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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
COVID-19 DISEASE EMERGENCY
(COMMERCIAL LEASES) BILL 2020
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Objectives of this Act
PART 2 - INTERPRETATION
4. Interpretation
5. Protected leases and protected lessees
6. Eligible person
7. Meaning of prohibited lessor action
PART 3 - APPLICATION OF ACT
8. Act binds Crown
9. Application of Act
10. Effect of actions taken in relation to protected lease before
commencement day
11. Certain acts or omissions, relating to legal requirements in
relation to disease, are authorised
[Bill 19]-XI
PART 4 - TAKING OF CERTAIN ACTIONS IN RELATION TO
PROTECTED LEASES
12. Parties to protected leases take certain actions during financial
hardship period
13. Prohibited lessor action not to be taken in relation to protected
lease during financial hardship period
14. Lessor not to punish protected lessee for ceasing normal trading
during financial hardship period
15. Lessor, on lessee request, to extend protected lease during
financial hardship period
16. Communication or provision of information
PART 5 - RENT, COSTS AND BENEFITS
17. Rent payable under protected lease not to be increased during
financial hardship period
18. Rent payable under protected lease to be renegotiated
19. Parties to bear own costs in relation to preparation of protected
lease, &c., during financial hardship period
PART 6 - MEDIATION AND ARBITRATION
20. Mediation Provider
21. Delegation by Mediation Provider
22. Parties to protected leases to attempt to resolve disputes
23. Party to protected lease may apply for mediation of dispute
24. Mediation Provider may require information to be provided if
application for mediation made
25. Costs of mediation
26. Arbitration
27. Immunity from liability, &c.
PART 7 - COMMERCIAL CODE ADMINISTRATION COMMITTEE
28. Commercial Code Administration Committee
29. Functions of Code Committee
30. Procedure of Code Committee
31. Financial hardship cessation day
2
PART 8 - MISCELLANEOUS
32. Regulations
33. Administration of Act
3
4
COVID-19 DISEASE EMERGENCY
(COMMERCIAL LEASES) BILL 2020
(Brought in by the Minister for Building and Construction, the
Honourable Elise Nicole Archer)
A BILL FOR
An Act to provide for special measures, related to the
social and financial effects of the COVID-19 disease in the
State, in relation to commercial leases
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the COVID-19 Disease
Emergency (Commercial Leases) Act 2020.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Objectives of this Act
The objectives of this Act are -
(a) to implement measures that may assist
the continued functioning of the
[Bill 19] 5
COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 3 Part 1 - Preliminary
economy during the financial hardship
period and the recovery of the economy
after the end of the period; and
(b) to enable an appropriate apportioning,
between parties to a protected lease, of
the financial burden caused to the parties
by, or relating to, the disease-related
factors.
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
Part 2 - Interpretation s. 4
PART 2 - INTERPRETATION
4. Interpretation
(1) In this Act, unless the contrary intention
appears -
business purposes means purposes related to
the carrying on, for profit, of any
business, trade or profession and includes
purposes related to the carrying on of an
undertaking (whether or not carried on
wholly, or only partly, with a view to
profit) involving the manufacture, sale or
supply of goods or services;
Code Committee means the Commercial Code
Administration Committee established by
section 28;
commencement day, in relation to a provision
of this Act, means the day on which the
provision commences;
commercial lease means -
(a) a lease of premises to which
Schedule 1 to the Fair Trading
(Code of Practice for Retail
Tenancies) Regulations 1998
applies; and
(b) a lease of premises occupied, or
to be occupied, wholly or
predominantly for business
purposes -
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s. 4 Part 2 - Interpretation
but does not include a lease that is within
a class of leases that is prescribed;
Director has the same meaning as in the
Consumer Affairs Act 1988;
disease means the disease, known as
coronavirus disease 2019 (COVID-19),
declared under section 40 of the Public
Health Act 1997 to be a notifiable
disease;
disease-related factors means factors arising
from, or related to -
(a) the disease; or
(b) actions taken, or attempts made,
to reduce the risk of the spread of
the disease, whether or not taken
under the Public Health Act 1997
or the Emergency Management
Act 2006 and whether or not the
actions taken, or attempts made,
occur within the State or outside
the State or relate to matters
within the State; or
(c) actions taken, or attempts made,
to reduce the social and financial
effects of the disease, whether or
not the actions taken, or attempts
made, occur within the State or
outside the State or relate to
matters within the State; or
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Part 2 - Interpretation s. 4
(d) a failure to take, or to attempt to
take, actions referred to in
paragraph (a), (b) or (c);
eligible person - see section 6;
financial hardship cessation day means the
day declared under section 31(1) to be
the financial hardship cessation day;
financial hardship period means the period -
(a) beginning on 1 April 2020; and
(b) ending at the end of the financial
hardship cessation day;
Jobkeeper Act means the Coronavirus
Economic Response Package (Payments
and Benefits) Act 2020 of the
Commonwealth;
Jobkeeper Rules means the Coronavirus
Economic Response Package (Payments
and Benefits) Rules 2020 of the
Commonwealth made under the
Jobkeeper Act;
jobkeeper scheme means the scheme set out in
Part 2 of the Jobkeeper Rules;
lease means a lease of, or an agreement in
relation to, premises, whether the lease or
agreement is legal or equitable, and
includes a lease or agreement, whether
legal or equitable, under which a person
grants, or agrees to grant, to another
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s. 4 Part 2 - Interpretation
person, a right to occupy (for a term,
periodically or at will) premises -
(a) whether or not the right is a right
of exclusive possession; and
(b) whether the agreement is express
or implied; and
(c) whether the agreement is oral or
in writing or partly oral and
partly in writing -
and includes any agreement that
modifies, varies or adds to the provisions
of an agreement referred to in this
definition but does not include a lease, or
an agreement, that is a member of a class
of leases or agreements that is
prescribed;
lessee, in relation to a commercial lease or
protected lease, means a person who,
under the lease, is granted a right to
occupy the premises to which the lease
relates, but does not include a person
who is a member of a prescribed class of
persons;
lessor, in relation to premises to which a
commercial lease relates, or in relation to
a commercial lease, means a person who,
under the lease, grants, or agrees to grant,
a right to another person to occupy the
premises but does not include a person
who is a member of a prescribed class of
persons;
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Part 2 - Interpretation s. 4
Mediation Provider means the person who is
the Mediation Provider under section 20
and includes a person to whom a
delegation under section 21 relates;
National Code of Conduct means the
document (as amended from time to
time), entitled the National Cabinet
Mandatory Code of Conduct, released on
7 April 2020 by the National Cabinet that
was constituted by the Commonwealth,
the States and the Territories in response
to the disease;
party, in relation to a protected lease, means
the lessor or lessee under the lease;
person includes the Crown and an agency or
instrumentality of the Crown;
premises means premises or land in Tasmania
and includes, but is not limited to
including -
(a) a part of premises or land; and
(b) premises or land, or part of
premises or land, that are or is
used as a shop, an office, a
factory, a warehouse, or that is
specified in Appendix C to
Schedule 1 to the Fair Trading
(Code of Practice for Retail
Tenancies) Regulations 1998;
prohibited lessor action - see section 7;
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s. 4 Part 2 - Interpretation
protected lease - see section 5;
protected lessee means a person who is a
lessee of premises under a protected lease
but does not include a person, or a
member of a class of persons, who or that
is prescribed to not be a protected lessee;
relevant Act means -
(a) the Australian Consumer Law
(Tasmania) Act 2010; and
(b) the Conveyancing and Law of
Property Act 1884; and
(c) the Fair Trading (Code of
Practice for Retail Tenancies)
Regulations 1998; and
(d) the Landlord and Tenant Act
1935; and
(e) the Land Titles Act 1980; and
(f) the Property Agents and Land
Transactions Act 2016; and
(g) the Residential Tenancy Act
1997;
rent, in relation to a protected lease, includes
any amount, goods, services, or other
valuable consideration, in the nature of
rent to be paid or supplied under a lease
by the lessee.
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Part 2 - Interpretation s. 5
(2) A reference in this Act to a lease, a lessor or a
lessee includes a reference to a sublease, a
sublessor or a sublessee, respectively.
5. Protected leases and protected lessees
(1) For the purposes of this Act, a lease is a
protected lease at a time if -
(a) the lease is a commercial lease; and
(b) the time is any time, during the financial
hardship period, after which the lessee
has become -
(i) an eligible person; or
(ii) a member of a class of persons
that is prescribed -
whether or not subparagraph (i) or (ii)
ceases to apply to the person during the
financial hardship period.
(2) Despite subsection (1), a lease is not a protected
lease if it is a lease, or a member of a class of
leases, that is prescribed for the purposes of this
subsection.
(3) Despite subsection (1), a lease ceases to be a
protected lease when, in accordance with any
regulations, including regulations for the
purposes of subsection (2) or section 4, the lease
ceases to be a protected lease or the lessee in
relation to the lease ceases to be a protected
lessee.
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s. 6 Part 2 - Interpretation
6. Eligible person
(1) For the purposes of this Act, a person is an
eligible person at a time if the time occurs after -
(a) the person -
(i) becomes entitled, under the
Jobkeeper Rules, for a jobkeeper
payment or becomes qualified,
under the Jobkeeper Rules, for
the Jobkeeper scheme; and
(ii) becomes an SME entity for the
purposes of the Guarantee of
Lending to Small and Medium
Enterprises (Coronavirus
Economic Response Package) Act
2020 of the Commonwealth; or
(b) the person satisfies the criteria, if any,
prescribed for the purposes of this
paragraph -
whether or not paragraph (a) or (b) ceases to
apply to the person during the financial hardship
period.
(2) For the purposes of this Act, and despite the
provisions of this section, a lessee is also an
eligible person if the person is a member of a
class of eligible persons, if any, that is prescribed
for the purposes of this subsection.
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Part 2 - Interpretation s. 7
7. Meaning of prohibited lessor action
(1) For the purposes of this Act, a reference to a
prohibited lessor action is a reference to a
lessor -
(a) exercising, or attempting to exercise, in
relation to a protected lease, any right,
power or remedy, whether under an Act,
a law or a term or condition of a
protected lease; or
(b) seeking orders or issuing proceedings in
a court in relation to a protected lease -
during the financial hardship period, in
connection with any breach of the protected
lease by the protected lessee.
(2) Without limiting the generality of subsection (1),
a prohibited lessor action includes doing, or
attempting to do, any of the following:
(a) evicting the lessee from the premises to
which a protected lease relates;
(b) exercising a right of re-entry to the
premises to which a protected lease
relates;
(c) recovering land;
(d) distraining goods;
(e) seeking forfeiture;
(f) seeking or recovering damages;
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s. 7 Part 2 - Interpretation
(g) requiring a payment of interest, or any
other fee or charge, on unpaid rent
otherwise payable by the lessee;
(h) recovering the whole or part of a security
bond, or bank guarantee, under, or in
relation to, the lease;
(i) requiring the performance of obligations
by the lessee, or any other person,
pursuant to a guarantee, or indemnity,
relating to the lessee's obligations under
the lease;
(j) taking possession;
(k) terminating the lease;
(l) seeking or applying any other remedy
otherwise available to a lessor against a
lessee under an Act or the law of this
State.
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Act No. of 2020
Part 3 - Application of Act s. 8
PART 3 - APPLICATION OF ACT
8. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
9. Application of Act
(1) The provisions of this Act apply, according to
their terms, in relation to a commercial lease,
despite any provision of the lease or of any Act
or law.
(2) Despite subsection (1), this Act does not apply in
relation to a commercial lease in relation to
premises being occupied wholly or
predominantly for business purposes by a lessee
on behalf of the lessor.
(3) The provisions of this Act apply, according to
their terms, in relation to a commercial lease,
whether entered into before or during the
financial hardship period and whether or not the
lease is -
(a) entered into pursuant to an option,
contained in another commercial lease,
for a further lease; or
(b) a renewal of a commercial lease.
(4) The provisions of a protected lease are taken to
be modified to the extent necessary to give effect
to the operation of this Act.
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Act No. of 2020
s. 10 Part 3 - Application of Act
(5) In the event of an inconsistency between a
provision of a protected lease and a provision of
this Act that applies in relation to the protected
lease during the financial hardship period, the
provision of this Act applies, and the provision
of the protected lease does not apply, to the
extent of the inconsistency.
10. Effect of actions taken in relation to protected lease
before commencement day
If, during the period before the commencement
day -
(a) a lessor has taken or commenced, but not
yet completed or finalised, a prohibited
lessor action (including a prohibited
lessor action that has a periodic or
ongoing effect), or any other measure, in
relation to a protected lessee, that the
lessor would not have been able to
undertake or commence during the
financial hardship period by virtue of the
provisions of this Act; or
(b) the operation of the terms and conditions
of a protected lease has had effect, or has
a periodic or ongoing effect, contrary to
the provisions of this Act -
the action, operation or effect, insofar as it
remains incomplete or ongoing, or has a periodic
or ongoing effect, is to be taken to be stayed or
suspended until the end of the financial hardship
period.
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Act No. of 2020
Part 3 - Application of Act s. 11
11. Certain acts or omissions, relating to legal
requirements in relation to disease, are authorised
An act or omission, of a lessee, or a lessor, in
relation to a commercial lease (whether or not it
is a protected lease), that is an act, or omission,
that, during or before the financial hardship
period, is -
(a) required, in response to the disease or the
disease-related factors, under the laws of
the State or the Commonwealth; or
(b) reasonably required, in response to the
disease or the disease-related factors, in
order for the lessee to comply with the
laws of the State or the Commonwealth -
does not, either during or after the financial
hardship period, amount to a breach of the lease
and does not constitute grounds for the taking of
any prohibited lessor action by the lessor or the
taking of any action by the lessee against the
lessor.
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Act No. of 2020
s. 12 Part 4 - Taking of Certain Actions in Relation to Protected Leases
PART 4 - TAKING OF CERTAIN ACTIONS IN
RELATION TO PROTECTED LEASES
12. Parties to protected leases take certain actions
during financial hardship period
(1) A party to a protected lease -
(a) must, as soon as possible after the
commencement day, continue to conduct,
or enter into and conduct, negotiations
during the financial hardship period in
relation to -
(i) the rent payable under the lease;
or
(ii) if the lessee requests, the renewal
of the lease; or
(iii) if the lessee requests, the exercise
by the lessee of an option -
during the financial hardship period; and
(b) must not, during the financial hardship
period, engage in misleading or
deceptive conduct in negotiations in
relation to -
(i) the rent payable under the lease;
or
(ii) the renewal of the lease; or
(iii) the exercise by the lessee of an
option -
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Part 4 - Taking of Certain Actions in Relation to Protected Leases s. 12
during the financial hardship period; and
(c) must, during the financial hardship
period, at the request of another party to
the protected lease, provide to the other
party information that is accurate and
that is sufficient to enable negotiations,
on the basis of reliable information, to
occur for the purposes of reaching
agreements as to -
(i) the rent payable under the lease;
or
(ii) the rent payable under another
commercial lease -
which agreements may assist both parties
to continue, during the financial hardship
period, to be able to continue to conduct
operations for business purposes in
relation to the premises to which the
protected lease relates; and
(d) must, during the financial hardship
period, provide to the other party to the
lease other information that is reasonably
necessary -
(i) to allow the other party to
conduct negotiations in relation
to; or
(ii) to obtain information in relation
to; or
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Act No. of 2020
s. 12 Part 4 - Taking of Certain Actions in Relation to Protected Leases
(iii) to apply for, or to enable the
determination of eligibility for -
financial assistance, or any form of
financial accommodation, to be obtained
from a person or entity; and
(e) must not make use of, except for a
purpose set out in this section, any
information provided by the other party
to the lease for the purposes of this Act;
and
(f) must not provide to any other person,
except another party to the lease, a court,
a person acting in a professional capacity
as an adviser to either party, the
Mediation Provider, or for the purposes
of the application of the Commercial
Arbitration Act 2011 to a party to the
lease, any information provided by the
other party in accordance with
negotiations referred to in this section.
(2) All negotiations in relation to the terms of a
protected lease are to be conducted with regard
to the individual circumstances of the protected
lessee and of the lessor, taking into account such
matters as -
(a) the degree of financial hardship of the
lessee and of the lessor; and
(b) whether the lease has expired and the
lease is being held over or whether the
lease is about to expire; and
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Part 4 - Taking of Certain Actions in Relation to Protected Leases s. 13
(c) whether the lessee, or the lessor, is in
administration or receivership or is about
to, or reasonably likely to, become
insolvent or enter into administration or
receivership.
(3) A party to a protected lease must not make a
representation to another party to the protected
lease that the party knows is misleading or
deceptive at the time it is made by the party.
13. Prohibited lessor action not to be taken in relation
to protected lease during financial hardship period
A lessor in relation to a protected lease must not,
during or after the financial hardship period,
take, or continue, any prohibited lessor action in
relation to the lease on the grounds of a breach
of the lease during the financial hardship period
consisting of -
(a) a failure to pay rent, fees, levies or
charges; or
(b) a failure to meet criteria based on sales
performance or another prescribed factor;
or
(c) a failure to pay outgoings that are
payable by the lessee to the lessor or
another person; or
(d) the business operating under the lease not
being open for business during the hours,
or on the days, specified in the lease; or
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Act No. of 2020
s. 14 Part 4 - Taking of Certain Actions in Relation to Protected Leases
(e) any other act or omission of a kind
prescribed by the regulations for the
purposes of this subsection.
14. Lessor not to punish protected lessee for ceasing
normal trading during financial hardship period
(1) A lessor in relation to a protected lease -
(a) must not, at any time during or after the
end of the financial hardship period -
(i) exercise, in relation to the
protected lessee, any right, for a
relevant reason; or
(ii) make any claim, for a relevant
reason; and
(b) does not, during or after the end of the
financial hardship period, have a cause of
action, or any remedy, in relation to a
relevant reason; and
(c) must not, during or after the end of the
financial hardship period, levy any
penalty, that, but for this section, would
be payable by the lessee because of a
relevant reason.
(2) For the purposes of subsection (1), a relevant
reason is that the lessee has, during all or any
part of the financial hardship period -
(a) ceased to trade or indicated that the
lessee may cease to trade; or
24
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Act No. of 2020
Part 4 - Taking of Certain Actions in Relation to Protected Leases s. 14
(b) ceased to carry on a business, trade or
profession or indicated that the lessee
may cease to carry on a business, trade or
profession; or
(c) ceased to remain open to the public or
customers for the purposes of trading or
carrying on a trade or profession; or
(d) indicated that the lessee may cease to
remain open to the public or customers
for the purposes of trading or carrying on
a trade or profession.
(3) A lessor in relation to a protected lease must not,
during or after the end of the financial hardship
period -
(a) apply, to a protected lessee, any
prohibition; or
(b) levy any penalty -
that, but for this section, would apply or be
payable by the lessee because the lessee has
ceased, or indicated that the lessee may cease,
during all or any part of the financial hardship
period -
(c) to remain open for trading; or
(d) to carry on a business, trade or
profession -
during any or all of the hours or days on which
the lessee, but for this section, would be required
under the lease to remain open for those
25
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Act No. of 2020
s. 15 Part 4 - Taking of Certain Actions in Relation to Protected Leases
purposes or to carry on a business, trade or
profession.
15. Lessor, on lessee request, to extend protected lease
during financial hardship period
(1) During the financial hardship period a lessor in
relation to a protected lease must, at the request
of the protected lessee, extend the period of the
lease -
(a) until the end of the financial hardship
period, or, if agreed between the parties,
a longer period; and
(b) on terms and conditions, that are to apply
until the end of the financial hardship
period, or, if agreed between the parties,
a longer period, that -
(i) are in accordance with this Act;
and
(ii) except as prescribed, are not less
favourable to the lessee than the
terms or conditions of the
protected lease, as modified by
the application of this Act; and
(iii) may be modified as required in
order to comply with changes to
the law that occurred after the
protected lease was entered into.
(2) Subsection (1) does not apply in relation to the
lessor in relation to a protected lease if -
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Part 4 - Taking of Certain Actions in Relation to Protected Leases s. 16
(a) the protected lease is a sublease and the
lease, in relation to which the sublessor
has granted the sublease, has ceased or
will cease to apply before the end of the
financial hardship period; or
(b) the lessor has entered into, or agreed to
enter into, with another person a lease, in
relation to the premises to which the
protected lease relates, that is to take
effect on the expiry of the lease of the
protected lessee; or
(c) the lessor intends to occupy the premises
to which the protected lease relates for
the purposes of carrying on a business of
the lessor (other than the business of
leasing premises) and there is evidence
of the establishment of, or intention to
continue, in or from the premises, such a
business by the lessor and of steps taken
by the lessor in furtherance of that
intention; or
(d) the prescribed circumstances apply in
relation to the protected lease, the lessor
or the protected lessee.
16. Communication or provision of information
(1) A person must not divulge or communicate
confidential personal information, confidential
information relating to business processes or
confidential financial information (including
information about a prescribed factor in relation
27
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Act No. of 2020
s. 16 Part 4 - Taking of Certain Actions in Relation to Protected Leases
to a business) obtained in connection with the
operation of this Act, except -
(a) with the consent of the person to whom
the information relates; or
(b) in connection with the administration of
this Act; or
(c) to a person acting in a professional
capacity as an adviser to the person; or
(d) as authorised by the Mediation Provider
or under the Commercial Arbitration Act
2011; or
(e) for the purposes of legal proceedings; or
(f) to a police officer, or a law enforcement
officer, of this State, another State, a
Territory or the Commonwealth.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 300 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
(2) A party to a protected lease must not provide to
another party to the protected lease, or to the
Mediation Provider, information that -
(a) is false or misleading in any material
particular; or
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Part 4 - Taking of Certain Actions in Relation to Protected Leases s. 16
(b) is likely to mislead the other party, or the
Mediation Provider, unless other
information, whether or not requested by
the other party or the Mediation
Provider, is also provided to the other
party or the Mediation Provider.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 300 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
29
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Act No. of 2020
s. 17 Part 5 - Rent, Costs and Benefits
PART 5 - RENT, COSTS AND BENEFITS
17. Rent payable under protected lease not to be
increased during financial hardship period
(1) In this section -
rent does not include rent, or a component of
rent, determined by reference to a factor
that is prescribed.
(2) An amount of rent that, but for this section, is or
would be, under a protected lease, an increase in
the amount of rent payable during the financial
hardship period (including by virtue of the terms
and conditions of the lease that applied before
the financial hardship period) is not payable
during or after the financial hardship period if
the increase occurs while the lease is a protected
lease.
(3) Subsection (2) does not apply if the parties to a
protected lease agree in writing that the
subsection does not apply in relation to the lease.
18. Rent payable under protected lease to be
renegotiated
(1) A party to a protected lease may request the
other party to the lease to renegotiate the rent
payable under the lease.
(2) A party to a protected lease must, if a request is
made by a party to the lease to renegotiate the
rent payable under the lease, renegotiate in good
faith the rent payable under the lease.
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Part 5 - Rent, Costs and Benefits s. 19
(3) Each party to a protected lease is to renegotiate
the rent payable under the lease, having regard
to -
(a) the matters referred to in section 12(2);
and
(b) the leasing principles set out in the
National Code of Conduct; and
(c) any prescribed matters.
(4) A lessee may, in writing, waive the application
to the lessee of a provision of this section.
(5) The regulations may prescribe that this section
does not apply in relation to a prescribed lessee,
or a member of a class of prescribed lessees, in
the prescribed circumstances.
19. Parties to bear own costs in relation to preparation
of protected lease, &c., during financial hardship
period
A party to a protected lease must bear the party's
own costs incurred in the preparation of a lease,
or a variation of a lease, for the purposes of a
provision of this Act.
31
COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 20 Part 6 - Mediation and Arbitration
PART 6 - MEDIATION AND ARBITRATION
20. Mediation Provider
The Director is the Mediation Provider.
21. Delegation by Mediation Provider
The Mediation Provider may delegate to one or
more persons any function or power, or all the
functions and powers, conferred or imposed on
the Mediation Provider by a provision of this
Act.
22. Parties to protected leases to attempt to resolve
disputes
The parties to a protected lease must attempt to
resolve by direct negotiation a dispute between
the parties -
(a) that arises during the financial hardship
period; or
(b) that, in the financial hardship period,
relates to a right or obligation under this
Act.
23. Party to protected lease may apply for mediation of
dispute
(1) A party to a protected lease may apply to the
Mediation Provider for mediation of a dispute, in
relation to issues that arise from, or are related
to, the operation of this Act, including the
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
Part 6 - Mediation and Arbitration s. 24
application to the lease of the provisions of this
Act.
(2) The Mediation Provider may, on receiving an
application under subsection (1) for the
mediation of a dispute in relation to a protected
lease, mediate between the parties so as to assist
the parties to determine the dispute.
24. Mediation Provider may require information to be
provided if application for mediation made
(1) If the Mediation Provider has received an
application under section 23 in relation to a
protected lease, the Mediation Provider may, by
notice to a party to the protected lease, require
the party to provide to the Mediation Provider,
by the day specified in the notice, information
that may be relevant to the mediation, by the
Mediation Provider, of the dispute.
(2) A person must not fail, without reasonable
excuse, to provide to the Mediation Provider
information specified in a request made to the
person under subsection (1).
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 200 penalty units; or
(b) an individual, a fine not
exceeding 40 penalty units.
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 25 Part 6 - Mediation and Arbitration
25. Costs of mediation
(1) Except as agreed in writing between the parties
to a protected lease -
(a) each party to proceedings under this Act
before the Mediation Provider is to bear
the party's own costs; and
(b) the lessor and the lessee are jointly and
severally liable for any fees payable by
the parties under subsection (2).
(2) The Mediation Provider may determine the fees
payable to the Mediation Provider, by a lessor
and a lessee, for the costs of any services
provided to them under this Act by the
Mediation Provider.
26. Arbitration
(1) A party to a protected lease may, whether or not
either party has applied under section 23 for
mediation, seek to have a dispute arbitrated
under the Commercial Arbitration Act 2011 and
that Act applies according to its terms.
(2) Nothing in this Act is to be taken to prevent a
party to a protected lease attempting to resolve a
dispute between the parties as the parties agree.
27. Immunity from liability, &c.
No civil or criminal liability attaches to the
Mediation Provider or to any person acting in
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
Part 6 - Mediation and Arbitration s. 27
good faith on behalf of the Mediation Provider,
in respect of -
(a) any acts or omissions in connection with
the performance or exercise, or purported
performance or exercise, of a function or
power under this Act; or
(b) any failure to perform or exercise a
function or power under this Act.
35
COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 28 Part 7 - Commercial Code Administration Committee
PART 7 - COMMERCIAL CODE ADMINISTRATION
COMMITTEE
28. Commercial Code Administration Committee
(1) There is established by this section a
Commercial Code Administration Committee
("the Code Committee").
(2) The members of the Code Committee are to be
the following members appointed by the
Minister:
(a) one member, who is to be the
chairperson of the Code Committee, who
is the Director or a person nominated by
the Director;
(b) at least one member, nominated by a
body that, in the opinion of the Minister,
represents the interests of lessees of
premises to which commercial leases
relate;
(c) at least one member, nominated by a
body that, in the opinion of the Minister,
represents the interests of lessors of
premises to which commercial leases
relate;
(d) at least one member, nominated by a
body that, in the opinion of the Minister,
represents the interests of small-to-
medium-sized enterprises.
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
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Part 7 - Commercial Code Administration Committee s. 29
(3) A member of the Code Committee is entitled to
be paid remuneration, including travelling and
other allowances, that the Minister may
determine.
29. Functions of Code Committee
The functions of the Code Committee are -
(a) to promote awareness of the operation of
this Act; and
(b) to encourage the use of the provisions of
this Act by lessees and lessors; and
(c) to monitor the operation of this Act; and
(d) to report to the Minister on the operation
of this Act, or otherwise, as the Minister
may require.
30. Procedure of Code Committee
(1) The Code Committee is to meet as frequently as
it thinks fit.
(2) The practices and procedure of the Code
Committee are, subject to the regulations, to be
as determined by the Committee.
31. Financial hardship cessation day
(1) The Treasurer, by notice, may declare a day to
be the financial hardship cessation day.
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s. 31 Part 7 - Commercial Code Administration Committee
(2) The Treasurer may only declare under
subsection (1) a day to be the financial hardship
cessation day if he or she is reasonably of the
opinion that the effects caused by, or relating to,
the disease-related factors, and the deleterious
economic effect of those factors, have
sufficiently reduced, so that it is reasonable to
cease to provide to lessees the protection
intended to be provided to lessees by the
provisions of this Act.
(3) If the Treasurer has not declared under
subsection (1) a day to be the financial hardship
cessation day before the end of the 12-month
period after the commencement day, the
Treasurer is to be taken to have declared to be
the financial hardship cessation day under that
subsection the day 12 months after the
commencement day.
38
COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
Part 8 - Miscellaneous s. 32
PART 8 - MISCELLANEOUS
32. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may provide for -
(a) procedures for mediation under
section 23 and the matters to which the
Mediation Provider must have regard in
mediating between parties to a protected
lease; and
(b) mitigation of adverse impacts on a party
to a protected lease caused by, or relating
to, the disease-related factors, including
by making provision for any measures to
regulate the parties to such a lease or the
provisions of such a lease; and
(c) modification of the operation of any
provision of this Act, or a relevant Act,
for a purpose related to any
circumstances, arising either during or
after the state of emergency declared
under the Emergency Management Act
2006 in relation to the disease, caused
by, or relating to, the disease-related
factors; and
(d) provisions making modifications to the
provisions of a related Act consequent on
the provisions of this Act; and
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 32 Part 8 - Miscellaneous
(e) the keeping of records, or the making of
any reports to the Minister, or another
person or body specified in the
regulations, in relation to any matter
dealt with in this Act; and
(f) fees, levies and charges payable in
respect of any matter under Part 6; and
(g) any notice, information or other
document for the purposes of this Act or
of regulations made for the purposes of a
provision of this Act, to be verified by
statutory declaration; and
(h) facilitation of proof of the commission of
offences against this Act and the
regulations and other evidentiary matters
related to this Act and the regulations.
(3) Regulations may -
(a) apply or incorporate, wholly or partly
and with or without modification, the
National Code of Conduct, a code,
standard, policy or other document
prepared or published by the Minister or
another specified person or body; and
(b) provide that any matter or thing is to be
determined, dispensed with, regulated or
prohibited, according to the discretion
of -
(i) the Minister; or
40
COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
Part 8 - Miscellaneous s. 32
(ii) the State Controller within the
meaning of the Emergency
Management Act 2006; or
(iii) the Director, within the meaning
of the Public Health Act 1997; or
(iv) any other person or body
specified in the regulations.
(4) A reference in this section to the National Code
of Conduct, a code, standard, policy or other
document includes a reference to an amendment
of the National Code of Conduct, that code,
standard, policy or other document, whether the
amendment is made or published before or after
the commencement day.
(5) If the National Code of Conduct, or a code,
standard, policy or another document is referred
to or incorporated in the regulations -
(a) a copy of the National Code of Conduct,
the code, the standard, the policy or the
other document must be made and kept
available for viewing, without charge, at
a website of the department primarily
responsible for the administration of the
Australian Consumer Law (Tasmania)
Act 2010; and
(b) evidence of the contents of the National
Code of Conduct, the code, the standard,
the policy or the other document may be
given in any legal proceedings by
production of a document apparently
certified by the Minister to be a true copy
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COVID-19 Disease Emergency (Commercial Leases) Act 2020
Act No. of 2020
s. 32 Part 8 - Miscellaneous
of the National Code of Conduct, the
code, the standard, the policy or the other
document.
(6) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(7) The regulations may specify that the
requirement, under section 4 or 5 of the
Subordinate Legislation Act 1992, for
compliance with guidelines, or for the
preparation of a regulatory impact statement, in
relation to regulations made under this Act, does
not apply in relation to a regulation specified in a
regulation, or all regulations.
(8) The regulations may -
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
100 penalty units and, in the case of a
continuing offence, a further fine not
exceeding 20 penalty units for each day
during which the offence continues.
(9) The regulations may -
(a) include provisions of a savings or
transitional nature consequent on the
enactment of this Act or the making of
any regulations under this Act; and
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Act No. of 2020
Part 8 - Miscellaneous s. 33
(b) provide for any of those savings or
transitional matters to take effect on the
commencement day or on a later day
specified in the regulations, whether the
day so specified is before, on or after the
day on which the regulations are made.
(10) Despite section 47(3)(c) of the Acts
Interpretation Act 1931, all regulations made
under this Act must be laid before each House of
Parliament on the next sitting-day of that House
after the regulations are made.
33. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Building and
Construction; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.