The NSW Parliament has today passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Measures Act) as part of the State Government's response to the COVID-19 pandemic. The Act addresses various areas including Civil and Administrative matters, Local Government administration and required authorisations under the NSW Constitution Act 1902 to streamline the Governor assent processes for legislative instruments.
Specifically with respect to real estate, the Emergency Measures Act enables the Minister under certain occupancy legislation to make regulations prohibiting the usual powers of a landlord or owner to recover possession of premises or terminate leases, in particular circumstances and across multiple sectors.
At the time of writing, no such regulations have been made. However, the potential scope of the proposed short-term regulations do strongly suggest the intentions of the State Government, and affected parties should seek up to date advice in relation to these matters before acting.
Relevant occupancy legislation
The new regulation making powers apply under 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 (Relevant Acts).
The intent of the Emergency Measures Act as far as we are able to surmise from the Reading speeches and debates, appears to be limited to rights as between landlords and tenants of residential and retail premises. However, the broad reference to "any other Act relating to leasing of premises or land for commercial purposes", while included under amendments to the new Part 11 of the Retail Leases Act 1994, does create some uncertainty over any intended application to broader categories of commercial premises, and parties that are potentially affected should monitor this space closely.
New regulation making powers
Broadly speaking, the Emergency Measures Act enable regulations to be made under the Relevant Acts which:
- prohibit the recovery of possession of premises by a landlord or owner of premises;
- prohibit the termination of a lease or tenancy by a landlord or owner;
- regulate or prevent the exercise or enforcement of another right of a landlord or owner; or
- exempt a tenant or class of tenants from the operation of a provision of the Relevant Act or any agreement relating to the leasing or licensing of premises.
The power to make these regulations may only be exercised in "particular circumstances". This phrase is not defined in the Act and remains to be determined by the regulations.
Alternatively, the relevant Minister may directly recommend to the Governor of NSW that regulations covering the above matters be made under any of the Relevant Acts if:
- the Parliament is not sitting and not likely to sit within 2 weeks after the regulations are made; and
- in the relevant Minister's opinion, the regulations are reasonable to protect the health, safety and welfare of tenants or residents under the Relevant Act.
How long will such regulations remain force?
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.
Other key changes
Some additional key points to note are:
- the Retail Trading Act 2008 has been amended to permit supermarkets (but not retail or department stores) to trade on Easter Sunday, Good Friday and before 1.00pm on Anzac Day in 2020, provided that they are only staffed by persons who have freely elected to work on that day;
- the new regulation making power extends to regulations under the Conveyancing Act 1919, the Oaths Act 1900, the Electronic Transactions Act 2000, Powers of Attorney Act 2003 and similar legislation to allow for altered arrangements for the signature and witnessing of documentation, verification of identity and similar matters (subject to the additional requirement that the matters regulated be in accordance with advice issued by the Minister for Health and Medical Research or Chief Health Officer); and
- the Environmental Planning and Assessment Act 1979 has been amended to allow Ministerial orders permitting development on land without the need for any approval, if the Minister for Health and Medical Research has been consulted and the Minister is reasonably satisfied that the order is necessary to protect the health, safety and welfare of the public during the COVID-19 pandemic. These powers apply for a period of up to 6 months from today, but can be extended to 12 months by regulation.
If you would like to draw from other global resources developed by Baker McKenzie on COVID-19, please visit our Coronavirus Resource Centre.