To reduce the financial impact of the pandemic on small businesses, the Federal Government released the National Cabinet Mandatory Code of Conduct (Code), which was implemented by each State Government.
Most States initially prescribed their rent relief period to expire within six months. Although Australia has successfully limited transmission of the virus, small businesses to this day are still feeling the impact of the pandemic. As a result, most States have since either extended or introduced a separate rent relief period where different relief qualifications or principles apply.
Here, senior associate Helen Wu provides a snapshot of the original and current rent relief expiry dates in each State and Territory (except the Northern Territory where landlords are not mandated to provide rent relief to tenants), followed by further details and background information.
The following table provides a snapshot of the COVID rent relief position for each State and Territory:
|State||Original rent relief expiry date||Current rent relief expiry date|
|Queensland||30 September 2020||31 December 2020, by way of a separate rent relief period.|
|Victoria||29 September 2020||28 March 2021|
|New South Wales||24 October 2020||28 March 2021|
|Western Australia||29 September 2020||28 March 2021|
|South Australia||30 September 2020||3 January 2021, by way of a separate rent relief period.|
|Tasmania||2 June 2021||31 January 2021|
|Australian Capital Territory||27 September 2020||31 January 2021, by way of a separate rent relief period.|
In Queensland, the Code was implemented through the COVID-19 Emergency Response Act (Qld Act). The Qld Act, together with the Retail Shop Leases and Other Commercial Leases (COVID-19) Emergency Response Regulation (Qld Regulation) mandated commercial and retail landlords to grant rent relief to qualifying small and medium businesses.
Under the initial legislation passed in April 2020, the rent relief period was to expire on 30 September 2020 and in September 2020, the Qld Regulation introduced an extension period to expire on 31 December 2020. For more information about how the extension period works, partner Kristy Dorney published an article in October 2020 on this topic.
In December 2020, the Queensland Parliament passed the COVID-19 Emergency Response and Other Legislation Amendment Act (Extension Act). However, this Extension Act did not seek to further extend the rent relief period. The key objective of the Extension Act is to extend the operation of COVID-19 related legislation and to preserve the rights and obligations of landlords and tenants accrued during the rent relief periods, by extending the expiry date of the Qld Act and Qld Regulation to 30 April 2021.
In April 2020, the Victorian Parliament passed the COVID-19 Omnibus (Emergency Measures) Act and in May 2020, the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations (Vic Regulations).
Under the initial legislation, the rent relief period was to expire on 29 September 2020. The Vic Regulations have since been amended to extend the rent relief period to 31 December 2020. Although, unlike the Queensland amendment where a new extension period was introduced, the Victorian amendment similarly recognises the rent relief agreement already reached between the parties and requires further relief to only be granted from the date the tenant makes its application for further relief. Partner Kristy Dorney recently published an article on this topic.
In December 2020, Victoria further extended the rent relief period to 28 March 2021. Like the first extension, landlords are only required to grant further relief from the date the tenant makes its application for further relief.
The New South Wales Parliament passed the COVID-19 Legislation Amendment (Emergency Measures) Act and Retail and Other Commercial Leases (COVID-19) Regulation (NSW Regulation) in March and April 2020, respectively.
Under the initial legislation, the rent relief period in New South Wales is 24 April 2020 to 24 October 2020. A new regulation replaced the existing NSW Regulation in October 2020, extending the rent relief period to 31 December 2020. Like Victoria, any agreement already reached does not need to be opened for renegotiation. Tenants wanting further relief must apply for further relief for periods not already covered under previously agreed arrangements.
The second regulation expired on 31 December 2020 and a third regulation was made, extending the rent relief period to 28 March 2021. Rent relief covering the further extended period operates in the same way under the second regulation and again, tenants must make a new application for relief. However, tenants must now satisfy new eligibility criteria under the new regulation.
In April 2020, the Western Australian Parliament passed the Commercial Tenancies (COVID-19 Response) Act and Commercial Tenancies (COVID-19 Response) Regulations.
The initial rent relief period expired on 29 September 2020 with an outright extension of six months (now expiring 28 March 2021), instead of a progressive extension. However, the tenant's eligibility is assessed at three intervals—30 May 2020, 28 September 2020 and 4 January 2021—and the level of relief is adjusted from time to time based on the tenant's turnover.
The South Australian Parliament passed the COVID-19 Emergency Response Act and COVID-19 Emergency Response (Commercial Leases No 2) Regulations (SA Regulations) in April 2020.
The initial rent relief period was to expire on 30 September 2020 and an amendment to the SA Regulations has since introduced a second period starting 1 October 2020 and ending 3 January 2021. If part of the agreement already reached between the parties relates to the second period, the parties can renegotiate rent relief applying to the second period.
Like Queensland, the South Australian Government did not further extend the rent relief period past 3 January 2021.
The COVID-19 Disease Emergency (Commercial Leases) Act (Tas Act) was introduced in May 2020 and the COVID-19 Disease Emergency (Commercial Leases) Regulations were introduced in July 2020.
Unlike the other States, the initial rent relief period was 1 April 2020 to 2 June 2021, unless declared to end earlier by the Tasmanian Treasurer. This has since been declared to end on 31 January 2021. Also, unlike the other States, the Tas Act permits the parties to renegotiate rent relief every three months.
In the Australian Capital Territory, the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration (No. 1) and the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration (No. 2) prescribe two rent relief periods, being 1 April 2020 to 27 September 2020 and 28 September 2020 to 31 January 2021. Relief during these periods depends upon the tenant's eligibility as at the commencement of the two periods due to changes to the JobKeeper scheme.
If you require specific advice and assistance understanding what your State or Territory's requirements are and keeping on top of the changes, please contact a member of our Real Estate team.