All About the Land: The (Mis)application of Public Health Orders to Strata Schemes during the Delta Variant COVID-19 Outbreak in Sydney, Australia

Abstract

Stay-at-home orders have been a key element in the management of the
COVID-19 pandemic both in Australia and overseas, with profound consequences for freedom of movement, association, work, recreation and privacy. The rationale for orders is the minimisation of the spread of disease between unrelated households. However, for maximum intended effect, people need to live in residential premises that contain a single household, such as a freestanding house or terrace. In reality, well over two million Australians live in multi-household residential premises, typically strata title schemes. When confined to their homes, these people will of necessity have contact with other households through their use of collectively accessible, private common property. This article analyses the way in which NSW public health orders relied on categories of land to trigger their operation, but failed to properly account for physical and legal differences in land and buildings. The result was nonsensical, potentially ineffective and — eventually — draconian public health orders, offending the rule of law. Given the likelihood of future public health lockdowns, and the severity of their impact on ordinary freedoms, lessons must be learnt from the past to protect the health, social wellbeing and basic rights of millions of people who live in high-density housing.