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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-05-13 Daily Xml
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COVID-19 Emergency Response (Further Measures) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

The Hon. R.I. LUCAS (Treasurer) (18:34): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I am pleased to introduce the COVID-19 Emergency Response (Further Measures) Bill 2020.

The Bill makes amendments to the COVID-19 Emergency Response Act 2020 and other associated amendments to ensure the continued safe and efficient functioning of the State of South Australia and the Government and to address further critical matters that have arisen since the passage of the Act and throughout the continuing COVID-19 Pandemic

The Bill builds on the work of the COVID-19 Act, and continues the work of the Marshall Government in providing a thoughtful, proactive and considered approach to the COVID-19 pandemic. Mr President, I will now deal with each of the changes proposed by the Bill.

Clauses 3, 4 and 6 of the Bill change the way in which the COVID-19 Emergency Response Act will deal with commercial leases and the moratorium on evictions for tenants by removing section 7 and including head powers to support new extensive regulations. As Members would recall, section 7 was passed in the initial Act, and was the first response to the changes for commercial leasing.

By way of background, on 7 April 2020 National Cabinet published the Mandatory Code of Conduct—SME Commercial Leasing Principles During CO VID-19 which set out principles for providing rent relief to tenants suffering financial hardship and encouraged landlords and tenants to negotiate agreements relating to rent relief.

Each state and territory was tasked with incorporating the Code into their own laws and regulations. While it was not possible to include the Government's full response to the Code in the COVID-19 Emergency Response Act because the Code was published on the same day that the Bill was introduced into Parliament, these changes have now been finalised.

There has been much discussion and stakeholder interest in the Code's provisions. I am sure nearly each one of us in this place has received correspondence from businesses, tenants and commercial landlords. I commend the work of the Department for Treasury on implementing the Code in SA.

The Code, which does not appear in full in the Bill before us, is implemented through Regulations. The Code deals with issues of rent waivers and deferrals, and restricts the application of commercial leasing modifications to SME tenants with an annual turnover below $50 million per annum.

By including the majority of the commercial lease provisions in Regulations rather than the Act allows for greater flexibility if changes need to be made to the scheme and is consistent with the approach taken in New South Wales and Victoria.

Therefore, the moratorium on evictions and other protections for tenants included in the COVID-19 Emergency Response Act will now be included in the new regulations, and removed from the Act through this Bill by deleting section 7.

The new regulations will provide a statement of objectives which provides that regard has been had to the Code in the making of the regulations. The regulations, once made, will have retrospective operation to 30 March 2020. This is consistent with the approach taken by other jurisdictions. However, the court may only make prospective changes to agreements already made between parties from 30 March 2020 and the date of the commencement of the regulations.

The Bill provides that these regulations will expire after six months. This will give the business community certainty in making agreements and arrangements.

Members may recall that the Act recently passed ceases at either the finalising of the Emergency Period, or 6 months from its commencement, whichever is earlier. By including a separate expiry program for the Code in this Bill, the Government is acting to ensure that commercial tenants and landlords see the protections of the Code for a guaranteed period of time, regardless of the operation of the Emergency Period.

Moving now to other matters in the Bill, Clause 5 of the Bill inserts into the COVID-19 Emergency Response Act new section 10A which contains special provisions regarding visits of community visitors and the Chief Psychiatrist.

Under the Mental Health Act 2009 and the Disability Services (Community Visitor Scheme) Regulations 2013, community visitors have obligations and discretions to visit treatment centres, community mental health facilities, disability accommodation premises and day options program premises. The visits are an important aspect of the Community Visitors' functions, which include referring any matters of concern to appropriate persons or bodies and advocating for and assisting vulnerable people in the facilities.

The Chief Psychiatrist has similar functions to visit and inspect hospitals under the Mental Health Act 2009 and the Health Care Act 2008, which are an important aspect of his monitoring of the provision of mental health care in South Australia.

A new section 10A enables these visits as well as visits of community visitors under the COVID-19 Emergency Response (Schedule 1) Regulations 2020, which relate to detention of certain protected persons during the COVID-19 pandemic, to be conducted remotely by audiovisual or other electronic means during the COVID-19 pandemic. Information relating to such visits is to be reported on a publicly accessible website which must be updated at least monthly.

This is consistent with similar changes made under other legislative schemes through the Act recently passed.

Continuing, cause 7 of the Bill provides that any extension of time given under a regulation made under section 14 will operate in accordance with its terms beyond the expiry of the COVID-19 Emergency Response Act. This clause was necessary as a result of changes made to section 6 of the COVID-19 Emergency Response Act during the Parliamentary debates which provides that the Act will expire either when the emergency declarations have ended and the Attorney is satisfied that there is no intention to make another declaration, or six months after commencement, whichever is the earliest.

Clauses 8(1) and 8(6) of the Bill adds to the work done by the Act to allow audio-visual options for Parliamentary Committees. The changes in this Bill further ensure that Parliamentary Committees established under the Aboriginal Lands Parliamentary Standing Committee Act 2003 and Parliamentary Committees Act 1991 can meet by audio-visual or audio means. While section 17 of the COVID-19 Emergency Response Act applies to these Parliamentary Committees generally, a concern was raised by the House of Assembly Clerk which is shared by the Legislative Council Clerk that parliamentary privilege will not apply to these Committees' proceedings unless there was a specific provision authorising them to meet via alternative means. These amendments address this concern.

Clause 8 of the Bill, highlights the Government's determination to stimulate our local economy, and get South Australians back into the work force.

Clauses 8(2) and 8(7) of the Bill make changes to the Development Act 1993, and where relevant to the Planning Development and Infrastructure Act 2016, to reduce the burden and red tape on the planning process and to create a seamless and streamlined process to stimulate economic development during the COVID-19 pandemic.

Clause 8(2) increases the threshold for Crown development under the Development Act to $10 million from the current $4 million cap where the State Commission Assessment Panel is required by public

advertisement to invite interested persons to make written submissions on the proposal within a period of at least 15 business days. By increasing this threshold the Government is allowing medium sized projects to be progressed more efficiently, thereby promoting economic stimulus during the COVID-19 pandemic—something crucial to keep SA moving.

Clauses 8(2) and 8(7) remove the requirement for the State Commission Assessment Panel to consult with Councils in relation to Crown developments during the COVID-19 pandemic.

Under the current provisions of the Development Act and Planning Development and Infrastructure Act, there is a time consuming process whereby the State Commission Assessment Panel must consult with councils, assess their comments and report to the Minister. Potentially, the Minister may then need to prepare a report which must be presented to both Houses of Parliament.

Removing the requirement for time consuming notification to local councils promotes more efficient development, thereby encouraging economic stimulus during the period of the COVID-19 pandemic.

Clause 8(3) of the Bill temporarily modifies the Emergency Management Act 2004 by inserting section 25A to make it clear that authorised officers under that Act have the power to remove children in order to enforce compliance with any direction under section 25 of that Act to ensure their safety. Children can be removed to their place of residence, a hospital or a quarantine facility. This provision was inserted at the request of SAPOL to clarify that an authorised officer may remove a child because they are not complying with a direction even though they are not necessarily at risk of serious harm.

Clause 8(4) of the Bill temporarily modifies the Emergency Management Act to allow the Minister to direct a person who engages in the transmission or distribution of electricity when an electricity supply emergency has been declared. It also clarifies that a market participant can be directed to give directions, of the kind that is lawful for the market participant to give, to another person or body even where that person is not a market participant.

South Australia is experiencing very low demand conditions during COVID-19 conditions. This makes the secure operation of the power system challenging, and this challenge would be further exacerbated if for any reason South Australia separates from the rest of the National Energy Market.

When an electricity supply emergency is caused by too much supply in the National Energy Market and not enough demand for electricity, the most efficient way to manage the supply and demand balance is to direct supply reductions.

Clause 8(4) ensures that a coordinated and efficient reduction of supply can occur through the transmission and distribution businesses. In the case of an energy emergency, this would allow the most efficiency and effective response where the network business is the party best able to undertake this function.

Clause 8(5) of the Bill amends the National Electricity (South Australia) Act 1996 to allow the Governor by regulation to amend or vary the operation of the National Electricity Rules insofar as they are laws of this State to protect the reliability and security of the power system.

Increased power generation from solar systems on homes and businesses is reducing the available load that can be automatically reduced as part of an emergency response to technical faults on the system.

Clause 8(5) allows regulations to be made which amend the National Electricity Rules to enable prompt actions to be taken to allow adequate load shedding in South Australia. Whilst the National Electricity Law currently includes a framework for jurisdictional derogations from the National Electricity Rules, the process is not quick enough for managing the risk during COVID-19 conditions.

Moving to the schedule of the Bill, Clause 1 of schedule 1 of the Bill removes the requirement under the Development Act to obtain the concurrence of the Minister or the Council for non-complying developments where the State Commission Assessment Panel is the relevant authority before development can be approved. This clause also removes the requirement to obtain the concurrence of the State Commission Assessment Panel in cases where the Council is the relevant authority. This process does not exist under the Planning Development and Infrastructure Act 2076 which is due to come into operation this calendar year.

Finally, Mr President, Clause 2 of schedule 1 of the Bill amends the Training and Skills Development Act to give the South Australian Employment Tribunal power to suspend a training contract up to and including 1 January 2021 necessary due to the COVID-19 pandemic, instead of the four week limitation that appears in the current provisions. This is consistent with the Training and Skills Commission COVID Guidelines, and was a request of the Minister for Innovation and Skills.

The COVID-19 pandemic has affected businesses differently, with some having to close temporarily, while others have experienced a significant downturn in activity. For some, this has affected an employer's capacity to employ and train its apprentices or trainees.

Suspending the training contract is preferable to a termination as a suspension is approved on the understanding that the contract will resume when the business recommences and therefore supports apprentices and trainees to remain connected to the apprenticeship system in South Australia. It also provides employers greater flexibility to deal with a significant downturn as it allows an apprenticeship or traineeship to recommence when business picks up again.

Mr President, South Australia has done a fantastic job so far in flattening the curve of the COVID-19 pandemic. This has been a testament to the hard work of South Australians, and although the government is continuing to prepare and plan for a return of cases in South Australia, we are working extremely hard to ensure all South Australians have the support they need throughout this time. The Government's strong plan to protect and prepare South Australia has meant that we are now in a position to start getting back to business by progressively easing restrictions. This has already commenced this week.

The Bill will further assist what is already happening in mitigating 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 into the future.

Finally, the Bill makes a number of key changes, specifically to our business and development sectors, and will help give local businesses confidence so they can retain and create more jobs and keep our economy going as we continue to open.

Mr President, I commend the Bill to Members and I seek leave to insert a copy of the Explanation of Clauses.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of COVID-19 Emergency Response Act 2020

3—Amendment of section 6—Expiry of Act

This clause provides for the expiry of new section 7 (and the regulations under that section) on 30 September 2020 and also ensures that requirements in proposed section 10A relating to reporting on the use of powers under that section will not expire when the rest of section 10A expires.

4—Substitution of section 7

This clause deletes the current provision dealing with commercial leases and replaces it with a power to make provisions relating to commercial leases by regulation.

5—Insertion of section 10A

This clause allows a community visitor (which is defined to include the Chief Psychiatrist) to perform a function or exercise a power under a prescribed law to visit and inspect premises, or visit a patient, resident or other person contemplated by the prescribed law, by means of audiovisual or other electronic means that do not involve the community visitor physically entering the premises. The provision also includes requirements for online reporting in relation to the use of the powers under the provision.

6—Amendment of section 19—Regulations

This clause makes minor consequential changes to section 19 (resulting from the new regulation making power in section 7).

7—Amendment of section 20—Savings and transitional matters

This clause amends section 20 to insert a savings measure ensuring that a regulation made under section 14 that postpones any time or extends any period can continue to have effect according to its terms after the time at which the regulation is taken to be revoked under the measure.

8—Amendment of Schedule 2—Temporary modification of particular State laws

This clause amends the schedule of temporary modifications as follows:

The Aboriginal Lands Parliamentary Standing Committee Act 2003 is modified to allow the Committee to meet remotely using electronic means.

Section 49 of the Development Act 1993 is temporarily modified by the clause as follows:

the $4 million threshold in subsection (7d) is increased to $10 million;

other proposed modifications would delete the requirement for notice to be given to a council and for a council to provide a report in respect of development being assessed under the section.

Equivalent temporary modifications are also made to section 131 of the Planning, Development and Infrastructure Act 2016.

The Emergency Management Act 2004 is modified:

to provide that an authorised officer may, in order to ensure compliance with any direction under section 25, remove a child from any premises, place, vehicle or vessel to a place of residence of the child or to a hospital or quarantine facility, as the authorised officer thinks fit (and may, in doing so, use using such force as is reasonably necessary);

to include a person who engages in the transmission or distribution of electricity in the definition of market participant in section 27A and to clarify the powers to give directions to market participants.

The National Electricity (South Australia) Act 1996 is modified to allow the Governor, for the purpose of protecting the reliability and security of the South Australian power system, to make regulations modifying the operation of the rules under the National Electricity Law (insofar as they apply as part of the law of South Australia).

The Parliamentary Committees Act 1991 is modified to allow Committees to meet remotely using electronic means.

Schedule 1—Related amendments

Schedule 1 makes related amendments as follows:

The requirement for a concurrence to be obtained for non-complying development is repealed in section 35 of the Development Act 1993.

Section 65 of the Training and Skills Development Act 2008 is amended to give SAET the power to suspend the employment of an apprentice/trainee for a period exceeding 4 weeks if necessary having regard to the circumstances of the COVID-19 pandemic and provided that the suspension will end on or before 1 January 2021.

Debate adjourned on motion of Hon. T.T. Ngo.

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