outbreaks in schools across the State.
On 10 May 2020 a Year 7 student at St Ignatius College, Riverview tested positive for COVID-19. The school was closed, students were sent home, comprehensive cleaning performed and contact tracing carried out.
On 26 May 2020 a Year 7 student at Waverley College Senior Campus, in Sydney’s eastern suburbs and a Year 5 student at Moriah College (located less than 2kms from Waverley College) both tested positive for COVID-19.
All senior students on the Senior Campus of Waverley were sent home immediately. However, students on the Junior Campus were not sent home unless they were a sibling of a senior student. The schools message to parents advised that the Year 7 student had not been in contact with anyone from the Junior School.
A Moriah College spokesperson said its campus would be closed for cleaning until next week.[1]
Health Advice
Current health advice identifies the risk of transmission in schools as "relatively low" and acknowledges that the greatest risk of transmission in the school environment is between adults. Despite the degree of risk, on 22 May 2020 the NSW Department of Education released health advice for students returning to face-to-face learning.[2] This advice includes that students cannot do or attend:
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School assemblies (unless for critical information);
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School incursions and excursions including camps;
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Work experience;
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Inter-school activities (debating, inter-school sport);
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In-school activities requiring parent or other volunteers;
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Use hydrotherapy pools;
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Drink from a water bubbler – bring a water bottle instead; and
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Students cannot attend TAFE for study but may continue to learn online.
The NSW Government has dispatched essential health supplies to schools to aid with the transition to face-to-face learning. To date they have dispatched 740,000 items to schools including: soap, hand sanitiser, toilet paper, disinfectant wipes and personal protective equipment.
In addition, protocols have now been put in place to ensure that there are to be no visitors to school sites unless they are essential and schools now provide advice as to drop off and pick up procedures.
Recent outbreaks
The Federal Deputy Chief Medical Officer Paul Kelly has previously commented that cases such as those at schools were "part of the process of opening up" the economy. He added that cases in schools were expected from time to time and that short-term closure, cleaning and contact tracing was the most appropriate response in the circumstances[3].
What are the risks for increased infections and in particular around community transmission?
Whilst the risk of COVID-19 complications in children is low, increased infections in schools have the potential to lead to increased community transmissions to adults, and particularly to older people such as the grandparents.
The AHPPC advises that parents and carers of children and young people with complex medical needs are encouraged to seek medical advice from their health practitioner to support informed risk assessment and decision-making with particular regard to the suitability of on-site education for their child.
The Committee also notes the importance of protecting vulnerable people within school workforces such as people aged 70 years and over; people aged 65 years and over with chronic medical conditions; all people with compromised immune systems; and Aboriginal and Torres Strait Islander people over the age of 50 with chronic medical conditions.
The management of suspected and confirmed cases is outlined in advice from the AHPPC. Where there is a suspected or confirmed case of COVID-19 in a school environment, schools are required to contact the National Coronavirus Helpline (1800 020 080) for further advice.
If a student or staff member is unwell, they should not attend school or should leave to go home. If they are suspected of COVID-19 infection, they should self-isolate and get tested in accordance with state or territory guidelines. Schools should not conduct COVID-19 testing themselves, but should also carry out regular environmental cleaning.
Duty of care – what do schools need to be thinking about?
Due to the highly contagious nature of COVID-19, any venue or organisation that facilitates large gatherings, including schools or places of education, are likely to be the focus of increased scrutiny regarding the duty of care they owe to employees, students, and visitors.
Under both the common law and NSW legislation, all schools in NSW, so far as is reasonably practicable, have a primary duty to ensure the health and safety of workers engaged by the school as well, students, and visitors[4].
In the case of schools, such as Riverview, which provide accommodation for both staff and boarding students, the school has an additional duty of care. The scope of that duty extends, in so far as is reasonably practicable, to maintaining the premises so that the staff and students occupying the accommodation are not exposed to risks to their health and safety.
Accordingly, schools need to consider what may is reasonably practical to ensure the health and safety of staff and students. When weighing up a return to school, senior school executives need to take into account the following factors:[5]
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The likelihood of an outbreak of a COVID-19 outbreak occurring within the school.
This includes factors such as the pandemic nature of the virus; school size; the location of the school, including whether it is in an area of highly concentrated COVID-19 cases (for example in Sydney’s eastern suburbs); as well as the age range of students and employees.
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The degree of harm that might arise from a positive diagnosis of COVID-19 in the school.
Based on preliminary evidence, children are 56% less likely to contract COVID-19 which results in severe illness or death.
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What the school knew or ought to have reasonably known about COVID-19 including ways to eliminate or minimise its risk.
Due to the extensive publication of advice on how to mitigate the risk of COVID-19, schools should be implementing advice and practices such as:
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social distancing between students, staff and visitors;
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stringent hygiene standards including increased availability of sanitiser, regular deep cleans; and
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limiting community contact (such as staggering the arrival and departure of students into the school, cancellation of school sports and assemblies).
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After assessing the extent of the COVID-19 risk and available ways to eliminate or minimise the risk, the cost associated with available ways of eliminate or minimise the risk, including whether it is grossly disproportionate to the risk.
In addition to the large amount of supplies that have already been provided by the Department of Education, it will be incumbent on schools to ensure that they maintain high levels of supplies to ensure that hygiene standards can be maintained for extended periods of time.
Defences to Duty of Care and Breach
This is not to say that schools will be without various statutory and common law defences. For example, in claims of negligence, schools may be able to rely upon such defences as voluntary assumption of risk. This particular defence has two basic elements, namely:
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The plaintiff must have had full knowledge of the risk in question; and
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The plaintiff must have made an unpressured decision to run the risk in question (the voluntariness element).
In assessing the viability of this defence, schools and government departments will need to consider the pressure they are placing on staff to return to work in order to carry out lessons during a pandemic, as well as the pressure they are placing upon parents to return their children to physical classrooms.
To ensure this defence can be appropriately relied upon, schools needs to ensure they create an environment with minimal pressure upon staff and students to return to the physical classroom. Online learning platforms should be maintained as an alternative to physical classrooms without students suffering any prejudice to learning.
What recourse do students and parents have against schools?
Occupation Health and Safety legislation, as well as rights and protections under the Civil Liability Act 2002 (NSW), each give rise to the potential that schools, early leaning and childcare centres may face charges of negligence (i.e. breach of duty of care), workers' compensation claims or even SafeWork investigations if staff or students contract COVID-19 while on premises.
If parents are concerned about the adequacy of their school’s protocols and procedures, these concerns should be raised at first instance with senior staff at the school. If this does not produce a satisfactory results, parents might then escalate their concerns with the Department of Education or raise the issues directly with SafeWork NSW so that they may investigate.
However, the fact that a duty of care may exist does not mean that a school will necessarily be liable for damages arising from COVID-19 infection.
In order to bring a successful claim in negligence, a student, parent or staff member must establish that COVID-19 was contracted as a result of a failure to conform to the required standard of care. Merely exposing someone to danger is not an actionable wrong if the hazard is averted in time.
Ultimately, to bring a successful claim in negligence a student or visitor will need to establish, on the balance of probabilities, that:
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a duty of care was owed to them at the time of the injury;
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the risk of injury was reasonably foreseeable;
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the likelihood of the injury occurring was more than insignificant;
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there was a breach of the duty of care or a failure to observe a reasonable standard of care; and
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this breach or failure caused or contributed to the injury, loss or damage suffered.
Similarly, with respect to workers compensation claims, it is important to note that proving the injury is linked to employment may be difficult if the claimant is otherwise an active individual.
A fundamental difficulty that any claimant is likely to face when making a claim for a breach of duty of care, is satisfying the element of causation. In this case that will involve demonstrating that the virus was indeed contracted at work (or school) as opposed to at home, on the street, while grocery shopping or as a result of using public transport.
If parents wish to seek further clarification, they should inquire with SafeWork NSW and SafeWork Australia.
[2] https://education.nsw.gov.au/covid-19/advice-for-families
[4] s 19 Work Health and Safety Act 2011 (NSW).
[5] Derived from s18 of the Work Health and Safety Act 2011 No. 10 (NSW) – https://www.legislation.nsw.gov.au/#/view/act/2011/10/part2/div1/subDiv2/sec18
Digital and Privacy Risk
Privacy Amendment (Public Health Contact Information) Act 2020 (Cth)
On 14 May 2020, the Privacy Amendment (Public Health Contact Information) Act was passed by Parliament to support the COVIDSafe app and the contact tracing efforts of the State and Territory health authorities. The legislation is also aimed at providing ongoing privacy protections in relation to any data collected through the COVIDSafe app.
Amongst the protections implemented by the legislation, the use of the app is to be strictly voluntary and it is now an offence for a person to require another person to download the app, including employers.
The legislation also requires all data collected by the COVIDSafe app to be deleted at the end of the pandemic, and users notified. This is to take place once advice from the Commonwealth Chief Medical Officer or the Australian Health Protection Principal Committee indicates that the data is no longer required, or is no longer likely to be effective as part of Australia's response.
The following protections have also been implemented:
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the Office of the Australian Information Commissioner (OAIC) has oversight of COVIDSafe data. It can manage complaints about mishandling of data and conduct assessments relating to maintenance and handling of that data;
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the Notifiable Data Breaches scheme has been extended to apply to COVIDSafe data;
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the interaction between the powers and obligations of the OAIC in relation to COVIDSafe data with the powers of state and territory privacy regulators, as well as the Australian Federal Police has been clarified;
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the administrator of the National COVIDSafe Data Store is now legally required to delete users' registration data upon request;
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it is an offence for a person to retain COVIDSafe data on a database outside of Australia, or discloses COVIDSafe data to a person outside of Australia;
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an individual is required to delete COVIDSafe data if they receive the data in error;
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no data is allowed to be collected from users who have chosen to delete COVIDSafe;
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the Minister for Health must report on the operation and effectiveness of the COVIDSafe app and the National COVIDSafe Data Store every 6 months; and
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the Information Commissioner must report on the performance of their functions and the exercise of their powers in relation to Part VIIIA of the Privacy Act every 6 months.
The misuse of data collected through the COVIDSafe app, can result in imprisonment for up to five years, or a fine up of to $63,000 per offence.
Public Health and Wellbeing Infringements
On 20 May 2020, the Prime Minister announcement that the first stage in the plan to have Australia's economy reopened was almost complete. The Prime Minister further noted that reopening NSW was of critical importance, given that NSW represents one-third of the national economy. Signalling a shift in approach, the Prime Minister stated it was time to shift reliance on "emergency assistance programs" such as JobKeeper and move to a sustainable approach in returning to the workplace. As part of this, the Prime Minister acknowledged that adjustments would need to be made to the existing layout, practices and policies in most workplaces to ensure that they were COVIDSafe prior to reopening.
Last week, we reported that the States and Territories have been rolling back restrictions on their own timelines. While this has certainly been occurring, the States and Territories have noted that we are not yet in the clear with regard to the pandemic. For example, on 18 May 2020, Queensland made the Public Health (Further Extension of Declared Public Health Emergency – COVID-19) Regulation (No. 3) 2020 to extend the period of public emergency. Any public health order which was to end on 19 May 2020 was extended to midnight on 17 August 2020. Queensland has also continued to amend and clarify its orders and directions in respect of aged care and corrective services facilities, as well as visitors to hospitals.
NSW has flagged new restrictions to be lifted. On 1 June 2020, salons and beauty services will reopen. On this day, pubs, clubs and restaurants will be allow to seat up to 50 people as long as patrons are seated and there is not more than one person per four square metres of floor space in the premises. From this date, regional travel restrictions will also cease to apply and NSW residents will be able to go on regional holidays.
Similarly, Victoria has announced that from 1 June 2020, overnight stays and tourist accommodation will be permitted, as well as camping at State and National parks. There will be a new limit of 20 people for indoor gatherings (including members of the household) which will extend to cafes, restaurants and pubs (although adherence to physical distancing requirements will be a condition of these venues reopening). The 20 person limit will also apply for public and community spaces such as libraries, galleries and museums. Beauty services and salons will also be permitted to re-open. Further restrictions are not set to be lifted until 22 June 2020.
Other States and Territories continue to proceed with caution, and have flagged the following dates for entering Stage Two:
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The ACT – 30 May 2020;
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South Australia – 5 June 2020;
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Queensland – 12 June 2020; and
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Tasmania – 15 June 2020.
Western Australia has not yet indicated when it will enter Stage Three of lifting restrictions. At the present time, regional borders within Western Australia remain closed.
The Northern Territory, which has been the most advanced in rolling back restrictions, has declared that the restriction on entry into remote communities will also be lifted when the third and final stage of rolling back restrictions occurs on 5 June 2020. Previously, these restrictions were not set to be lifted until two weeks after the final stage of rolling back restrictions commenced.
The COVID-19 orders and directions can be accessed at the following State and Territory websites (as at 25 May 2020):
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Tasmania: https://coronavirus.tas.gov.au/resources
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South Australia: https://www.covid-19.sa.gov.au/emergency-declarations
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Western Australia: https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-state-of-emergency-declarations
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ACT: https://www.covid19.act.gov.au/help-and-advice/public-health-directions
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Northern Territory: https://coronavirus.nt.gov.au/chief-health-officer-directions
Victorian Emergency Measures
COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
Under current directions from the Victorian Chief Health Officer, Victorian workers need to continue to work from home if it is reasonably practicable to do so.
Regulations have been made to modify the provisions of Acts governing integrity entities, including the Ombudsman and the Independent Broad-based Anti-corruption Commission (IBAC), to enable further forms of service and audio-visual link attendances.
Environment and Planning
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)
On 14 April 2020, the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) was passed amending the Environmental Planning and Assessment Act 1979 (NSW) (Act).
These amendments include the following:
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extending the period for development consents by 2 years for developments that would have lapsed during the prescribed period with the non-reducible period remaining at 5 years after the development consent comes into operation;
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making similar changes to development consents that are subject to deferred commencement provisions;
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during the prescribed period, an existing use, or other lawful use, under the Act is abandoned if that use ceases for a continuous period of 3 years (rather than the current period of 12 months);
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permits the Minister for Planning and Public Spaces to provide 2 additional directions to a consent authority in relation to local infrastructure contributions. Namely,
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how money is to be pooled and applied progressively under a contributions plan or under different contributions plans; and
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when a monetary contribution or levy is to be paid.
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extending the period within which a person may appeal against a decision relating to a development consent:
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in the case of an appeal by an objector, the period is extended from 28 days to 56 days;
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in the case for any other appeal, the period is extended from 6 months to 12 months.
Note: Prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.
The amendments (pages 14-17) can be found at – https://www.legislation.nsw.gov.au/acts/2020-5.pdf.
1. Tranche 2 Projects
Earlier in the month, the NSW Government introduced plans to fast-track the assessment of development applications and rezonings.
On 28 April 2020, Premier Gladys Berejiklian, Minister for Planning and Open Spaces Rob Stokes and NSW Treasurer Dominic Perrottet announced the first tranche of accelerated projects through the Planning System Acceleration Program. The first tranche of projects can be found at https://www.planning.org.au/documents/item/10622.
More recently, on 22 May 2020, the second tranche of accelerated assessments were announced. Please find the media release at – https://www.planning.org.au/documents/item/10681.
The second tranche contains 24 priority projects (including 11 rezonings):
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Tweed Valley Hopsital Stage 2;
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Sydney Fish Markets Stage 2 Works;
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Catherine Field Primary School;
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Eastern Creek Retail Centre Lot 1;
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New Public School, Estella Road, Wagga Wagga;
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Honeysuckle – Horizon Lee 5;
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Marsden Park Public School;
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Eastlakes (MOD 4);
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Enirgi Battery Recycling Facility MOD 1;
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Fraser Drive (MOD 5);
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Girraween Waste Recycling Transfer Facility;
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Borg Panels Timber Processing Facility Expansion MOD 3;
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Spring Farm Advanced Resource Recovery Technology Facility MOD 6;
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Mamre Prcinct Rezonings;
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Fairfield LEP 2013 Amendment No 31 – Villawood Town Centre;
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Parramatta LEP 2011 – 14 – 20 Parkes Street, Harris Park;
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Rezonings of No 45 Noongah Street and No 25 Gwynn Hughes Street, Bargo;
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The Hills LEP 2019-55 Coonara Avenue, West Pennant Hills amendment to facilitate residential development;
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Mary St, Edith St and Roberts St, St. Peters. Precinct 75;
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The Hills LEP 2019-6-12 &16-20 Garthowen Crescent, Castle Hill;
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Fairfield LEP 2013 Amendment No 32 – Fairfield Heights Town Centre;
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25 George Street, North Strathfield;
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Ettamogah finalization Ettamogah Rise Estate – Springdale Heights; and
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Amendment to Auburn LEP 2010 to allow additional permitted use at 108 Silverwater Road, Silverwater
For more information, please visit: https://www.planning.org.au/documents/item/10680.
2. One-Stop-Shop
The Australian Government is progressing with its establishment of the One-Stop-Shop, aiming to have it operational in June. The One-Stop-Shop for environmental approvals aims to assist State agency referrals for development projects and support agencies, local government and industry to the point of decision on a project more quickly and reduce time and costs.
3. City Recovery Plan
In response to the impacts of COVID-19, the City of Sydney Council is preparing a community and economic recovery plan (City Recovery Plan) to be informed by consultation with businesses and community.
If you would like to contribute to this plan, please visit and complete the following survey – https://yoursay.ntropydata.com/feedback.
4. Environmental Workers in ACT
Environmental volunteers and citizen scientists have returned into the field following a temporary COVID-19 hiatus to continue their important conservation work.
For further information, please contact:
Michael Tooma, Partner, Clyde & Co
michael.tooma@clydeco.com
