On 7 April 2020, the National Cabinet issued a Mandatory Code of Conduct (the Code), which imposes a set of good faith leasing principles that apply to certain commercial tenancies experiencing financial stress or hardship because of the 2019 novel coronavirus disease (COVID-19) pandemic.

On 11 May 2020, we released an alert detailing the introduction of the COVID-19 Emergency Response Act 2020 (SA) (Act) on 9 April 2020 and the COVID-19 Emergency Response (Commercial Leases) Regulations 2020 (SA) (Previous Regulations) on 6 April 2020, after the introduction of the Code (see Article, COVID-19: South Australian Act and Regulations for Commercial Leases).

On 15 May 2020, the South Australian Government introduced the COVID-19 Emergency Response (Further Measures) Amendment Act 2020 (SA) (Amendment Act) and the COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020 (SA) (Regulations).

The Amendment Act replaces the provision contained in the Act which dealt with commercial leases, as detailed in our previous alert, with a more general provision that allows the Governor to make regulations for the purpose of mitigating the adverse impacts on commercial leases resulting from the COVID-19 pandemic.

The Regulations revoke the Previous Regulations and the objectives of the Regulations are, having regard to the Code, to implement temporary measures to apply to parties to certain commercial leases related to the circumstances brought about by the COVID-19 pandemic and provide for mechanisms to resolve disputes concerning those leases.

Under the Regulations, during the prescribed period, the provisions of applicable commercial leases are modified to prohibit and regulate the exercise of certain landlord rights to enforce terms under commercial leases and require landlords and tenants to negotiate rent and other terms of their commercial leases in good faith.

In this article, we will discuss when the Regulations apply, who is covered under the Regulations, the key provisions of the Regulations and whether the Regulations have clarified the uncertainties from the Code.