As featured in the October Edition of Queensland Hotels Association’s QHA Review.
As many Hoteliers would know, OLGR inspectors have been out and about monitoring venues to ensure they are complying with the COVID Safe Industry Plan and other restrictions. Indeed, many of you will have heard about licensees who have been issued with infringement notices for failing to properly implement the Industry Plan, or for other breaches of the Chief Health Officer’s (CHO’s) Public Health Directions. To date, the most common breach has been failure to comply with new contact record keeping requirements – a measure that venues have, understandably, found difficult to implement and manage effectively.
This article examines the penalties that may apply if you fail to adhere to the new requirements, and the options that may be available to you if your venue is issued with an infringement notice.
Legal basis for COVID-19 restrictions
Earlier this year, the Public Health Act 2005 (Qld) (Act) was amended to include a new Part 7A to deal with COVID-19. The amendments include the power for the CHO to issue a Public Health Direction, and a new section 362D of the Act imposes penalties for those who do not comply with such directions without having a “reasonable excuse”.
The Public Health Directions that have been issued by the CHO include, among others, the border restrictions direction as well as other directions requiring people to self-quarantine where arriving from overseas, and to self-isolate where they are diagnosed with COVID-19. Of particular relevance to hoteliers is the Restrictions on Businesses, Activities and Undertakings Direction, which includes that “restricted businesses” such as beauty services, sporting and entertainment venues, and pubs and hotels, may only open for business if they operate:
- in accordance with specific restrictions set out in the direction. For example, the specific restrictions that apply to pubs and other licensed premises at the time of writing include that the venue may operate for seated patrons only, and that no buffet self-service is allowed;
- in line with the rule of one person per 4 m2 for venues over 200 m2, or one person per 2 m2 (up to 50 people) for venues under 200 m2; and
- either under an approved industry plan, or else in accordance with a COVID Safe Checklist.
As above, it is a breach of s 362D of the Act if you fail to comply with a Public Health Direction without having a “reasonable excuse”. The penalties under s 362D include fines of up to $13,345 or six months imprisonment. In serious cases, you could be issued with a formal notice to appear in court and charged for a breach of s 362D.
More often, and for less serious cases, authorities such as OLGR, Queensland Health, or the Police will issue on-the-spot infringement notices for a failure to comply with the Public Health Directions, with penalties of $1,334.50 for individuals or $6,672.50 for corporations.
If you receive an infringement notice, you can pay the fine without appearing in court. Alternatively, you can dispute the infringement notice with the agency that issued it, and ask them to withdraw the notice. If the agency does not withdraw the infringement notice, you can request that the matter be heard before and decided by the Magistrates Court, in which case there is a 28 day time limit to apply to court after the date that the infringement notice is issued. However, you may be liable for additional costs if you apply to court and are unsuccessful.
Before you decide to challenge an infringement notice in court, you would want to ensure that you have valid grounds to do so. Specifically, you would need to show that you have a “reasonable excuse” for the failure to comply with the Public Health Direction, in accordance with s 362D.
What constitutes a “reasonable excuse” will depend on all the circumstances of the individual case and the specific Public Health Direction that has been breached. It is difficult to provide further guidance or examples because there are no cases on this point to date, but suffice to say that unless you have made a genuine effort to comply with the COVID safety requirements and have a very good reason to explain why you were not able to do that, then it is unlikely that you will be able to rely on the “reasonable excuse” exception in s 362D.
For many Hoteliers, complying with these new requirements has put a significant strain on operational processes and staffing requirements in what has already been a difficult year. Despite the extra work involved, the hospitality industry’s commitment to maintaining compliance and keeping patrons safe should be commended. At the risk of repeating a phrase I’m sure you’ve all heard many times throughout this period – “we’re all in this together” – so please don’t hesitate to give me a call on 07 3224 0230 should you have any concerns or questions about OLGR compliance inspections, Public Health Directions, or if your venue has been issued an infringement notice for breaching the Act.