April 27, 2020

COVID-19 Australia: National update (27 April)

The weekly briefings are prepared to assist you with keeping up to date with the effects of any legislative, regulatory or general changes as a consequence of Coronavirus (COVID-19). Also, Clyde & Co also has a dedicated COVID-19 Information Hub which hosts many articles from around the world that provide different perspectives and in-depth analysis on many of these issues.

Environment

Environment Protection Authority (EPA) 

The NSW EPA expects licence holders and other businesses to have business continuity plans and environmental risk management procedures in place, to be informing staff of those measures, and to be capable of informing EPA officers of those measures if asked. They noted that Pollution Incident Response Management Plans should be updated to reflect the impact of coronavirus prevention measures. While noting the EPA has discretion in how to respond to particular entities experiencing difficulties, it nonetheless emphasised its expectation of compliance.

NSW Department of Planning, Industry, and Environment (DPIE)

The DPIE is regularly updating planning policies and legislation in response to the COVID-19 pandemic and has announced its intention to assist in the fast tracking of projects. More details to be provided.

The DPIE has also released Planning and Assessment Guidelines for Councils during COVID-19. Further details are expected shortly.

Planning Institute of Australia

The Planning Institute of Australia has released Planning Principles for Response and Recovery to the COVID-19 pandemic.

Bushfire Royal Commission

The Royal Commission into National Natural Disaster Arrangements formally commenced on 16 April 2020. However, due to the coronavirus pandemic, the Commission adjourned the first phase of online hearings until next month. The six month inquiry will deliver a final report by August 31.

Real Estate

Residential Tenancies Practice Guide (QLD)

On 24 April, the Queensland Government introduced the Residential Tenancies Practice Guide (QLD).

The document provides practical guidance in navigating requirements, protections and negotiating arrangements for residential tenancy agreements for people impacted by the COVID-19 pandemic.

The practice guide includes the following:

  • The COVID-19 rental response applies where:
  1. the tenant's income is reduced by 25 per cent; or
  2. where the rent exceeds 30 per cent of the tenant's income.
  • Tenants can be asked to provide proof of finances to property managers.
  • Clear guidance on access for the sale of the property, virtual rental inspections and access for essential repairs and maintenance.
  • A 75 per cent income loss threshold before a tenant can end a tenancy with a 7-day cap on break lease fees.
  • Limiting any extension on the term of a tenancy agreement during the COVID-19 period to September 30, 2020 unless agreed otherwise by the owner and tenant, or there is an appropriate ground to end the tenancy.

The guide can be found at: https://www.rta.qld.gov.au/~/media/Forms/COVID-19-forms/40784%20ResidentialTenanciesPracticeGuideFINAL240420235pm.pdf

Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW)

On 24 April, the NSW Government published the Retail and Other Commercial Leases (COVID-19) Regulation ('Regulation').The Regulation gives effect to the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID-19 ('Code') adopted by the National Cabinet on 7 April 2020.

The purpose of the Regulation is to

  1. prohibit and regulate the exercise of certain rights of lessors relating to the enforcement of certain commercial leases during the COVID-19 pandemic period; and
  2. oblige lessors and lessees to renegotiate the rent and other terms of those commercial leases in good faith having regard to the leasing principles set out in the National Code of Conduct before any legal enforcement action of the terms of those commercial leases can be commenced.

The Regulation can be found at: https://www.legislation.nsw.gov.au/regulations/2020-175.pdf

Public Health and Wellbeing Infringements

The National Cabinet convened on 16 and 21 April 2020. The tone of the announcements made following these meetings was generally positive, as the National Cabinet noted that Australia's suppression strategy of COVID-19 has been successful thus far, slowing and reversing the growth of cases in Australia. However, there remain areas of concern for the National Cabinet, including the management of COVID-19 in hospitals and residential aged care facilities.

In light of the National Cabinet's concern, an announcement has been made regarding visits from carers and relatives of residents. Categories of individuals have been identified as those who are not permitted to visit. These include those who have returned from overseas or been in contact with a confirmed case of COVID-19 in the past 14 days, but also extends to those who have not (after 1 May 2020) been vaccinated against the flu. Some States and Territories have given effect to these management principles in their respective Public Health orders/directions. There has been further focus on aged care facilities from the Australian Health Protection Principal Committee, which issued advice on 21 April 2020 about minimising the impact of COVID-19 through restricting certain visitors and staff from entering the premises. This advice reflects and expands on that issued by the National Cabinet.

The National Cabinet has also stated that the rule of one person per four square metres of floor space does not apply in school classrooms. This announcement comes in tandem with the announcement from the NSW Department of Education that school students will have a staggered return to the classroom (one day per week from 11 May 2020, to gradually increase).

In the last week, the States and Territories have continued to amend their orders/directions under Public Health and Emergency legislation. In particular, Tasmania, Queensland and the Northern Territory have introduced further clarification and restriction in their orders regarding who may visit residential aged care facilities. NSW has expanded the categories of people who may not be coughed at or spat on (thus giving rise to a fear about the spread of COVID-19) in its existing public health order. Further, Victoria and South Australia have clarified the kinds of facilities (including recreational and entertainment facilities) which may not be operated during the stay at home period. Notably, Tasmania has also introduced a new quarantine order restricting the movement of a person who is an "identified contact" (that is, a person who has been exposed to COVID-19).

The orders and directions can be accessed at the following State and Territory websites (as at 23 April 2020):