Northern Territory Numbered Acts Northern Territory Numbered ActsAfter section 157
insert
In this Part:
COVID-19 means the Coronavirus disease named "COVID-19" by the World Health Organization.
COVID-19 public health emergency means:
(a) the public health emergency initially declared by notice entitled "Declaration of Public Health Emergency" dated 18 March 2020 and published in Gazette S10 of 18 March 2020; and
(b) if an extension of that declaration, or a subsequent declaration, is made – that public health emergency as extended or re-declared.
"EMA declaration "means any of the following:
(a) a declaration under section 18 of the Emergency Management Act 2013 that an emergency situation exists in relation to COVID-19;
(b) a declaration of a state of emergency under section 19 of the Emergency Management Act 2013 in relation to COVID-19;
(c) a declaration of a state of disaster under section 21 of the Emergency Management Act 2013 in relation to COVID-19.
"modification notice", see section 157B(2).
"occupation arrangement", see section 157B(2)(b)(ii).
(1) Subsection (2) has effect during the following periods (the emergency period ):
(a) while the COVID-19 public health emergency is declared under section 48 of the Public and Environmental Health Act 2011 ;
(b) while an EMA declaration is in force.
(2) The Minister may, by Gazette notice (a modification notice ), do any or all of the following:
(a) suspend or modify part or all of this Act and regulations made under it;
(b) make provisions to regulate the following:
(i) a premises or a tenancy agreement to which this Act applies;
(ii) an arrangement (an occupation arrangement ) for the occupation of premises for residential purposes that is an arrangement to which this Act, but for this section, does not apply.
(3) To avoid doubt:
(a) without limiting subsection (2)(a), that subsection extends to:
(i) setting aside all or part of section 7, and any regulations made under that section, as the Minister considers appropriate; and
(ii) specifying an offence as offence for which an infringement notice may be issued as an alternative to prosecution for the offence; and
(iii) increasing the penalty amount provided in relation to an infringement notice issued instead of a prosecution for an offence; and
(b) without limiting subsection (2)(b), that subsection empowers the Minister to make provisions:
(i) in relation to aspects of residential tenancies or occupation arrangements to which this Act does not otherwise apply; and
(ii) in relation to matters ancillary to residential premises, residential tenancies or other arrangements, such as limitations or other modifications regarding the awarding of costs in court or tribunal proceedings hearing and determining disputes.
(4) A modification notice may apply to any of the following:
(a) a specified person, tenancy agreement or premises;
(b) a specified occupation arrangement;
(c) a specified class of person, tenancy agreement or premises;
(d) a specified class of occupation arrangement;
(e) all tenancy agreements.
(5) A modification notice may, by reference, incorporate in whole or in part, an Act, subordinate instrument or other document as in force at a particular time or from time to time.
(6) A modification notice has effect for the period specified in the notice, which may be any period during the emergency period.
(7) The Minister must table a modification notice in the Legislative Assembly on the next sitting day after it is published in the Gazette .
(1) To avoid doubt, and without limiting section 157B(2)(a), that section empowers the Minister to change, add or remove:
(a) any procedural step under this Act that relates to termination of a periodic, fixed-term or employment-related tenancy, or the time required or allowed for the taking of such a step; or
(b) any other provision of this Act that relates to termination of a periodic, fixed-term or employment-related tenancy; or
(c) provisions in relation to matters ancillary to tenancy agreements, such as:
(i) service of notices by electronic means; or
(ii) limitations or other modifications regarding the awarding of costs of proceedings in courts or Tribunals hearing and determining disputes; or
(iii) the continuation of a tenancy after the death of a sole tenant, if other persons would be affected if the tenancy were terminated.
(2) The power to make a modification notice extends to empowering the Minister to make provisions that deal with any of the following:
(a) suspension by NTCAT of an order for possession;
(b) the conditions on which such a suspension may be imposed;
(c) any time periods applicable to the suspension or conditions of the suspension.
(3) The Minister's power to make or change provisions by a modification notice includes the power to substantively affect:
(a) rights and interests held by a landlord or a tenant in relation to a tenancy; and
(b) obligations on a landlord or a tenant arising from a tenancy.
Example for subsection (3)(b)
A landlord's obligation to effect non-emergency repairs.
(4) Subject to section 157E, but without limiting that section, the Minister's power to make provisions under this Part includes a power for those provisions to have retrospective effect in the following circumstances:
(a) a notice to terminate has been issued on or after 18 March 2020 and any related proceedings have not been finalised;
(b) a termination arose under section 82(1)(e) on or after 18 March 2020 but the premises have not been vacated.
(5) In a modification notice, for the purposes of making or changing provisions to alleviate hardship, the Minister may specify the nature of the hardship to be alleviated.
(6) Without limiting subsection (5), the nature of the hardship may include financial or any other kind of hardship to either party.
(7) The Minister may specify different kinds of hardship for specified classes of persons, tenancies or occupation arrangements.
(8) The Minister may, in a modification notice, specify any evidentiary or procedural requirement for determining whether a party is suffering hardship or may suffer hardship.
(9) The Minister may, by a modification notice, make the alleviation of hardship the principal consideration in a tenancy dispute, including by changing provisions of this Act affecting:
(a) a landlord's right to:
(i) obtain fair rent; or
(ii) terminate a tenancy; and
(b) any other right of a party, or obligation on a party, arising as a result of a tenancy or occupation arrangement.
(10) The Minister may, in a modification notice, specify that NTCAT has additional powers in relation to deciding a matter under this Act, including ordering any of the following dispositions:
(a) terminating a tenancy, with or without suspension of the order for possession;
(b) refusing to terminate a tenancy;
(c) creating a new fixed term tenancy for up to 6 months with the same terms and conditions or any condition that could legally be agreed between the landlord and tenant.
Examples for subsection (10)(c)
1 A reduction in the amount of rent payable.
2 Deferring the amount of rent payable, with or without forgiving an amount of interest accruing.
3 Adding or removing tenants from the tenancy.
(11) The Minister may, in a modification notice, add to, modify or suspend any provision of this Act for, but not limited to, any of the following purposes:
(a) determining matters that may, or may not, be listed on a tenancy database;
(b) facilitating social distancing and other public health measures;
(c) determining health and safety considerations for landlords, tenants and other persons who may visit premises;
(d) ensuring that financial losses are distributed as fairly as possible while alleviating hardship.
(1) Subsection (2) applies to a modification notice in which the Minister changes the time for a procedural step to be taken in relation to a tenancy agreement, as mentioned in section 157C(1)(a).
(2) The time as changed continues to be the time for that step for that tenancy agreement while the tenancy agreement remains in effect, despite that the emergency period may have come to an end.
Example for subsection (2)
This Act sets a time period of 30 days for a thing to be done. A modification notice modifies that time period to 120 days. After 60 days the emergency period comes to an end. The time for doing the thing still has 60 days to run, despite that the emergency period has ended.
(3) Subsection (4) applies if, during the emergency period:
(a) the terms of a tenancy agreement are changed by negotiation; or
(b) a new tenancy agreement is created, or a tenancy agreement is modified, by NTCAT.
(4) The terms of the agreement, or the agreement as changed, continue for that tenancy agreement while the tenancy agreement remains in effect, despite that the emergency period may have come to an end.
(5) If a tenancy agreement mentioned in subsection (3) comes to an end and the agreement rolls over to become a periodic tenancy, whether the emergency period has ended or not, the terms of the agreement continue to apply unless the parties negotiate different terms.
(1) A provision of a modification notice may be expressed to have effect from a date earlier than the date on which the notice is made, but no earlier than 18 March 2020.
(2) Subsection (1) includes modification of any procedural steps or proceedings that may follow a notice to terminate that was issued on or after 18 March 2020.
(3) Subsection (1) applies whether or not proceedings mentioned in subsection (2) were commenced before the commencement of this section.
(1) A modification notice operates despite the provisions of a tenancy agreement or an occupation arrangement.
(2) A provision of a tenancy agreement or occupation arrangement is, for the period during which a modification notice is in force, set aside to the extent that the provision is inconsistent with a provision of the notice.
(3) A provision of an agreement or arrangement between the parties to a tenancy agreement or occupation arrangement is set aside to the extent that the provision would be set aside if it were in the tenancy agreement or arrangement.
This Act must be applied with any modifications made by a modification notice as if this Act had been altered in that way.
(1) This section applies if:
(a) a modification notice sets aside, wholly or in part, section 7; and
(b) as a result, a tenancy or occupation arrangement that was excluded from the operation of the Act immediately before the notice came into effect became subject to this Act.
(2) Section 114 of the Law of Property Act 2000 applies in relation to the tenancy or occupation arrangement while the tenancy or arrangement is subject to this Act.
If the operation of a modification notice would, apart from this section, result in an acquisition of property from a person otherwise than on just terms:
(a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and
(b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.
(1) A modification notice is subject to disallowance by a resolution of the Legislative Assembly passed within 3 sitting days after the notice has been tabled in the Assembly under section 157B(7).
(2) If the resolution disallows the modification notice or provisions of it, the disallowance has, subject to subsection (3), the same effect as a revocation of the notice or provisions.
(3) If a provision of a disallowed notice (the disallowed provision ) amended or set aside a provision of this Act or the Regulations in force immediately before the making of the disallowed provision, the disallowance revives the other provision from the date of the disallowance as if the disallowed provision had not been made.
A person commits an offence if:
(a) the person is a party to negotiations between a landlord and a tenant or is acting on behalf of such a party; and
(b) the negotiations take place during the emergency period; and
(c) the negotiations seek to adjust the terms of an arrangement for the occupation of premises for residential purposes; and
(d) the person intentionally or recklessly misrepresents the financial situation of the party in the course of the negotiations.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is a party to negotiations between a landlord and a tenant or is acting on behalf of such a party; and
(b) the negotiations take place during the emergency period; and
(c) the negotiations seek to adjust the terms of an arrangement for the occupation of premises for residential purposes; and
(d) the person intentionally or recklessly discloses information about the other party's financial situation or personal affairs that was obtained in the course of the negotiations.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(2) A person does not commit an offence against subsection (1) if:
(a) the disclosure is:
(i) necessary for the administration of this Act; or
(ii) for a legal proceeding; or
(iii) for obtaining legal advice from a legal practitioner; or
(iv) to report suspected illegal conduct to a government organisation with responsibility for investigating that kind of illegal conduct; or
(v) with the consent of the other party; or
(b) the person has knowledge of the information independently from obtaining the information in the course of the negotiations.
(3) For subsection (1), it is immaterial whether the disclosure was made during, or after, the emergency period.
The maximum penalty for an offence against a provision specified in column 1 of the Table is increased as shown in the corresponding entry in column 2 of the Table for an offence committed during the emergency period.
Table