Covid Rental Relief

Perhaps not surprisingly, I’ve been deluged recently with enquiries from small business operators and commercial space landlords about rental relief in the time of COVID-19. For those affected, here’s a quick snapshot of what’s on offer.

The right to rental relief on commercial leases is dealt with in a Federal Government mandatory code of conduct (a.k.a. “the Code”) agreed by the National Cabinet on 3 April 2020.  Although the Queensland Government has not yet passed regulations under that Code, when it does its regulations will mirror the Code’s requirements and apply them from the 3 April approval date. In the meantime, tenants and landlords are being encouraged to voluntarily strike agreements in line with the Code’s principles.

In short, under the Code a commercial leaseholder is entitled to relief if their business and turnover are negatively impacted during the COVID-19 “lockdown,” from the time they are first required to close their business, until such time as they are legally able to operate at 100% effectiveness. If the business fits the Commonwealth Government’s JobKeeper program (irrespective of whether or not it applied under that program), has a turnover of less than $50 million per year, and its turnover has been negatively impacted by at least 30%, the relief provisions of the Code will apply. The commercial leaseholder’s entitlements will include rental relief in the form of combined waivers and/or deferrals of up to 100% of the current rental, based on the actual reduction to the business’s turnover. Similar relief applies to outgoings payable under the lease during the period of lockdown. The landlord must not seek to resort to a rental guarantee or bond (including a bank guarantee) during the disruption period, and the lease cannot  be terminated for non-payment of the unadjusted rent during the period of business disruption, even if the fixed term ends during that period.

The degree of rental relief is calculated by reference to turnover. For example, if a commercial leaseholder’s turnover is disrupted by 50%, reasonably demonstrated by comparison with turnover figures pre and post the disruption period, then the business owner can seek a corresponding reduction in rental. That is, at least one-half must be fully waived and is unrecoverable by the landlord, even after the end of the disruption period, and the remaining portion is deferred and must be amortised and repaid to the landlord over the balance of the lease term or 24 months after the end of the disruption period, whichever is greater. Assuming a 50:50 split of waiver to deferral, it is anticipated the amortised deferred repayments will be added to monthly rental payments after the rental situation returns to normal at the end of the disruption period. Similar principles apply to the adjustment of outgoings and a proportionate reduction in taxes and costs of services procured by the landlord.

The federal Code assumes landlords and tenants will negotiate commercially, in good faith, in applying its principles. But if mutual agreement can’t be achieved, the parties must submit to a binding mediation by a mediator appointed by the relevant State Consumer Affairs body. In Queensland, this will be the Office of Fair Trading.

Meanwhile, the Queensland Government has agreed to assist affected landlords of commercial premises by waiving land tax on eligible premises for up to three months.  However, the agreement between landlord and tenant for rent relief in accordance with the Code principles must provide for State government land tax reductions to be passed on to tenants who are otherwise liable to reimburse the landlord for land tax under their lease.

So that’s it in a nutshell. Turning around the financial fallout of COVID-19 will no doubt take patience and plenty of sacrifice from all parties. Fortunately, as our business community has shown time and again, we’re more than up for the challenge.

Blog post written by Brendan Nyst, Director, Dispute Resolution and Litigation Lawyer

Covid Flux

With COVID-19 directives flying thick and fast from both federal and state institutions, many of us may be getting a little confused about precisely what we can and can’t do, as a matter of law.

Every day, someone asks my advice about the fine detail – “Can I drive in a car with my friend/spouse/lover/sister/workmate?”, “Can I walk on the beach with a friend?”, “Can I stroll in the park for fresh air?” – and it’s not always easy to give a definitive answer. The reason is the day to day requirements at law are not set in stone but rather, like the crisis itself, they’re in a state of continual flux.

On 18 March 2020, in response to the COVID-19 outbreak in Australia, the Governor-General declared a “human biosecurity emergency,” pursuant to section 475 of the Biosecurity Act 2015 (Cth). That was the first time emergency powers under the Biosecurity Act have been invoked, and it gave the Federal Minister for Health extensive and quite extraordinary powers, including but not limited to:

  • setting requirements to regulate or restrict the movement of persons, goods, or conveyances;
  • requiring that places be evacuated; and/or
  • making directions to close premises.

Under the Biosecurity Act, the Minister may make any direction or requirement necessary to combat COVID-19 or to implement World Health Organisation recommendations for its control.

There are some constraints on the Minister’s power; for example, biosecurity directions requiring individuals to undergo a medical examination, provide body samples for diagnosis, or receive specified treatment or medication, can only be authorised under a “human biosecurity control order” made by the Commonwealth Chief Medical Officer or a “biosecurity officer” in relation to persons suspected of having contracted a listed human disease (including COVID-19), but any person who intentionally engages in conduct contravening any Ministerial requirement or direction under the Biosecurity Act commits a criminal offence, punishable by a maximum penalty of imprisonment for five years and/or a fine of 300 penalty units ($63,000).

To further complicate matters, there are now similar provisions under state law authorising the Chief Health Officer to issue directions with which the Queensland public must comply. On 19 March 2020, Part 7A of the Public Heath Act 2005 (Qld) came into effect, empowering the Chief Health Officer to give directions to assist in containing the spread of COVID-19, including orders restricting the movement of Queenslanders, limiting their contact with others, requiring them to stay, or not, at any specified place, and/or anything else the CHO considers necessary to protect public health. Such orders are deemed to take effect as soon as they are published on the department’s website, and failure to comply can result in fines of up to 100 penalty units (approximately $13,345.00).

Additionally, owners and operators of businesses may be notified to open, close, or limit access to their business premises at any time, in any way, and to any extent recommended by the CHO.

In addition to the powers under Part 7A, where there is a “declared public health emergency” (such as COVID-19), emergency officers can do pretty much anything they reasonably believe is necessary, including requiring people to answer their questions, to not enter or to remain in a particular place, to stop using a place for a stated purpose, to go to a nominated place, to stay at or in a stated place, to destroy and/or dispose of their pets, to clean, to disinfect, and even to shower themselves. Once again, failure to comply with any such order can result in fines of up to 100 penalty units (approximately $13,345.00).

These are extraordinary and potentially draconian powers, but the argument goes that desperate times call for desperate measures.

Few would argue with that sentiment in the context of the current ongoing health emergency, but the challenge for all Australians will be to demand and ensure that, once the crisis has passed, the civil rights we have gladly surrendered in the cause of the common good, will be reinstated as promptly and graciously as they were taken away.

This post was authored by Jonathan Nyst, Queensland Criminal Lawyer, and originally published on the Nyst Legal website. It has been re-published with permission.

PHOTO: © Jez Timms /

Adapt or Perish

Biologist, historian and futurist H G Wells, author of the sci-fi classic The War of the Worlds – a tale of alien invasion and annihilation by pathogen – once famously wrote “Adapt or perish, is nature’s inexorable imperative.” It could be very good advice in today’s troubled times.

As we all struggle to adapt to our new, post-COVID-19 environment, it will be interesting to see how businesses adapt and evolve to not only survive, but hopefully thrive, in this brave new world. For some, perhaps, the crisis will sadly deliver a death blow. But the very nature of the human beast suggests many others will take advantage of invaluable opportunities it will create.

Certainly, in the short term at least, business models will need to change. The evidence is there already; restaurants moving to exclusively ‘take-away’ services is a primary example. And, as restrictions inevitability ease in the mid to long term, many if not all industries, will need to rethink the way they deliver their product.

The legal industry is no different. In the short term, many lawyers have already seen a significant decrease in the demand for some of their services, but a corresponding increase in the demand for others. With most people spending much of their time isolated at home, and the courts taking the unprecedented step of adjourning criminal prosecutions indefinitely, for many lawyers the practice of criminal law has all but ground to a halt, yet regrettably applications for domestic violence protection orders have reportedly surged. Migration law practice looks to be drying up rapidly, while in the commercial sphere, although the overall appetite for non-essential court skirmishes has waned in the face of tightening purse strings, there’s been a rush of landlords, tenants and business-folk wanting advice and corresponding action on leasing and other contractual disputes, as they grapple to sort out exactly what their contractual rights and obligations will be in the face of the ongoing pandemic.

Since few could have ever foreseen the situation we’re currently in, it’s perhaps unsurprising that many commercial agreements do not specifically address a wide range of problems that are being thrown up, leaving thorny questions to be answered regarding the enforceability of a host of business relationships. Many are hoping and expecting that the State Governments will eventually intervene with some protection measures in respect of residential and commercial tenancies, without which we would inevitably see a surge in litigation.

And of course, most uncertain of all in such times is our own physical health, so Wills and Estates have very recently proved an area of sharp growth for lawyers, with many clients wisely opting to get their affairs in order in a timely fashion.

So far, the once-considered dowdy and unyielding profession of law has proven surprisingly dynamic in adapting the way its services are delivered. In the matter of not much more than a fortnight, what were once everyday, face-to-face meetings with clients, courts and colleagues have become mostly a thing of the past (Well, for the time being at least). Not only have justice administrators largely turned the courts into a “no go zone,” with a stern preference expressed for appearances only by audio or video link up, most law firms themselves have already moved the bulk of their staff to a WFH (“working from home,” for the uninitiated) environment. That’s no mean feat, considering the need for ongoing instant connectivity to thousands of documents, and continued seamless internal interaction within legal teams, affecting not only efficiency but culture.

It would be an understatement to say the industry doesn’t face significant challenges, but despite the unprecedented upheaval and dislocation,  it’s generally business as usual for most firms.

Change is invariably hard, but there will hopefully be positives in the long run. While still struggling with inevitable teething problems associated with working remotely, lawyers have already started to see some of the benefits of allowing their staff a more flexible working environment. To adapt our product to a more isolated and cost effective market, we’ve begun offering everything from wills, directives and powers of attorney, to supply agreements, confidentiality deeds, work license applications, many other pro forma documents online. Methods which once seemed too crass and commercial to countenance for such an honourable profession, are suddenly getting a look in…and perhaps they’re the way of the future.

As in all aspects of life, amidst all the doom and gloom, eventually a slither of light will shine through. Those businesses that spot it early – and adapt, not perish – may find themselves far better off in the long run.

This post was authored by Brendan Nyst, Director, Dispute Resolution and Litigation, and originally published on the Nyst Legal website. It has been re-published with permission.

No ordinary time

It’s sometimes said that one man’s loss is another man’s profit, and that’s evidently true, even in these strange and troubled times. Just ask all those previously-struggling toilet paper and face mask makers.

One curious example has even arisen in the criminal courts.

Earlier this month an ACT Supreme Court Judge granted bail to a woman, previously remanded in custody on serious criminal charges, after ruling that the impact of the COVID-19 virus constituted a ‘change in circumstances’, requiring the issue of bail to be revisited.

Having done so, His Honour concluded the current pandemic justified the defendant’s release because ACT prison authorities have indefinitely suspended all prisoner visits, effectively cutting prisoners off from all outside contact.

The Victorian Supreme Court adopted a similar position in the recent case of Ms Samantha Broes. Ten days ago Ms Broes’ lawyers successfully argued that the disruption caused by the COVID-19 crisis potentially meant their client would spend more time in custody awaiting her trial than any sentence she was likely to get if found guilty. The Judge agreed, and further observed Ms Broes would likely suffer the additional significant detriment of being deprived of all contact with her family as a result of prison lockdowns.

In granting bail to Ms Broes, His Honour aptly and saliently observed:

‘Were this an ordinary application, there was an argument to be put that the applicant did not establish exceptional circumstances. However, this is not an ordinary application in an ordinary time.’

This post was authored by Alex Somers, Criminal Lawyer, and originally published on the Nyst Legal website. It has been re-published with permission.

OPINION: Mixed virus messages just adding to confusion, anxiety

Australia is seeing unprecedented panic and anxiety as the coronavirus pandemic continues to spread.

There’s also plenty of confusion and the mish-mash of messages, from the very top down, is not helping the situation.

The New South Wales Health Minister urged people two weeks ago to stop shaking hands, only to be slapped down by the Federal Chief Medical Officer who said it was fine.

Fast forward a couple of days, and sure enough, handshaking was now out for everyone.

Victoria’s Chief Health Officer was criticised after advising people to stock up on two weeks worth of groceries in case they needed to self-isolate, contrary to Federal advice.

Queensland’s Chief Health Officer advised the same thing a couple of weeks ago but that received less attention.

Then we had Scott Morrison announce a ban on mass gatherings but then revealed he’d still be going to the footy ahead of the ban.

Needless to say, the PM quickly changed his mind when he realised how bad a look it would have been.

I’ve just returned from a quick break in Bali but made it home before the Government’s mandatory self-isolation period kicked in.

In the short week I was away the virus situation has gone to a whole new level, but I didn’t think twice about not returning to work on Monday, even after developing a slight sore throat and a mild cough on the weekend (nothing unusual after a trip to Bali).

But after discussions with the boss it was decided I should probably stay away from the office for the time being and get some medical advice. We can’t risk having to completely shut down.

According to the Queensland Health website, I fit the criteria for someone who should get tested. Sore throat, cough and had been overseas.

Just to be completely sure, I rang the Queensland Health hotline and was told that I did indeed fit the criteria.

(For the record anyone who has been overseas in the last 14 days or has been in contact with a confirmed case AND develops a fever, sore throat, cough or shortness of breath is being advised to get tested.)

The advice was to call my GP to get tested instead of just turning up to a clinic.

But as I’ve since discovered, next to no GPs, if any, are actually doing any testing.

After a quick chat with the receptionist at my local GP clinic, she told me my GP would call me back when he had a moment to arrange a form to go and get tested.

A form? I need a form now?

A few hours later and my GP did eventually call.

After explaining my symptoms and travel history he told me that testing wasn’t necessary and I should just self-isolate for two weeks, even though I arrived home before the Government’s mandatory isolation came into effect.

The confusion was only offset by the fear of telling my boss I definitely wasn’t coming back to work anytime soon.

Ten minutes later, my GP calls me back to tell me, “yes, you should go and get tested.”

“So what about this form I supposedly need?” I asked him.

“What form?”

*Narrator: “There is no form.”

So off I go to the Gold Coast University Hospital which is a hive of activity as usual.

A cheerful young nurse greeted me at the entrance to emergency where I again explained my symptoms and travel history.

“Oh you don’t really need to get tested”, she assured me.

Confusion growing even more, I pointed out she was sitting in front of a large sign that listed Indonesia as one of the ‘at risk’ countries but she said that list was old.

Was Indonesia all of a sudden ok? I highly doubt that.

After a bit of a debate she eventually gave me a mask and told me to head upstairs to the fever clinic and they would make the final call about whether or not I should get tested.

Sure enough, I got tested (which by the way is not pleasant).

While I sat there in the fever clinic waiting for a swab up my nose, countless more people flocked to the clinic.

But most were turned away because they didn’t fit the criteria. The system simply can’t test everyone at the moment.

Some of those people had symptoms but hadn’t travelled overseas or been in contact with any confirmed cases. Others had no symptoms but insisted they be tested anyway.

The calm triage nurses would assure them they didn’t need to be tested, a message they had to deliver to some people over and over again until they gave up and left.

So what advice had these people been given? And how did they get past the cheerful nurse at the front door?

You must feel for those who have symptoms but don’t meet the criteria for testing. For some, the worry must be unbearable.

I’ve heard several stories of people being turned away or sent home from work because they have symptoms but don’t meet the criteria for testing so have no way of assuring their employer that they don’t have coronavirus.

I even had one friend who was forced to sleep at Brisbane Airport after returning from overseas because his housemate refused to let him inside the house, despite having no symptoms at all.

The panic and fear is palpable, but simply telling people they are not at risk or only low risk doesn’t seem to be cutting it.

Queensland Health Minister Steven Miles today urged everyone to make sure they were disseminating ‘accurate’ information about the virus.

That’s all well and good, but it doesn’t seem to be getting through anyway.

A good start would be for everyone, from the PM, State Health Officers, GPs and frontline staff, to all be singing from the same songsheet. The mixed messages are only increasing people’s anxiety and fears, not to mention taking up the valuable time of our medical professionals.

While I remain in self-isolation waiting for my results, I will take my hat off to the staff at the GCUH fever clinic.

Their task of constantly taking temperatures and swabs and dealing with anxious and paranoid people must be pretty monotonous. But they’re doing it professionally and patiently in a time when the world could do with a bit of their calmness and commonsense.

If you need some clear advice about what to do and what to look out for, check out this video from Gold Coast Health: