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COVID-19 and Other Legislation Amendment (Regulatory Reforms) Bill 2022

Published on: February 2022

Record: HANSARD-1323879322-122023

COVID-19 and Other Legislation Amendment (Regulatory Reforms) Bill 2022

First Reading

Bill introduced on motion by Ms Felicity Wilson, on behalf of Mr Matt Kean, read a first time and printed.

Second Reading Speech

Ms FELICITY WILSON (North Shore) (15:41:31):

On behalf of Mr Matt Kean: I move:

That this bill be now read a second time.

It is now close to two years since New South Wales rapidly introduced emergency measures to respond to the COVID-19 pandemic. A key part of our initial success in managing the pandemic included introducing sensible, temporary regulatory changes which would support businesses and communities to operate flexibly throughout the pandemic. Because of these changes, businesses have been able to adopt alternative delivery models and organisations have been encouraged to adopt modern technology. The community has more flexibility in when and how they access goods and services. The measures were necessary and they were appropriate in order to support people to continue to run businesses, to do their jobs and to access critical goods and services. Now, as we pivot towards living with COVID, the New South Wales Government is looking to the future to leverage opportunities where we can support growth and rebuild the economy in a better, stronger position.

We heard from businesses and communities that many of the temporary measures introduced were practical, sensible and helpful, even outside of pandemic circumstances. For example, allowing documents to be handled digitally instead of through physical paper processes not only supported social distancing during the pandemic but also updated burdensome compliance rules to reflect modern ways of working. Maintaining this increased flexibility will allow businesses to build upon new business models, adapt to changing customer preferences and recover faster. The New South Wales Government is committed to building on the insights and lessons learned during the pandemic as we move towards a new normal.

COVID-19 continues to pose public health risks. We have to be vigilant and we have to continue the flexibilities that will help us to deal with any further disruptions that arise. The recent Omicron outbreak has made retaining these measures all the more important as we continue to deal with the challenges of living with the virus. However, without legislative amendments the measures will sunset, commencing in March 2022. This bill will permanently extend a number of temporary measures that have proven to be both popular and effective and, after consultation and evaluation, have demonstrated real and ongoing benefits for businesses and communities.

The pandemic has spurred new ways of living and working and accelerated the uptake of new technologies. This bill will make sensible changes to modernise legislation and will help businesses and individuals to take advantage of these positive changes. This is in line with the recommendation in the NSW Productivity Commission's white paper to evaluate the COVID-19 changes and retain them if they deliver net benefits. After thorough evaluation, it is expected that retaining these changes permanently will provide net economic benefits of $2.4 billion over the next decade through greater flexibility and time savings. Some $500 million of these net benefits will come from removing barriers to digital processes in areas such as electronic meetings for strata schemes and regulatory interviews. Most significantly, a further $1.9 billion of net benefits will be delivered by allowing employees to access long service leave more flexibly, with benefits for both employees and employers. The permanence of these measures will help not only with continued management of the pandemic but also with our longer term economic recovery.

This bill will amend the Retail Leases Act 1994. This will preserve protections accrued by tenants during the prescribed period of the Retail and Other Commercial Leases (COVID-19) Regulation 2020. It ensures that landlords cannot take action against eligible tenants for breaches that occurred during the prescribed period unless they have renegotiated rent and attempted mediation. The bill will temporarily extend a procedural COVID-19 provision in the Constitution Act 1902 and makes amendments to the Interpretation Act 1987 to clarify the requirements for tabling documents when a House of Parliament is not sitting.

In addition to the generous stimulus provided by the Government, this bill will assist in our economic recovery after the dramatic impact of the first two years of the pandemic. The Government has already committed around $45 billion in health, economic and social measures since March 2020, which have continued to assist the community since the onset of the COVID-19 pandemic. More than 206,000 businesses and employees have benefited from our JobSaver program, which has paid out more than $7 billion in support. The $5 billion WestInvest program will build vital infrastructure in south-western and western Sydney. Our $2.8 billion economic recovery strategy has laid a strong foundation for the economic recovery and the challenges we face from the recent Omicron outbreak. This bill presents an important next step in our economic reform agenda in addition to these commitments. As we continue to deal with the ongoing impacts of the pandemic, we want to ensure our regulatory system is fit for purpose, responsive and flexible.

I now turn to the detail of the bill. The following amendments make several temporary measures permanent, as evaluation has shown the net benefits for the community beyond the initial stages of the pandemic. I first turn to the amendments to the Strata Schemes Management Act 2015 and the Community Land Management Act 2021. The bill will allow voting at general meetings and committee meetings to take place electronically, without the owners corporation or community association having to first adopt a general resolution authorising the use of electronic meeting and voting. The current requirement that a general resolution be adopted before remote forms of meeting and voting can be used may have been suitable when those practices were new, but, as we know, the pandemic has changed everything. What was once a sensible precaution in the laws is now hindering strata and community schemes from taking advantage of more modern and flexible means of governing themselves. Calls to make that increased flexibility permanent have been heard loud and clear, including in feedback to the recent statutory review of the strata laws.

The bill preserves the protections for lot owners and community land associations in the COVID-19 temporary regulations by requiring that, if a way of voting other than in person has been specified in the notice for the meeting, all owners corporations and community land associations must take reasonable steps to ensure that each person entitled to vote can participate in and vote at the meeting. The bill inserts further flexibility into the laws by including regulation-making powers to prescribe how the reforms will work in detail, including procedures for voting using these technologies, and reasonable steps that secretaries or managing agents must take to ensure that each person entitled to vote at the meeting can participate in and vote at the meeting. The Government will consult further with the sector on the development of regulations under these new laws, as we have done throughout the pandemic.

I now turn to the changes to service of documents. The changes ensure that electronic service of records can occur in almost every circumstance under the Strata Schemes Management Act 2015 and the new Community Land Management Act 2021. The amendments in this bill will mean owners' corporations and community land associations can serve documents electronically on an owner or occupier of a lot even if they are not recorded on the strata or association roll or have not had an email address recorded on the roll.

I now turn to the final set of strata and community land amendments, which concern the common seal. The amendments will allow owners' corporations and community land associations to keep and affix an electronic form of their seal instead of affixing the hard copy seal, as is currently the case. The amendments have been drafted broadly and will allow the Government to respond to changes in technology by prescribing alternatives to affixing the seal electronically or in hard copy in supporting regulations. The amendments also allow regulations to specify safeguards and minimum standards, such as how electronic seals are to be kept and stored and the process and requirements by which electronic seals can be validly affixed. The Government will consult closely with the sector to ensure that any regulations prepared under these powers are practical and not burdensome to owners' corporations and community land associations.

Rigorous economic evaluation has found that making the changes for strata and community land management associations permanent will lead to net economic benefits of $213 million over 10 years. These benefits are largely from the time and cost savings of not having to attend meetings in person. For instance, an owner who wishes to attend a strata meeting will save time and transport costs when they attend virtually. They will have the option of dialling in from a location that is convenient for them, and voting electronically. Likewise, a member of a community land management association can attend meetings remotely, saving time and travel costs. If the meeting is held completely online, the association will also save on expenses such as venue hire fees.

The bill also amends the Long Service Leave Act 1955 and proposes making the temporary measures currently contained in sections 15A and 15B of that Act permanent. Prior to the temporary amendments coming into operation in 2020, the Long Service Leave Act was quite prescriptive about how leave could be taken. For example, unless there was an agreement between the employer and worker to split long service leave in a manner specified in the Act, leave had to be taken in one continuous period. The provisions in the bill will allow, by agreement, leave to be taken in multiple periods of no less than one day. This will apply to leave taken in advance and to accrued leave. It will also allow an employer and a worker to reach a mutual agreement about how much notice should be given before taking a period of long service leave.

These amendments will have significant economic benefits, estimated at around $1.9 billion over 10 years. These benefits will largely accrue to employees from the value they get from taking their long service leave in the form that most suits their own needs. This could involve, for example, an employee taking a day off every fortnight for family commitments, or instituting a phased retirement. Benefits will flow to employers from increased productivity and lower absenteeism associated with employees being able to work more flexibly. Where employees take smaller periods of time off, there will also be fewer disruption costs to business. For instance, employers may otherwise have to spend time and money hiring and training temporary staff to cover for employees who take their long service leave in large blocks.

The bill also contains consequential amendments relating to the keeping of leave records and defining what "a day" is for workers who do not work a fixed number of weekly hours. This will provide more clarity for employers and ensure they are paying their staff correctly under the new flexible arrangements. Amending the Act in this manner will not only help with the continued management of the pandemic and our longer-term economic recovery, but also importantly provides employers and employees with greater flexibility to make arrangements about how best to take long service leave.

The bill amends the Mental Health Act 2007 to facilitate additional alternatives where it is not reasonably practicable for a medical practitioner to conduct an in-person assessment of a person who is in a declared mental health facility to assess whether the person requires detention. The Act currently allows, as an alternative, either a medical practitioner in another location to do the assessment via audiovisual link, or for an "accredited person" as defined in the Act to undertake the assessment in person. The proposed amendment would allow accredited persons to also conduct the assessment via audiovisual link. The amendment would also remove the requirement that the medical practitioner be in a different facility. At the start of the pandemic, these amendments were made to manage risk of viral transmission. Since then, it has become evident that there are benefits for the person, and the system, in facilitating additional alternatives to assess a person, where such an examination can be carried out with sufficient skill and care so as to form the required opinion about the person.

The benefits of the measure are twofold: Most importantly, it reduces the wait time for an assessment. If the person is at a facility where they risk waiting a long time for their assessment due to staffing, they could be seen more quickly if assessed via audiovisual link. This will mean they are either discharged or admitted for inpatient care more quickly. Second, in rural and regional areas, where practitioners with the relevant experience and qualifications are not necessarily available at all times, transportation to another facility that could be hours away could be avoided. Estimated economic net benefits of this measure range between $2 million and $4 million over 10 years.

The bill amends section 63 of the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010. This Act entitles a worker to a pro rata payment instead of long service leave if they have permanently left the industry and have at least five years' accredited service. The proposed amendment shortens the waiting period for eligible workers to access a pro rata payment after 10 weeks rather than 20 weeks. Adjusting the waiting period to 10 weeks will support workers who have left the industry due to unforeseen events such as COVID-19. The bill will also insert a new regulation-making power that will provide flexibility for the agency to prescribe a shorter period other than 10 weeks for a worker to access their entitlements. This amendment ensures that minimum changes are made to the legislative instrument if future circumstances change, such as new COVID outbreaks. The time frame will be prescribed following the necessary regulatory impact assessment and stakeholder consultation. The expected net benefits of the changes are around half a million dollars over 10 years. While the dollar benefit of the changes may seem small, removing the waiting period will allow cleaners faster access to their entitlements without undermining the objectives of the scheme.

The bill also makes amendments to the Associations Incorporation Act 2009. These amendments will permanently allow associations to use technology to conduct meetings and for members to vote on resolutions, even if the constitution of the association does not expressly allow such measures to be used. Associations have been temporarily allowed to do so to enable them to continue functioning when face-to-face interaction has not been possible due to unforeseen circumstances like the pandemic. The constitutions of many associations do not make provision for the conduct of meetings or voting using technology. This is because many associations were constituted over the last 25 years and their constitutions were not updated when the capacity to hold meetings and vote remotely was introduced into the Associations Incorporation Act.

For example, these measures will enable association committees to authorise necessary payments to creditors or to comply with their statutory obligations, even if they cannot conduct face-to-face meetings. The proposed amendments will also provide a sensible solution for allowing members to vote via modern technologies such as email or videoconferencing. This will provide long-term flexibility for associations and greater choice. It will save costs that arise from having to meet formally to amend a constitution. This does not mean that an association is forced to adopt modern technologies for their meetings. It merely means that if they wish to use it, then an unnecessary and potentially costly hurdle has been removed. The measure is estimated to deliver $236 million in net economic benefits over the next 10 years, largely from time and travel costs saved when incorporated association members attend meetings virtually. If the meeting is held completely online, the association will also save on venue hire fees.

This bill makes amendments to the Retirement Villages Act to allow for meetings and votes at meetings to be held electronically. Following a successful trial of online meetings and votes for retirement villages, including annual general meetings, the proposed amendment would make this a permanent option for villages. While the proposed amendment will allow residents to attend and vote at meetings remotely, the amendment will still require meetings to have an in-person option if residents would like one. This recognises that many residents in retirement villages are unable to access online meetings easily and would benefit from an in-person option to ensure their voice is heard. The Government will continue to monitor the rollout of these changes to ensure residents are empowered to be active participants in the running of their village.

The bill amends the Biodiversity Conservation Act 2016 to permanently enable authorised officers to conduct interviews and other meetings either in person or by audio or audiovisual link, or some hybrid of the two. This change provides flexibility in how these officers undertake their investigation and interview functions under the Act and ensures that they can continue to be conducted safely as we move into the next phase of the pandemic. The bill also makes equivalent changes to a range of other natural resources legislation that contain similar provisions, including the Crown Land Management Act 2016, the Fisheries Management Act 1994, the Mining Act 1992, the Protection of the Environment Operations Act 1997 and the Water Management Act 2000.

These measures are estimated to deliver net economic benefits of $6.5 million over the next 10 years. Both regulators and interviewees stand to gain from the changes, due to travel time and transport costs saved when interviews are conducted online. Depending on the location of the interview, they may also save on other travel expenses like accommodation and meals. These benefits are particularly significant where the interviewee is based in a regional area. In addition, the Environmental Planning and Assessment Act 1979 is being updated to allow planning bodies, including the Independent Planning Commission and the Sydney district and regional planning panels, to continue to hold their public meetings and hearings either online or by audiovisual means, as well as in person or a hybrid of these arrangements. This change again provides the necessary flexibility to planning bodies in how they conduct their hearings and other meetings.

It also ensures that they can continue to carry out their functions safely as we move forward into the next phase of the pandemic. Retaining this measure is estimated to lead to benefits of $2 million over the next 10 years, largely due to attendees saving travel time and transport costs when they attend planning body meetings online. Where meetings are held completely online, there will also be venue hire savings for the government agency. Other temporary planning measures that support the State's economic recovery that do not require an amendment to the planning Act will be maintained through other planning means, such as State environmental planning policies. The amendment to the Retail Leases Act 1994 preserves the protections for eligible tenants acquired during the prescribed period of the Retail and Other Commercial Leases (COVID-19) Regulation 2022 beyond its repeal.

The commercial leases regulation is a temporary measure that has provided protections to eligible tenants who have been financially impacted during COVID‑19. This amendment will ensure that landlords cannot take action against eligible tenants for circumstances arising during the prescribed period unless they comply with their obligations under the commercial leases regulation, including their obligation to renegotiate rent and attend mediation. I now deal with the proposed amendments to the Constitution Act 1902 at schedule 1.4 to the bill. Currently, schedule 8 to the Constitution Act provides for the making of regulations prescribing the ways and forms in which a bill may be presented to the Governor for assent and to receive assent, and the ways and forms in which meetings of the Executive Council are to be held during the prescribed period.

A regulation made pursuant to schedule 8 to the Constitution Act provides that during the prescribed period a meeting of the Executive Council is to be held in person or by means of a teleconference or videoconference. The prescribed period ends on 26 March 2022. It is proposed to extend the prescribed period, which will continue to enable virtual meetings of the Executive Council, for a further 12 months until 26 March 2023, or a later day prescribed by the regulations, being no later than 26 September 2023. I am advised that Her Excellency the Governor is supportive of the proposed extension, noting that the availability of virtual meetings of the Executive Council provides a valuable contingency for the council. Schedule 1.5 to the bill makes further consequential amendments to the Constitution (COV1D‑19 Emergency Measures) Regulation 2020 due to the extension of the prescribed period that I have just set out.

Finally, I move to the proposed amendments to the Interpretation Act 1987 at schedule 1.10 to the bill. Legislation may require the tabling in Parliament of a report or other document, for example, a statutory review or report on the use of a statutory power. Some Acts include provisions clarifying that the document may be tabled while a House of Parliament is not sitting by lodging the document with the Clerk, while other Acts are silent on out‑of‑session tabling. Standing Order 55 in the other place provides that where, under any Act, a report or other document is required to be tabled in the House by a Minister and the House is not sitting, such a report or document may be lodged with the Clerk and, on presentation to the Clerk, the report or other document is deemed to have been laid before the House. Documents may not be lodged with the Clerk when the House has been prorogued.

On 24 March 2020 this House adopted sessional order 266A, which makes equivalent arrangements for the tabling of a report or other document when the House is not sitting for the remainder of this parliamentary session. For the avoidance of doubt, it is proposed to insert new section 18A into the Interpretation Act, providing that in an Act or statutory rule a reference to tabling a document in a House of Parliament includes taking any action allowed or required under the standing rules or orders of the House to table the document when the House is not sitting. That provision will retrospectively cover documents previously tabled out of session if the standing rules or orders of the House as in force at that time allowed the documents to be tabled when the House is not sitting.

Proposed section 18A is similar to section 1 of the Laying of Documents before Parliament (Interpretation) Act 1948 (UK), which makes provision "for the removal of doubt" in the United Kingdom. The proposed amendment will confirm the position set out in Standing Order 55 in the other place and Legislative Assembly sessional order 266A, and put beyond doubt that those orders operate as intended. The bill permanently enacts a number of COVID‑19 temporary measures to enhance the regulatory environment in New South Wales for business, councils and communities. Those measures have been rigorously tested and will deliver enduring economic and social benefits. Their permanence will be a sensible next step in light of the positive feedback received from stakeholders and the community. I thank and acknowledge the work of those in Treasury who put together this legislative reform: Lovelle D'Souza; Sarah Fletchett; Georgina Collins; Scott Wheeler; and Jackie Yuan, who is in the advisers' area and now works in the Treasurer's office. I note that this has been a whole‑of‑government reform process, with significant input from a number of different agencies and Ministers and their offices to reach this conclusion to ensure that we can deliver a bill that will have these types of positive benefits across the community.

As we recover from the pandemic, the New South Wales Government is leveraging the lessons that we have learnt from COVID‑19 to bounce back better. We know the virus is unpredictable, but these changes, combined with the resilience, creativity and determination of our people and businesses, mean that our State will be in a better and stronger position to recover and flourish. I thank all of those who provided their input in the drafting of the bill. I thank, once again, all of our frontline services and our healthcare workers in particular, who are keeping us safe. But most importantly, I thank the people of New South Wales for their continued adaptability and resilience during these difficult times. I commend the bill to the House.

Debate adjourned.