In NSW, “freedom day” is 11 October 2021, which ironically will see unvaccinated adults have fewer freedoms than those who are vaccinated and business owners have greater responsibilities under the new Public Health orders. If you are a business owner, you are required to take reasonable steps to ensure that an unvaccinated adult is not on your premises. See Division 5, of the Public Health (COVID-19 General) Order 2021, as at 11 October 2021.

The Public Health orders do not specify what are reasonable steps. This blog is designed to provide some handy tips to help you navigate through this situation and how to deal with an unvaccinated person who may overstep the mark.

For those who are unvaccinated, we will explain the type of conduct that will breach the Public Health orders, as well as being charged with trespass to property, or other criminal offences, such as assault, intimidation, or damage to property and have to go to court where you will be liable to heavy fines or even imprisonment.

Implied Licence to Enter

Before COVID-19, all retail premises, hospitality venues, salons and supermarkets, or public venues had an implied licences for anyone to enter and shop at those premises – whether they are vaccinated or unvaccinated. Another example is a neighbour knocking on your door and requesting a cup of sugar. The neighbour just does it and no one complains. Why is that? Because the law recognises an implied licence to do so – and it’s also normal. 

However, things are not normal anymore and that implied licence to enter premises has got express limitations placed on it by the Public Health orders (the law). For business owners who must limit who enters their premises, might find that such orders may not be enough to stop some people from entering, and that it becomes their responsibility to police this rule.

What to do?

To safeguard yourself, your business, your staff or home, you should:

• have express entry restrictions by putting up clear signage, posting notifications and informing the public of your entry rules. The Service NSW website at the moment does not have any new signage for you to place up – but we recommend that you put up a sign in the meantime that is clear, respectful and visible with your business terms of entry. You can write something like: “Please do not enter if you are unvaccinated. We must comply with the NSW Public Health Orders and value the safety and health of our staff and customers. Thank you for your cooperation.”
• Have your QR check-in signage, or procedure available, test it and have back-up plans.
• Have someone at the entry point to your business to check compliance
• Train your staff on how to deal with likely hostile scenarios
• When asking to see proof that a person is vaccinated or has a valid reason for not being vaccinated, you should start by telling that person why you are asking for that information (i.e. we must manage work health and safety risks and to comply with any applicable NSW Public Health Order)

Can you be charged with trespass?

If a person enters a premises with a guilty mind, for example:

• if they know the Public Health order that is in place (and the courts will assume everyone does), or
• they refuse to show evidence of their vaccination status, and enter the premises, or
• if they don’t have the required medical certificate and enter the premises,
• or if they don’t leave after being told to leave,

then that implied licence to enter is automatically withdrawn, making their entry a trespass. 

Remember, businesses should not refuse entry to patrons who cannot be vaccinated for medical reasons or because they are in an age group that has not had access to vaccination for very long (i.e. – under 16s).

Businesses that are not covered by a NSW Public Health Order may choose to refuse entry to unvaccinated patrons as long as they comply with their obligations under anti-discrimination and privacy laws.