The real estate industry is in a state of shock. Industry specific restrictions are in place, general health directions restrict agents leaving their homes and the market is dropping in response to the economic meltdown. Can it get any worse?
Unfortunately, if you are also the parent of school age children, the answer is yes. Across the country school closures are in place and confusion reigns on whether parents are allowed to send their children to school and whether they should. To help reduce the confusion, PropertyNerd News presents this state by state summary on what actual legal restrictions there are on taking your kids to school (as distinct from waffly announcements by educational authorities). This article doesn’t constitute legal advice, which has to be tailored to everyone’s own circumstances.
New South Wales
In NSW, the government has announced that “from week three of Term 2, we will begin a managed return to school starting on Wednesday 29 April 2020 after two staff development days on Monday 27 and Tuesday 28 April 2020”. Although the schools are open for ‘families who need it’, no child should be turned away from a school in NSW as the relevant legislation does not include restrictions on gatherings at schools. The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, made under the Public Health Act states that a person must not, without reasonable excuse, leave their place of residence. Travelling for the purposes of work or education is explicitly stated to be a reasonable excuse provided “it’s not possible” to do it from home. You don’t have to prove anything to your child’s school. Despite drastic reductions in our personal freedoms, schools have not yet been turned into police forces and even if you do get a fine we think any prosecutor is going to have great difficulty proving that it was possible for you to work from home or your child to be educated at home.
The Victorian Stay at Home Directions (No 4) came into effect on 13 April 2020 and state that a person may leave their premises to attend work or an educational institution, to ‘do anything necessary to attend that work or educational institution’ including taking a child to childcare or school. However, this exception only applies if it is not reasonably practicable for you to work from home or obtain educational services at home. These directions are to remain in place until 11 May 2020. We think that if you’re working at home and have children aged under 14 or so that it’s not “reasonably practicable” for your child to also be at home.
Although the state government has stated that “Schools and community kindergartens will move to a home-based learning model from 20 April until at least 22 May 2020” that announcement doesn’t have the force of law. What does have the force of law is the directions made under the Public Health Act. The Home Confinement, Movement and Gathering Direction specifically exempts gatherings “at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility”. Travelling to a school is also exempted if instruction cannot be reasonably obtained in the home. So if the relevant “instruction” isn’t being delivered because the Education Department website keeps crashing, or the child is too young to learn at home whilst you’re busy lining up your next deal, the exemption applies and you can take the child to school.
In South Australia, the directions are in line with the rest of the country. The Emergency Management (Gatherings No 2) (COVID-19) Direction 2020 made under s 25 of the Emergency Management Act states that gatherings of more than 10 people are prohibited, but there is an exception for gatherings ‘at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility’ and ‘at a place where persons are present for the purposes of transiting through the place’ which would allow travel to and from school.
Western Australia has similar Prohibited Gatherings Directions made pursuant to sections 157(1)(k) and 190(1)(p) of the Public Health Act 2016 (WA) which prohibits gatherings of more than 2 people with the exception of a gathering ‘at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility’. WA does not have the same requirements for staying at home but does have limitations on travelling to different regions and border closures.
The Tasmanian government is restricting gatherings of 3 or more people under the (Gatherings – No. 6) direction made pursuant to s 16 of the Public Health Act 1997 (Tas). Schools are also exempt from this restriction under paragraph (f)(xv), which states the restriction on gatherings of 3 or more people described in paragraph (c) of the direction does not apply to a gathering ‘at a school, university, educational institution or chidcare facility that – (A) is necessary for the normal business of the facility; and (B) does not involve members of the community other than the staff and students of the school, university or educational institution. The Tasmanian “(Stay at home requirements – No. 2)” states that people have to stay in their primary residence, but there is an exemption for school or study “if unable to be performed at the person’s primary residence”.
The ACT’s Public Health (Non-Essential Gatherings) Emergency Direction 2020 was made pursuant to s 120 of the Public Health Act 1997. This direction prohibits the gathering of more than 2 people and relevantly excludes a gathering ‘at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility’. Further, the directions also allow an exemption of more than 2 people to be present at a place for the purposes of transiting through the place, which would allow transport to and from school.
In the NT the government has announced that schools will remain open through to the end of the current school terms, and will re-open at the end of the school break, subject to the advice of the Australian Health Principal Protection Committee.
The Northern Territory’s relevant direction is the COVID-19 Directions (No. 23) 2020 Directions for Gatherings made under the Public and Environmental Health Act 2011 (NT) which came into effect on 20 April. These directions prohibit gatherings of more than 10 people yet, in line with all other states and territories, gatherings at ‘a school, university or other educational institution for its normal business or operation’ is exempt. These directions also include an exemption of gatherings for ‘a place where people may be transiting through the place or for the purpose of, or related to, transport, including travelling in vehicles or gathering at a garage or public transport facility such as a station, platform or stop’.