COVID-19 Response (Management Measures) Legislation Act 2021

Schedule 6 Ministry of Justice

s 3

Part 1 Coroners Act 2006

1 Amendment to Coroners Act 2006

This Part amends the Coroners Act 2006.

2 New section 102A and cross-heading inserted

After section 102, insert:

Remote participation

102A Use of audio-visual links

(1)

A coroner may, if satisfied that it is in the interests of justice to do so, permit remote participation through the use of audio or audio-visual links.

(2)

If a coroner permits remote participation in respect of a matter, the Courts (Remote Participation) Act 2010 applies as if—

(a)

the matter were a civil proceeding before a court; and

(b)

the coroner were a judge of that court.

Part 2 Criminal Procedure Act 2011

3 Amendments to Criminal Procedure Act 2011

This Part amends the Criminal Procedure Act 2011.

4 Section 4 amended (Overview)

In section 4(1)(i) and (m), after “68”, insert “, 68A,”.

5 New section 68A inserted (High Court Judge may reconsider orders made under section 68 in certain circumstances)

After section 68, insert:

68A High Court Judge may reconsider orders made under section 68 in certain circumstances

(1)

A High Court Judge may, on the Judge’s own motion,—

(a)

reconsider an order made under section 68(1), if there has been any relevant change in circumstances, including (but not limited to)—

(i)

the addition of a co-defendant to, or removal of a co-defendant from, the proceedings:

(ii)

an increase or a decrease in—

(A)

the resources available to the court:

(B)

the complexity of the proceedings:

(iii)

a jury backlog arising out of particular circumstances (for example, compliance with rules to prevent the spread of COVID-19); and

(b)

make a new order under section 68(1) without seeking a recommendation from the District Court Judge under section 67.

(2)

Before making a new order under section 68(1) after reconsideration under this section, the High Court Judge must consider the matters specified in sections 67(4) and 68(2)(a) and (b).

(3)

No party may appeal against an order made under section 68(1) after reconsideration under this section.

(4)

A reference, in legislation or an administrative document, to an order made under section 68 or 68(1) includes, without limitation, a reference to an order of that kind made after reconsideration under this section.

(5)

If a conflict arises between this section and section 135, section 135 prevails.

6 Section 69 amended (Proceedings not invalid)

In section 69, insert as subsection (2):

(2)

No proceeding that relates to a protocol offence is invalid only because—

(a)

the offence was identified as a protocol offence; and

(b)

an order was made under section 68(1); and

(c)

the order was reconsidered (with or without being replaced by a new order made under section 68(1)); but

(d)

the order was not reconsidered in accordance with section 68A.

Part 3 Epidemic Preparedness Act 2006

7 Amendments to Epidemic Preparedness Act 2006

This Part amends the Epidemic Preparedness Act 2006.

8 Section 4 amended (Interpretation)

In section 4(1), insert in their appropriate alphabetical order:

High Court Rules has the same meaning as in section 4(1) of the Senior Courts Act 2016

rules of court, in relation to a court,—

(a)

means rules (for example, the High Court Rules), or any secondary legislation (for example, regulations), regulating the practice and procedure of the court:

(b)

for the purposes of section 24, includes any applicable modifications made, and in force, under section 24A

9 Section 24 amended (Judges may modify rules of court during epidemic)

(1)

In the heading to section 24, after Judges may modify rules of court during epidemic, insert : Judge modifications in particular cases.

(2)

Replace section 24(2)(ba), (c), and (d) with:

(c)

a Judge of the Employment Court:

(d)

a District Court Judge (including a District Court Judge exercising jurisdiction of a Family Court Judge or Youth Court Judge):

(e)

a Judge of the Environment Court:

(f)

a Judge of the Māori Land Court.

10 New section 24A inserted (Judges may modify rules of court during epidemic: Head of Bench modifications in categories of proceedings)

After section 24, insert:

24A Judges may modify rules of court during epidemic: Head of Bench modifications in categories of proceedings

(1)

While an epidemic notice is in force, a Head of Bench (whether permanently appointed or temporary) may, for any category of proceedings in or before that Judge’s court, modify any rule of court, and to any extent, that he or she thinks necessary in the interests of justice to take account of the effects of the quarantinable disease stated in the notice.

(2)

A modification made under this section—

(a)

may be absolute or subject to conditions; and

(b)

may be made by stating alternative means of complying with a requirement or restriction imposed by the rules.

(3)

Subsection (2) does not limit subsection (1).

(4)

A modification made under this section—

(a)

is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements); and

(b)

if it relates to the High Court Rules, is not to be drafted by the PCO under section 67(d)(ii) of that Act.

(5)

In this section,—

District Court

(a)

includes the division of that court known as the Family Court; and

(b)

includes the division of that court known as the Youth Court; but

(c)

excludes the division of that court known as the Disputes Tribunal

Head of Bench means,—

(a)

in relation to the Supreme Court, the Chief Justice:

(b)

in relation to the Court of Appeal, the President of the Court of Appeal:

(c)

in relation to the High Court, the Chief High Court Judge:

(d)

in relation to the Employment Court, the Chief Judge of the Employment Court:

(e)

in relation to the District Court, the Chief District Court Judge:

(f)

in relation to the Environment Court, the Chief Environment Court Judge:

(g)

in relation to the Māori Land Court, the Chief Judge of the Māori Land Court.

Legislation Act 2019 requirements for secondary legislation made under this section
PublicationThe maker must publish it in accordance with the Legislation (Publication) Regulations 2021LA19 s 74(1)(aa)
PresentationThe Minister must present it to the House of RepresentativesLA19 s 114
DisallowanceIt may be disallowed by the House of RepresentativesLA19 ss 115, 116
This note is not part of the Act.
11 Amendments to Legislation (Publication) Regulations 2021
12 Schedule 3 amended

(1)

In Part 2 of Schedule 3, delete “There are no customised publication requirements in these regulations as made.”

(2)

In Part 2 of Schedule 3, insert the following table:

Empowering legislationEmpowering provisionsCustomised publication requirement
Epidemic Preparedness Act 2006s 24AIf a modification made under this section is to be, or is, in force,—
(a) all information necessary or desirable to enable a user to access, using the legislation website (https://www.legislation.govt.nz), that modification must be forwarded, without delay, to the PCO; and
(b) the PCO must indicate that fact in a suitable place on the legislation website.

Part 4 Property Law Act 2007

13 Amendments to Property Law Act 2007

This Part amends the Property Law Act 2007.

14 New sections 245F to 245I inserted

After section 245E, insert:

245F COVID-19 outbreak further measures: application
Leases to which sections 245G to 245I apply

(1)

Sections 245G to 245I apply only to a lease—

(a)

to which section 245 applies under section 206; and

(b)

in operation in the affected period (even if it came into operation, was varied, or both, before or in that period); and

(c)

that does not include any no access in an emergency clause that covers an epidemic.

Definitions

(2)

In this section, sections 245G to 245I, and clause 4A of Schedule 3,—

affected period means all or any of the period that—

(a)

starts on 18 August 2021; and

(b)

ends on the repeal (on the date on which the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked) of this section and sections 245G to 245I and clause 4A of Schedule 3

enforcement action, for a lease, if the rent has been in arrears, includes taking all or any of the following actions:

(a)

exercising a right to cancel the lease because of a breach of the covenant to pay rent under the lease (including, without limitation, serving a notice under section 245(1)(b) or (2)):

(b)

applying to a court for an order for possession of the land:

(c)

re-entering the land peaceably (and without committing forcible entry under section 91 of the Crimes Act 1961):

(d)

taking any other action—

(i)

under this Act; and

(ii)

related to cancelling the lease

epidemic means an outbreak of a quarantinable disease in respect of which an epidemic notice has been given, and is in force, under section 5(1) of the Epidemic Preparedness Act 2006

leased premises includes all land comprised in the lease

lessee includes—

(a)

a person who is a sublessee under a sublease to which this section applies under section 206(1); and

(b)

a person who has accepted a transfer or assignment of a lease (see sections 239 to 242)

no access in an emergency clause means any terms that provide expressly (whatever their form or wording) for a reduction of rent payable for a rental period, or of any contribution to the outgoings on the leased premises payable by the lessee for a rental period, or of both, because, for all or any part of that rental period,—

(a)

there is an emergency; and

(b)

the lessee is unable to gain access to all or any part of the leased premises to conduct fully their operations from all or any part of the leased premises, because of reasons of health or safety

reasons of health or safety include, without limitation, any health or safety restriction imposed by any competent authority on occupation by any person of all or any part of the leased premises

rent, payable by a lessee for a rental period, includes any contribution to the outgoings on the leased premises payable by the lessee for that rental period.

245G COVID-19 outbreak further measures: covenant implied

(1)

The lease contains the implied covenant set out in clause 4A of Schedule 3.

(2)

Despite section 218(1), that implied covenant is implied only into a lease of the kind specified in section 245F(1).

(3)

The implied covenant may, in accordance with sections 217 and 279(2), be negatived, varied, or extended—

(a)

by the express terms of the lease; or

(b)

by a written memorandum executed, as the lease was required to be executed, by the parties to the lease; or

(c)

if implied in a short-term lease not made in writing, by the express or implied agreement of the parties.

(4)

However, the implied covenant is not negatived, varied, or extended by any terms, memorandum, or agreement,—

(a)

applying to all or any implied covenants, conditions, or powers set out in Schedule 3; and

(b)

agreed to or made before the start of the affected period.

(5)

Subsection (4) does not limit clause 4A(1)(b) of Schedule 3 (which relates to a pre-commencement rent variation agreement, as defined in clause 4A(5) of Schedule 3).

245H COVID-19 outbreak further measures: enforcement

(1)

Enforcement action must be considered not to comply with sections 244 and 245 if that enforcement action is—

(a)

taken in respect of the affected period; and

(b)

inconsistent with section 245G.

(2)

In particular, enforcement action taken in respect of the affected period is inconsistent with section 245G if the action is to be, or has been, taken before the lessor and lessee have agreed a fair proportion under clause 4A of Schedule 3.

(3)

However, nothing in this section affects—

(a)

section 184 (which provides protection to a person who purchases mortgaged property from a mortgagee or receiver); and

(b)

section 51 of the Land Transfer Act 2017 (which provides, in the case of a transfer of an estate or interest in land, for title by registration except as provided for by that section); and

(c)

any other enactment or law that protects, or protects a person claiming through, a person who acquires property for valuable consideration and in good faith.

245I COVID-19 outbreak further measures: proceedings

(1)

This section applies to a proceeding—

(a)

in or before a court or tribunal, or before a person acting judicially; and

(b)

about, or about matters that include, a lease to which this section applies under section 245F(1).

(2)

In particular, this section applies even if the proceeding—

(a)

commenced before the commencement of this section; and

(b)

is not finally determined (at first instance, or on any appeal) on the commencement of this section.

(3)

Any relief granted in the proceeding (for example, on an application made under section 244(1)(a) for an order for possession of the land, or otherwise in exercise of the powers conferred by sections 253 to 264) must be not inconsistent with sections 245G and 245H.

15 Schedule 1AA amended

In Schedule 1AA,—

(a)

insert the following Part as the last Part; and

(b)

make all necessary consequential amendments.

Part 2 Provisions relating to Part 4 of Schedule 6 of COVID-19 Response (Management Measures) Legislation Act 2021

2 Repeals of COVID-19 outbreak further measures

The following provisions are repealed on the date on which the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked:

(a)

sections 245F to 245I:

(b)

clause 4A of Schedule 3.

3 Effect of repeals

(1)

The repeals in clause 2 do not affect—

(a)

an existing right under the repealed legislation:

(b)

the previous operation of the repealed legislation or anything done or suffered under it.

(2)

In particular, the repealed legislation continues to apply, despite those repeals, to the following:

(a)

the implied covenant set out in clause 4A of Schedule 3 if, immediately before those repeals, and under sections 245F and 245G, a lease contains that implied covenant:

(b)

agreements made, before or after those repeals, by the lessor and lessee under that implied covenant:

(c)

any dispute arising under clause 4A of Schedule 3, for example, one that is—

(i)

referred, before or after those repeals, and as required by clause 4A(7) of Schedule 3, to arbitration under the Arbitration Act 1996; or

(ii)

otherwise the subject of a proceeding in or before a court or tribunal, or before a person acting judicially.

16 Schedule 3 amended

In Schedule 3, after clause 4, insert:

4A COVID-19 outbreak further measures: payment of fair proportion of rent
Leases to which this implied covenant applies

(1)

This clause applies to a lease of the kind specified in section 245F(1)—

(a)

only if, in a rental period all or any of which is in the affected period,—

(i)

there is an epidemic; and

(ii)

the lessee is unable to gain access to all or any part of the leased premises to conduct fully their operations in all or any part of the leased premises, because of reasons of health or safety related to the epidemic; and

(b)

only to the extent that no pre-commencement rent variation agreement has been made that determines the rent that is payable by the lessee for that rental period.

Fair proportion of rent otherwise payable will cease to be payable

(2)

A fair proportion of the rent otherwise payable by the lessee for that rental period will cease to be payable for the period—

(a)

that is, or is in, that rental period (to the extent only that all or any of that rental period is in the affected period); and

(b)

starting on the date when—

(i)

there is an epidemic; and

(ii)

the lessee is unable to gain access to all or any part of the leased premises to conduct fully their operations from all or any part of the leased premises, because of reasons of health or safety related to the epidemic; and

(c)

ending when the inability ceases.

(3)

The fair proportion will be agreed by the lessor and lessee.

(4)

In determining the fair proportion, the matters that the lessor and lessee will consider must include any loss of income experienced by the lessee in respect of that rental period because, for all or any of that rental period,—

(a)

there is an epidemic; and

(b)

the lessee is unable to gain access to all or any part of the leased premises to conduct fully their operations in all or any part of the leased premises, because of reasons of health or safety related to the epidemic.

Definitions

(5)

In this clause,—

affected period has the meaning given to it by section 245F(2)

agreement includes a contract that does not comply with section 24

epidemic has the meaning given to it by section 245F(2)

leased premises and lessee have the meanings given to them by section 245F(2)

pre-commencement rent variation agreement means an agreement that—

(a)

is about what rent is payable by the lessee for a rental period all or any of which is in the affected period; and

(b)

may, but need not, be also a variation of a lease about any other matter; and

(c)

is made before the commencement of this clause, and is made for reasons that are or include that—

(i)

there is an epidemic; and

(ii)

the lessee is unable to gain access to all or any part of the leased premises to conduct fully their operations in all or any part of the leased premises, because of reasons of health or safety related to the epidemic

reasons of health or safety and rent have the meanings given to them by section 245F(2).

Disputes will be referred to arbitration

(6)

The lessor or lessee will take all reasonable steps to respond to a communication from the other about the operation of this clause, or about a dispute arising under this clause, within 10 working days (as defined in section 4 of the Property Law Act 2007) after receiving the communication.

(7)

Any dispute arising under this clause (for example, a dispute about whether this clause applies to a lease) will be referred to arbitration under the Arbitration Act 1996.

(8)

Subclause (7) is subject to section 16 (contracting out prohibited) of the Disputes Tribunal Act 1988, and does not prevent the lessor or lessee, before a referral under that subclause, from—

(a)

agreeing with the other party to use non-binding mediation to try to resolve the dispute; or

(b)

using any other available non-binding or binding dispute-resolution procedure or jurisdiction to resolve the dispute (for example, expert determination).