Shop Trading Reform Act 1996
Act No. 38/1996
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1.
2.
3.
4.
1
Purpose
Commencement
Definitions
Exempt shops
1
1
2
4
PART 2—SHOP CLOSING TIMES
5.
6.
Ordinary shop closing times
Special local shop closing times
PART 3—MISCELLANEOUS
7.
8.
9.
10.
11.
12.
13.
14.
6
6
6
9
Voiding of certain lease provisions
Prosecutions under this Act
Restraining orders
Supreme Court—limitation of jurisdiction
Regulations
Repeal of certain Acts
New section 111A inserted in Local Government Act 1989
111A. Power to make local laws about shop trading hours
Consequential amendment of Employee Relations Act 1992
__________________
9
9
11
12
12
13
14
14
14
SCHEDULE 1—Exempt Shops
15
SCHEDULE 2—Procedures for fixing special local shop closing times
17
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NOTES
21
i
Victoria
No. 38 of 1996
Shop Trading Reform Act 1996†
[Assented to 6 November 1996]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is to provide for the
management of shop trading in Victoria.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
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Act No. 38/1996
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 March 1997, it
comes into operation on that day.
3. Definitions
(1) In this Act—
"Council" has the same meaning as in the Local
Government Act 1989 but does not include
the Council of the City of Melbourne;
"exempt shop" means a shop that, by virtue of
section 4 and Schedule 1, is allowed to trade
at all times;
"metropolitan municipal district" has the same
meaning as in the Public Holidays Act
1993;
"municipal district", in relation to a Council, has
the same meaning as in the Local
Government Act 1989;
"occupier", in relation to a shop, includes—
(a) a person entitled to occupy the shop;
and
(b) a person managing or controlling, or
apparently managing or controlling, a
business carried on in the shop; and
(c) a person who is, or appears to be, the
employer of a person or persons
working in a business carried on in the
shop;
"officer", in relation to a body corporate,
means—
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Act No. 38/1996
(a) a director, secretary or executive
officer of the body corporate; or
(b) any person in accordance with whose
directions or instructions the directors
of the body corporate are accustomed
to act; or
(c) a person concerned in the management
of the body corporate; or
(d) in relation to the commission by the
body corporate of an offence relating
to a shop, a person concerned in the
management of the shop;
"ordinary shop closing times" means—
(a) all times on Christmas Day and Good
Friday;
(b) between the hours of 12:01 am and
1:00 pm on Anzac Day;
"shop" means the whole or any part of a building,
structure or place or any vehicle—
(a) in or at which goods are sold or
exposed or offered for sale by retail on
one or more occasions; or
(b) in or at which the business of a
hairdresser, shoe repairer, dry cleaner,
tailor, dressmaker or photographer is
carried on; or
(c) which is an undertaker's establishment;
"special local shop closing times" means all
times outside ordinary shop closing times
during which a shop is required to be closed
and kept closed by a local law made, subject
to this Act, under the Local Government
Act 1989.
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Act No. 38/1996
(2) A reference in this Act to an offence against this
Act does not include a reference to an offence
against a local law.
4. Exempt shops
(1) A shop is an exempt shop if—
(a) it is a kind of shop specified in Schedule 1;
and
(b) no business is carried on in it other than—
(i) business that a reasonable person would
expect to be carried on in a shop of a
kind specified in Schedule 1; and
(ii) a business of selling goods of a kind,
and not exceeding a quantity, that a
reasonable person would regard as
appropriate to be sold as a sideline of
the business referred to in subparagraph (i) that is carried on in the
shop.
(2) A shop is not an exempt shop at a particular time
if, at any time during the period of 7 days
immediately before that time, the sum of—
(a) the number of persons employed in the shop;
and
(b) the number of persons employed in shops of
any kind in Victoria by the occupier or
manager of the shop including, if the
occupier or manager is a body corporate, the
number of persons employed in shops of any
kind in Victoria by a body corporate that is,
by reason of the Corporations Law of
Victoria, deemed to be related to that body
corporate—
was 20 or more.
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(3) If the persons employed as referred to in subsection (2) include persons employed on a parttime basis, the number employed for the purposes
of that sub-section may be taken to be the number
of persons that would be employed if the hours
worked by the part-time employees were worked
by full-time employees.
_______________
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Act No. 38/1996
PART 2—SHOP CLOSING TIMES
5. Ordinary shop closing times
(1) All shops, except exempt shops, must be closed
and kept closed during ordinary shop closing
times.
(2) The occupier of a shop, other than an exempt
shop, must not fail to close the shop and keep it
closed during ordinary shop closing times.
Penalty: 100 penalty units.
(3) The occupier of a shop other than an exempt shop,
or an employee of that occupier, must not publish
a statement or indication that at any time during
ordinary shop closing times—
(a) the shop will be open for the sale of goods
by retail; or
(b) a person will be in the shop and will sell
goods there and receive orders for goods by
any means; or
(c) the shop will be open for the inspection of
goods in it or the delivery of previously sold
or ordered goods.
Penalty: 100 penalty units.
6. Special local shop closing times
(1) A shop, other than an exempt shop, may be
required by a local law made, subject to this Act,
under the Local Government Act 1989, to close
and be kept closed outside ordinary shop closing
times—
(a) at all times on all Sundays; or
(b) between specified hours on all Sundays.
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Act No. 38/1996
(2) A Council may, subject to this Act, make a local
law under the Local Government Act 1989 for or
with respect to the closing and keeping closed of
shops, other than exempt shops, outside ordinary
shop closing times—
(a) at all times on all Sundays; or
(b) between specified hours on all Sundays.
(3) A Council may only exercise a power to make a
local law referred to in sub-section (2) if, in
accordance with the procedures set out in
Schedule 2—
(a) the Council has received a request for a poll;
and
(b) a poll has been conducted; and
(c) the poll has been carried; and
(d) the proposed local law gives effect to the
proposal voted on at the poll.
(4) Section 122 of the Local Government Act 1989
(sunset provision) applies to a local law referred
to in sub-section (2) as if the reference in subsection (1) of that section to 10 years were a
reference to 3 years.
(5) For the avoidance of doubt it is declared that subsection (3) operates to limit the power to make a
local law even if the proposed local law is to the
same effect as—
(a) a local law then in force within the municipal
district; or
(b) a local law previously in force within the
municipal district that was revoked by force
of section 122 of the Local Government
Act 1989.
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Act No. 38/1996
(6) Subject to this Act, a Council bears all costs
incurred in, or in connection with, the conduct by
it of a poll under Schedule 2.
(7) The Council bears all costs incurred in or in
connection with the administration or enforcement
of a local law referred to in sub-section (2),
including costs arising out of any liability incurred
by it in respect of any act done or omitted to be
done in or in connection with the administration
or enforcement of that local law.
_______________
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Act No. 38/1996
PART 3—MISCELLANEOUS
7. Voiding of certain lease provisions
(1) A provision of a lease or agreement relating to a
shop situated within a metropolitan municipal
district (whether entered into before or after the
commencement of this section) that purports to
require the shop to be open between the hours of
5:00 pm and midnight on a Saturday or at any
time on a Sunday is void.
(2) A provision of a lease or agreement relating to a
shop situated outside a metropolitan municipal
district (whether entered into before or after the
commencement of this section) that purports to
require the shop to be open between the hours of
1:00 pm and midnight on a Saturday or at any
time on a Sunday is void.
(3) If a dispute arises between the parties to a retail
premises lease to which the Retail Tenancies Act
1986 applies as to a requirement by the landlord
of a kind referred to in sub-section (1) or (2), as
the case requires, then Part 3 of that Act applies to
the dispute as if it were a dispute arising under the
retail premises lease.
8. Prosecutions under this Act
(1) In a proceeding for an offence against this Act—
(a) it is sufficient to allege that a shop is a shop
for the purposes of this Act without further
allegation;
(b) it is sufficient to state the name of the
ostensible occupier of any premises or the
name or title by which the occupier is
usually known;
9
Shop Trading Reform Act 1996
Act No. 38/1996
(c) the onus of proof that a person named in a
charge is not an occupier of the premises is
on the defendant;
(d) it is not a defence that the occupier of a shop
was not in the State when the alleged offence
was committed;
(e) a shop is deemed not to have been closed at a
time at which it is proved that—
(i) goods were sold or offered or exposed
for sale at the shop; or
(ii) goods were available for inspection by
persons within the shop; or
(iii) the services of a hairdresser, shoe
repairer, dry cleaner, tailor, dressmaker
or photographer were sold or offered
for sale at the shop; or
(iv) goods that had previously been sold or
ordered were delivered or were
available for delivery at the shop to the
person who bought or ordered them or
to some other person on behalf of that
person; or
(v) orders for goods or services were
received by a person in attendance at
the shop.
(2) If a body corporate is guilty of an offence against
this Act, a person who was an officer of the body
corporate when the offence was committed is also
guilty of that offence and liable to the penalty for
it unless he or she proves that the act or omission
constituting the offence took place without his or
her knowledge or consent and that he or she did
not know and could not reasonably have known of
the act or omission.
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Shop Trading Reform Act 1996
Act No. 38/1996
(3) If in a proceeding for an offence against this Act it
is necessary to establish the intention of a body
corporate, it is sufficient to show that an officer of
the body corporate had that intention.
9. Restraining orders
(1) The County Court may grant an order restraining
a person from engaging in conduct that constitutes
or would constitute an offence against this Act or
against a local law referred to in section 6(2) if the
Court is satisfied that the person has wilfully and
repeatedly engaged in conduct of that kind.
(2) An order may only be granted under sub-section
(1) on the application of—
(a) in the case of conduct that constitutes or
would constitute an offence against this
Act—
(i) the Minister; or
(ii) an officer within the meaning of the
Public Sector Management Act 1992
who is authorised in writing by the
Minister to apply, either generally or in
relation to the particular case; or
(b) in the case of conduct that constitutes or
would constitute an offence against a local
law referred to in section 6(2)—
(i) the Chief Executive Officer of the
Council; or
(ii) a member of Council staff who is
authorised in writing by the Chief
Executive Officer of the Council to
apply, either generally or in relation to
the particular case; or
11
Shop Trading Reform Act 1996
Act No. 38/1996
(c) in any case, a person aggrieved by the
conduct that constitutes or would constitute
an offence against this Act or the local law.
(3) The County Court may rescind or vary an order
granted under sub-section (1).
(4) The County Court may exercise its powers under
this section in relation to a person whether or not
proceedings have been brought against the person
for an offence against this Act or the local law, as
the case requires.
10. Supreme Court—limitation of jurisdiction
It is the intention of section 7(3) to alter or vary
section 85 of the Constitution Act 1975.
11. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act including—
(a) the form of request for a poll under Schedule
2 and the amount of the fee required to
accompany that request;
(b) the matters required to be specified in a
notice of poll under clause 2 of Schedule 2;
(c) enrolment for and voting at polls under
Schedule 2;
(d) the compilation of voters' rolls;
(e) providing for pre-poll voting in person;
(f) providing for postal voting;
(g) the maintenance of order at polling places
and the removal of persons from them;
(h) the counting of votes;
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Act No. 38/1996
(i) generally, all matters necessary for the
proper conduct of polls.
(2) Regulations made under this Act—
(a) may be made so as to require a matter
affected by the regulations to be approved by
or to the satisfaction of a specified person or
a specified class of persons;
(b) may include regulations based on the
provisions contained in Division 15 (voting
by post) of Part V of The Constitution Act
Amendment Act 1958 and in any
regulations made under that Division with
any alterations and adaptations that, in the
opinion of the Governor in Council, are
necessary;
(c) may be made so as to confer a discretionary
authority or impose a duty on a specified
person or a specified class of persons.
12. Repeal of certain Acts
No. 10/1987.
Reprinted to
No. 83/1992.
Subsequently
amended by
Nos. 119/1993
and 100/1995.
(1) The Shop Trading Act 1987 is repealed.
(2) Despite the repeal of the Shop Trading Act 1987,
section 24(2) of that Act continues to have effect
with respect to convictions for offences against
that Act.
No. 66/1992.
(3) The Capital City (Shop Trading) Act 1992 is
repealed.
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Act No. 38/1996
s. 13
13. New section 111A inserted in Local Government Act
1989
In the Local Government Act 1989, after section
111 insert—
"111A. Power to make local laws about shop
trading hours
(1) A Council within the meaning of the Shop
Trading Reform Act 1996 may, subject to
that Act, make a local law for or with respect
to the closing and keeping closed of shops,
other than exempt shops within the meaning
of that Act, outside ordinary shop closing
times within the meaning of that Act—
(a) at all times on all Sundays; or
(b) between specified hours on all Sundays.
(2) Despite anything to the contrary in section
116, a local law referred to in sub-section (1)
must be expressed so as to apply throughout
the whole of the municipal district.".
14. Consequential amendment of Employee Relations Act
1992
In section 152 of the Employee Relations Act
1992, omit ", the Shop Trading Act 1987".
__________________
14
No. 11/1989.
Reprinted to
No. 103/1995.
Subsequently
amended by
Nos. 107/1995
and 20/1996.
Shop Trading Reform Act 1996
Act No. 38/1996
Sch. 1
SCHEDULE 1
EXEMPT SHOPS
Booksellers' and newsagents' shops.
Bread shops.
Chemists' shops.
Confectionery and pastry shops.
Dressmakers' shops.
Dry cleaners' shops.
Eating-houses and restaurants.
Fish and oyster shops.
Flower shops and retail plant nurseries.
Fruit and vegetable shops.
Hairdressers' shops.
Hardware shops.
Paint shops.
Petrol shops.
Pet shops, including shops for the sale of aviary and cage birds or
aquarium fish.
Photographers' shops.
Saddlery shops.
Shoe repairers' shops.
Shops for the sale of boats, caravans or other trailers or spare parts or
accessories.
Shops for the sale of foodstuffs and groceries.
Shops for the sale of motor car spare parts or accessories.
Shops for the sale of old goods, being furniture, plate, china, statuettes
and other curiosities and odds and ends of an artistic or antiquarian
interest.
Shops for the sale of records, cassettes, tapes or video cassettes.
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Shop Trading Reform Act 1996
Act No. 38/1996
Shops for the sale of swimming pools, swimming pool equipment or
supplies for swimming pools.
Shops for the sale of works of art or handicraft.
Souvenir shops.
Sporting goods shops located at sporting venues for the sale of goods
appropriate for use at those venues.
Stamp and coin shops.
Tailors' shops.
Undertakers' establishments.
__________________
16
Sch. 1
Sch. 2
Shop Trading Reform Act 1996
Act No. 38/1996
SCHEDULE 2
PROCEDURES FOR FIXING SPECIAL LOCAL SHOP
CLOSING TIMES
1. Request for a poll
(1) A Council must cause a poll to be conducted within its
municipal district on a proposal to require shops, other than
exempt shops, trading within the municipal district to close
and be kept closed outside ordinary shop closing times at all
times on all Sundays or between specified hours on all
Sundays if it has received a request for a poll on that
proposal complying with sub-clause (2).
(2) A request for a poll must be—
(a) signed by at least 10% of the persons who would be
entitled to be enrolled on the voters' roll for the poll if
the poll were to be conducted on the sixtieth day after
the date of receipt by the Council of the request; and
(b) in the prescribed form; and
(c) accompanied by a fee of $100 or any other amount
that is prescribed.
(3) A certificate signed by the Chief Executive Officer of the
Council certifying that a request was signed by at least 10%
of the persons who would be entitled to be enrolled on the
voters' roll for the poll if the poll were to be conducted on
the sixtieth day after the date of receipt by the Council of
the request is conclusive evidence of that fact.
(4) If a poll has been held under this Schedule in the municipal
district, a request for another poll may not be made sooner
than 3 years after the date on which that poll was held, even
if the new proposal is not to the same effect as the previous
proposal.
2. Notice of poll
(1) The Council must cause notice of a poll to be published in a
newspaper generally circulating in its municipal district.
(2) A notice under sub-clause (1) must specify—
(a) the date on which the poll is to be conducted;
(b) the proposal to be voted on;
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Shop Trading Reform Act 1996
Act No. 38/1996
(c) any further conditions or requirements to be complied
with in the conduct of the poll and the declaration of
the result;
(d) any other prescribed matters.
(3) A notice under sub-clause (1) must be published—
(a) as soon as practicable after the date of receipt by the
Council of a request for a poll complying with clause
1(2); and
(b) not later than 14 days after the date of receipt by the
Council of that request.
3. Proposal
The proposal to be submitted to a poll must be to the effect
that shops, other than exempt shops, trading within the
municipal district must close and be kept closed at all times
on all Sundays or between specified hours on all Sundays.
4. Appointment of returning officer
(1) The Council must appoint a person to be the returning
officer for the poll and one or more other persons to be
deputy returning officers.
(2) Any of the following may be appointed to be a returning
officer—
(a) the Chief Executive Officer of the Council;
(b) a member of Council staff;
(c) if the Council has appointed the Victorian Electoral
Commission, the Australian Electoral Commission or
another Council to conduct the poll, a person
nominated in writing by that Commission or Council.
5. Conduct of poll
(1) A poll of voters is to be conducted in accordance with this
Schedule and the regulations.
(2) The poll must be held on a Saturday appointed by the
Council, which is not less than 60 days nor more than 90
days after the date of receipt by the Council of the request
for the poll, and must commence at 8:00 am and close at
6:00 pm.
(3) Voting is not compulsory at a poll.
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Sch. 2
Sch. 2
Shop Trading Reform Act 1996
Act No. 38/1996
(4) Subject to this Schedule and the regulations made under this
Act, the provisions of the Local Government Act 1989 and
the regulations made under that Act dealing with enrolment
for and voting at council elections apply to a poll.
(5) Every person who as at the sixtieth day before the day
appointed for the taking of the poll is enrolled on the voters'
roll for the whole of the municipal district of the Council, or
a ward of that municipal district, is entitled without
application to be enrolled on the voters' roll for the poll.
(6) A person who is enrolled on the voters' roll for the poll is
only entitled to one vote at the poll.
6. Result of poll
(1) Not later than 7 days after the poll has been held, the
returning officer must notify the Council of—
(a) the number of voters on the voters' roll for the poll;
(b) the number of voters on that roll who voted for the
proposal;
(c) the number of voters on that roll who voted against
the proposal.
(2) A poll is carried if—
(a) the number of valid votes recorded is not less than
one-third of the number of voters on the voters' roll
for the poll; and
(b) a majority of the valid votes recorded are for the
proposal.
(3) The Council must cause notice of the result of the poll to be
published in a newspaper generally circulating in its
municipal district not later than 30 days after the poll was
held.
7. Effect of poll
(1) If a poll is carried, the Council must proceed to make a local
law to give effect to the proposal.
(2) If a poll is not carried, the Council must not make a local
law for or with respect to the subject-matter of the proposal.
(3) If a poll has been held under this Schedule in the municipal
district, the Council must not hold another poll under this
Schedule at any time within 3 years after the date on which
that poll was held.
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Shop Trading Reform Act 1996
Act No. 38/1996
8. Refund of fee
If more than two-fifths of the valid votes recorded at the
poll are in favour of the proposal, the fee paid under clause
1(2)(c) must be returned to the person who paid it.
9. Application of Schedule
Nothing in this Schedule applies to the City of Melbourne.
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20
Sch. 2
Shop Trading Reform Act 1996
Act No. 38/1996
Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 12 September 1996
Legislative Council: 16 October 1996
The long title for the Bill for this Act was "to provide for the management
of shop trading in Victoria, to repeal the Shop Trading Act 1987 and the
Capital City (Shop Trading) Act 1992 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 12 September 1996
Legislative Council: 16 October 1996
Absolute majorities:
Legislative Assembly: 15 October 1996
Legislative Council: 29 October 1996 and 30 October 1996
21