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This is a Bill, not an Act. For current law, see the Acts databases.


SHOP TRADING HOURS (MISCELLANEOUS) AMENDMENT BILL 2002

[BIL079-A.HAA]

HOUSE OF ASSEMBLY – No. 51

[As laid on the Table and read a first time, 14 August 2002]

South Australia

[Prepared by the Parliamentary Counsel]

SHOP TRADING HOURS (MISCELLANEOUS) AMENDMENT BILL 2002

A Bill For

An Act to amend the Shop Trading Hours Act 1977 and to make a related amendment to the Retail and Commercial Leases Act 1995.

[OPC-36]


SUMMARY OF PROVISIONS

1.Short title

2.Commencement

3.Amendment of s. 4—Interpretation

4.Substitution of s. 5

5.Exemptions

5A.Requirement to close shops

5.Amendment of s. 6—Application of Act

6.Amendment of s. 8—Powers of Inspectors

7.Amendment of s. 9—Inspector not to have an interest, etc.

8.Substitution of s. 10

10.Protection for Inspectors

9.Amendment of s. 11—Proclaimed Shopping Districts

10.Amendment of s. 13—Hours during which shops may be open

11.Amendment of s. 13A—Restrictions relating to Sunday trading

12.Amendment of s. 14—Offences

13.Amendment of s. 14A—Advertising

14.Amendment of s. 15—Certain sales lawful

15.Amendment of s. 16—Prescribed goods

16.Insertion of ss. 17A and 17B

17A.Prohibition notices

17B.Power of delegation

17.Amendment of s. 18—Procedures

18.Amendment of s. 19—Regulations

19.Amendment of Retail and Commercial Leases Act 1995


The Parliament of South Australia enacts as follows:


Short title

1. (1) This Act may be cited as the Shop Trading Hours (Miscellaneous) Amendment Act 2002.

(2) The Shop Trading Hours Act 1977 is referred to in this Act as "the principal Act".

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Amendment of s. 4—Interpretation

3. Section 4 of the principal Act is amended—

(a)by striking out subparagraph (iii) of paragraph (a) of the definition of "exempt shop" in subsection (1) (and the word "and" immediately preceding that subparagraph);

(b)by striking out subparagraph (ii) of paragraph (d) of the definition of "exempt shop" in subsection (1) and substituting the following subparagraph:

(ii)which has a floor area that does not exceed 400 square metres;;

(c)by striking out paragraph (e) of the definition of "exempt shop" in subsection (1);

(d)by inserting after the definition of "Glenelg Tourist Precinct" in subsection (1) the following definition:

"Greater Adelaide Shopping District" means—

(a)the Central Shopping District; and

(b)the Metropolitan Shopping District; and

(c)the Glenelg Tourist Precinct;;

(e)by striking out from subsection (1) the definition of "normal trading hours".

Substitution of s. 5

4. Section 5 of the principal Act is repealed and the following sections are substituted:

Exemptions

5. (1) The Minister may grant or declare exemptions from the operation of this Act, or specified provisions of this Act.

(2) The Minister may grant or declare an exemption on application to the Minister in a manner and form determined by the Minister, or on the Minister's own initiative.


(3) An exemption under this section—

(a)may relate to—

(i)a specified shop or class of shops; or

(ii)shops generally;

(b)may apply—

(i)generally throughout the State; or

(ii)in specified shopping districts; or

(iii)in a specified part of a shopping district; or

(iv)in other parts of the State;

(c)may apply with respect to—

(i)specified hours; or

(ii)a specified day or days; or

(iii)trading days generally.

(4) However, an exemption—

(a)that relates to—

(i)a specified class of shops; or

(ii)shops generally; or

(b)that applies—

(i)generally throughout the State; or

(ii)to shops (or a specified class of shops) in a specified shopping district or part of a specified shopping district,

cannot operate in respect of a period greater than 14 days.

(5) Subsection (4)(b)(ii)—

(a)does not apply if—

(i)the Minister is satisfied (in such manner as the Minister thinks fit) that a majority of interested persons desire the exemption to be declared for a period greater than 14 days (or indefinitely); and

(ii)the Minister gives a certificate to that effect; and

(b)does not apply if the exemption relates to a group of individual shops where each shopkeeper has made a separate application to the Minister under this section; and

(c)does not apply in any case prescribed by the regulations.

(6) In subsection (5)—

"interested persons" means—

(a)persons resident in the relevant shopping district, or part of a shopping district; and

(b)shopkeepers and shop assistants who work in shops within that shopping district or part of a shopping district.

(7) The Minister must not grant or declare an exemption under this section that enables all shops, or a majority of shops, in the Metropolitan Shopping District to open pursuant to that exemption.

(8) In deciding whether to grant or declare an exemption, the Minister may have regard to such matters as the Minister considers relevant and is to have regard to the following:

(a)in the case of an application made to the Minister under this section—

(i)the extent to which there has been consultation within the community, or the relevant part of the community, on the proposed application, and the outcome of that consultation;

(ii)whether the application is being made to enable a shop or shops to be open at an exhibition or show, to facilitate or support a local or special event, or to conduct a special trade event (on the basis that an exemption is more likely to be appropriate in such a case);

(iii)insofar as may be relevant, the extent to which the application, if granted, would meet the requirements of tourists and other visitors to the area where the relevant shop, or shops, are located;

(iv)insofar as may be relevant, the amount and extent of notice that would be given to the community if the application were to be granted;

(b)in any case—except where an exemption is being granted in the circumstances described in subsection (5)(a), the policy that exemptions under this section should not be so extensive as to undermine, to any significant degree, the controls on shop trading hours set out in this Act.

(9) An exemption may be granted or declared—

(a)by notice in writing given to the shopkeeper, or each of the shopkeepers, to whom the exemption relates; or

(b)by notice in the Gazette.

(10) An exemption may be granted or declared by the Minister subject to such restrictions or conditions as the Minister thinks fit.

(11) Without limiting subsection (10), an exemption may be granted or declared subject to a restriction or condition specifying the hours during which, or the day or days on which, the shop or shops to which it relates must be closed.

(12) The Minister may, at any time, by further notice given in the same manner as notice of the exemption was given—

(a)vary or revoke an exemption;

(b)vary or revoke a restriction or condition to which an exemption is subject.

(13) A shopkeeper who contravenes or fails to comply with a restriction or condition to which an exemption is subject is guilty of an offence.

Maximum penalty:$100 000.

(14) Unless specific provision is made in a notice under section 5A, an exemption under this section cannot operate in a manner contrary to a notice of the Minister under that section.

(15) An exemption under this section cannot operate with respect to section 13A.

(16) Subject to this section, an exemption will have effect according to its terms and despite the other provisions of this Act.

Requirement to close shops

5A. (1) The Minister may, by notice in the Gazette, require shops to be closed at times when it would otherwise be lawful to open those shops.

(2) A notice under this section—

(a)must stipulate the times during which shops must be closed;

(b)may relate to—

(i)a specified shop or class of shops; or

(ii)shops generally;

(c)may apply—

(i)generally throughout the State; or

(ii)in specified shopping districts; or

(iii)in a specified part of a shopping district; or

(iv)in other parts of the State;

(d)may apply with respect to—

(i)specified hours; or

(ii)a specified day or days.

(3) A requirement under this section cannot operate in respect of a period greater than 14 days.

(4) The Minister may, by further notice in the Gazette, vary or revoke a requirement under this section.

(5) Subject to this section, a requirement under this section will have effect according to its terms and despite the other provisions of this Act.

(6) A shopkeeper who contravenes a requirement under this section is guilty of an offence.

Maximum penalty:$100 000.

Amendment of s. 6—Application of Act

5. Section 6 of the principal Act is amended by striking out paragraph (b) of subsection (2).

Amendment of s. 8—Powers of Inspectors

6. Section 8 of the principal Act is amended—

(a)by inserting in subsection (1)(a) "and inspect" after "enter";

(b)by striking out paragraph (c) of subsection (1) and substituting the following paragraphs:

(c)require a person to produce any book, paper, document or record; or

(ca)inspect or take copies of any book, paper, document or record or, for that purpose, remove any book, paper, document or record; or

(cb)take measurements, or make notes and records; or

(cc)take photographs, films or video or audio recordings; or;

(c)by inserting after paragraph (d) of subsection (1) the following word and paragraph:

or

(e)give such directions as are reasonably necessary for, or incidental to, the effective exercise of a power under this section.;

(d)by striking out subsections (3) and (4) and substituting the following subsections:

(3) A person must not—

(a)hinder or obstruct an Inspector, or a person assisting an Inspector, in the exercise of a power under this section; or

(b)use abusive or threatening language to an Inspector, or a person assisting an Inspector, in the exercise of a power under this section; or

(c)refuse or fail to answer, to the best of that person's knowledge, information and belief, a question put to the person under subsection (1)(d); or

(d)refuse or fail to comply with any other requirement or direction under this section.

Maximum penalty:$25 000.

(4) A person is not obliged to answer a question as required under subsection (1)(d) if to do so might tend to incriminate the person or make the person liable to a penalty.

(5) A person is not obliged to provide information under this section that is privileged on the ground of legal professional privilege.

Amendment of s. 9—Inspector not to have an interest, etc.

7. Section 9 of the principal Act is amended by striking out the penalty provision at the foot of that section and substituting the following item:

Maximum penalty:$5 000.

Substitution of s. 10

8. Section 10 of the principal Act is repealed and the following section is substituted:

Protection for Inspectors

10. (1) No personal liability attaches to an Inspector for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty under this Act.

(2) A liability that would, but for subsection (1), lie against an Inspector lies instead against the Crown.

Amendment of s. 11—Proclaimed Shopping Districts

9. Section 11 of the principal Act is amended by striking out from subsection (1)(a) "the Central Shopping District, the Metropolitan Shopping District or the Glenelg Tourist Precinct" and substituting "the Greater Adelaide Shopping District".

Amendment of s. 13—Hours during which shops may be open

10. Section 13 of the principal Act is amended—

(a)by striking out subsections (1), (2), (3), (4) and (4a) and substituting the following subsections:

(1) Subject to this section, the shopkeeper of a shop situated in the Central Shopping District or the Glenelg Tourist Precinct may open the shop—

(a)until 9.00 p.m. on every weekday; and

(b)until 5.00 p.m. on a Saturday; and

(c)from 11.00 a.m. to 5.00 p.m. on a Sunday.

(2) Subject to this section, the shopkeeper of a shop situated in the Metropolitan Shopping District may open the shop—

(a)until 9.00 p.m. on every weekday; and

(b)until 5.00 p.m. on a Saturday; and

(c)from 11.00 a.m. to 5.00 p.m.—

(i)on each of the five Sundays immediately preceding Christmas day in each year; and

(ii)—

(A)if Christmas day falls on a Saturday in a particular year—on each of five Sundays in a row beginning on 2 January of the following year;

(B)if Christmas day falls on a Sunday in a particular year—on each of five Sundays in a row beginning on 8 January of the following year;

(C)if Christmas day does not fall on a Saturday or Sunday in a particular year—on each of five Sundays in a row beginning on the first Sunday after 26 December of that year.

(3) When 26 January falls on a Sunday, the series under subsection (2)(c)(ii)(C) will be broken and the shopkeeper of a shop situated in the Metropolitan Shopping District may not open the shop under that provision on that Sunday but may open the shop on 2 February in that year.;

(b)by striking out from subsection (5) "and to any proclamation under this section, the shopkeeper of a shop situated in a shopping district other than the Central Shopping District, the Metropolitan Shopping District or the Glenelg Tourist Precinct" and substituting ", the shopkeeper of a shop situated in a shopping district outside the Greater Adelaide Shopping District";

(c)by striking out from subsection (5a) "subsection (5g) and to any proclamation under";

(d)by striking out from subsection (5b) "subsection (5g) and to any proclamation under";

(e)by striking out paragraph (c) of subsection (5b) and substituting the following paragraph:

(c)until 5.00 p.m. on a Saturday.;

(f)by striking out subsection (5c);

(g)by striking out subsection (5d) and substituting the following subsection:

(5d) Nothing in subsections (1), (2) or (3) entitles the shopkeeper of a shop referred to in subsection (5a) or (5b) that is situated in the Greater Adelaide Shopping District to open the shop for the additional hours prescribed by subsections (1) and (2), or on a Sunday.;

(h)by striking out from subsection (5e) "subsection (5f) and to any proclamation under";

(i)by inserting in subsection (5e) after paragraph (d) the following word and paragraph:

or

(e)electrical goods (including computers and other electronic equipment),;

(j)by striking out from subsection (5e) "(4a)" and substituting "(2)";

(k)by striking out from subsection (5f)(a) " and (d)" and substituting ", (d) and (e)";

(l)by striking out subsections (5g) to (14) (inclusive) and substituting the following subsections:

(6) Subsection (5e)(e) only applies to a shop situated in the Greater Adelaide Shopping District.

(7) Subject to this section, shops in shopping districts (other than shops within the ambit of subsection (5e)) must be closed—

(a)on 1 January, Easter Sunday, 25 December and 26 December in any year; and

(b)on all other days that are public holidays in any year.

(8) The shopkeeper of a shop situated in the Central Shopping District or the Glenelg Tourist Precinct may open the shop until 5.00 p.m. on the day after Good Friday in each year.

Amendment of s. 13A—Restrictions relating to Sunday trading

11. Section 13A of the principal Act is amended—

(a)by striking out from subsection (1) "the Central Shopping District, the Metropolitan Shopping District or the Glenelg Tourist Precinct" and substituting " the Greater Adelaide Shopping District";

(b)by striking out from subsection (3) "the Central Shopping District, the Metropolitan Shopping District or the Glenelg Tourist Precinct" and substituting " the Greater Adelaide Shopping District".

Amendment of s. 14—Offences

12. Section 14 of the principal Act is amended—

(a)by striking out the penalty provision at the foot of subsection (1) and substituting the following item:

Maximum penalty:$100 000.;

(b)by striking out the penalty provision at the foot of subsection (2) and substituting the following item:

Maximum penalty:$100 000.;

(c)by striking out the penalty provision at the foot of subsection (7) and substituting the following item:

Maximum penalty:$100 000.;

(d)by striking out the penalty provision at the foot of subsection (8) and substituting the following item:

Maximum penalty:$100 000.;

(e)by inserting after subsection (11) the following subsection:

(12) In any proceedings for an offence against this section, it is a defence for the defendant to prove that at the time of the alleged offence the defendant was acting within the ambit of an exemption under section 5.

Amendment of s. 14A—Advertising

13. Section 14A of the principal Act is amended by striking out the penalty provision at the foot of subsection (1) and substituting the following item:

Maximum penalty:$100 000.

Amendment of s. 15—Certain sales lawful

14. Section 15 of the principal Act is amended by striking out subsections (1) and (2).

Amendment of s. 16—Prescribed goods

15. Section 16 of the principal Act is amended by striking out the penalty provision at the foot of subsection (3) and substituting the following item:

Maximum penalty:$100 000.

Insertion of ss. 17A and 17B

16. The following sections are inserted after section 17 of the principal Act:

Prohibition notices

17A. (1) If the Minister has reason to believe, on reasonable grounds, that a person has contravened a provision of this Act in circumstances that make it likely that the contravention will be repeated, the Minister may issue a notice requiring the person to refrain from an act, or course of action, specified by the Minister.

(2) A notice under subsection (1) must—

(a)state that the Minister is of the opinion that the person has contravened a provision of this Act in circumstances that make it likely that the contravention will be repeated; and

(b)state the grounds of the Minister's opinion.

(3) A person who contravenes or fails to comply with a notice under this section is guilty of an offence.

Maximum penalty:$100 000 plus $20 000 for each day on which the offence is committed.

(4) A person to whom a notice is directed may, within 14 days after service of the notice, appeal to the Administrative and Disciplinary Division of the District Court against the issuing of the notice.

Power of delegation

17B. (1) The Minister may delegate to a person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act.

(2) A delegation under this section—

(a)must be by instrument in writing; and

(b)may be absolute or conditional; and

(c)does not derogate from the power of the Minister to act in any matter; and

(d)is revocable at will.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

Amendment of s. 18—Procedures

17. Section 18 of the principal Act is amended by striking out subsection (2) and substituting the following subsection:

(2) In any proceedings for an offence against this Act, an allegation in the complaint that—

(a)a specified shop is within a specified shopping district; or

(b)a specified shop has a floor area of a specified size,

will be accepted as proof in the absence of proof to the contrary.

Amendment of s. 19—Regulations

18. Section 19 of the principal Act is amended—

(a)by inserting after paragraph (a) of subsection (2) the following paragraph:

(ab)prescribing the manner in which a notice or other document under this Act may be given, issued or served; and;

(b)by striking out from subsection (2)(b) "$500" and substituting "$10 000".

Amendment of Retail and Commercial Leases Act 1995

19. The Retail and Commercial Leases Act 1995 is amended by striking out subparagraph (i) of section 61(1)(c) and substituting the following subparagraph:

(i)do not exceed 54 hours a week and do not include any time on a Sunday;.

By Authority: J. D. Ferguson, Government Printer, South Australia

 


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