New VIC COVID-19 Omnibus (Emergency Measures) Act 2020

On 23 April 2020, Victorian Premier Daniel Andrews introduced the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic) (“the Bill”) into the Legislative Assembly. The Bill passed both houses of parliament on the same day it was introduced. On 24 April 2020, the Bill received the Royal Assent.

The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (“the Act”) contains amendments for a number of acts in order to allow for the making of regulations, and to make amendments to legislation in response to the current Coronavirus pandemic. The Act wholly commenced on 25 April 2020.

Support for Residential Tenants and Landlords

The Act amends the Residential Tenancies Act 1997 (Vic) (“the Tenancies Act”) and the Residential Tenancies Amendment Act 2018 (Vic) (“the Tenancies Amendment Act”) in order to better support tenants and landlords in residential property agreements during the Coronavirus pandemic. The amendments will implement certain temporary measures for the duration of a moratorium period. The moratorium period will be for six months beginning on 29 March 2020 and ending on 29 September 2020.

The Act amends the Tenancies Act to insert new temporary measures, which include:

• Suspension of rent increases in tenancy agreements
• On application to the Victorian Civil and Administrative Tribunal (“VCAT”) a tenant can apply for a reduction in rent, or enter into a payment plan to pay rent or a reduced amount of rent
• Landlords must now allow for payment of rent by Centrepay
• A landlord or tenant is taken to not have breached a term or duty if there was a COVID-19 reason, as specified in the newly inserted section 537 of the Tenancies Act
• A party to a fixed term tenancy agreement may apply to VCAT to reduce the term of the agreement
• A notice to vacate from a landlord or mortgagee under Subdivision 4 of Division 1 of Part 6 of the Tenancies Act cannot be given to a tenant
• A notice of intention to vacate from a tenant under Subdivision 3 of Division 1 of Part 6 of the Tenancies Act cannot be given to a landlord, unless under specific circumstances

A notice to vacate under Subdivision 4 of Division 1 of Part 6 of the Tenancies Act includes a notice given for the following reasons:

• Non-payment of rent
• Failure to pay bond
• Premises to be sold

The Act also amends the Tenancies Act in order to include additional regulation-making powers which will allow the Governor in Council to make regulations relation to certain matters in response to the Coronavirus pandemic. The regulations may include provisions that:

• Prohibit the termination of an eligible agreement or a residency right in certain circumstances
• Prohibit the making of a possession order in certain circumstances
• Exempt a tenant, resident, Specialist Disability Accommodation (“SDA”) resident, or site tenant from a provision of the Tenancies Act, or a provision of an eligible agreement

However, the regulations must sunset within 6 months of being made, and are disallowable by either the Legislative Assembly or Council.

The Act also makes amendments to both the Tenancies Act and the Tenancies Amendment Act to insert new sections in order to better provide for victims of family or personal violence during the moratorium period. These new provisions deal with the application for termination or new agreement, VCAT orders, and cross-examination procedures for a victim of family or personal violence.

The Act also defers the commencement and expiry of the Tenancies Amendment Act, for a period of 6 months.

Support for Commercial Tenants and Landlords

Part 2.2 of the Act contains regulation-making powers which will allow the Governor in Council, on the recommendation of the Minister for Small Business (“the Minister”) to implement regulations in regards to certain eligible leases. An eligible lease is defined in section 13 as a retail lease, or a non-retail commercial lease or license, which:

• Is in effect on the day the relevant regulation comes into operation, and
• Is under an SME entity and an employer who qualifies and is a participant of the Jobkeeper scheme

However, tenants who are members of a group of companies with a combined annual turnover of $50 million or over will be excluded from this scheme. Within this definition, an SME entity is taken to have the same meaning as in section 4 of the Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Act 2020 (Cth). A retail lease is one within the meaning of the Retail Leases Act 2003 (Vic). A non-retail commercial lease is defined in section 14 as one where the premises are let for the sole or predominant purpose of carrying on a business at the premises.

These regulations will be able to make various provisions regarding eligible leases in regards to:

• Prohibiting the termination of an eligible lease
• Modifying the operation of an eligible lease or an agreement in relation to an eligible lease
• Extending the period an eligible lease is in effect
• Imposing additional obligations on both parties to an eligible lease, including requiring them to negotiate amendments to an eligible lease

These regulations can be retrospective up until 29 March 2020, but will be revoked by implication on 29 September 2020.

Changes to the Operation of the Justice System

The Act also contains a number of provisions in order to make amendments to the operation of the justice system in order to allow for its continued delivery during the Coronavirus pandemic.

In regards to evidence and procedure, the Act amends a number of acts in order to:

• Allow courts to hear a greater number of matters by audio visual link and audio link
• Allow courts to deal with matters without a hearing
• Allow courts to modify their procedures and make alternative arrangements other than physically accessing court rooms in order to take into account public health concerns
• Create more flexibility in bail matter procedures

Part 2.1 of the Act also contains regulation-making powers which will allow for the Governor in Council, on the recommendation of the Attorney-General, to implement emergency regulations in justice system matters. The regulations can make provisions in regards to:

• Arrangements to court proceedings, including pre-trial proceedings
• The conduct of a proceeding in a court or tribunal
• The issue, certification, or transmission or court orders or warrants
• The signing, witnessing, executing, or service of documents
• The issuing of family violence intervention orders or safety notices

Regulations made under Part 2.1 of the Act will cease within 6 months of the commencement of the Act, or may cease earlier if revoked or disallowed by either the Legislative Assembly or Council.

Additional Amendments

The Act also contains provisions which:

• Amend residency rights in rooming houses
• Amend residency rights in caravan parks
• Amend SDA residency agreements
• Amend the Criminal Procedure Act 2009 (Vic) in regards to judge alone trials for indictable offences in certain circumstances
• Allow the Magistrates’ Court to order electronic monitoring of community correction orders
• Amend the Corrections Act 1986 (Vic) in order to implement additional temporary measures in order to manage health risks in the corrections system
• Amend the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Accident Compensation Act 1985 (Vic) in order to give long-term injured workers a longer transition period to return to work or find employment
• Delay the commencement and expiry of the Environment Protection Amendment Act 2018 (Vic)
• Amend the Education and Training Reform Act 2006 (Vic) to make certain reforms in regards to registration of training organisation, persons who hold permissions to teach, and teachers
• Amend the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Vic) in order to suspend operation of enforcement provisions in relation to nurse to patient ratios

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COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) and COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic) supporting documents available from TimeBase’s LawOne Service