COVID-19 Emergency Response Bill

Second Reading

I am pleased to introduce the COVID-19 Emergency Response Bill 2020. The bill seeks to ensure the safe and efficient functioning of government and mitigate the economic impacts on the state throughout the COVID-19 pandemic. It also promotes general community safety by adopting measures that will support social distancing and other community restrictions in line with health advice.

The government notes that some of the measures proposed in this bill are extraordinary. This is why the bill is divided into four different types of amendments. First, part 2 of the bill creates a number of general modifications to existing state law. Second, schedule 1 of the bill contains special provisions relating to the detention of certain protected persons. Third, schedule 2 of the bill provides for the temporary modification of the operation of particular state laws. Fourth, schedule 3 of the bill makes related amendments to the Emergency Management Act 2004, Payroll Tax Act 2009 and the South Australian Public Health Act 2011.

To ensure that these extraordinary measures only operate for so long as required to deal with this public emergency, clause 6 of the bill provides that this act will expire on the day fixed by the minister by notice in the Gazette, although provisions of part 2 schedule 1 or schedule 2 may expire at an earlier date. The day fixed by the minister for the expiry of that date must be the day on which all relevant declarations relating to the outbreak of COVID-19 within South Australia have ceased, provided that the minister is satisfied that there is no present intention to make further declarations. To be absolutely clear, the initiatives—except for those in schedule 3 in this bill—will all expire as soon as we get to the end of this pandemic declaration period.

Clause 6 further provides that, for the avoidance of doubt, the expiry of a provision of this act under this section does not affect the validity or operation of anything done in accordance with the provisions before that expiry. For example, a contract executed in accordance with any modified requirements under section 14 would remain validly executed, even after the expiry of that section. The provisions in schedule 3 will continue beyond the expiry of the act. For example, the provision exempting the JobKeeper payment from payroll tax assessment calculation needs to continue for as long as employers continue to receive that benefit.

I will now deal with each of the changes proposed by the bill. Clauses 7 to 10 of the bill contain provisions relating to commercial leases, residential tenancies, residential parks, rooming house agreements and supported residential facilities. These provisions seek to support the national cabinet's agreement that, amongst other things, a short-term temporary moratorium on eviction for non-payment of rent be applied across tenancies impacted by severe rental distress due to the COVID-19 pandemic.

Clause 7 of the bill modifies the law of leases to provide protections and relief for commercial tenants impacted by the pandemic. The provisions apply to all commercial leases in South Australia but exclude leases under the Pastoral Land Management Conservation Act 1989 and the Crown Land Management Act 2009, as those acts already provide broad discretion for government landlords to provide protection and relief to tenants as those landlords consider appropriate.

Landlords will be prohibited from taking certain actions against tenants who experience financial hardship, including eviction for non-payment of rent or outgoings, requiring a tenant to pay land tax, terminating a lease or imposing other penalties on tenants who stop trading or reduce hours, and charging interest on unpaid rent. In addition, there will be a freeze on rent increases during the prescribed period. There will also be a role for the Small Business Commissioner to mediate disputes and make determinations on the question of whether a tenant is suffering financial hardship and related issues with an appeal to the Magistrate's Court.

Clauses 8 and 9 of the bill set out the provisions applying to residential tenancies and residential parks with select provisions also applying to a rooming house agreement. Along with a moratorium on evictions solely on the grounds of unpaid rent, the proposed amendments also include a prohibition on rent increases; a provision for the South Australian Civil and Administrative Tribunal (SACAT) to consider COVID-19 pandemic-related factors in cases of undue hardship to tenants or landlords and to make an order that it considers appropriate, including in relation to costs associated with the termination of an agreement; a general protection for tenants who breach their agreement as a result of complying with a direction under law relating to the COVID-19 pandemic; and a requirement that inspections be conducted by audiovisual or electronic means unless there are exceptional circumstances to conduct the inspection in person.

Clauses 7, 8 and 9 have limited retrospective operation if landlords take or have taken certain actions against tenants at any time from 30 March 2020 to the date of the assent of the bill. This is in line with the national cabinet announcement made on 29 March 2020.

The operation of the Supported Residential Facilities Act 1992 is modified by clause 10 of the bill. Primarily, the amendments seek to ensure residents of these facilities will not face homelessness unnecessarily during the COVID-19 pandemic, providing this vulnerable group security during a challenging time. The amendments also protect proprietors of supported residential facilities from being taken to have committed an offence under the act, or to have breached a term of licence or resident contract or other agreement, if they are reasonably complying with the proposed amendments to the act or any directional law applying to or regulating supported residential facilities during the COVID-19 pandemic.

Clause 11 of the bill enables the Treasurer to make instructions under section 41 of the Public Finance and Audit Act 1987 to suspend or modify the operation of any provisions or regulations of that act and any requirements under another act or law relating to financial reporting or auditing. Such instructions are only permissible when the Treasurer is satisfied that the suspension or modification is necessary as a result of circumstances brought about by the COVID-19 pandemic or to facilitate economic recovery during or following the pandemic.

Further safeguards include requiring the Treasurer to consult with the Auditor-General in relation to any instruction that modifies or suspends any provision of part 3 of the Public Finance and Audit Act, with the Auditor-General to certify that the suspension or modification is necessary; authorising the Auditor-General to prepare a report on any instructions issued by the Treasurer pursuant to this section and to deliver that report to the President of the Legislative Council and Speaker of the House of Assembly; and authorising the Auditor-General under clause 12 to conduct a review in place of an audit.

Clause 13 of the bill creates a broad general power for the Governor, by regulation, to extend time limits and terms of appointment. This broad power will assist in a number of different circumstances; for example, many appointments to various offices are currently in place for periods that may expire during the COVID-19 pandemic. For some of these appointments, there will not be the capacity for arrangements to be made for new appointments to take place. The ability for periods of appointments to be extended is paramount to ensuring that the state’s courts, tribunals, boards and regulatory bodies can continue to operate.

There are many instances, including in legislation, where there is a requirement for face-to-face witnessing of documents, whether by a member of the public or a person fitting statutory criteria to do so. Examples include the witnessing of advance care directives and powers of attorney. The current directions under the Emergency Management Act 2004 impose legal social distancing restrictions which may increasingly impact the ability of people to execute documents in a legally effective way.

In addition to legal restrictions, there may be an unwillingness of persons qualified to witness documents where there are statutory requirements for them to do so, due to anxiety about the associated health risks. Clause 14 of the bill contains a regulation-making power to address these limitations, including giving scope to address particular policy and operation considerations such as the need to assess a person's capacity and ensure integrity of the process.

Clause 15 of the bill addresses a limitation in existing state legislation, such as the Associations Incorporation Act 1985 and legislation establishing boards of management for statutory authorities, which requires entities to meet. Although in some cases it is clear that the legislation allows for such meetings to be held personally or by other means including electronically, in many instances it is not clear that these measures are available for all these entities. The amendment overcomes this limitation and provides clarity for all those bodies that they may continue to conduct their business and meet their statutory obligations.

Clause 16 of the bill contains provisions relating to the service of notices and documents. Clause 17 sets out the general regulation-making powers for the purpose of the bill. For example, regulations may provide for:

circumstances in which a person will be taken to be suffering financial hardship as a result of the COVID-19 pandemic for the purposes of a tenancy provision of this act;

matters to which the Commissioner must have regard in making a determination under section 7;

the mitigation of adverse impacts on a party to a lease resulting from the COVID-19 pandemic, including by making provision for any measures to regulate the parties to a lease or the provisions of a lease;

a scheme for a community visitor or visitors for the purposes of schedule 1; and

fines not exceeding $10,000 for offences against the regulations.

Clause 18 provides that the Governor may make regulations of a savings or transitional nature on the expiry of any provision of this act under section 6 or on the revocation of any regulation in accordance with section 17(5). This provision is reserved under the sunsetting provision in clause 6. Clause 19 of the bill provides immunity from liability.

Schedule 1 of the bill contains special provisions relating to the detention of certain protected persons. During the COVID-19 pandemic there is a risk that supported accommodation service providers will need to detain people with a mental incapacity—for example, requiring them to remain inside a supported accommodation premises—in order to follow the Chief Public Health Officer guidelines and to minimise the risk of exposure to COVID-19. However, under current law such detention might be seen as unlawful.

In order to prevent any such detention being unlawful and to manage other risks, it is proposed that temporary detention orders be approved by an appointed authorised officer or by the guardian of the person (if one has been appointed) for a period of 28 days. After 28 days a report must be made to SACAT, along with an application for further detention if that is required. A person subject to such an order would have access to existing internal review mechanisms at SACAT. To ensure additional external oversight, the amendments also provide that the Community Visitor Scheme be expanded so that visitors have the ability to make contact with any residents and service providers and provide reports to the Principal Community Visitor.

Schedule 2 of the bill temporarily modifies the operation of the following state laws. Part 1 of schedule 2 amends the Emergency Management Act 2004 to clarify the powers of the State Coordinator under section 25 on the declaration of an identified major incident, a major emergency or a disaster under division 3. Of course, as members know, that is exactly what we are under right now.

Under the current section 25(3), if the State Coordinator is of the opinion that the scope of an emergency is of such a magnitude that demand for medical goods or services cannot be met without contravening laws, the State Coordinator may, despite those laws, authorise the authorised officers or authorised officers of a particular class to provide goods or services or a particular class of goods and services on such conditions as he thinks appropriate.

The bill deletes section 25(3) of the Emergency Management Act 2004 and instead inserts a number of provisions in its place. New subsection 25(3) provides that the State Coordinator or his or her delegate may give or impose a direction or requirement under this section that is to apply generally throughout the state (which also clarifies that an authorised officer cannot).

New subsection 25(4) provides that any such statewide direction must be published within 24 hours after it is given (as per the current practice of these directions being published on the South Australian Legislation website).

New subsection 25(5) clarifies the State Coordinator’s powers and provides that he or she, or an authorised officer, may exercise or discharge a power or function under this section even if that would contravene another law of the state. It allows the State Coordinator or an authorised officer to use such force as necessary in the exercise or discharge of a power or function under this section and clarifies what directions or requirements that are given or imposed by the State Coordinator or an authorised officer may do.

Subsection 25(6) allows the State Coordinator or an authorised person to exempt a class of persons or a place from a direction subject to any conditions. Under section 25(7) the State Coordinator must consider the advice—must consider the advice—of the Chief Public Health Officer before exercising or discharging a power or function that would authorise the provision or direct the provision of health goods or services or a particular class of such goods or services.

New section 26B makes it clear that if the State Coordinator requires the disclosure of information by a direction or requirement under section 25, then that person is under no obligation to maintain secrecy or other restriction on the disclosure of the information, except an obligation or restriction designed to keep the identity of an informant secret.

Under section 28(1) of the Emergency Management Act 2004 it is an offence to refuse or fail to comply with a requirement or direction of the State Coordinator or authorised officer without reasonable excuse. This section is amended so that the offence is now expiable with a fine of $1,000 for a natural person or $5,000 for a body corporate.

The amendments proposed by this bill are supported by the State Coordinator. He welcomes clarification of his powers to make it clear that he can make general directions in circumstances of emergency and that these powers are not to be hampered by the operation of general law. Further, in the event that he needs to order the construction of public works urgently to address the COVID-19 pandemic, he can do so without delay.

The operation of section 71A of the Environment Protection Act 1993 is modified by part 2 of schedule 2 to add to the ways that the collection depots may pay refund amounts to customers to include electronic funds transfer. This will provide a further payment option for collection depots and customers that is consistent with the Australian government Department of Health statement, updated 31 March 2020 re social distancing for coronavirus, stating that people use tap and go instead of cash.

A key part of the government's COVID-19 pandemic response is to fast-track key infrastructure projects in order to assist with economic stimulus. Current requirements under the Parliamentary Committees Act 1991 in relation to the Public Works Committee, whilst appropriate in normal circumstances, potentially could operate as a barrier to key construction work being undertaken quickly. The operation of the Parliamentary Committees Act is modified by a new section 16AA, which allows certain steps in the process to be bypassed in appropriate and limited circumstances.

To provide the government with the flexibility it requires to respond to the needs of the South Australian community in rapidly changing circumstances, it is proposed that, for 2019-20 only, part 4 of schedule 2 of the bill provides for an increase to the level of the Governor's Appropriation Fund established under section 12 of the Public Finance and Audit Act 1987, from 3 per cent of the amount set in the annual Appropriation Act for appropriation in respect of the previous year to 10 per cent.

Part 5 of schedule 2 of the bill amends the South Australian Public Health Act 2011 to provide the Chief Public Health Officer with the ability to enforce detention orders made under section 77 of the act. In the context of the COVID-19 pandemic, this means that, where a person who has been diagnosed with COVID-19 refuses to stay in hospital when they have been directed to do so by health and medical practitioners, the Chief Public Health Officer or their delegate will have the power to use reasonable force, where necessary, to ensure this a person does not go out into the community and infect others.

For example, clinical staff may need to escort a person from the emergency department to a secure COVID-19 ward. While these powers are already implied in the South Australian Public Health Act 2011, this amendment will ensure it is expressly clear that the Chief Public Health Officer and clinical staff with delegated powers are able to act in this way in the interests of averting significant risks to public health.

The Minister for Health and Wellbeing is aware of the significant anxiety and concern raised by clinical staff on the frontline of the COVID-19 pandemic about persons leaving hospital against their advice. These amendments provide assurance for our clinicians that they can keep people in hospital when they need to.

Schedule 3 of the bill contains related amendments to certain acts. New section 32A of the Emergency Management Act 2004 provides that no liability attaches to the Crown in respect of any acts or omission in connection with the exercise or discharge of a power or function under this act, and that carrying out of any direction or requirement given or imposed under this act in relation to COVID-19 pandemic.

This provision operates retrospectively so that the Crown has no liability in relation to directions of the State Coordinator made prior to these amendments coming into operation, and members would be aware that a number already have been issued by him. A similar amendment is inserted into the South Australian Public Health Act 2011 in part 3 of schedule 3 of the bill. Finally, the Payroll Tax Act 2009 is amended to address payroll tax implications arising from the JobKeeper payment announced by the Prime Minister on 30 March 2020.

New section 17A will ensure that wages paid or payable by an employer to an employee that are subscribed by the JobKeeper payment are exempt. The exemption does not apply to any part of wages paid or payable to an employee that are not subsidised by the JobKeeper payment. The amendments reflect the agreement reached by the Board of Treasurers that wages paid or payable equivalent to a JobKeeper payment received by an employer should not incur payroll tax. This clause will expire on the day on which the JobKeeper payment ceases.

These are extraordinary times, unprecedented times. It is a time for governments to act and act decisively. No government has ever before had to confront challenges like the ones we now face. As members would be aware, this is the first time our Emergency Management Act has actually been put to the test. Our government is determined to do whatever is necessary, relying on the advice of experts to ensure that our people and our state get to the other side of this COVID-19 crisis as well as we can. The changes proposed to this unprecedented bill underscore the magnitude of the challenges ahead, but together we will get through them.

I would like to conclude by thanking all South Australians for their patience so far and for the patience they will need in the coming months. I commend the bill to members and I seek leave to insert the explanation of clauses.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The provisions relating to commercial and residential tenancies are to be made retrospective to 30 March 2020.

3—Interpretation

This clause defines 'instrument' and 'relevant declaration' for the purposes of the measure.

4—Application of Act

This clause provides for extra territorial operation of the measure (to the extent possible).

5—Interaction with other Acts

Except as is provided in the measure, it is in addition to and does not limit, or derogate from, the provisions of other Acts and laws.

6—Expiry of Act

This is a sunsetting provision for the measure.

Part 2—General modifications

7—Provisions applying to commercial leases

The provisions of this clause operate to modify the operation of the Retail and Commercial Leases Act 1995, the Landlord and Tenant Act 1936 and the Real Property Act 1886, including the operation of retail shop leases under those Acts. It also operates to modify the operation of other commercial leases that don't fall within the ambit of those Acts. These modifications will be taken to have commenced on 30 March 2020 and will operate going forward during the 'prescribed period'. This is defined to be the period starting from commencement of this clause and ending on the expiry of the provision under clause 6 of the measure, or the period of 6 months (or a longer period fixed by the Minister by notice in the Gazette) from commencement of the provision, whichever is the earlier.

The clause provides that a lessor cannot take certain prescribed action against a lessee that is suffering financial hardship as a result of the COVID-19 pandemic on the grounds of a breach of a lease due to failing to pay rent or outgoings, not opening for business during hours required or other prescribed acts or omissions. Prescribed action is defined broadly to include eviction, exercising rights of re-entry, possession, forfeiture, termination, distraint of goods, seeking damages, payment of interest on arrears of rent, performance of obligations pursuant to a guarantee or recovery of a security bond.

The clause makes provision for a party to apply to the Small Business Commissioner to mediate a dispute between the parties as to whether or not a lessee is suffering financial hardship, or to otherwise apply for a determination of the Commissioner of that fact. A right of appeal lies to the Magistrates Court against a determination of the Commissioner. The clause also provides for the Small Business Commissioner to mediate disputes between the parties of a commercial lease in relation to other issues that have arisen in relation to the COVID-19 pandemic arising from the operation of this clause, the terms a commercial lease, or the occupation of premises or operation of business conducted at premises that are the subject of a commercial lease. In performing these functions and exercising these powers, the Small Business Commissioner may exercise the same functions or powers that the Commissioner has under Part 7 of the Fair Trading Act 1987.

The clause also clarifies that a lessee acting in accordance with the laws of the State in relation to the COVID-19 pandemic will not be taken to be in breach of their lease or constitute grounds for termination of the lease. The clause also provides that unless the parties otherwise agree, rent payable under the lease (other than turnover rent) may not be increased if a lessee is suffering financial hardship due to the COVID-19 pandemic. Nor can a lessee suffering financial hardship be required to pay, or reimburse the lessor for land tax during the prescribed period. Provision is also made by this clause in relation to the retrospective operation of these provisions so that any action or measures that have been taken between the commencement of the clause and the assent of this measure by the Governor (the relevant period), that would be contrary to the provisions of this clause, that have either not been completed, or only partially completed, or have ongoing or periodic effect, will be stayed or suspended.

To the extent that any action or measures may have been completed (in whole or in part) during the relevant period that would otherwise be contrary to the operation of this clause, the parties to a commercial lease may apply to the Magistrates Court for an order to mitigate those effects on the grounds of the financial hardship of the lessee.

8—Provisions applying to residential tenancies

This clause makes a number of modifications to the way residential tenancy agreements operate during the COVID-19 pandemic, in particular aimed at minimising impacts arising out of the pandemic and relating financial hardship. The bulk of the modifications are set out in subclause (1), and have effect to according to their terms. The modifications include preventing landlords from evicting tenants for non-payment of rent, caused by financial hardship suffered as a result of the pandemic. Similarly, landlord cannot increase rent during the pandemic, and the Tribunal must take certain pandemic-related matters into account when making orders under the Residential Tenancies Act 1995. The Tribunal is also conferred with modified powers in relation to the kinds of orders it can make in certain applications. The Tribunal is also conferred with a special power to make orders that are necessary because of the retrospective commencement of this clause. The clause provides that any other provisions under that Act are modified as necessary to give effect to the modifications made by this clause. Acts and omissions necessary under a direction or law relating to the pandemic that might otherwise amount to a breach of an agreement is deemed not to. Finally, the clause contains a slightly modified expiry provision enabling the Minister to limit the period in which the modifications operate if appropriate.

9—Provisions applying to residential parks

This clause operates to apply the modifications made under section 8 to the Residential Tenancies Act 1995 to agreements under the Residential Parks Act 2007 (namely residential park tenancy agreements, residential park site agreements or residential park agreements), ensuring consistency for proprietors and tenants under that Act with the benefits conferred on tenants with a residential tenancy agreement.

10—Provisions applying to supported residential facilities

Similar to clauses 8 and 9, this clause modifies the operation of the Supported Residential Facilities Act 1992 to confer similar benefits on residents and proprietors under that Act, albeit slightly different due to the slightly different mechanisms under that Act. But essentially, proprietors cannot terminate resident contracts for failure to pay fees and charges where the resident is suffering financial hardship as a result of the COVID-19 pandemic. Nor can they raise fees and charges during the period.

Similar to the other clauses, the Tribunal's powers are modified to allow it to make appropriate orders in the circumstances of the pandemic. The clause also limits visits by certain allied health and other persons to those that comply with any relevant COVID-19 directions or laws.

11—Treasurer's instructions relating to financial and audit requirements

This clause allows the Treasurer to issue instructions to suspend or modify statutory requirements relating to financial reporting or auditing if satisfied that the suspension or modification is necessary as a result of circumstances brought about by the COVID-19 pandemic (or as a result of any measures taken to address the COVID-1 pandemic) or to provide economic stimulus during and after the COVID-19 pandemic. Instructions may not modify or suspend any provision of Part 3 of the Public Finance and Audit Act 1987 unless the Auditor-General has certified that the Auditor-General is also satisfied as to the necessity of the measure and instructions may not diminish the powers or protections of the Auditor-General under any Act or law. The clause also contains reporting powers for the Auditor-General.

12—Audits by Auditor-General

This clause allows the Auditor-General to determine to conduct a review, in such manner as the Auditor-General thinks fit, instead of any audit.

13—Extension of time limits, terms of appointment etc

The Governor may, by regulation, postpone time limits or extend periods of time that would otherwise apply under an Act or law.

14—Requirements relating to documents

The Governor may, by regulation, suspend or modify any requirements under an Act or law, or an instrument, relating to the preparation, signing, witnessing, attestation, certification, stamping or other treatment of any documents.

15—Meetings in person etc may occur by audiovisual or other means

Despite a provision of any Act or law, a requirement that a meeting occur or that some other transaction take place that requires 2 or more persons to be physically present will be taken to be satisfied if the persons meet, or the transaction takes place, remotely using specified electronic means or a means prescribed by the regulations (which may also exclude certain meetings or transactions from the measure if need be).

16—Service

This is a service provision for the purposes of the measure.

17—Regulations

This is a general regulation making power for the purposes of the measure.

18—Transitional regulations on expiry of measure

This clause is preserved under the sunsetting provision in clause 6 and allows for regulations of a savings or transitional nature to be made when the other provisions expire.

19—Immunity

This clause provides immunity from liability.

20—Further provisions in Schedules

This is a technical provision relating to the material in the Schedules.

Schedule 1—Special provisions relating to detention of certain protected persons during COVID-19 pandemic

This Schedule contains a scheme for the limited detention of certain mentally incapacitated persons living in supported care (protected persons) during the COVID-19 pandemic.

Guidelines made by the Minister will set out the relevant matters (and are binding on people acting under the Schedule),where mentally incapacitated persons are unable to properly comprehend or comply with a pandemic related direction, for example due to dementia, then the person in charge of the facility in which the person usually resides will be able to detain them within that facility, using no more force than is reasonably necessary.

The Schedule has a number of oversight measures. First, it establishes the office of the Authorising Officer, who will review detentions under the Schedule, will be able to direct other persons and will, if the protected person does not have a guardian, be able to order their detention. The SACAT also has review functions, including reviewing the actions of the Authorising Officer.

Detention under the Schedule is able to be conditional, including conditions allowing a protected person to leave their residence to seek, for example, medical treatment.

There is also a capacity for authorised officers—police officers and others appointed under the measure—to detain protected persons who are unlawfully at large, and return them to their place of residence.

The Tribunal may give advice, directions or other assistance to those who are uncertain about their powers or responsibilities under the Schedule.

The Schedule creates an offence to remove a protected person from a place at which they are being detained.

Finally, all detentions under the Schedule cease on the expiry of the Schedule.

Schedule 2—Temporary modification of particular State laws

This Schedule contains specific modifications to the Emergency Management Act 2004, the Environment Protection Act 1993, the Parliamentary Committees Act 1991, the Public Finance and Audit Act 1987 and the South Australian Public Health Act 2011.

Schedule 3—Related amendments

This Schedule contains related amendments to the Emergency Management Act 2004, the Payroll Tax Act 2009 and the South Australian Public Health Act 2011.