In summary:

• unvaccinated persons can attend council premises that are only used for essential local government services; and
• in-person council meetings can only be attended by fully vaccinated persons – this includes Councillors.

Vaccination requirements at open premises

The Directions impose various obligations on the operators of ‘open premises’ and the ‘patrons’ who attend them in relation to vaccination against COVID-19.

Part 2 of the Directions sets out the obligations that apply to all open premises. Readers will be generally familiar with these requirements. In short, operators are required to:

• only permit entry to persons who are, and can show that they are, fully vaccinated or excepted persons (i.e. persons who can demonstrate that they have a medical exemption or are under the age of 16);
• place a COVID-19 Check-in Marshal at each entrance to the open premises; and
• comply with the patron limits specified in Schedule 1 to the Directions.

Until now, it has been difficult to say with certainty whether, and if so how, council civic centres and council meetings were caught. This has now been rectified – at least to an extent.

Exceptions for essential local government services

Clause 22(5) of the Directions is most relevant. It says that the requirement to:

• exclude unvaccinated visitors; and
• have a COVID-19 Check-in Marshal at each entrance,

do not apply to any indoor or outdoor space used only for the purposes of:

• providing access to essential local government services (e.g. to pay rates and charges, to register a pet, to obtain a permit or to view a planning scheme); or
• conducting a council meeting where attendance of patrons through remote electronic means is not reasonably practicable.

It is now clear that the Directions intend ‘community premises’ to include council civic centres and other council facilities – at least where they are used solely for providing ‘essential local government services’. It looks to us like the Directions consider the ‘core business’ of councils to be ‘essential services’, even though we think they are quite different things.

Importantly, according to clause 22(6), councils may only permit attendance by the minimum number of persons required to conduct or facilitate the relevant service or council meeting.

What does this mean for councils?

Attending council meetings

The Directions have helpfully clarified that unvaccinated individuals, including Councillors, can only physically attend public council meetings where their remote electronic attendance cannot reasonably be accommodated.

Since council meetings can be attended electronically under Part 12 of the Local Government Act 2020, at least until 27 April 2022, it will be difficult to justify permitting attendance by anyone who is unvaccinated. A hybrid approach to in-person council meetings will therefore need to be adopted if any Councillor remains unvaccinated.

Permitting an unvaccinated Councillor to attend an in-person council meeting will breach the Directions and give rise to an offence.

Managing attendance at council premises for essential services

To the extent that an indoor or outdoor space at council premises is used only to provide an essential service, councils are not required to exclude unvaccinated persons.

This does not mean that councils must allow unvaccinated persons to attend council premises. Instead, councils must determine how they will provide certain services and the extent to which they will open council premises to unvaccinated persons. For example, if an essential service can be provided online, councils might direct unvaccinated persons to the online service. Of course, whether this will be appropriate will depend on the type of service and the circumstances of the relevant customer. If an unvaccinated person is unable to access an ‘essential’ service online, Council will need to allow them to attend council premises.

Relevantly, this only applies in spaces that are used exclusively for the provision of essential local government services. In practice, this means that different areas of council premises may be subject to different requirements.

How councils manage this from a compliance and OH&S perspective will depend on the outcome of appropriate risk assessments and dependent on the design and operations of the relevant civic centre.

These Directions do not prohibit councils from implementing vaccine passport arrangements for non-essential services/sites not covered by the Directions. If you would like assistance with vaccine passport policies please contact us.