Update: New Directions published for Regional Victoria

The DHHS has now published new written Directions that came into force at 11:59pm on 9 September, relating to the re-opening of facilities in Regional Victoria. These Directions do not apply to Metropolitan Melbourne or Greater Shepparton.

Copies of relevant Directions are attached, and we provide the following summary of key details:

Residence checking requirements

The Directions have re-introduced the obligations on Regional Victorian to check the residence of patrons. These are consistent with previous residence checking requirements that applied in August 2021.

The requirements are as follows:

  1. Venues must ‘use all reasonable endeavours’ to determine a person’s ‘ordinary place of residence’ as soon as practicable after either a booking is taken for that person, or as soon as possible after that person accesses/enters the relevant facility.
  2. Residency checks must be undertaken for each patron (not just one out of a group).
  3. The Directions state that an operator will have satisfied this requirement where they have:
    1. Asked the patron for their address; and
    2. Either required a photo ID to evidence that place of residence or required the patron to ‘make a declaration’ that they do not reside in the Restricted Area (being Metropolitan Melbourne or Greater Shepparton) or are permitted in Regional Victoria. The DHHS has published a template of a written declaration. A copy of that declaration is attached.
  4. The DHHS advises that operators should refuse service or bookings where they are ‘not satisfied´ that a person’s ordinary residence is not in Metropolitan Melbourne or Greater Shepparton, or not ‘reasonably satisfied´ the person has an authorised reason to travel or stay in Regional Victoria.

Food and drink facilities and gaming machine areas

The Directions confirm the following conditions apply to food and drink facilities and gaming venues:

  1. The facility is subject to an overall limit of 30 patrons (subject to compliance with density quotients) with seated service only.
  2. The number of members of the public is limited to 20 in any outdoor space and 10 in any indoor space.
  3. The total number of members of the public at the whole of the facility at any time is limited to the lesser of the density quotient of 1 person per 4sqm or 30 persons.
  4. Dancefloors must be closed.

Staff and infants under the age of one are not counted towards this limit.

Each gaming machine must be spaced at least 1.5m apart or every second gaming machine must be closed.

Entertainment and function facilities

General entertainment or function facilities, which include theatres, cinemas, music halls, galleries, and amusement parks, can operate subject to the following restrictions:

  1. The number of members of the public indoors (whether seated or non-seated) is limited to 20 people;
  2. The number of members of the public in each discrete outdoor space is limited to 300 people or 25% of the normal capacity of that outdoor space, whichever is lesser;
  3. A COVID Check-In Marshal must be present at all entrances open to members of the public whenever the facility is operational;
  4. Non-seated indoor spaces are further limited by the density quotient of 1 person 4sqm;
  5. Dancefloors must be closed.
  6. Arcades, escape rooms and bingo centres remain closed.

Retail facilities

The number of members of the public permitted in retail facilities is restricted based on the density quotient of 1 person per 4sqm.

Small retail facilities where the total area accessible to members of the public is less than 80sqm are not subject to that density quotient. For those facilities, 20 members of the public are permitted at the facility at any one time. Staff and infants under the age of one year of age are not counted towards that limit.

The total number of members of the public permitted in beauty, personal care and hairdressing facilities is limited to 10.

Physical recreation facilities

The Directions provide that physical recreation facilities in Regional Victoria may operate in accordance with the following conditions:

  1. The number of patrons permitted at the whole of the facility (other than in an outdoor swimming pool) at any one time is limited to more than 20 members of the public. This does not include staff or infants under one year of age. This is also subject to a density quotient of 1 person per 4sqm. Groups are limited to 10 members of the public at any one time.
  2. The limit of 20 people in any outdoor facility does not apply to an outdoor physical recreational facility where at least a 50 metre distance can be maintained between each group participating in sport at the facility at all times. Group limits of 10 people apply.
  3. Members of the public are not permitted in any indoor space (whether seated or non-seated) at the facility except to access indoor toilets or to pass through the indoor space solely for the purpose of accessing an outdoor space;
  4. The number of members of the public in any outdoor swimming pool at the facility at any one time is limited to no more than 50.
  5. Any activity or community sport must not involve a participant who ordinarily resides in Metropolitan Melbourne of Greater Shepparton.
  6. Community sport training activities can occur with only the minimum number of people required to conduct that activity. No spectators are permitted ant no competition activities are permitted at the facility.
  7. Any shared equipment must be cleaned between users.
  8. In the case of staffed physical recreational facilities, a COVID Checkin Marshal must be present at all entrances to the facility open to members of the public whenever the facility is operational; and
  9. Any food and drink facility within the physical recreational facility must operate in accordance with the requirements that apply to food and drink facilities.

Facilities are defined as ‘a facility used predominantly for outdoor sport or physical recreation’, including golf, tennis, and lawn bowling.

The DHHS has also published the following information to distinguish between ‘community sport’ and ‘physical recreation’:

Community sport refers to competitions and training overseen by a state sporting association or equivalent governing body, such as country football and netball competitions overseen by AFL Victoria and Netball Victoria.

Physical recreation is any other activity that is not associated with competition or training overseen by a state sporting association or equivalent governing body, including non-competitive casual sport and social play, fitness and gym classes.

Sporting Clubs with hospitality facilities

Our office has previously received enquiries regarding whether sporting clubs that have both sporting facilities and bistro/dining facilities are subject to a single patron capacity, or whether the club can be separated into facilities with separate patron numbers.

Our advice to date, including on receipt of similar enquiries last year, was that the question of whether a facility is subject to a single patron capacity is a question of fact and degree based on the physical features of the premises, details of the licensed area, and the nature of physical and practical separation between the two facilities. As such we can only provide advice on specific premises based on proposed layout plans, and particulars as to how functional separation is achieved.

That said, there are also some subtle differences in language in the drafting of the current Directions. The Directions are drafted such that the capacity of 20 for outdoor facilities applies to persons at the ‘whole of the facility’, but states that a food and drink facility ‘within the physical recreation facility’ must operate in accordance with the ordinary hospitality provisions. There are clearly some inconsistencies in the language that make interpreting these provisions challenging. That said, we consider that there will be instances where facilities are able to be considered, by nature of their layout and operation, to be separate facilities for the purposes of the Directions – rather than facilities that are within larger facilities.

If any operators would like further advice as to whether their facility can be considered to have separate sporting and dining facilities please contact our office to discuss.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.