Understanding and management of the constant changes to the Queensland Health COVID-19 restrictions provides unique challenges for local governments. It is multilayered, because it not only affects council staff and business operations, but also the venues and services provided by council to the community.
When the State Government introduced changes in December 2021 that divided the ‘fully vaccinated’ and the ‘unvaccinated’ by nominating the places they were permitted to attend, including workplaces, it became another change that local governments had to adapt to, both internally for their staff and externally for their communities.
There are a number of directions that affect councils, their employees and communities with respect to operations, venues and business entry (dependent on the types of services councils are responsible for in their local government area):
- COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction (“High Risk Setting Direction”);
- Workers in a Healthcare Setting (COVID-19) Vaccination Requirements) Direction (No. 2) (“Healthcare Setting Direction”); and
- Public Health & Social Measures linked to Vaccination Status Direction (No.2) (“Social Measures Direction”).
There has been some debate about whether the definition of ‘fully vaccinated’ will change to include the requirement to have the ‘booster shot’ as well. At this point in time the definition remains linked to a person over the age of 16 years being double vaccinated with a TGA approved vaccine.
High Risk Setting Direction and Healthcare Setting Direction
Any ‘Worker’ who enters, works in or provides services in a residential aged care facility, aged care service, schools, kindergarten or childcare center (“High-Risk Setting”) must be fully vaccinated against COVID-19. Relevantly for councils, a ‘Worker’ includes a person employed at a High-Risk Setting (or in a Healthcare setting, a person who works or volunteers there), a government employee whose duties involve attendance at a high-risk setting or attends in the context of duties relating to the “administration, regulation, governance, managerial oversight or legal framework relating to the high-risk setting”.
It should be noted that there are some exceptions to this requirement, including a medical exemption, taking part in a clinical trial, entering the facility to respond to an emergency or undertaking a legislated regulatory or compliance function.
However, where a council employee meets this definition, it is likely they will be caught by one of the Directions and in the absence of an exemption, will be required to be fully vaccinated.
Social Measures Direction
Queensland local governments will no doubt be familiar with this Direction that came into effect on 24 December 2021 (replacing the original direction that applied from 17 December 2021).
The Social Measures Direction requires that any person who owns, controls or operates a ‘business, activity or undertaking’ where COVID-19 vaccination is a requirement of entry must:
- request each staff member to provide proof of COVID-19 vaccination (or medical exemption or participation in a vaccine trial); and
- keep a record of their own and each staff member’s COVID-19 vaccination status and the type of proof that was sighted; and
- ensure that staff who are unvaccinated are not permitted to enter, work in or provide services at the business, activity or undertaking.
This would require councils to undertake an assessment of all of their venues and facilities that fall within the categories listed within this Direction to determine those staff members who may be subject to the mandatory vaccination requirement.
Entry for the Fully Vaccinated
As the owner, controller or operator of any of the listed businesses, activities or undertakings within this Direction, council Officers will be tasked with the responsibility of confirming that any visitors to those locations meet the vaccination requirements.
This is likely to affect a number of council business areas, including:
- Indoor Entertainment Venues, such as live music venues, concerts, theatres and festivals;
- Outdoor Entertainment Activities such as sporting stadiums;
- Government owned galleries and museums;
- Showgrounds; and
- Short-term Accommodation (eg. hostels and backpackers, but only the restricted areas of the accommodation such as a café, pub or nightclub within the facility).
The Social Measures Direction provides the power to exclude visitors who do not meet the requirements and requires that all reasonable efforts are made to ensure that they not permitted to enter any of the listed venues or businesses. However, recognising that not everyone will necessarily comply, there is an exemption provided if it is not reasonable to collect proof of the visitor’s vaccination status “due to a risk to the safety of staff and other visitors”.
In our view, it will be a subjective assessment by the officer tasked with the role of checking compliance on entry as to whether such a risk arises. An example provided is where the customer becomes aggressive towards the staff member, and it becomes unsafe to continue refusing them entry. However, it would be expected that in those circumstances, the police would be contacted for assistance in removing the person from the premises as opposed to simply allow the aggressive person to remain.
Entry for the Unvaccinated – other requirements
There are other council facilities or locations where full vaccination is not a requirement, but contact information must be obtained for visitors and staff and occupant density limits enforced, such as:
- community centres and halls;
- markets; and
- outdoor community events (eg. movies in the park, marathons etc).
The changes that these Public Health Directions brought about are likely to not only affect the entry requirements to those listed facilities and businesses, but also create added pressure on councils where event agreements, contracts and local law permits do not specifically allow for these requirements to be enforced through the terms and conditions or alternatively, terminated due to COVID-19 related cancellations or delays.
Our recommendation is that councils review their various agreements and contracts that may be affected and, where possible, ensure that the conditions require the operators and permittees to maintain the requirements in accordance with all Queensland Health Directions (and as amended from time to time).
Preston Law frequently assists local governments throughout Queensland in dealing with these matters and would be pleased to review any event agreements, contracts or permits to assist councils to remain as adaptable as possible in responding to the continuous challenges that COVID-19 presents to its operations and business activities.