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Western Australia
Retail Shops and Fair Trading Legislation
Amendment Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Retail Trading Hours
Act 1987
Division 1 -- Amendments
3. The Act amended 3
4. Section 3 amended 3
5. Section 5 replaced 4
5. Interpretation Act applies to orders 4
6. Section 10 amended 4
7. Section 11 amended 8
8. Section 12 amended 8
9. Sections 12A to 12E inserted 9
12A. Trading hours for general retail shops in
tourism precincts and holiday resorts 9
12B. Trading hours for motor vehicle shops 10
12C. No restriction on trading hours for small
retail shops 11
12D. Trading hours for special retail shops 11
12E. Variation of trading hours 11
10. Section 13 repealed 13
11. Section 14 replaced by sections 14 to 14C 13
14. No restriction on trading hours for filling
stations 13
14A. Sale of goods at filling stations 13
14B. Small filling stations 14
14C. Issue and cancellation of certificates for
small filling stations 16
098--1 page i
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Contents
12. Section 15 amended 18
13. Section 25 amended 19
14. Section 41 replaced 20
41. Minister to review and report on Act 20
15. Section 43 repealed 20
16. Amendments relating to "authorised person" 20
17. Amendments relating to penalties 21
Division 2 -- Validation
18. Validation 22
Part 3 -- Commercial Tenancy (Retail
Shops) Agreements Act 1985
19. The Act amended 23
20. Long title amended 23
21. Section 3 amended 23
22. Section 12D inserted 23
12D. Tenants' associations etc. 23
23. Part IIA inserted 24
Part IIA -- Unconscionable conduct
15A. Terms used in this Part 24
15B. Application of Part 25
15C. Unconscionable conduct of landlords 25
15D. Unconscionable conduct of tenants 27
15E. Certain conduct not unconscionable 30
15F. Powers of Tribunal relating to
unconscionable conduct 30
24. Section 27 amended 31
25. Minor amendment 33
Part 4 -- Fair Trading Act 1987
26. The Act amended 34
27. Section 11A inserted 34
11A. Unconscionable conduct in business
transactions (TPA s. 51AC) 34
28. Section 69 amended 41
29. Section 75 amended 41
30. Section 77 amended 41
31. Section 79 amended 41
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Retail Shops and Fair Trading Legislation
Amendment Bill 2005
A Bill for
An Act to amend --
• the Retail Trading Hours Act 1987;
• the Commercial Tenancy (Retail Shops) Agreements Act 1985; and
• the Fair Trading Act 1987,
and for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Retail Shops and Fair Trading Legislation
Amendment Act 2005.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
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Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 3
Part 2 -- Retail Trading Hours Act 1987
Division 1 -- Amendments
3. The Act amended
The amendments in this Part are to the Retail Trading Hours
5 Act 1987*.
[* Reprinted as at 18 January 2002.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 386.]
4. Section 3 amended
10 Section 3(1) is amended after the definition of "member" by
inserting the following definitions --
"
"motor vehicle" has the meaning given to that term in
the Road Traffic Act 1974 section 5(1);
15 "motor vehicle shop" means a general retail shop or
portion of a general retail shop, as the case may
be --
(a) in, on or from which motor vehicles are sold
by way of retail sale; or
20 (b) in, on or from which spare parts for motor
vehicles are sold by way of retail sale in
conjunction with the sale of motor vehicles;
".
page 3
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 5
5. Section 5 replaced
Section 5 is repealed and the following section is inserted
instead --
"
5 5. Interpretation Act applies to orders
(1) An order made by the Minister under this Act is
subsidiary legislation as defined in the Interpretation
Act 1984 section 5.
(2) The Interpretation Act 1984 section 42 applies to an
10 order made under section 10(3b) or 14B(4).
".
6. Section 10 amended
(1) Section 10(3) is amended as follows:
(a) by deleting paragraph (a) and inserting the following
15 paragraph instead --
"
(a) neither motor vehicles, nor goods or services
prescribed for the purposes of this paragraph,
are sold or provided at the retail shop;
20 ";
(b) in paragraph (b) by deleting "4" in both places where it
occurs and inserting instead --
" 6 ";
(c) in paragraph (bc) by deleting "5 persons" and inserting
25 instead --
" 10 persons ";
(d) after paragraph (bc) by deleting "and";
(e) after paragraph (bd) by inserting --
page 4
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 6
"
(be) no owner of the retail shop is related, in the
opinion of the chief executive officer, to an
owner of another retail shop that is in such
5 close proximity to the first-mentioned retail
shop that, in the opinion of the chief executive
officer, those retail shops are to be regarded as
occupying the same location; and
";
10 (f) in paragraph (c) after "subsection" by inserting --
" , and that certificate has not been cancelled ".
(2) Section 10(3a)(a) is amended as follows:
(a) after subparagraph (i) by inserting --
" and ";
15 (b) by deleting subparagraph (ii) and inserting the following
instead --
"
(ii) does not own or operate, either alone or
together with any other person, more
20 than 3 retail shops except as a
shareholder in a listed corporation as
defined in the Commonwealth
Corporations Act 2001 section 9;
".
25 (3) Section 10(3a)(b) is amended as follows:
(a) after subparagraph (ii) by deleting "and";
(b) by deleting subparagraph (iii) and inserting the
following instead --
"
30 (iii) does not himself or herself own or
operate a retail shop alone if 2 or more
other persons in the group each own or
operate a retail shop that is not owned or
page 5
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 6
operated together with the other persons
in the group; and
(iv) does not himself or herself own or
operate a retail shop alone if another
5 person in the group owns or operates
2 or more retail shops that are not
owned or operated together with the
other persons in the group.
".
10 (4) After section 10(3a) the following subsections are inserted --
"
(3aa) The matters that the chief executive officer may have
regard to when determining whether an owner of a
retail shop is related to an owner of another retail shop
15 for the purposes of subsection (3)(be) include --
(a) whether one owner is --
(i) the spouse or de facto partner of the
other owner;
(ii) a child of the other owner or of the
20 spouse or de facto partner of the other
owner;
(iii) a parent of the other owner or of the
spouse or de facto partner of the other
owner; or
25 (iv) a brother or sister of the other owner or
of the spouse or de facto partner of the
other owner;
(b) whether one owner is a related body corporate
in relation to the other owner;
30 (c) whether one owner is a corporation and the
other owner is --
(i) an officer of the corporation; or
page 6
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 6
(ii) a majority shareholder in the
corporation;
(d) whether one owner is accustomed or under an
obligation, whether formal or informal, to act in
5 accordance with the directions, instructions or
wishes of the other owner in relation to the
operation of the first-mentioned owner's retail
shop;
(e) whether one owner is --
10 (i) an employee or partner of the other
owner; or
(ii) an agent, banker, solicitor, accountant,
auditor or other person acting in any
capacity for or on behalf of the other
15 owner;
and
(f) whether one owner is --
(i) a trustee for the other owner; or
(ii) a trustee of a trust of which the other
20 owner is a discretionary or other
beneficiary.
(3ab) In subsection (3aa) --
"corporation" has the meaning given to that term in
the Commonwealth Corporations Act 2001
25 section 57A;
"officer" has the meaning given to that term in the
Commonwealth Corporations Act 2001 section 9;
"related body corporate" has the meaning given to
that term in the Commonwealth Corporations
30 Act 2001 section 9.
(3ac) A person who operates a small retail shop is required to
notify the chief executive officer within 14 days
after --
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Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 7
(a) a person becomes or ceases to be an owner of
the retail shop; and
(b) if the owner of the retail shop is a body
corporate -- a person becomes or ceases to be a
5 shareholder of the body corporate.
".
(5) Section 10(3c) is repealed.
7. Section 11 amended
Section 11(4)(a) is amended as follows:
10 (a) by deleting subparagraph (i) and inserting the following
subparagraph instead --
"
(i) that any motor vehicle is, or any goods
or service prescribed for the purposes of
15 section 10(3)(a) are, sold or provided at
that retail shop;
";
(b) by deleting subparagraph (iii) and inserting the
following subparagraph instead --
20 "
(iii) that notification has not been given as
required by section 10(3ac);
".
8. Section 12 amended
25 (1) Section 12(1) is amended after "this Act" by inserting --
"
and any order made under section 12E(1) that affects
the trading hours of the general retail shop,
".
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Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 9
(2) Section 12(1a), (1b) and (2) are repealed and the following
subsection is inserted instead --
"
(2) Subsection (1) does not apply to --
5 (a) a general retail shop in a tourism precinct or
holiday resort, as defined in section 12A(4);
(b) a general retail shop to which an order under
section 12A applies by the operation of
subsection (3) of that section; or
10 (c) a motor vehicle shop.
".
9. Sections 12A to 12E inserted
After section 12 the following sections are inserted --
"
15 12A. Trading hours for general retail shops in tourism
precincts and holiday resorts
(1) The Minister may by order fix a time or times when
general retail shops in a tourism precinct or holiday
resort are required to be closed --
20 (a) on any or every day in each week; or
(b) on any day or days specified in the order.
(2) An order may apply to --
(a) all general retail shops in the tourism precinct
or holiday resort;
25 (b) general retail shops in the tourism precinct or
holiday resort of a class specified in the order;
or
(c) general retail shops in the tourism precinct or
holiday resort that are specified in the order.
page 9
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 9
(3) An order that applies to general retail shops in a
tourism precinct may also apply to general retail
shops --
(a) that are in the immediate vicinity of the tourism
5 precinct; and
(b) that are specified, or that are of a class
specified, in the order.
(4) In this section --
"Fremantle tourism precinct" means the area or
10 areas prescribed for the purposes of this definition;
"holiday resort" means the Rockingham holiday
resort, Rottnest Island holiday resort or Wanneroo
holiday resort;
"Perth tourism precinct" means the area or areas
15 prescribed for the purposes of this definition;
"Rockingham holiday resort" means the area or areas
prescribed for the purposes of this definition;
"Rottnest Island holiday resort" means the area or
areas prescribed for the purposes of this definition;
20 "tourism precinct" means the Perth tourism precinct
or Fremantle tourism precinct;
"Wanneroo holiday resort" means the area or areas
prescribed for the purposes of this definition.
12B. Trading hours for motor vehicle shops
25 Subject to this Act and any order made under
section 12E(1) that affects the trading hours of the
motor vehicle shop, a motor vehicle shop is required to
be closed --
(a) on Monday, Tuesday, Thursday and Friday in
30 each week -- until 8 a.m. and from and after
6 p.m.;
page 10
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 9
(b) on Wednesday in each week -- until 8 a.m. and
from and after 9 p.m.;
(c) on Saturday in each week -- until 8 a.m. and
from and after 1 p.m.;
5 (d) on Sunday in each week; and
(e) on each public holiday and public half-holiday.
12C. No restriction on trading hours for small retail
shops
A small retail shop may be open at any time.
10 12D. Trading hours for special retail shops
Subject to this Act and any order made under
section 12E(1) that affects the trading hours of the
special retail shop, a special retail shop is required to
be closed on every day of the year until 6 a.m. and
15 from and after 11.30 p.m..
12E. Variation of trading hours
(1) The Minister may by order vary the trading hours of
retail shops by --
(a) requiring retail shops to be closed at a time or
20 times when the shops would otherwise not be
required to be closed under section 12(1), 12B
or 12D; or
(b) authorising retail shops to be open at a time or
times when the shops would otherwise be
25 required to be closed under any of those
provisions.
(2) An order varying the trading hours of general retail
shops in the metropolitan area (other than an order
under section 12A) can have effect only in relation to a
30 day or days within the period from 28 days before a
page 11
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 9
public holiday or public half-holiday to 28 days after
the public holiday or public half-holiday.
(3) Subject to subsection (2), an order varying the trading
hours of general retail shops may apply to --
5 (a) all general retail shops;
(b) general retail shops of a specified class;
(c) general retail shops in a specified area; or
(d) a specified general retail shop.
(4) An order varying the trading hours of motor vehicle
10 shops may apply to --
(a) all motor vehicle shops;
(b) motor vehicle shops of a specified class;
(c) motor vehicle shops in a specified area; or
(d) a specified motor vehicle shop.
15 (5) An order varying the trading hours of special retail
shops may apply to --
(a) all special retail shops;
(b) special retail shops of a specified class;
(c) special retail shops in a specified area; or
20 (d) a specified special retail shop.
(6) An order varying the trading hours of retail shops may
apply to --
(a) all retail shops; or
(b) any specified portion of retail shops,
25 in which one or more classes of specified goods or
services, or goods and services, are sold or provided.
(7) An order varying the trading hours of retail shops may
apply to --
(a) any or every day in each week; or
page 12
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 10
(b) a specified day or specified days.
(8) In this section --
"specified", in relation to an order, means specified in
the order.
5 ".
10. Section 13 repealed
Section 13 is repealed.
11. Section 14 replaced by sections 14 to 14C
Section 14 is repealed and the following sections are inserted
10 instead --
"
14. No restriction on trading hours for filling stations
A filling station may be open at any time.
14A. Sale of goods at filling stations
15 (1) A person who operates a filling station is not, at any
time outside the trading hours referred to in
section 12(1), to sell or allow to be sold at the filling
station any thing that is not --
(a) fuel or an accessory;
20 (b) one of the goods prescribed for the purposes of
this paragraph;
(c) in the case of a small filling station -- fuel or
an accessory or one of the goods prescribed for
the purposes of paragraph (b) or this paragraph;
25 or
(d) in the case of a prescribed small filling
station -- fuel or an accessory or one of the
goods prescribed for the purposes of
paragraph (b) or (c) or this paragraph.
page 13
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 11
(2) In this section --
"accessory" means --
(a) lubricant in any form, tyre, tube, battery, part
or accessory; or
5 (b) any other thing, other than fuel, required to
equip or operate a motor vehicle.
14B. Small filling stations
(1) For the purposes of section 14A(1)(c), a filling station
is to be regarded as a small filling station if --
10 (a) the filling station is owned by --
(i) one eligible person;
(ii) not more than 6 eligible persons trading
in partnership; or
(iii) a body corporate with not more than
15 6 shareholders all of whom are eligible
persons;
(b) the filling station is operated for the benefit of
the eligible persons referred to in paragraph (a);
(c) the eligible persons referred to in paragraph (a)
20 are personally and actively engaged in the
filling station;
(d) not more than 10 persons (including the eligible
persons who own and operate the filling
station) work in the filling station at any one
25 and the same time;
(e) the filling station is owned and operated in
accordance with the directions given under
subsection (4); and
(f) the chief executive officer has issued a
30 certificate in relation to the filling station
certifying that it is a small filling station in
page 14
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 11
terms of this subsection, and that certificate has
not been cancelled.
(2) A person is not an eligible person for the purposes of
subsection (1) unless --
5 (a) in relation to a case where the person is the
only person in question, the person --
(i) is a natural person; and
(ii) does not own or operate, either alone or
together with any other person, more
10 than 3 filling stations except as a
shareholder in a listed corporation as
defined in the Commonwealth
Corporations Act 2001 section 9;
(b) in relation to a case where the person in
15 question is one of a group of persons, the
person --
(i) is a person to whom the provisions of
paragraph (a)(i) and (ii) apply;
(ii) does not own or operate another filling
20 station together with a person who is
outside that group of persons;
(iii) does not himself or herself own or
operate a filling station alone if 2 or
more other persons in the group each
25 own or operate a filling station that is
not owned or operated together with the
other persons in the group; and
(iv) does not himself or herself own or
operate a filling station alone if another
30 person in the group owns or operates
2 or more filling stations that are not
owned or operated together with the
other persons in the group.
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Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 11
(3) A person who operates a small filling station is
required to notify the chief executive officer within
14 days after --
(a) a person becomes or ceases to be an owner of
5 the filling station; and
(b) if the owner of the filling station is a body
corporate -- a person becomes or ceases to be a
shareholder of the body corporate.
(4) The Minister may by order give directions for the
10 purposes of subsection (1) and any such order may
include directions with respect to --
(a) the persons who are to be, and the persons who
are not to be, regarded as owners for the
purposes of subsection (1);
15 (b) the extent to which any person other than a
person who owns or operates a small filling
station may benefit from the operation of the
small filling station;
(c) the extent to which the natural persons who
20 operate the filling station are to be personally
and actively engaged in the operations of the
filling station;
(d) such other matters (including a requirement that
any statement made for the purposes of this
25 section be verified by statutory declaration) as
the Minister considers necessary,
and effect is to be given to any such order.
14C. Issue and cancellation of certificates for small filling
stations
30 (1) A person who desires to operate a small filling station
at any place is to apply to the chief executive officer
for a certificate in relation to that place in accordance
with the regulations.
page 16
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 11
(2) If the chief executive officer is satisfied in relation to
an application under subsection (1) that there is no
reason for the refusal of the application, the chief
executive officer is to issue a certificate in terms of the
5 application.
(3) A person who is aggrieved by a decision of the chief
executive officer refusing the issue of a certificate
under subsection (2) may appeal to the Minister, whose
decision is final.
10 (4) The chief executive officer may cancel a certificate
certifying a filling station to be a small filling station if
the chief executive officer is satisfied --
(a) that any thing other than --
(i) fuel or an accessory (as defined in
15 section 14A(2)); or
(ii) goods prescribed for the purposes of
section 14A(1)(b), (c) or (in the case of
a prescribed small filling station) (d),
are sold at the filling station outside the trading
20 hours referred to in section 12(1);
(b) that the filling station is not owned or operated
in accordance with section 14B(1) and (4); or
(c) that notification has not been given as required
by section 14B(3).
25 (5) The cancellation of a certificate under this section does
not prevent a person from being prosecuted for an
offence against this Act.
".
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Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 12
12. Section 15 amended
(1) Section 15(1) is repealed and the following subsection is
inserted instead --
"
5 (1) Despite the provisions of this Part --
(a) a person who operates a retail shop;
(b) a body consisting of, or representing, persons
who operate a class of retail shops or retail
shops in a part of the State; or
10 (c) a local government, at the request of a person
referred to in paragraph (a) or a body referred
to in paragraph (b) in respect of a retail shop or
retail shops, as the case requires, in the local
government's district,
15 may apply to the chief executive officer for a permit --
(d) to open the retail shop operated by the person
or the retail shops operated by the persons who
are members of, or represented by, the body, as
the case requires, at times when the shop or
20 shops would otherwise be required to be closed
by section 12, 12B or 12D or by order under
section 12A or 12E; or
(e) to sell goods, or to allow goods to be sold, or to
provide services despite those goods or
25 services --
(i) in the case of small retail shops -- being
goods referred to in, or goods or
services prescribed for the purposes of,
section 10(3)(a);
30 (ii) in the case of special retail shops -- not
being goods or services prescribed for
the purposes of section 10(4)(b); or
page 18
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 13
(iii) in the case of filling stations -- not
being goods referred to in, or prescribed
for the purposes of, a relevant paragraph
of section 14A(1).
5 ".
(2) Section 15(2) is amended as follows:
(a) by deleting "not goods or services, or both, prescribed
for the purposes of section 10(3)(a) or 10(4)(b), as the
case requires," and inserting instead --
10 " of the kind referred to in the application ";
(b) by deleting "classes of goods or provide such services or
classes of " and inserting instead --
" provide such ".
(3) After section 15(2) the following subsection is inserted --
15 "
(2a) The chief executive officer may issue a permit under
subsection (2) to open a retail shop or retail shops only
if satisfied that, by reason of the event or circumstances
referred to in that subsection, it is not appropriate, or it
20 is not practicable, for an order to be made under
section 12A or 12E to vary the trading hours of that
shop or those shops.
".
13. Section 25 amended
25 Section 25(2) is repealed and the following subsection is
inserted instead --
"
(2) A person who operates a retail shop --
(a) that is certified to be a small retail shop under
30 section 10(3)(c) and is not owned and operated
in accordance with section 10(3)(a), (b), (ba),
(bb), (bc), (bd) and (be); or
page 19
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 1 Amendments
s. 14
(b) that is certified to be a small filling station
under section 14B(1)(f) and is not owned and
operated in accordance with section 14B(1)(a),
(b), (c), (d) and (e),
5 commits an offence.
".
14. Section 41 replaced
Section 41 is repealed and the following section is inserted
instead --
10 "
41. Minister to review and report on Act
(1) The Minister is to carry out a review of the operation
and effectiveness of this Act as soon as is practicable
after the expiry of 3 years from the commencement of
15 the Retail Shops and Fair Trading Legislation
Amendment Act 2005 section 14.
(2) The Minister is to prepare a report based on the review
and, as soon as is practicable after the report is
prepared, is to cause a copy of the report to be laid
20 before each House of Parliament.
".
15. Section 43 repealed
Section 43 is repealed.
16. Amendments relating to "authorised person"
25 (1) Section 28 is amended by deleting "other person authorised by
the chief executive officer in writing, whether generally or in a
specific case," and inserting instead --
" an authorised person ".
page 20
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Retail Trading Hours Act 1987 Part 2
Amendments Division 1
s. 17
(2) Section 29(1) is amended as follows:
(a) by deleting "any person authorised by the chief
executive officer under section 27" and inserting
instead --
5 " authorised person ";
(b) after "the inspector" by inserting --
" or authorised person ".
(3) Section 29(2) is amended by deleting "any person authorised by
the chief executive officer under section 27" and inserting
10 instead --
" authorised person ".
17. Amendments relating to penalties
Each provision mentioned in column 1 of the Table to this
section is amended by deleting the corresponding amount in
15 column 2 and inserting instead the corresponding amount in
column 3.
Table
Column 1 Column 2 Column 3
s. 15(4) $2 000 $5 000
s. 25(3) $2 000 $5 000
s. 25(3) $3 000 $6 000
s. 25(3) $5 000 $8 000
s. 26(1) $2 000 $5 000
s. 27(2) $2 000 $5 000
s. 30 $2 000 $5 000
s. 32 $2 000 $5 000
s. 33(3) $2 000 $5 000
s. 40(2)(e) $1 000 $2 000
s. 40(2)(e) $300 $500
page 21
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 2 Retail Trading Hours Act 1987
Division 2 Validation
s. 18
Division 2 -- Validation
18. Validation
An order made, or purporting to have been made, under the
Retail Trading Hours Act 1987 section 5, 10, 12, 13 or 14 that
5 had effect, or purported to have effect, immediately before the
commencement of this section --
(a) is taken to have been validly made under that section of
that Act;
(b) continues, on and after that commencement, to have
10 effect and the force of law; and
(c) in relation to an order made under section 5, 12, 13 or 14
of that Act that continues to have effect and the force of
law under paragraph (b) -- may be amended or revoked
as if it had been made under section 12E of that Act as
15 amended by this Act.
page 22
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 19
Part 3 -- Commercial Tenancy (Retail Shops)
Agreements Act 1985
19. The Act amended
The amendments in this Part are to the Commercial Tenancy
5 (Retail Shops) Agreements Act 1985*.
[* Reprinted as at 21 July 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 70.]
20. Long title amended
10 The long title is amended after "shops," by inserting --
"
to prohibit unconscionable conduct by landlords or
tenants in relation to such agreements,
".
15 21. Section 3 amended
Section 3(1) is amended after the definition of "Tribunal" by
deleting the full stop and inserting --
"
;
20 "unconscionable conduct application" means an
application under section 15F(1).
".
22. Section 12D inserted
After section 12C the following section is inserted --
25 "
12D. Tenants' associations etc.
(1) A provision in a retail shop lease is void to the extent
that it has the effect of preventing or restricting the
page 23
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 3 Commercial Tenancy (Retail Shops) Agreements Act 1985
s. 23
tenant from forming, joining or taking part in any
activities of a tenants' association, chamber of
commerce or similar body.
(2) If a tenant under a retail shop lease --
5 (a) forms or joins; or
(b) proposes to form or join,
a tenants' association, chamber of commerce or similar
body, the landlord is not to treat or propose to treat the
tenant less favourably than a tenant in similar
10 circumstances who does not do or propose to do any of
those things.
(3) A tenant under a retail shop lease may apply in writing
to the Tribunal in respect of a failure by the landlord to
comply with subsection (2) for one or both of the
15 following orders --
(a) an order that the landlord pay compensation to
the tenant in respect of pecuniary loss suffered
by the tenant as a result of the failure;
(b) an order that the landlord do, or refrain from
20 doing, anything specified in the application.
".
23. Part IIA inserted
After section 15 the following Part is inserted --
"
25 Part IIA -- Unconscionable conduct
15A. Terms used in this Part
In this Part --
"applicable industry code", in relation to a person
who is a participant in an industry, means the
30 prescribed provisions of an industry code relating
to the industry;
page 24
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 23
"commencement" means the commencement of
section 23 of the Retail Shops and Fair Trading
Legislation Amendment Act 2005;
"fit out costs" includes the costs of providing or
5 installing finishes, fixtures, fittings, equipment and
services;
"industry code" means a code regulating the conduct
of participants in an industry towards other
participants in the industry or towards consumers
10 in the industry.
15B. Application of Part
(1) In addition to a retail shop lease to which or in relation
to which this Part would otherwise apply, this Part also
applies to or in relation to a retail shop lease that was
15 entered into --
(a) before the relevant day; or
(b) pursuant to an option granted or agreement
made before the relevant day,
if this Act would have applied to the lease had it been
20 entered into on or after that day.
(2) This Part does not apply to conduct that occurred
before the commencement.
(3) In subsection (1) --
"relevant day" has the meaning given to that term by
25 section 4(3).
15C. Unconscionable conduct of landlords
(1) A landlord under a retail shop lease shall not, in
connection with the lease, engage in conduct that is, in
all the circumstances, unconscionable.
30 (2) Without in any way limiting the matters to which the
Tribunal may have regard for the purpose of
page 25
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 3 Commercial Tenancy (Retail Shops) Agreements Act 1985
s. 23
determining whether a landlord has contravened
subsection (1), the Tribunal may have regard to --
(a) the relative strengths of the bargaining
positions of the landlord and tenant;
5 (b) whether, as a result of conduct engaged in by
the landlord, the tenant was required to comply
with conditions that were not reasonably
necessary for the protection of the legitimate
interests of the landlord;
10 (c) whether the tenant was able to understand any
documents relating to the lease;
(d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the tenant (or a person acting on behalf
15 of the tenant) by the landlord or a person acting
on behalf of the landlord in relation to the lease;
(e) the amount for which, and the circumstances
under which, the tenant could have acquired an
identical or equivalent lease from a person
20 other than the landlord;
(f) the extent to which the landlord's conduct
towards the tenant was consistent with the
landlord's conduct in similar transactions
between the landlord and other similar tenants;
25 (g) the requirements of any applicable industry
code;
(h) the requirements of any other industry code, if
the tenant acted on the reasonable belief that
the landlord would comply with that code;
30 (i) the extent to which the landlord unreasonably
failed to disclose to the tenant --
(i) any intended conduct of the landlord
that might affect the interests of the
tenant; or
page 26
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 23
(ii) any risks to the tenant arising from the
landlord's intended conduct that are
risks that the landlord should have
foreseen would not be apparent to the
5 tenant;
(j) the extent to which the landlord was willing to
negotiate the terms and conditions of any lease
with the tenant;
(k) the extent to which the landlord acted in good
10 faith;
(l) the extent to which the landlord was not
reasonably willing to negotiate the rent under
the lease;
(m) the extent to which the landlord unreasonably
15 used information about the turnover of the
tenant's or a previous tenant's business to
negotiate the rent; and
(n) the extent to which the landlord required the
tenant to incur unreasonable refurbishment or
20 fit out costs.
(3) In considering whether a landlord has contravened
subsection (1), the Tribunal --
(a) is not to have regard to any circumstances that
were not reasonably foreseeable at the time of
25 the alleged contravention; and
(b) may have regard to circumstances existing
before the commencement but not to conduct
engaged in before the commencement.
15D. Unconscionable conduct of tenants
30 (1) A tenant under a retail shop lease shall not, in
connection with the lease, engage in conduct that is, in
all the circumstances, unconscionable.
page 27
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 3 Commercial Tenancy (Retail Shops) Agreements Act 1985
s. 23
(2) Without in any way limiting the matters to which the
Tribunal may have regard for the purpose of
determining whether a tenant has contravened
subsection (1), the Tribunal may have regard to --
5 (a) the relative strengths of the bargaining
positions of the landlord and tenant;
(b) whether, as a result of conduct engaged in by
the tenant, the landlord was required to comply
with conditions that were not reasonably
10 necessary for the protection of the legitimate
interests of the tenant;
(c) whether the landlord was able to understand
any documents relating to the lease;
(d) whether any undue influence or pressure was
15 exerted on, or any unfair tactics were used
against, the landlord (or a person acting on
behalf of the landlord) by the tenant or a person
acting on behalf of the tenant in relation to the
lease;
20 (e) the amount for which, and the circumstances
under which, the landlord could have granted
an identical or equivalent lease to a person
other than the tenant;
(f) the extent to which the tenant's conduct
25 towards the landlord was consistent with the
tenant's conduct in similar transactions between
the tenant and other similar landlords;
(g) the requirements of any applicable industry
code;
30 (h) the requirements of any other industry code, if
the landlord acted on the reasonable belief that
the tenant would comply with that code;
page 28
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 23
(i) the extent to which the tenant unreasonably
failed to disclose to the landlord --
(i) any intended conduct of the tenant that
might affect the interests of the
5 landlord; or
(ii) any risks to the landlord arising from
the tenant's intended conduct that are
risks that the tenant should have
foreseen would not be apparent to the
10 landlord;
(j) the extent to which the tenant was willing to
negotiate the terms and conditions of any lease
with the landlord;
(k) the extent to which the tenant acted in good
15 faith;
(l) the extent to which the tenant was not
reasonably willing to negotiate the rent under
the lease;
(m) the extent to which the tenant unreasonably
20 used information about the turnover of the
tenant's or a previous tenant's business to
negotiate the rent; and
(n) the extent to which the tenant was willing to
incur reasonable refurbishment or fit out costs.
25 (3) In considering whether a tenant has contravened
subsection (1), the Tribunal --
(a) is not to have regard to any circumstances that
were not reasonably foreseeable at the time of
the alleged contravention; and
30 (b) may have regard to circumstances existing
before the commencement but not to conduct
engaged in before the commencement.
page 29
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 3 Commercial Tenancy (Retail Shops) Agreements Act 1985
s. 23
15E. Certain conduct not unconscionable
A person is not to be taken for the purposes of
section 15C or 15D to engage in unconscionable
conduct in connection with a retail shop lease only
5 because --
(a) the person institutes legal proceedings in
relation to the lease or refers a dispute or claim
in relation to the lease to arbitration;
(b) the person fails to renew the lease or enter into
10 a new lease; or
(c) the person does not agree to having an
independent valuation of current market rent
carried out.
15F. Powers of Tribunal relating to unconscionable
15 conduct
(1) A landlord or tenant, or former landlord or tenant,
under a retail shop lease or former retail shop lease
who suffers loss or damage because of unconscionable
conduct of another person that contravenes section 15C
20 or 15D may recover that loss or damage by applying in
writing to the Tribunal.
(2) An unconscionable conduct application is required to
be lodged within 6 years after the alleged
unconscionable conduct occurred.
25 (3) Without limiting section 26, in proceedings in relation
to an unconscionable conduct application, the Tribunal
may make any one or more of the following orders that
it considers appropriate --
(a) an order that a party to the proceedings pay
30 money to a specified person, whether by way of
debt, damages or restitution, or refund any
money paid by a specified person;
page 30
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 24
(b) an order that a specified amount of money is
not due or owing by a party to the proceedings
to a specified person, or that a party to the
proceedings is not entitled to a refund of any
5 money paid to another party to the proceedings.
(4) The Tribunal may make any ancillary orders that it
considers necessary for the purpose of enabling an
order under this section to have full effect.
(5) The Tribunal may impose any conditions that it
10 considers appropriate when making an order under this
section.
(6) The Tribunal may make an interim order under this
section pending final determination of an
unconscionable conduct application, if the Tribunal
15 considers it appropriate to do so.
(7) In this section --
"specified", in relation to an order, means specified in
the order.
".
20 24. Section 27 amended
After section 27(3) the following subsections are inserted --
"
(4) Where --
(a) an unconscionable conduct application has been
25 made; and
(b) at the time it was made no issue arising under
the application was the subject of civil
proceedings before a court,
a court has no jurisdiction to hear or determine such an
30 issue in civil proceedings unless subsection (5) applies.
page 31
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 3 Commercial Tenancy (Retail Shops) Agreements Act 1985
s. 24
(5) This subsection applies if --
(a) the unconscionable conduct application, or the
part of that application to which the issue
referred to in subsection (4) relates, is
5 withdrawn or is dismissed for want of
jurisdiction; or
(b) as a result of judicial review, a court quashes or
declares invalid an order, direction or
determination of the Tribunal made in respect
10 of the application on the ground that the
Tribunal had no jurisdiction to hear and
determine that issue.
(6) Where --
(a) an unconscionable conduct application has been
15 made; and
(b) at the time it was made an issue arising under
the application was the subject of civil
proceedings before a court,
the Tribunal, on becoming aware of those proceedings,
20 ceases to have jurisdiction to hear or determine the
issue unless subsection (7) applies.
(7) This subsection applies if --
(a) the proceedings referred to in subsection (6)
are, or the part of those proceedings relating to
25 the issue referred to in that subsection is,
transferred to the Tribunal by the court
concerned;
(b) those proceedings are, or that part of those
proceedings is, withdrawn or dismissed by the
30 court, or by another court on appeal in those
proceedings, for want of jurisdiction or without
deciding the issue on its merits; or
page 32
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Commercial Tenancy (Retail Shops) Agreements Act 1985 Part 3
s. 25
(c) as a result of judicial review, a court quashes or
declares invalid those proceedings or that part
of those proceedings or any order, judgment or
decision made in those proceedings in relation
5 to the issue, on the ground that the court
concerned had no jurisdiction to hear and
determine the issue.
".
25. Minor amendment
10 Section 16(1)(a) is amended by deleting "him" and inserting
instead --
" the Tribunal ".
page 33
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 4 Fair Trading Act 1987
s. 26
Part 4 -- Fair Trading Act 1987
26. The Act amended
The amendments in this Part are to the Fair Trading Act 1987*.
[* Reprint 2 as at 24 June 2005.]
5 27. Section 11A inserted
After section 11 the following section is inserted --
"
11A. Unconscionable conduct in business transactions
(TPA s. 51AC)
10 (1) In this section --
"applicable industry code", in relation to a person
who is a participant in an industry, means a code
of practice relating to the industry that has been
prescribed under section 43 and that is in force;
15 "commencement" means the commencement of
section 27 of the Retail Shops and Fair Trading
Legislation Amendment Act 2005;
"industry code" means a code regulating the conduct
of participants in an industry towards other
20 participants in the industry or towards consumers
in the industry;
"listed public company" has the same meaning as it
has in the Income Tax Assessment Act 1997 of the
Commonwealth.
25 (2) A person shall not, in trade or commerce, in connection
with --
(a) the supply or possible supply of goods or
services to another person (other than a listed
public company); or
page 34
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Fair Trading Act 1987 Part 4
s. 27
(b) the acquisition or possible acquisition of goods
or services from another person (other than a
listed public company),
engage in conduct that is, in all the circumstances,
5 unconscionable.
(3) Without in any way limiting the matters to which a
court may have regard for the purpose of determining
whether a person (the "supplier") has contravened
subsection (2) in connection with the supply or
10 possible supply of goods or services to a person (the
"business consumer"), the court may have regard
to --
(a) the relative strengths of the bargaining
positions of the supplier and the business
15 consumer;
(b) whether, as a result of conduct engaged in by
the supplier, the business consumer was
required to comply with conditions that were
not reasonably necessary for the protection of
20 the legitimate interests of the supplier;
(c) whether the business consumer was able to
understand any documents relating to the
supply or possible supply of the goods or
services;
25 (d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the business consumer (or a person
acting on behalf of the business consumer) by
the supplier or a person acting on behalf of the
30 supplier in relation to the supply or possible
supply of the goods or services;
(e) the amount for which, and the circumstances
under which, the business consumer could have
acquired identical or equivalent goods or
35 services from a person other than the supplier;
page 35
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 4 Fair Trading Act 1987
s. 27
(f) the extent to which the supplier's conduct
towards the business consumer was consistent
with the supplier's conduct in similar
transactions between the supplier and other
5 similar business consumers;
(g) the requirements of any applicable industry
code;
(h) the requirements of any other industry code, if
the business consumer acted on the reasonable
10 belief that the supplier would comply with that
code;
(i) the extent to which the supplier unreasonably
failed to disclose to the business consumer --
(i) any intended conduct of the supplier
15 that might affect the interests of the
business consumer; or
(ii) any risks to the business consumer
arising from the supplier's intended
conduct that are risks that the supplier
20 should have foreseen would not be
apparent to the business consumer;
(j) the extent to which the supplier was willing to
negotiate the terms and conditions of any
contract for the supply of the goods or services
25 with the business consumer; and
(k) the extent to which the supplier and the
business consumer acted in good faith.
(4) Without in any way limiting the matters to which a
court may have regard for the purpose of determining
30 whether a person (the "acquirer") has contravened
subsection (2) in connection with the acquisition or
possible acquisition of goods or services from a person
(the "small business supplier"), the court may have
regard to --
page 36
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Fair Trading Act 1987 Part 4
s. 27
(a) the relative strengths of the bargaining
positions of the acquirer and the small business
supplier;
(b) whether, as a result of conduct engaged in by
5 the acquirer, the small business supplier was
required to comply with conditions that were
not reasonably necessary for the protection of
the legitimate interests of the acquirer;
(c) whether the small business supplier was able to
10 understand any documents relating to the
acquisition or possible acquisition of the goods
or services;
(d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
15 against, the small business supplier (or a person
acting on behalf of the small business supplier)
by the acquirer or a person acting on behalf of
the acquirer in relation to the acquisition or
possible acquisition of the goods or services;
20 (e) the amount for which, and the circumstances in
which, the small business supplier could have
supplied identical or equivalent goods or
services to a person other than the acquirer;
(f) the extent to which the acquirer's conduct
25 towards the small business supplier was
consistent with the acquirer's conduct in similar
transactions between the acquirer and other
similar small business suppliers;
(g) the requirements of any applicable industry
30 code;
(h) the requirements of any other industry code, if
the small business supplier acted on the
reasonable belief that the acquirer would
comply with that code;
page 37
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 4 Fair Trading Act 1987
s. 27
(i) the extent to which the acquirer unreasonably
failed to disclose to the small business
supplier --
(i) any intended conduct of the acquirer
5 that might affect the interests of the
small business supplier; or
(ii) any risks to the small business supplier
arising from the acquirer's intended
conduct that are risks that the acquirer
10 should have foreseen would not be
apparent to the small business supplier;
(j) the extent to which the acquirer was willing to
negotiate the terms and conditions of any
contract for the acquisition of the goods or
15 services with the small business supplier; and
(k) the extent to which the acquirer and the small
business supplier acted in good faith.
(5) A person is not to be taken for the purposes of this
section to engage in unconscionable conduct in
20 connection with --
(a) the supply or possible supply of goods or
services to another person; or
(b) the acquisition or possible acquisition of goods
or services from another person,
25 only because the first-mentioned person institutes legal
proceedings in relation to that supply, possible supply,
acquisition or possible acquisition or refers a dispute or
claim in relation to that supply, possible supply,
acquisition or possible acquisition to arbitration.
30 (6) For the purpose of determining whether a person has
contravened subsection (2) --
(a) a court is not to have regard to any
circumstances that were not reasonably
page 38
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Fair Trading Act 1987 Part 4
s. 27
foreseeable at the time of the alleged
contravention; and
(b) a court may have regard to circumstances
existing before the commencement but not to
5 conduct engaged in before the commencement.
(7) A reference in this section to the supply or possible
supply of goods or services is a reference to the supply
or possible supply of goods or services to a person
whose acquisition or possible acquisition of the goods
10 or services is or would be for the purpose of trade or
commerce.
(8) A reference in this section to the acquisition or possible
acquisition of goods or services is a reference to the
acquisition or possible acquisition of goods or services
15 by a person whose acquisition or possible acquisition
of the goods or services is or would be for the purpose
of trade or commerce.
(9) A reference in this section to the supply or possible
supply of goods or services does not include a
20 reference to the supply or possible supply of goods or
services at a price in excess of $3 000 000, or such
higher amount as is prescribed.
(10) A reference in this section to the acquisition or possible
acquisition of goods or services does not include a
25 reference to the acquisition or possible acquisition of
goods or services at a price in excess of $3 000 000, or
such higher amount as is prescribed.
(11) For the purposes of subsections (9) and (10) --
(a) subject to paragraphs (b), (c), (d) and (e), the
30 price for --
(i) the supply or possible supply of goods
or services to a person; or
page 39
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Part 4 Fair Trading Act 1987
s. 27
(ii) the acquisition or possible acquisition of
goods or services by a person,
is taken to be the amount paid or payable by the
person for the goods or services;
5 (b) section 6(3)(c) applies as if references in that
provision to the purchase of goods or services
by a person were references to --
(i) the supply of goods or services to a
person pursuant to a purchase; or
10 (ii) the acquisition of goods or services by a
person by way of purchase,
as the case requires;
(c) section 6(3)(d) applies as if --
(i) the reference in that provision to a
15 person acquiring goods or services
otherwise than by way of purchase
included a reference to a person being
supplied with goods or services
otherwise than pursuant to a purchase;
20 and
(ii) a reference in that provision to
acquisition included a reference to
supply;
(d) section 5(3) applies as if the reference in that
25 provision to the acquisition of goods or services
by a person, or to the acquisition of services by
a person, included a reference to the supply of
goods or services to a person, or to the supply
of services to a person, as the case requires; and
page 40
Retail Shops and Fair Trading Legislation Amendment Bill 2005
Fair Trading Act 1987 Part 4
s. 28
(e) the price for the supply or possible supply, or
the acquisition or possible acquisition, of
services comprising or including a loan or loan
facility is taken to include the capital value of
5 the loan or loan facility.
".
28. Section 69 amended
Section 69(1) is amended by deleting "section 10 or 11," and
inserting instead --
10 " section 10, 11 or 11A, ".
29. Section 75 amended
Section 75(2) is amended after "section 11" by inserting --
" or 11A ".
30. Section 77 amended
15 Section 77(4), (5) and (6) are each amended after "section 11"
by inserting --
" or 11A ".
31. Section 79 amended
Section 79(1) is amended by deleting "(section 11 excepted)"
20 and inserting instead --
" (sections 11 and 11A excepted) ".
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