NSW Extensive COVID-19 Legislation Amendments Receive Assent

On 25 March, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (‘the Act’) received assent. The Bill for the Act was introduced to the Legislative Assembly the previous day by NSW Attorney-General, Mr Mark Speakman. The Act was passed by the Legislative Assembly and later that day, was passed by the Legislative Council with a series of amendments. The Act itself amends a total of twenty other Acts of Parliament.

Purpose of the Act

The Attorney-General stated broadly in his Second Reading Speech that the Act seeks:

• to take immediate steps to address existing barriers in our laws that may get in the way of social distancing,
• to empower agencies and institutions with the capacity to continue functioning, and
• to build in flexibility so that the Government is able to act further as the public health emergency evolves.

Amendment of Criminal Procedure Act 1986

Schedule 1 of the Act makes amendments to the procedures relating to criminal trials to accommodate for the social distancing measures in place during the COVID-19 public health emergency. The amendments include:

1. Enabling a witness in a trial to give evidence in a pre-recorded hearing,
2. Allowing the original evidence of a witness recorded in a trial to be used in a new trial,
3. Empowering a court to order a judge alone trial in certain circumstances and
4. Providing for a general regulation-making power for exceptional circumstances

These amendments are repealed in 6 months after commencement or on a later day prescribed by the regulations, provided it is within 12 months after its commencement.

Amendments to Other Acts

Schedule 2 of the Act contains a range of amendments to different NSW Acts.

The Child Protection (Working with Children) Act 2012 has been amended to enable the Children’s Guardian to extend the period for which a working with children check clearance is enforced. 

The Children (Detention Centres) Act 1987 has been amended to enable the Secretary of the Department of Communities and Justice to impose restrictions on entry and visits to detention centres provided the Secretary is satisfied that it is reasonably necessary to protect the health of the detainee, any other person or the public from the public health risk of the COVID-19 pandemic. The Crimes (Administration of Sentences) Act 1999 has been amended to provided similar powers to the Commissioner of the Corrective Services regarding correctional centres and premises. 

Further, the Crimes (Administration of Sentences) Act 1999 has been amended to enable the Commissioner to grant parole to certain inmates belonging to a class prescribed by the regulations if satisfied that releasing the inmate on parole is reasonably necessary because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic. In the Second Reading Speech the Attorney-General stated that “the Government contemplates that if the power were used it would be in relation to lower risk or vulnerable inmates to be prioritised for potential release, such as older inmates nearing completion of their sentence.”

The Civil and Administrative Tribunal Act 2013 has been amended to provided special constitution requirements and procedures with respect to the exercise of guardianship and public health functions. These includes allowing the Guardianship and Public Health Divisions to assign 2 instead of 3 members and requiring the recording of oral statements. The amendments also introduce regulation-making powers for the modification of time-periods for things done in connection with the Tribunal.

The Constitution Act 1902 has been amended to introduce regulation-making powers to enable persons to be present in other ways other than being physically present and to enable Bills to be assented to without being presented to the Governor in person. 

The Crimes (Domestic and Personal Violence) Act 2007, prior to the assent of the Act, stated that a provisional order is taken to be an application for a court order and that the provisional order requires the defendant to appear in court on the next available date within 28 days of the making of the provisional order. This 28-day period has been extended by the Act to 6 months to account for the fact that that matters may not be listed for an extended period because of the COVID-19 pandemic.

The Electronic Transactions Act 2000 has been amended to introduce new regulation-making powers to establish alternative arrangements for signing and witnessing documents. 

The Environmental Planning and Assessment Act 1979 has been amended to allow the Minister for Planning and Public Spaces, through an order published in the Gazette, to authorise development to be carried out on land without the need for any approval under the Act or consent from any person. The Attorney-General in his Second Reading Speech stated that the purpose of this is amendment is that “if we need to construct a COVID-19 clinic, we need, for the period of this crisis, to have the unfettered ability to be able to do that.” 

The Evidence (Audio and Audio Visual Links) Act 1998 has been amended to introduce special provisions to facilitate the greater use of audio and audio visual links in relation to trials because of the COVID-19 pandemic. 

The Health Practitioner Regulation (Adoption of National Law) Act 2009 has been amended to allow the Secretary of the Ministry of Health may, by notice published in the Gazette, exempt a State Vaccine Centre from some or all of the provisions of this Schedule provided the Secretary is satisfied that it is in the public interest.

The Jury Act 1977 has been amended to enable a sheriff to exempt a person from selection to be summoned for trials or coronial inquests if, in the sheriff’s opinion, there is good cause for the exemption including safety or welfare considerations relating to the person or the community at large. 

The Local Government Act 1993 (‘LGA’) has been amended to allow the Minister for Local Government to postpone elections if the he or she believes that, having regard to the COVID-19 pandemic, it is reasonable in the circumstances. 

The LGA is also amended to allow council meetings to be held remotely by audio-visual link or other method approved by the Minister for Local Government and states that if the regulations require the meeting to be open to the public, this is satisfied by having a public webcast or having the public informed of the details of the meeting if a webcast is not practicable.

The Mental Health Act 2007 has been amended to allow the Mental Health Review Tribunal to conduct a mental health inquiry by telephone, adjourn a mental health inquiry for up to 28 days or extend a community treatment order by up to 3 months if the Tribunal considers that it is necessary to do so because of the COVID-19 pandemic.

The Private Health Facilities Act 2007 has been amended to allow the Secretary of the Ministry of Health to exempt a private health facility licensee or class of licensees from certain licence conditions and requirements. The Secretary must be satisfied that firstly, it is reasonably necessary because of the COVID-19 pandemic and secondly, that patient care and safety will be properly maintained. 

The Public Health Act 2010 has been amended to allow an authorised medical practitioner to specify the period in which a public health order remains in force rather than the order automatically expiring after 3 business days and requiring confirmation from the NSW Civil and Administrative Tribunal. 

The Residential Tenancies Act 2010  and the Retail Leases Act 1994 have both been amended to introduce new regulation-making powers including the power to make regulations prohibiting the recovery of possession of premises by a landlord, owner or proprietor, prohibiting the termination of a residential tenancy agreement, occupancy agreement or site agreement, regulating or preventing the exercise or enforcement of another right and exempting a tenant, resident or home owner, or a class of tenants, residents or home owners, from the operation of a provision.

The Retail Trading Act 2008 has been amended to allow supermarkets to open on Good Friday, Easter Sunday and Anzac Day in 2020 provided the staff have voluntarily elected to work.

The Subordinate Legislation Act 1989 has been amended to postpone the repeal of the Environmental Planning and Assessment Regulation 2000, which remains in force until 1 March 2021, unless sooner repealed. Further, the Act postpones the repeal of another 12 regulations to 1 September 2021, unless sooner repealed.

The Workers Compensation Act 1987, prior to the assent of the Act, required that a certificate of work capacity provided by a worker to the insurer in relation to the payment of weekly income support payments was certificate by a medical practitioner approved by the State Insurance Regulatory Authority. The amendments state that only the first certificate needs to comply with these requirements. Second and subsequent certificates will have to comply with prescribed requirements established by regulations. The Motor Accident Injuries Act 2017 was amended equivalently in relation to certificates required to establish fitness to work.

Repeal and Sunset Clauses

The Act establishes extensive and wide-reaching effects across different government sectors. The Attorney-General in his Second Reading Speech addressed this fact stating, “Some of the amendments in the bill are extraordinary, which is why they generally have sunset clauses of between six months to 12 months.”

Opposition Comment

The Leader of the Opposition, Mr Adam Serle stated “Many of the measures in this bill are ones that in usual times would be controversial and that we would not support” but affirmed the Labor Party’s support in the “spirit of bipartisanship to act in the public interest.”

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