The National Cabinet announced on 7 April the Mandatory Code of Conduct (National Code) for small and medium sized commercial tenants impacted by the 2019 novel coronavirus disease (COVID-19). We analysed the National Code in our alert: "Mandatory Code of Conduct and the ACT Government's rent relief package for commercial tenancies" (8 April Alert). The States and Territories have since been preparing their own legislation to implement the National Code within their own jurisdictions.

Prior to the introduction of the National Code, the ACT Government through the COVID-19 Emergency Response Act 2020 (ACT) (COVID-19 Act) had already taken preliminary steps to create a legislative framework to regulate some aspects of the landlord and tenant relationship for commercial tenancies financially impacted by COVID-19. The details were outlined in our client alert on 3 April 2020: "COVID-19: ACT Government's rent relief package for commercial tenancies" (3 April Alert).

The ACT Government announced on 11 May 2020 its regime to implement the National Code through the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2020 (ACT) (Declaration).

The Declaration has been made pursuant to the declaration making powers of the Leases (Commercial and Retail) Act 2001 (ACT) (Leases Act) which were given to the Attorney General in the COVID-19 Act. The Declaration aims to implement the overarching principles and leasing principles contained in the National Code and places great emphasis on parties negotiating in good faith in determining appropriate leasing arrangements.

The ACT Government has also released guidance notes for tenants and landlords which provides a summary of the key elements of the ACT Government’s approach to implementing the National Code (Guidelines). The Guidelines essentially provide a commentary on application of the Declaration as well as seeking to answer by way of example some frequently asked questions. The Guidelines do not, however, have the force of law and are not intended to change the legal interpretation of the Declaration itself. Nevertheless, the Guidelines are of significance as they will likely be taken into account initially by the parties in negotiations and in any mediation process facilitated by the Local Business Commissioner. Where the Guidelines may be at odds with a legal interpretation of the Declaration this will not be able to be formally resolved except through proceedings in the Magistrates Court.

In this article we will examine the key features of the Declaration and the Guidelines and potential gaps and issues that may depart from the principles espoused in the National Code.