The Federal Government's new National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID-19 (Code) requires each state and territory to enact its own legislation to implement the principles. For background information about the Code, click here for an article by partner Kristy Dorney.

In this article, partner Mark Lyons explores the key points which have emerged as each state has rolled out specific regulations.

Rollout of legislation

While the rollout has taken longer than expected, most states and territories have now passed legislation, including Queensland which passed legislation on 28 May 2020. The time taken for this to happen across the jurisdictions has been quite frustrating for industry participants.

Some gaps

While each set of regulations clarifies some aspects of the broader principles of the Code, anyone looking for certainty on all issues arising from the Code will be disappointed. In the timeframe available, there has just not been enough time to drill down on all of the specific issues. Any 'gaps' will need to be covered by the general 'good faith' principles.

Rules for different jurisdictions

While there has been no material departure from the basic principles in the Code, there are some important differences between each jurisdiction on key issues. By way of example, the threshold test for a tenant's eligibility to require the application of the Code is subtly different between the states as are the applicable time periods. This is not an ideal outcome for owners who have national portfolios and consequently will need to apply different rules to tenancies in different jurisdictions.

What's next?

To assist owners to work through the requirements of the Code, our Real Estate team will shortly publish a National Q&A Report responding to the key questions arising from each set of state regulations. The National Q&A Report will focus on any key differences in the approach taken by the states and territories.

We will be in touch very soon with this comprehensive update, but if you have any queries in the meantime please contact a member of our Real Estate team.