Tasmanian Emergency Powers Act Receives Assent

Thursday 26 March 2020 @ 3.11 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) was assented to as Act 11 of 2020 on 27 March 2020, and commenced on the same day.  The COVID-19 Disease Emergency (Miscellaneous Provisions) Bill 2020 (“the Bill”) was originally introduced only two days earlier, on 25 March 2020, by the Premier of Tasmania, Peter Gutwein (“the Premier”). According to the Bill’s Explanatory Memorandum, the Act “is designed to ensure the continuity of government services and allow the Government to support the Tasmanian community in the context of the COVID-19 emergency response.”

The Act amends:

  • Emergency Management Act 2006; and
  • Residential Tenancy Act 1997.

Object of the Legislation

As outlined in the Explanatory Memorandum the main function of the legislation is to “ensure the continuity of government services and allow the Government to support the Tasmanian community”.

The amendments will ensure that key regulatory requirements of the State and the administration of law, can adapt to the unique challenges presented to Government and society by the COVID-19 pandemic and will introduce a number of crucial provisions that will allow the Government to offer a range of supports to those Tasmanians who suffer financial hardship as a result of the emergency.

The legislation also contains targeted consequential amendments to the Emergency Management Act 2006 (“EMA”) to support the role of Tasmania Police’s in the emergency response contained in the legislation.

Overview of the Amendments

The Act also provides “broad heads of power for the Premier, the Treasurer and the Attorney-General, or delegated Ministers, to make declarations by public notice to adjust the operation of a range of statutory requirements, on the basis that compliance may not be prudent, or even possible, in a pandemic response situation”.

To ensure the continuous operation of laws, the Act also provides for regulations which are due to expire in 2020, to be extended in their operation for up to a further 12 months.

Amendments to the Emergency Management Act 2006 include:

  • section 3 is amended by inserting a new definition of “COVID-19 state of emergency”;
  • section 40 is amended to enable emergency powers to be authorised in a COVID-19 state of emergency. The amended provision allows emergency powers, being exercised in relation to a COVID 19 state of emergency, to be exercised for up to 12 weeks; and
  • new sections 60A -“Personal Information Protection Act 2004 not to apply in certain circumstances” and section 60B -“Powers of arrest under this Act and Public Health Act 1997”are inserted.

Amendments to the Residential Tenancy Act 1997 include:

  • section 3 is amended by inserting new definitions “COVID-19 Emergency Act”, “COVID-19 emergency day”, “emergency period” and “socially-dislocating disease”;
  • new sections 3A-“Extension of emergency period for COVID19 emergency” and section 12A-“Variation” are inserted;
  • section 32 and section 37 are amended;
  • new sections 38A-“Order allowing for termination in case of severe COVID-19 related hardship” and 38B-“Appeal against order under section 38A” are inserted; and
  • miscellaneous amendments are proposed for sections 42, 53 and 56.

Comment and Reaction to the Legislation

Commenting on the Bill, the Premier said:

“… This Bill is designed to support State and local government entities to quickly and effectively respond to this unprecedented public health emergency. It also puts in place measures to support the community in complying with various legislative and regulatory provisions … During the emergency period, there will be a moratorium on the eviction of tenants for breaching a condition of their residential tenancy agreement, where that breach relates to rent being in arrears”.

The proposed amendments to the Residential Tenancy Act 1997 would give the Tasmanian Government power to stop landlords from increasing rents for commercial and residential tenants and tenants and owners would also have rights to break a fixed-term lease if they could prove continuing to rent a property would cause severe hardship, but this would have to be approved by the Residential Tenancy Commissioner.

Benedict Bartl, Acting Principal Solicitor for the Tenants' Union of Tasmania, said when the emergency period ends, tenants may face a "nasty hit … as landlords will be able to pursue them for rental arrears … We'll be doing everything in our power, in that period, to work out a plan for a 'soft landing' for renters at the end of the emergency period".

Mr Bartl argued the proposed laws should go further and called for a freeze on evictions for any reason during the coronavirus pandemic:

"There's lots of reasons in the act why you can evict a tenant: They've been a nuisance, because the lease is coming to an end, another is because the bank is foreclosing on the property. We believe that all of those reasons should be included in the bill. There is no reason a tenant should be evicted during this crisis."

Minister for Building and Construction Elise Archer said in a Media Release on the changes to the Residential Tenancy Act 1997:

“Any appeals from tenants for a notice to vacate due to rental arrears that are currently waiting to be heard by the Magistrates Court will be put on hold. The Bill also ensures that tenants have the incentive to continue to pay rent during the emergency period, where they are able to do so.”

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