Universities will also be keen to ensure that when their campuses open up again for 'business as usual', they are able to offer a suitable level of amenity, which is essential for staff and students.

States and territories have begun rolling out legislation to implement the National Cabinet's recent announcements of a six month moratorium on evictions and a mandatory code of conduct (Code) with respect to commercial tenancies. We expect the Code will apply to universities that have obligations under a commercial, retail, office or industrial tenancy. The Code contemplates that parties will be required to abide by a number of good faith negotiating principles as well as a binding mediation process. Most notably, landlords will be prevented from enforcing certain rights where the tenant has breached their obligations as a result of COVID-19.

Each state and territory is at a different stage of legislating to enact the Code, but we are already seeing a number of subtle variations in how the Code is being implemented.. For example, South Australia has introduced regulations that incorporate a number of the good faith principles of the Code but excludes the requirement for landlords to offer rent reductions proportionate to the impact of COVID-19 to tenant's business. At this stage, New South Wales, Tasmania and the ACT have also introduced powers for regulations to be made that prohibit termination, recovery of land and increases in rent. Western Australia is expected to enact legislation this week that prohibits landlords from exercising default rights and allows for a code of conduct to be introduced by regulation, with disputes to be referable to the Small Business Development Commissioner and State Administrative Tribunal.

We recommend universities and other higher education providers grappling with these issues obtain advice from a specialist property lawyer in their jurisdiction to ensure that decisions are made with the benefit of the most up to date and accurate advice.

MinterEllison has a dedicated property and leasing team in each state and territory who also understand the objectives and drivers of our clients in the higher education sector. We are well placed to provide accurate legal advice balanced with practical and commercial advice, which is so important at these times.

We will provide jurisdiction-specific update relevant to your organisation as soon as the applicable legislation has been passed.