Distancing rules

This is a bit of an odd one.

On Monday, the government announced that masks on public transport will be compulsory under Covid Alert Level 2. Hooray! The new rule will take effect from next week - they still have to draft the order to give it effect. 

So far so good.

But from 11.59 pm this past Saturday night, the COVID-19 Public Health Response (Alert Levels 3 and 2) Order (No 2) 2020 came into effect. Clause 25 of that Order removes physical distancing requirements on public transport services.  

Adjusted alert level 2 requirements for public transport services

(1)  This clause adjusts the alert level 2 requirements for public transport services.
(2)  Public transport services need not maintain compliance with either the 1-metre physical distancing rule or the 2-metre physical distancing rule for people using those services.

And public transport services are defined earlier:

public transport service has the same meaning as in paragraph (a) of the definition of public transport service in section 5(1) of the Land Transport Management Act 2003 but—
(a) includes air transport that is available to the public generally; and
(b) excludes small passenger service vehicles (as defined in section 5(1) of that Act)

So you don't need to be physically distanced on busses or airplanes, unless I'm misreading this.

Now I can see how masks could be a substitute for distancing on busses. Masks and distance would be safest, but if you want more people to be able to fit on a bus without increasing risk, you could combine it with a mask order. That all kinda makes sense.

But what is weird is that the distancing order came into effect more than a week before the mask requirement is coming in.

And, more importantly, and as best I can tell, the Air Transport rules haven't been updated to reflect the change in the physical distancing rules - and this was updated yesterday.

Physical distancing (previously approved seating configurations) in aircraft applies. 

But the Public Health Order says distancing on planes is no longer required at Level 2. And the coming mask order will mitigate the risk of lack of distancing. 

Imagine trying to run an airline on this basis. One set of rules from Transport sets out seating configurations that make it harder to run any flights. Level 2 looks like it could be in place for a while. Jetstar dropped out rather than run under those rules. But the Public Health Order says distancing is no longer required. 

If the government's intention was to allow airplanes to run with masks in place of distancing, that would be consistent with the Public Health Order - but the Air Transport Rules would need to be updated to reflect it. And who knows what the legal basis is for "approved seating configurations" under Level 2 if the Public Health Order no longer requires distancing. 

If the government's intention was not to allow airplanes to run with masks in place of distancing, and to book out the middle seat under L2 (or the partner seats in the smaller planes with two seats on each side), why did they abolish distancing requirements for domestic transport in the Public Health Order (there's an exclusion for persons subject to the Air Border Order, so international will still have to be distanced)?

And the Prime Minister keeps emphasising the need to maintain distancing - despite the Order saying it's no longer required on public transport under Level 2. 

What is an airline actually supposed to do under these circumstances? If they guess wrong in one direction, they're throwing away money and offering fewer flights. If they guess wrong in the other direction, they risk pissing off a Minister or Ministry for not complying with what the intention had been regardless of what was written in the Order - and potentially a hasty Order leading to cancelled tickets. 

Stuff falls between the cracks between Ministries all the time; this seems a potentially messy one. 

Update: 

Public transport was deliberately excluded from the Level 2 Orders back in May/June - on the understanding that the requirements for physical distancing would be implemented via guidance. I imagine this new order fixes the accidental inclusion over the last couple of weeks.

— Cameron Vannisselroy (@camramvann) August 25, 2020

Under that interpretation, the Order wasn't meant to supercede anything from Transport about seating but just stuff that might happen during boarding and the like. But I wonder what the legal basis for Transport directions around seating might be when a Public Health Order says there's no requirement to distance.