On 25 March, the NSW Parliament passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 ('the Act') in response to the COVID-19 pandemic.

The Act implements emergency measures and addressees various matters concerning Retail Trading, Environmental Planning and Local Government. The Act also makes important amendments with respect to landlords and tenants.

Occupancy Legislation Changes

The Act allows for the introduction of tougher regulations under existing occupancy legislation which includes the Retail Leases Act 1994 (NSW), the Residential Tenancies Act 2010 (NSW), the Boarding Houses Act 2012 (NSW), the Residential (Land Lease) Communities Act 2013 (NSW), the Agricultural Tenancies Act 1990 (NSW) and any other Act relating to the leasing of premises or land for residential or commercial purposes.

A some point soon, Regulations will be introduced that are intended to enable laws to be implemented which prohibit landlords from:

  • Recovering possession of a premises from a tenant or resident. This could potentially mean that a landlord does not have the right to enter the premises and take possession for previous defaults;
  • Terminating any sort of tenancy arrangement, including a residential tenancy agreement, commercial or retail agreement, site agreement or occupancy agreement. This could possibly mean protection for existing tenants who are already in breach of their lease for reasons not related to COVID-19; and from
  • Exercising or enforcing any other rights of the landlord or owner under an existing lease or occupancy legislation. For instance, this may mean that a landlord is prevented calling on a deposit or bank guarantee, or even requiring that repair or maintenance obligations be met.

The Act also exempts a tenant/resident/home owner from the operation of a provision of occupancy legislation, or any agreement relating to the leasing or licensing of premises. This may include, for example, exempting the requirement to pay outgoings.

It is important to note that the power to make these regulations may only be exercised in "particular circumstances" (although this phrase is not defined in the Act). The Act only grants power to introduce new regulations. The above will only become law when those Regulations are introduced.

Other changes made under the Act will allow Regulations to be introduced that:

  • Permit supermarkets to trade on Easter Sunday, Good Friday and before 1.00pm on ANZAC Day. Staff must have freely elected to work on that day. (Retail Trading Act 2008)
  • Alter arrangements in respect of signatures and witnessing of documentation, verification of identity and attestation of documents. (Oaths Act 1900, Conveyancing Act 1919, Powers of Attorney Act 2003, the Electronic Transactions Act 2000 (and similar legislation)
  • Allow the Minister of Planning and Public Spaces to make an order authorising a development to be carried out on land without the need for a development consent under the Environmental Planning and Assessment Act 1979. The Minister may only authorise a development order if he or she has first consulted the Minister of Health and Medical Research and is reasonably satisfied that the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic. (Environmental Planning and Assessment Act 1979)
  • Allow for evidence as to work capacity - relates to a certificate of work capacity provided by a worker to the insurer in relation to the payment of weekly income support payments under the Workers Compensation Act 1987. Currently a certificate of capacity is required to be given by a medical practitioner in a form approved by the State Insurance Regulatory Authority. The amendment maintains that requirement for the first certificate and requires a second or subsequent certificate to comply with the requirements prescribed by the regulations. (Workers Compensation Act 1987 No 70)
  • Permits councils to hold "virtual meetings" for ordinary council or committee meetings. The Minister is permitted to make amendments to the Local Government Act 1993 by regulation if it is necessary "to the public health emergency caused by the COVID-19 pandemic". Notes that local government elections, which are currently scheduled for September, may be postponed. (Local Government Act 1993)
  • Allows a person to be exempt from Jury Service if there is good cause for exemption, including safety and welfare considerations relating to the person or the community. (Jury Act 1977)
  • Provides that a second or subsequent certificate of work provided by an injured person to the insurer in relation to the payment of weekly statutory benefits does not have to be given by the treating medical practitioner provided the certificate complies with the Motor Accident Guidelines.
  • Any regulations made under these new powers will expire 6 months after the day on which the regulation commences, or earlier by resolution of either House of Parliament. (Motor Accident Injuries Act 2017)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.