How would a mandatory shut down occur?

We have been asked by many schools about the possibility of schools being directed to close, how this would occur and what could still be done in the event of a ‘closure’.  While there is much that cannot be answered, there are some things we can be reasonably confident about. 

Firstly, any ‘closure’ would almost certainly arise in accordance with the particular State/Territory public health legislation.  This has been the mechanism used to date.  The New South Wales Public Health (COVID-19 Gatherings) Order 2020 made under section 7 of the Public Health Act 2010 (NSW) provides an example.  Today’s NSW Government Gazette provides a copy of this order.

The Order contains a commencement date and a number of definitions.  It also defines terms essential to the order, in this case including-

indoor space means an area, room or other premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of the roof or walls are—

(a) permanent or temporary, or (b) open or closed.

mass gathering

(a) means a gathering—

(i) of 500 or more persons in a single undivided outdoor space at the same time, or

(ii) of 100 or more persons in a single undivided indoor space at the same time, but

(b) does not include—

(i) an essential gathering referred to in Schedule 1, or

(ii) a gathering exempted, in writing, by the Minister and subject to any conditions the Minister considers necessary.

Interestingly the relevant period for this order ends at midnight on 18 June 2020.  This may be where the Government thinks these provisions are unnecessary or due to some restriction in the relevant Act.

It then goes on to include the operative direction –

The Minister directs that a person must not, during the relevant period—

(a) if the person is the occupier or operator of premises in New South Wales—

(i) allow a mass gathering to occur on the premises, or

(ii) allow another gathering to occur on the premises unless the size of the premises is sufficient to ensure there is 4 square metres of space for each person on the premises, or

(b) organise a mass gathering on premises in New South Wales, or

(c) attend a mass gathering on premises in New South Wales.

Clearly covering owners of the premises involved, any event organisers and also event attendees.

The Order goes on to provide some exemptions (those “evil” things …) including, relevantly for schools –

“a gathering at a school, university or other educational institution or child care facility that is necessary for the normal business of the school, university, institution or facility but does not include a school event that involves members of the community in addition to staff and students”

Note the exclusion from the exemption of events involving those apart from staff and students.

The Order is justified on the basis of risks to public health.

Drawing from the structure of this Order is would be fairly reasonable to assume that the simplest way of applying the same public health action to schools would be to remove that exemption entirely – it would then be subject to the general limitations on mass gatherings.  Such an approach would severely limit the students who could possibly be on site, do the maths for your classrooms, but would have limited impact on staff attendance.

A more likely scenario, however, would be a specific order dealing with gatherings at schools. It could provide for –

  • a blanket ban on student attendance, or
  • a numeric limitation on the number of students which could be present, possibly meaning little impact on very small schools, or
  • a numeric and density, square metres per person, limitation.

None of these scenarios would impact staff attendance.

It would also be possible, indeed probably likely on the Government’s language to date, that there would be exemptions provided for children of “essential services workers” and possibly even students where they cannot be appropriately supervised or undertake education at home.

While all this remains speculative at this stage, to give effect to any closure these issues will need to be considered and clearly documented, given schools certainty should it occur.  We have been in touch with the Minister’s office to get assurances that clarity will be provided on these issues in the event of any mandatory closure.

NOTE: The particular declarations or orders may vary slightly around the jurisdictions.  For example the ACT Outdoor and Indoor declarations are very similar, but slightly different from those of NSW.