Introduction of the Planning System Acceleration Program

The NSW Government has announced a new program aimed at fast-tracking planning processes and boosting jobs in the construction and development sectors in response to the economic stresses as a result of the current COVID-19 pandemic.

On 3 April 2020, the Minister for Planning and Public Spaces, Mr Rob Stokes, introduced the Planning System Acceleration Program, which will:

• generate new construction jobs over the next six months;
• fast-track the assessment of State Significant Developments, re-zonings and development applications;
• support councils and planning panels to fast-track local and regionally significant development approvals;
• allocate additional Acting Commissioners to help clear the backlog of cases in the Land & Environment Court; and
• invest $70 million to fund vital community infrastructure in North West Sydney.

Further details of the Program are expected to be released in the coming weeks.

The Program was announced a mere day after the State relaxed restrictions on construction sites by extending work hours to 7 days a week including public holidays (for all works except ground works). These recent measures show that the NSW Government is actively taking steps to boost the construction industry amidst the COVID-19 crisis. These measures are likely to create new jobs and ensure projects across the State can proceed, even where other businesses may not be able to.

The Minister’s full media release can be read here.

Australian Cabinet update regarding commercial leases

On 3 April 2020, the Federal Cabinet met to discuss the imposition of a mandatory coronavirus industry code of practice for commercial and retail leases. The code is likely to be released once the Cabinet has settled the balance between tenant and landlord rights and obligations. To that end, PM Scott Morrison stated that the current drafting of the code is “not where it needs to be” to provide enough security for landlords.

It is anticipated that the industry code will:

• be a mandatory code incorporated into state and territory legislation where appropriate;
• be mandatory for tenants with a turnover of less than $50 million and are participants in the JobKeeper scheme;
• incorporate a proportionality principle whereby the turnover reduction of the tenant ought to be reflected in the rental waiver provided by the landlord;
• include protections for tenants against claims on penalties, acting on guarantees and interest protection on rent;
• include protections from evictions while landlords will also be protected from the tenant terminating the lease on those grounds;
• include a requirement that both tenants and landlords enter mediation where no suitable agreement is in place;
• include provision that rent relief only be available for coronavirus-affected businesses;confirm that leasing arrangements will continue to stand for all ot
• her businesses who are not coronavirus-affected (i.e. do not have a reduction in their turnover); and
• allow States and territories to provide further exemptions, waivers and reduction to their fees and rates.

National Cabinet is scheduled to convene on in the morning of 7 April 2020 and will re consider the terms of the industry code at that time.

Earlier today, the NSW Minister for Planning and Public Spaces introduced a new planning and development order which the State Government hopes will bring some relief to the construction industry during the ongoing COVID-19 outbreak.

In accordance with the Environment Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 (“the Order”), construction sites across the State will now be allowed to operate on weekends and public holidays provided that:

• the building or demolition works are the subject of a development consent;
• all works and operations comply with the conditions of the consent as if it were any other day; and
• all feasible and reasonable measures are taken to minimise noise.

The Order specifically excludes the carrying out of rock breaking, rock hammering, sheet piling, pile driving and other similar activities during the extended operating periods.

The new measures are a positive move towards boosting productivity in the industry, encouraging social distancing on worksites and helping to keep workers employed. According to the Minister’s media release, the Order will remain in effect until the pandemic is over or until NSW Health advice changes.

The Order comes following recent amendments to the Environment Planning and Assessment Act 1976 (NSW) (“Act”), which allow the Minister to make orders authorising development without the need for approval, provided the Minister is reasonably satisfied that it is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic.

The Order can be accessed here.

Non-essential business, activity and undertaking Closure Direction (No. 4) 1 April 2020

On 31 March 2020, the Chief Health Officer of QLD published the 4th iteration of the Non-essential business, activity and undertaking Closure Direction pursuant to her powers under s 362B of the Public Health Act 2005 (Qld).

The directive places a significant bar on the activities of persons and businesses alike. Heavy penalties apply to those persons who do not observe and conduct themselves in accordance with this Public Health Direction.

For the purposes of this Public Health Direction Non-essential business, activity, or undertaking means a business, activity, undertaking, premises or place listed in Column 1 unless the exception listed in Column 2 applies:

Business, activity, undertaking, premises or place	Exceptions
Food and drink
Cafes, restaurants, fast-food outlets, food courts (together retail food services)	o    Takeaway service and home delivery can remain   operational. All takeaway services must comply with the conditions provided   in paragraph 9 below. – Retail food services at an airport that are   reasonably necessary for the normal business of the airport, with social   distancing observed. –  Provision of food or drink by or on behalf of   an employer to employees or contractors that is reasonably necessary for the   employer’s normal operations, with social distancing observed. o    Workplace canteens can provide takeaway, with   social distancing observed. –  Provision of food or drink by a school, university, educational institution or childcare facility that is reasonably   necessary for the normal business of the facility, with social distancing   observed. o    Provision of food or drink at a hospital, prison, military facility, disability facility, resources sector facility   including a canteen or mess hall or aged care facility that is reasonably   necessary for the normal business of the facility, with social distancing observed. o    Services providing food or drink to the   homeless, with social distancing observed. o    Hotel room service or similar services for   hotel guests.
Retail
Auction houses
Real estate auctions and open house inspections	Private appointments for inspection.
Outdoor and indoor markets	Food markets and farmers markets may continue to operate
Weapons, ammunition and propellants
Licensed armourers and licensed dealers as defined under the Weapons Act 1990 The holder of a licence as defined under the Explosives Act 1999 licenced to sell ammunition under the Explosives Regulation 2017. These businesses are not permitted to sell or supply weapons, ammunition or propellant powders online or through the internet unless one of the exceptions in Column 2 applies. For the purposes of this direction, ammunition means small arms ammunition for firearms Example – cartridges used in firearms or propellant powders used for small arms ammunition.	A licensed armourer, licensed dealer or authority holder may store, manufacture, modify, repair, acquire or supply weapons or ammunition to, for or on behalf of: o    Commonwealth, State or Territory military or   police organisations; or o    the holder of a security licence (organisation) or a security licence (guard) issued under the Weapons Act 1990; or o    international military, defence or security   organisations; or o    the following persons who require or use a   weapon for occupational purposes relating to primary production, animal   welfare, nature conservation or pest management: –  a   primary producer, as defined under subsection 995-1(1) of the Income Tax Assessment Act 1997 (Cth), able to produce a Queensland firearms licence bearing one or more of the   following condition codes – PPA, PP2, PP3, PP4, PP5, PP6, PPH; or –  a   commercial pest controller or feral animal controller who is: –  authorised   to undertake vertebrate pest (vermin) control on rural land; and –  able   to produce a Queensland Firearms licence bearing one or more of the following   condition codes – FCA, FC2, FA3, FA4, FA5, FA6, FAH; or –  the   holder of a lethal damage mitigation permit under the Nature Conservation Act 1992; or –  a   veterinary surgeon, as defined under the Veterinary   Surgeons Act 1936 for animal welfare purposes; or –  an   authorised biosecurity officer for animal welfare purposes; or –  wildlife   rangers using weapons for activities including pest control and crocodile   management under exemption no. 71003924; or –  a   shark control contractor authorised under the Queensland Fisheries Act 1994; or –  a   person with a valid current macropod harvesting licence under the Nature Conservation Act 1992. May continue to operate the part of the business that does not store, manufacture, modify, repair, acquire or supply weapons or ammunition. Example – a business that sells weapons and fishing gear may continue to sell fishing gear.
Beauty and personal care services
Hairdressers and barber shops	Can remain operational with no more than one person per 4 square metres, with social distancing observed to the extent possible.
Beauty therapy, tanning, waxing and nail salons, and tattoo parlours
Spas and massage parlours	Health services provided by health practitioners registered under the Health Practitioner Regulation National Law, with social distancing observed to the extent possible.
Entertainment venues
Registered and licensed clubs, licensed premises in hotels	Bottle shops and off license premises attached to venues may continue to operate, with social distancing observed. Limited to 2 people for outdoor sporting-based activities, with social distancing observed. Example – golf and tennis
Cinemas, nightclubs
Casinos, gaming or gambling venues including wagering outlets that are open to, and accessible by, members of the public such as TAB agencies and retail outlets
Strip clubs, brothels and sex on premises venues
Concert venues, theatres, arenas, auditoriums, stadiums	Live streaming of a performance by no more than 2 people is permissible, with social distancing observed.
Theme parks, amusement parks and amusement arcades
Play centres (indoor and outdoor)
Leisure and recreation
Community and recreation centres	Facilities may remain open for the purpose of hosting essential voluntary or public services, such as food banks or homeless services, with social distancing observed.
Boot camps, personal training	Limited to 2 people including the personal trainer, with social distancing observed.
Indoor sporting centres, including gyms, health clubs, fitness centres, yoga, barre and spin facilities, saunas, bathhouses and wellness centres
Social sporting-based activities	Limited to 2 people, with social distancing observed.
Swimming pools including public pools and pools in shared facilities such as hotels and apartments	A swimming pool located in a private residential dwelling for the use of the occupants of the dwelling such as a backyard pool.
Public playgrounds, skate parks, BMX tracks and outside gyms, including static exercise equipment in Council parks.
Public barbeques (such as barbeques in public spaces or shared facilities)
Residential facilities
Hostels, bed and breakfasts, backpackers and boarding houses	May continue to operate for permanent residents, temporary residents and workers of the facility, with social distancing observed. Example – a backpacker may be a temporary resident at a hostel Limited to 2 people in common areas such as lounge rooms and shared facilities, with no more than one person per 4 square metres. Limited to 2 people in outdoor areas, that is part of the facility, or near the facility, with social distancing observed.
Outdoor recreation
Caravan and camping parks	Where people live permanently in caravan parks or are staying in caravan parks as interim abodes where their primary residence is not available, they may continue to do so, with social distancing observed. This includes the use of cabins within caravan parks. May continue to operate for essential workers such as health practitioners or other persons providing essential services for example, emergency services or infrastructure projects, with social distancing observed.
Campgrounds
Zoos and wildlife centres	For the purpose of maintenance and care for the animals.
Non-residential institutions
Galleries, museums, national and state institutions and historic sites
Libraries, community centres, and youth centres	Community hubs in remote communities may continue to operate if they are essential for distributing health or medical information or education to the community, with social distancing observed.
Local government non-essential facilities and services (such as libraries and pools)
Community facilities (such as community halls, clubs, RSLs, PCYCs)	Community hubs in remote communities may continue to operate if they are essential for distributing health or medical information or education to the community, with social distancing observed. Community facilities may continue to operate if they provide formal out of school hours care, with social distancing observed.
Places of worship, weddings and funerals	Weddings with a maximum attendance of 5 people being the celebrant, couple and two witnesses with no more than one person per 4 square metres. Funerals attended by a maximum of 10 people with no more than one person per 4 square metres, except if an exemption is granted on compassionate grounds by the Chief Health Officer.

Takeaway food and drink
Additional requirements for the provision of takeaway are as follows:
• social distancing, including keeping 1.5 metres between people must be accommodated, implemented and monitored by employees or contractors of the retail food service provider;
• gathering for the purposes of ordering or collecting must not exceed one person per 4 square metres;
• the retail food service provider may only operate to the extent they are not promoting or facilitating persons consuming takeaway food or drink on or adjacent to their premises.
The suggested approach for food and drink establishments is to remove all the chairs and have a clear method for directing people through the establishment in a way that promotes proper spacing and avoids crowding in collection areas.

Penalties for failure

A person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
Section 362D of the Public Health Act 2005 provides:
Failure to comply with public health directions
A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.

We are here to help

If you suspect that your business may be affected by this Public Health Directive, please speak with us to discuss how you may pivot your business in such a way that it can continue to operate while complying with the directions.

We can assist you with contacting the proper authorities, obtaining permits for business activity and licencing for compliance.

Stay up to date with the various changes to legislation and public directions by following Rostron Carlyle Rojas Lawyers on Linkedin or joining our mailing list.

The Federal Government of Australia wage subsidy scheme

30 March 2020

On 30 March 2020, the Australian Federal Cabinet met to announce its next tranche of financial stimulus in response to the Coronavirus pandemic. The key topic being the announcement of the Australian Job Keeper Allowance.

The Job Keeper Allowance has been developed by the Federal Government to help Australian businesses keep their Australian employees in their jobs, working. Under the scheme, eligible employees will receive Government support through their employers of $1,500 per fortnight. This is a flat payment scheme and is not means tested against the employee’s regular wage (as we have seen with similar schemes in other countries such as the UK).

To be eligible for the scheme, businesses will have to show that they have suffered a minimum reduction in revenue of 30%. This means a business has experienced a 30% decline in:

• Actual revenue; or
• Predicted revenue (e.g. for businesses who have seen a reduction in bookings such as accommodation providers).

The business decline can be demonstrated from 1 March 2020. We are yet to get details on how to determine the decline in revenue under the Australian scheme. We can however look to the New Zealand system which was announced on 26 March 2020 for guidance. Under that system: 

• For businesses who have operated for more than a year:

The business should assess their revenue by comparing one month’s revenue against the same month the previous year (example February 2020 compared to February 2019). The revenue of the month in the affected period must be at least 30% less than it was in the month it was compared against.

• For businesses who have operated for less than a year:

The business must compare their revenue against a previous month that gives the best estimation of the revenue decline related to COVID-19.

The system will be administered through the ATO’s one touch payroll system. The credits for payment will be provided to the employer starting 1 May 2020. Until that time, employers should now assess their staff for eligibility under the scheme and make the proper elections to ensure credit will be provided on time. It is not up to the employee to sign up for the scheme, although it is recommended that employees speak with their employer about eligibility.

The Job Keeper allowance is not available to former employees of the company, if they were let go prior to 1 March 2020. If an employer wishes to re-hire an employee that they recently let-go (post 1 March 2020), they may be able to qualify that person for the scheme. According to PM Scott Morrison, if redundancy payments have been made to a recently made redundant employee, the employer and employee will need to discuss how to undo those arrangements themselves. 

The underlying theme for the Job Keeper Allowance is that it is for just that, Australians who keep their jobs. If an employee is unable to keep their job, then they will be properly placed in the Job Seeker scheme. There is no doubling up of the two schemes.

We are yet to have news on what other Government schemes will be available to employees who receive the Job Keeper Scheme. For example, it is uncertain at this time if an employee on Job Keeper will be eligible to withdraw from their superannuation or seek rental assistance. We will keep you up to date on this as the legislation reaches Parliament.

How we compare to other nations- COVID-19 Wage Subsidies

The UK Coronavirus Job Retention Scheme

In the United Kingdom, the Coronavirus Job Retention Scheme will cover the cost of wages backdated to 1 March and is initially open for 3 months, and may be extended if necessary.

British workers who have been asked to stop working, but who are being kept on the pay roll, otherwise known as ‘furloughed workers’, will receive a subsidy of up to 80% of their wage, up to a value of £2,500 ($5K AUD) per month. This is a measure to safeguard against workers being made redundant.

Self-employed Brits receive a similar grant of 80% of their average profits from the past 3 months, up to a value of £2,500 ($5k AUD) per month. The financial support in the UK will not be available until mid-June. 

The Australian Federal Government has commented that a system like that of the UK’s would be inequitable and difficult to administer within Australia’s social security system.

The New Zealand COVID-19 Wage Subsidy

In New Zealand, wage subsidies are being provided as a lump sum flat rate depending on the number of hours an employee works in a week. The NZ Government will subsidise full time workers (20+ hours per week) a flat amount of $585.80 per week; part time workers (-20 hours per week) will receive $350 per week. The subsidy is paid as a lump sum and covers 12 weeks per employee.

This system is similar to Australia in that it is for workers who continue to work. Other welfare systems are available to workers who are no longer gainfully employed. 

Other eligibility criteria which is similar to Australia is that the business must be able to show a decline in revenue by minimum 30%. The decline must be due to the effects of COVID-19 and the business must show they took active steps to mitigate the loss (We are yet to see if these criteria will be included in Australia).

NZ employers are encouraged to pay at least 80% of their employee’s usual wages. If that isn’t possible, they must pay at least the subsidy rate. Unlike the Australian system, if an employee’s wages are less than the flat rate, then the employee should be paid the full amount of their normal wage (i.e. no free pay rise).

Keep posted on Australian employment laws with updates from Rostron Carlyle Rojas Lawyers

We are committed to keeping you up to date with the ever-evolving laws in Australia, especially during the course of the COVI-19 pandemic. 

The Job Seeker Allowance is yet to be put before parliament and therefore the finer details of eligibility for each person and each business will need to be determined once the legislation reaches Royal Assent. At this time, we are told parliament will meet soon in a bid to fast-track these historic changes.

Rostron Carlyle Rojas is committed to keeping you up to date on the Coronavirus pandemic.

Last night, the Federal Parliament passed a series of bills to approve Coronavirus economic stimulus measures, without objection. These are:
• Coronavirus Economic Response Package Omnibus Bill 2020;
• Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020;
• Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Bill 2020;
• Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020;
• Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020;
• Structured Finance Support (Coronavirus Economic Response Package) Bill 2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 1) 2019-2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 2) 2019-2020;
• Supply Bill (No. 1) 2020-2021;
• Supply Bill (No. 2) 2020-2021; and
• Supply (Parliamentary Departments) Bill (No. 1) 2020-2021.

The Bills cover two Coronavirus stimulus packages announced by the Government, totalling almost $84 billion. It has been announced that the first direct payments will be made on 27 April 2020.
The Bills are yet to meet Royal Assent, this should happen in the coming days. We will keep you updated as the details of this are announced.

Coronavirus Economic Response Package Omnibus Bill 2020

Arguably the most important, this Bill implements many economic measures, including:
• Increasing the instant asset write-off: The instant asset write-off threshold to be increased from $30,000 to $150,000 and will be available to businesses with aggregated annual turnover of under $500 million (previously $50 million). This applies from 12 March 2020 until 30 June 2020.
• Backing business investment: Until 30 June 2021, depreciation deductions to be accelerated, enabling businesses with aggregated annual turnover of under $500 million to deduct 50% of the cost of eligible assets on installation. Existing depreciation rules will continue to apply to the balance of the cost of the asset.
• Stimulus payments to households to support growth: A tax-free payment of $750 will be paid to around 6.6 million lower income Australians, including eligible concession card holders (such as those on Newstart, commonwealth seniors health card holders, and families receiving family tax benefits), and Social Security, Veteran, Farm Household Allowance and other income support recipients. A further tax-free payment of $750 will automatically be made from 13 July 2020 to eligible recipients.
• Supporting apprentices and trainees: Eligible employers can apply for a 50% subsidy of apprentices and trainee’s wages for up to 9 months between 1 January 2020 and 30 September 2020. $1.3 billion will be designated to assist this measure.
• Supporting the aviation sector: $715 million will be designated to assist Australia’s aviation industry.
• Changes to superannuation: Those affected by the Coronavirus will be able to apply from mid-April 2020 to access up to $10,000 of their superannuation in the 2019/20 financial year, and again in the 2020/21 financial year. Additionally, the minimum payment amounts for account-based pensions will be reduced by half until 30 June 2021.
• Additional support for income support recipients: Income support recipients (including those currently receiving Youth Allowance (Jobseeker), Farm House Allowance and Jobseeker Payment) will be eligible to receive an additional fortnightly payment of $550 for the next 6 months.

 

Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020

The ‘Boosting Cash Flow for Employers’ initiative will provide between $20,000 and $100,000 to eligible small and medium sized businesses and non-profits (including charities), encouraging businesses to retain their employees.

This measure will be provided to eligible businesses that have employees and a turnover of less than $50 million. Businesses must continue to be active to be eligible.

A further payment, equal to the total of all payments received under this initiative, will be made to eligible recipients in the July – October 2020 period.

 

Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Bill 2020

Under this Bill, the Government will guarantee 50% of new short-term, unsecured loans to small and medium businesses. This ‘SME Guarantee Scheme’ is capped at up to $40 billion. There is also a temporary exemption from responsible lending obligations, allowing quick and efficient access these loans for small business owners.

 

Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020

This Bill authorises the appropriation of $100 million to invest in the Australian Business Growth Fund.

 

Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020

The Government has dedicated $1 billion to support those most affected by the Coronavirus. Initially, those heavily reliant on industries such as tourism, education and agriculture will benefit from this fund. Initially, it has been announced that fees and charges for tourism businesses operating in the Great Barrier Reef Marine Park, and entry fees for Commonwealth National Parks, will be waived.

 

Structured Finance Support (Coronavirus Economic Response Package) Bill 2020

This Bill establishes the Structured Finance Support (Coronavirus Economic Response) Fund, which will enable the Government to ensure continued access to funding markets and mitigate impacts on competition in lending markets. The Fund will initially consist of $15 billion.

Appropriation of Funds

A number of Bills propose appropriations from the Consolidated Revenue Fund for ordinary and non-ordinary annual services of the Government, and for expenditure in relation to the Parliamentary Departments:

• Appropriation (Coronavirus Economic Response Package) Bill (No 1) 2019-2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 2) 2019-2020;
• Supply Bill (No. 1) 2020-2021;
• Supply Bill (No. 2) 2020-2021; and
• Supply (Parliamentary Departments) Bill (No. 1) 2020-2021.

In early April 2018, police executed a search warrant on our client’s residence. At that time, police located a sunglasses case in the wardrobe of our client’s bedroom. Inside the sunglasses case, police located one large clip seal bag containing four smaller clip seal bags. Within each of the smaller clip seal bags police located 5 clip seal bags containing similar amounts of cocaine. In total police located 20 clip seal bags containing 15.379 grams of a white powdery substance. The substance located was subject to drug analysis testing and as a result 6.392 grams of pure cocaine was detected.

Our client was charged with the serious offence of Possessing the dangerous drug, cocaine in excess of 2 grams. Our client was also charged with one count of supplying the dangerous drug cocaine, as well as a number of summary offences.

Upon reviewing the brief of evidence, Samantha O’Connor of our office sent a submission to the DPP to seek that the supply charge be discontinued due to a lack of evidence within the brief to substantiate the charge. The submission to discontinue the supply charge was accepted and the DPP withdrew the charge.
The possession charge was committed to the Brisbane Supreme Court by way of Registry Committal. An indictment was presented before the Brisbane Supreme Court. The Crown alleged that the cocaine was possessed by our client for a commercial purpose. The matter was listed for a contested sentence given that our client instructed that the cocaine was possessed for personal use.

Samantha O’Connor of our office appeared at our client’s sentence before the Brisbane Supreme Court instructing counsel. Our client was required to give evidence at his sentence to allow the factual issue of whether the drugs were possessed for a commercial or personal purpose to be determined by the Supreme Court Justice. Ultimately, the Presiding Justice rejected our client’s evidence and found that the drugs were possessed for a commercial purpose. Our client’s mitigating features such as his limited criminal history, relative youth, steady employment, otherwise good character as evidenced by character references and rehabilitative efforts in the form of clean urine screens were placed before the Presiding Justice. Our client was sentenced to 2 years imprisonment and our client was granted immediate parole. This was an excellent result for our client in all of the circumstances.

If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.

We are delighted to [publicly] announce two very deserving promotions. Sarina Mari Alwi and Michael Finch have both been promoted to Senior Associate.

Sarina Mari Alwi has been effectively managing the commercial litigation department here in Brisbane, whilst Michael has been effectively managing the commercial litigation department in the Sydney office under Paul Rojas’ supervision.

Both Sarina and Michael have shown consistent effort and have continuously proven themselves over the last 12 months. We wish to Congratulate both of them again and hope that they continue to prosper here at Rostron Carlyle Rojas Lawyers.