COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA)

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Western Australia

COVID-19 Response and Economic Recovery Omnibus Act 2020

Western Australia

COVID-19 Response and Economic Recovery Omnibus Act 2020 Contents

Western Australia

COVID‑19 Response and Economic Recovery Omnibus Act 2020

An Act —

to provide for the amelioration of problems and impediments arising from the emergency response to the COVID‑19 pandemic; and

to facilitate aspects of the economic recovery from the emergency response to the pandemic; and

to make related amendments to various Acts; and

to validate certain actions taken during or following the state of emergency declared in relation to the pandemic on 16 March 2020; and

for related purposes.

Part 1 – Preliminary1.Short title

This is the COVID‑19 Response and Economic Recovery Omnibus Act 2020.

2.Commencement

This Act comes into operation as follows —

(a)
Part 1 — on the day on which this Act receives the Royal Assent;
(b)
the rest of the Act — on the day after that day.

3.Primary purposes of Act

The primary purposes of this Act are —

(a)
to provide for the amelioration of problems in relation to compliance with statutory requirements, and of impediments to the processes of government, arising from the emergency response to the COVID‑19 pandemic; and
(b)
to provide for the amelioration of problems arising from the emergency response to an outbreak, or the risk of an outbreak, of COVID‑19 in the State; and
(c)
to facilitate aspects of the economic recovery from the emergency response to the COVID‑19 pandemic.

4.Terms used

(1)
In this Act —

agency has the meaning given in the Public Sector Management Act 1994 section 3(1);

authorisation includes an approval, licence or permit;

COVID emergency declaration means a declaration made under the Emergency Management Act 2005 section 56, or the Public Health Act 2016 section 167, in relation to the COVID‑19 pandemic;

non‑SES organisation has the meaning given in the Public Sector Management Act 1994 section 3(1);

portfolio Minister, in relation to an Act, means the Minister to whom the administration of the whole or a part of the Act is committed;

prescribed means prescribed by regulations under this Act.

(2)
In this Act —
- (a)
  a reference to a thing done includes a reference to a thing omitted to be done; and
- (b)
  a reference to a requirement under an Act includes a reference to the Act providing consequences for doing or not doing a thing; and
- (c)
  a reference to the portfolio Minister in relation to an Act is, if the administration of the Act is committed to more than 1 Minister, a reference to any of those Ministers.
5.Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

6.Relationship of this Act to other written laws

This Act has effect despite any other written law.

Part 2 – Provisions of general applicationDivision 1 – Fees and chargesSubdivision 1 – Preliminary7.Terms used

In this Division —

chief employee has the meaning given in the Public Sector Management Act 1994 section 3(1);

fee includes the following —

(a)
a due;
(b)
an amount of Metropolitan Region Improvement Tax under the Planning and Development Act 2005 section 200;
(c)
a penalty for a late application under any of the following Acts —
(i)
the Auction Sales Act 1973;
(ii)
the Debt Collectors Licensing Act 1964;
(iii)
the Employment Agents Act 1976;
(iv)
the Land Valuers Licensing Act 1978;
(v)
the Motor Vehicle Dealers Act 1973;
(vi)
the Real Estate and Business Agents Act 1978.

[Subdivision 2 (s. 8-10) ceased to have effect at end of 31 Dec 20221.]

Subdivision 3 – Validation of reductions, waivers and refunds11.Validation of reductions, waivers and refunds

(1)
In this section —

validation period means the period —

(a)
beginning on 1 April 2020; and
(b)
ending on the last day of the period of 6 months beginning on the day on which this section comes into operation.
(2)
Any fee or charge under a relevant Act purportedly reduced, waived or refunded during the validation period is taken to be, and to have always been, validly reduced, waived or refunded.
(3)
Anything done, or purportedly done, as a result or consequence of, or in reliance on or in relation to, a reduction, waiver or refund validated under subsection (2) (a validated reduction, waiver or refund) is as valid and effective, and is taken to have always been as valid and effective, as it would have been if the validated reduction, waiver or refund had been valid at the time the thing was done or purportedly done.
(4)
For the purposes of subsection (2), the relevant Acts are —
- (a)
  the Associations Incorporation Act 2015; and
- (b)
  the Auction Sales Act 1973; and
- (c)
  the Building Services (Registration) Act 2011; and
- (d)
  the Co‑operatives Act 2009; and
- (e)
  the Dangerous Goods Safety Act 2004; and
- (f)
  the Debt Collectors Licensing Act 1964; and
- (g)
  the Electricity Act 1945; and
- (h)
  the Employment Agents Act 1976; and
- (i)
  the Gas Standards Act 1972; and
- (j)
  the Government Railways Act 1904; and
- (k)
  the Jetties Act 1926; and
- (l)
  the Land Valuers Licensing Act 1978; and
- (m)
  the Limited Partnerships Act 2016; and
- (n)
  the Mines Safety and Inspection Act 1994; and
- (o)
  the Motor Vehicle Dealers Act 1973; and
- (p)
  the Motor Vehicle Repairers Act 2003; and
- (q)
  the Occupational Safety and Health Act 1984; and
- (r)
  the Plumbers Licensing Act 1995; and
- (s)
  the Public Transport Authority Act 2003; and
- (t)
  the Real Estate and Business Agents Act 1978; and
- (u)
  the Settlement Agents Act 1981; and
- (v)
  the Shipping and Pilotage Act 1967.
Division 2 – Meetings

[Subdivision 1 (s. 12-17) ceased to have effect at end of 31 Dec 2022 1.]

Subdivision 2 – Validation of meetings and decisions18.Validation of meetings and decisions

(1)
Any meeting held or purportedly held, or decision made or purportedly made, under a relevant Act during the period beginning on 16 March 2020 and ending immediately before the day on which this section comes into operation is taken to be, and to have always been, as validly held or made as it would have been if Subdivision 1, and any regulations made under that Subdivision, had been in effect at the time of the meeting or decision.
(2)
Anything done, or purportedly done, as a result or consequence of, or in reliance on or in relation to, a meeting or decision validated under subsection (1) (a validated meeting or decision) is as valid and effective, and is taken to have always been as valid and effective, as it would have been if the validated meeting or decision had been valid at the time the thing was done or purportedly done.
(3)
For the purposes of subsection (1), the relevant Acts are —
- (a)
  the Aboriginal Heritage Act 1972; and
- (b)
  the Conservation and Land Management Act 1984; and
- (c)
  the Environmental Protection Act 1986; and
- (d)
  the Litter Act 1979; and
- (e)
  the Planning and Development Act 2005; and
- (f)
  the Rottnest Island Authority Act 1987.
Division 3 – Public availability of documents

[Subdivision 1 (s. 19-20) ceased to have effect at end of 31 Dec 20221.]

Subdivision 2 – Validation of things done21.Validation of things done

A failure to comply with a public availability requirement described in section 19(1) during the period commencing on 16 March 2020 and ending immediately before the day on which this section comes into operation does not affect the validity of anything required or permitted to be done or arising in relation to or as a consequence of the public availability requirement.

[Division 4 (s. 22-26) ceased to have effect at end of 31 Dec 20221.]

Division 5 – General provisions27.Postponing cessation of Divisions and Subdivisions

(1)
If, under a provision of this Part, the cessation of a Division or Subdivision may be postponed, the Governor, on the recommendation of the Minister, may postpone the cessation of the Division or Subdivision until the end of a day specified in a proclamation made before the Division or Subdivision ceases.
(2)
The Minister cannot make a recommendation for the purposes of subsection (1) unless satisfied that postponing the cessation of the Division or Subdivision is necessary or expedient for a purpose in section 3.
(3)
The Governor may postpone the cessation of a Division or Subdivision more than once, but cannot specify a day that is after 30 June 2025.
(4)
Each postponement of a Division or Subdivision cannot be for longer than 12 months beginning on the day after the most recent day at the end of which the Division or Subdivision would have ceased.
(5)
The Interpretation Act 1984 section 42 applies to and in relation to a proclamation as if the proclamation were a regulation.

Part 3 – Provisions affecting obligations or authorisations under ActsDivision 1 – Preliminary28.Terms used

In this Part —

operative period, for a provision of this Part, means the period —

(a)
beginning on the day on which this section comes into operation; and
(b)
ending on 31 December 2021, or a later day specified under section 34;2

region planning scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

Transport CEO means the chief executive officer of the department of the Public Service principally assisting in the administration of the Road Traffic (Administration) Act 2008.

Division 2 – Authorisations generally29.Decision‑maker may set new expiry day for authorisations during operative period2

(1)
In this section —

Environment CEO means the CEO as defined in the Environmental Protection Act 1986 section 3(1);

expire, for a relevant authorisation, includes the authorisation expiring, ceasing to have effect, lapsing or otherwise ending at the end of a period of time;

original expiry day, for a relevant authorisation, means the day on which the authorisation is to expire under the Act;

relevant authorisation means an authorisation, under an Act, listed in column 1 of the Table to subsection (2).

(2)
A person (the decision‑maker) listed in column 2 of the Table opposite a relevant authorisation may specify, by order made during the operative period 2 for this section, a new day (the new expiry day) on which the authorisation expires if —
- (a)
  the decision‑maker is satisfied that the order is necessary or expedient for a purpose in section 3(a) or (b); and
- (b)
  the order is made before the original expiry day for the authorisation; and
- (c)
  the new expiry day is —
  - (i)
    after the original expiry day for the authorisation; and
  - (ii)
    before the day that is 12 months after the original expiry day for the authorisation; and
  - (iii)
    before 30 June 2025.

Table

Authorisation	Decision‑maker
A clearing permit under the Environmental Protection Act 1986 Part V Division 2	The Environment CEO
A licence under the Environmental Protection Act 1986 Part V Division 3	The Environment CEO
A works approval under the Environmental Protection Act 1986	The Environment CEO
A licence under the Jetties Act 1926	The chief executive officer as defined in the Jetties Act 1926 section 3
A permit under regulations made under the Jetties Act 1926	The chief executive officer as defined in the Jetties Act 1926 section 3
A driver’s licence under the Road Traffic (Authorisation to Drive) Act 2008	The Transport CEO
A learner’s permit under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 Division 2	The Transport CEO
A vehicle licence under the Road Traffic (Vehicles) Act 2012	The Transport CEO
A licence under the Tobacco Products Control Act 2006	The CEO as defined in the Health Legislation Administration Act 1984 section 3
A licence under the Water Services Act 2012 Part 2 Division 2	The Economic Regulation Authority established by the Economic Regulation Authority Act 2003 section 4
A prescribed authorisation	A prescribed person who grants a prescribed authorisation

Note for this subsection:

See section 103 for provisions about orders.

(3)
An order may —
- (a)
  apply to a relevant authorisation that has been the subject of a previous order under this section; and
- (b)
  specify a new expiry day by —
  - (i)
    specifying a particular day; or
  - (ii)
    referring to a period of time after the original expiry day for the relevant authorisation.

Example for this subsection:

An order may specify new expiry days for a class of relevant authorisations by stating that the new expiry day for each authorisation in the class is the day that is 6 months after the original expiry day for the authorisation.

(4)
A relevant authorisation the subject of an order —
- (a)
  does not expire on the original expiry day for the authorisation; but
- (b)
  expires at the end of the new expiry day for the authorisation under the order.
(5)
However —
- (a)
  a relevant authorisation the subject of an order may be —
  - (i)
    suspended, cancelled or otherwise ended (other than by expiring) under a written law; or
  - (ii)
    the subject of a decision under section 31 that the order no longer applies to the authorisation;
and
- (b)
  if a person is disqualified under a written law from holding a relevant authorisation, an order under this section does not affect the disqualification.
30.Decision‑maker may modify or remove conditions of authorisations during operative period2
(1)
In this section —

meter has the meaning given in the Rights in Water and Irrigation Act 1914 Schedule 1 clause 46(5);

relevant authorisation means an authorisation listed in column 1 of the Table to subsection (2).

(2)
If a relevant authorisation is subject to a condition of a type listed in column 2 of the Table, a person (the decision‑maker) listed in column 3 of the Table opposite the authorisation may determine, by order made during the operative period 2 for this section, that the condition —
- (a)
  no longer applies; or
- (b)
  applies with the modifications set out in the order.

Table

Authorisation	Condition	Decision‑maker
A clearing licence under the Country Areas Water Supply Act 1947 section 12C	Any condition of the licence imposed under the Country Areas Water Supply Act 1947	The portfolio Minister for the Country Areas Water Supply Act 1947
A licence under the Rights in Water and Irrigation Act 1914 section 5C	A condition about meters imposed on the licence by regulations made under the Rights in Water and Irrigation Act 1914	The portfolio Minister for the Rights in Water and Irrigation Act 1914
A prescribed authorisation	A prescribed class of conditions in relation to the prescribed authorisation	A prescribed person who grants the prescribed authorisation

Note for this subsection:

See section 103 for provisions about orders.

(3)
The decision‑maker cannot make the order unless satisfied that the order is necessary or expedient for a purpose in section 3(a) or (b).
(4)
An order may apply to a relevant authorisation that has been the subject of a previous order under this section.
(5)
An order ceases to have effect at the end of —
- (a)
  the 1st anniversary of the day on which the order comes into operation; or
- (b)
  if an earlier day is specified in the order — that day.
(6)
Subject to section 31, during the period an order is in effect a person is taken to have satisfied a condition of a relevant authorisation the subject of the order if, under the order, the condition —
- (a)
  no longer applies to the authorisation; or
- (b)
  applies with modifications and the modified condition is satisfied.
31.Decision‑maker may decide order no longer applies to relevant authorisation if condition of order breached
(1)
If a condition of an order made under section 29 or 30 is not satisfied in relation to a relevant authorisation, the decision‑maker for the relevant authorisation may decide that the order no longer applies to the authorisation.
(2)
Before making a decision under subsection (1), the decision‑maker must —
- (a)
  give the holder of the relevant authorisation a written notice stating that —
  - (i)
    a condition of the order has not been satisfied in relation to the relevant authorisation; and
  - (ii)
    because the condition of the order has not been satisfied, the decision‑maker may make a decision under subsection (1); and
  - (iii)
    the holder may make a written submission about the decision during a period (of not less than 28 days from the day on which the notice is received by the holder) stated in the notice;
and
- (b)
  consider any submissions received under paragraph (a)(iii).
(3)
After making a decision under subsection (1), the decision‑maker must give the holder of the relevant authorisation a written notice setting out —
- (a)
  the decision; and
- (b)
  if the decision is that the order no longer applies to the relevant authorisation — the reasons for the decision.
Division 3 – Specific provisions

32.Exemption from local planning scheme taken to be exemption from region planning scheme

(1)
In this section —

clause 78H notice means a notice made under the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 78H(1) or (6).

(2)
This section applies if —
- (a)
  a person does something (whether before or after the day on which this section comes into operation) pursuant to an exemption from a planning requirement in a clause 78H notice in force when the thing is done; and
- (b)
  the thing done contravenes a requirement or provision of a region planning scheme.
(3)
Despite the requirement or provision of the region planning scheme, the thing done is, and is taken to always have been, done pursuant to an exemption from the requirement or provision.

33.Extension of certain time limits under relevant schemes

(1)
In this section —

development approval means an approval granted under a relevant scheme;

relevant scheme means an improvement scheme as defined in the Planning and Development Act 2005 section 4(1) or a region planning scheme.

(2)
This section applies to a development approval that —
- (a)
  is valid on 8 April 2020; or
- (b)
  is granted on or after 8 April 2020 if, at the time it is granted, a COVID emergency declaration is in effect.
(3)
Despite anything provided in a development approval or in the relevant scheme under which it is granted, the development approval —
- (a)
  remains valid until the day which is 2 years after the day on which, but for this section, it would have ceased to be valid; and
- (b)
  lapses if the development has not been substantially commenced before that day.
(4)
A development which has been substantially commenced by the day provided by subsection (3)(a) is taken to have been substantially commenced within the time required under the development approval and the relevant scheme under which it is granted.
(5)
This section does not prevent the time until which a development approval remains valid or the time within which a development is required to be substantially commenced from being varied by an amendment to the development approval made under the Planning and Development Act 2005.

Division 4 – End of operative periods for provisions of Part34.Postponing ending of operative periods for provisions of this Part

(1)
The Governor, on the recommendation of the Minister, may, by proclamation made before the operative period for a provision of this Part ends, postpone the end of the operative period until a day specified for the provision in the proclamation.
(2)
The Minister cannot make a recommendation for the purposes of subsection (1) unless satisfied that postponing the end of the operative period for a provision is necessary or expedient for a purpose in section 3.
(3)
The Governor may postpone the end of an operative period more than once, but cannot specify a day that is after 30 June 2025.
(4)
Each postponement of the operative period for a provision cannot be for longer than 12 months beginning on the day after the most recent day on which the operative period would have ended.
(5)
The Interpretation Act 1984 section 42 applies to and in relation to a proclamation as if the proclamation were a regulation.

35.End of operative period does not affect things done during period

The ending of the operative period for a provision of this Part does not affect anything done during the operative period in reliance on the provision.

36.Orders cease to have effect at the end of 30 June 2025

An order made under this Part that has not ceased to have effect on or before 30 June 2025 ceases to have effect at the end of that day.

Part 4 – Modification of ActsDivision 1 – Bail Act 1982 modified

[37. Ceased to have effect at end of 31 Dec 2022 1.]

38.Section 43A modified

Delete section 43A(2) and insert:

(2)
This section applies if —
- (a)
  a proposed surety is in another State or a Territory; or
- (b)
  it is impracticable for the proposed surety to enter into a surety undertaking in person before a relevant official.
Division 2 – Mental Health Act 2014 modified

39.Term used: Mental Health Infection Control Directions

For the purposes of this Division —

Mental Health Infection Control Directions means the directions, referred to as the Mental Health Infection Control Directions —

(a)
made under the Public Health Act 2016 sections 157 and 190 on 6 April 2020; and
(b)
that provide for infection control measures, relating to the COVID‑19 pandemic, to be followed when conducting assessments and examinations under the Mental Health Act 2014.

40.Act modified

(1)
The Mental Health Act 2014 applies as if modified as set out in this Division.
(2)
Subsection (1) has effect while the Mental Health Infection Control Directions, or any replacement directions, have effect.

41.Section 48 modified

After section 48(4) insert:

(5)
Despite any other provision of this section, an assessment may be conducted using audiovisual communication if the practitioner is satisfied that it is necessary or expedient to do so to comply with the requirements of the Mental Health Infection Control Directions or any replacement directions.

42.Section 79 modified

(1)
Delete section 79(3)(c) and insert:
- (c)
  a health professional and the person being examined —
  - (i)
    are in one another’s physical presence; or
  - (ii)
    if that is not practicable — are able to hear one another without using a communication device (for example, by being able to hear one another through a door).
(2)
After section 79(6) insert:
(7)
Despite any other provision of this section, an examination may be conducted using audiovisual communication if the psychiatrist or practitioner is satisfied that it is necessary or expedient to do so to comply with the requirements of the Mental Health Infection Control Directions or any replacement directions.

43.Validation of assessments and examinations

(1)
This section applies to an assessment or examination under the Mental Health Act 2014 Part 6 Division 2 or 3 conducted —
- (a)
  using audiovisual communication; and
- (b)
  on or after 7 April 2020 (the day on which the Mental Health Infection Control Directions commenced to have effect) and before the day on which this section comes into operation.
(2)
The assessment or examination, and any referral or order made as a result, is as valid and effective, and is to be taken to have always been as valid and effective, as it would have been if —
- (a)
  the modifications set out in this Division had been in effect at the time of the assessment or examination; and
- (b)
  the psychiatrist or practitioner had been satisfied as described in those modifications.
Division 3 – Oaths, Affidavits and Statutory Declarations Act 2005 modified

[44. Ceased to have effect at end of 31 Dec 2022 1.]

45.Section 9 modified

Before section 9(6)(a) insert:

(aa)
if the affidavit is made at the time a COVID emergency declaration as defined in the COVID‑19 Response and Economic Recovery Omnibus Act 2020 section 4(1) is in effect — a person prescribed by the regulations for the purpose of this paragraph;

Division 4 – Sentencing Act 1995 modified and consequential modificationSubdivision 1 – Sentencing Act 1995 modified

[46. Ceased to have effect at end of 31 Dec 2022 1.]

47.Section 14 modified

In section 14(1) delete “section 14A.” and insert:

section 14A or audio link under section 14B.

48.Section 14B inserted

After section 14A insert:

14B. Use of audio link for sentencing

(1)
In this section —

audio link means facilities, including telephones, that enable, at the same time, a court at one place to hear a person at another place and vice versa;

non‑custodial sentence means a sentence imposed under Part 7, 8, 8A, 9 or 10;

video link has the meaning given in section 14A(4).

(2)
A court sentencing an offender may, on an application by the offender, direct that the offender appear before it by audio link from a place in this State.
(3)
The court must not make a direction under subsection (2) unless all of the following circumstances apply —
- (a)
  the offender has been convicted of an offence on a plea of guilty;
- (b)
  the court proposes to impose a non‑custodial sentence on the offender in respect of the offence;
- (c)
  the court is satisfied that —
  - (i)
    the audio link is available or can reasonably be made available; and
  - (ii)
    the direction is in the interests of justice.
(4)
The place where an offender attends for sentencing by audio link is taken to be part of the court for the purposes of the sentencing.
(5)
An audio link must not be used under this section if a video link is available or can reasonably be made available.

49.Section 34 modified

In section 34(1) delete “section 14A,” and insert:

section 14A or audio link under section 14B,

Subdivision 2 – Criminal Procedure Act 2004 modified consequentially50.Act modified

(1)
The Criminal Procedure Act 2004 applies as if modified as set out in this Subdivision.
(2)
Subsection (1) ceases to have effect when section 46(1) ceases to have effect.

51.Section 77 modified

In section 77(7) delete “section 14A.” and insert:

section 14A or 14B.

Division 5 – Postponing cessation of modifying provisions52.Postponing cessation of modifying provisions

(1)
If, under this Part, the cessation of a provision that provides for the modification of an Act may be postponed, the Governor, on the recommendation of the portfolio Minister, may postpone the cessation of the provision to a day specified in a proclamation made before the provision ceases.
(2)
The portfolio Minister cannot make a recommendation for the purposes of subsection (1) unless satisfied that postponing the cessation of the provision is necessary or expedient for a purpose in section 3.
(3)
The Governor may postpone the cessation of a provision more than once, but cannot specify a day that is after 30 June 2025.
(4)
Each postponement of the cessation of a provision cannot be for longer than 12 months beginning on the day after the most recent day at the end of which the provision would have ceased.
(5)
The Interpretation Act 1984 section 42 applies to and in relation to a proclamation as if the proclamation were a regulation.

Part 5 – Acts amended: facilitating electronic transactionsDivision 1 – Extending the application of the Courts and Tribunals (Electronic Processes Facilitation) Act 201353.Administration Act 1903 amended

(1)
This section amends the Administration Act 1903.
(2)
At the end of Part 1 insert:

3A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 2 applies