The Department of Justice and Attorney-General (DJAG) is currently conducting a statutory review of the Retail Shop Leases Act 1994 (Qld) and the Retail Shop Leases Regulation 2006 (Qld) to determine whether their provisions remain appropriate. The review is due to be completed by June 2012.
In late 2011, stakeholders and the general public were invited to comment on the Review of the Retail Shop Leases Act 1994 (Qld) Discussion Paper (Discussion Paper). The Discussion Paper presented dozens of issues relating to the Act but the list of possible issues was not exhaustive. Submitters were invited to address any matters regarding retail shop leasing in Queensland
The format of the Discussion Paper reflects the structure of the Act. The headings under which issues are raised are as follows, with examples in parenthesis of specific matters on which comments were sought:
· Object of the Act and how it is to be achieved (Are the Act’s objective and methods still relevant?);
· Interpretation/Coverage of the Act (Are the current definitions and exclusions in the Act adequate and appropriate for the Queensland
· Operation of the Act and former Act (Are the transitional provisions in Part 4 of the Act still relevant or applicable?);
· Preliminary disclosures about leases (Are the current provisions for disclosure by a landlord to a tenant, including the remedies for non-compliance and defective statement, adequate or appropriate? Are the provisions for financial advice reports and legal advice reports appropriate?);
· Minimum lease standards (Are the current rent review provisions adequate or appropriate? Are the current provisions for determination of current market rent by a specialist retail valuer appropriate? Are the provisions regarding landlord’s outgoings appropriate? Are the current provisions for the management of sinking funds adequate?);
· Retail shop lease trading hours (Are the provisions about core trading hours clear and appropriate?);
· Retail tenancy dispute resolution and administration (Are the provisions of the Act about mediation and applications by a party to the Queensland Civil and Administrative Tribunal appropriate?);
· Miscellaneous (Are the provisions about the evidentiary provisions, regulations and review of the Act still appropriate?);
· Transitional provisions (Are the transitional provisions still relevant or applicable?); and
· Suggestions for simplification or harmonisation of the Act and the Retail Shop Leases Regulation 2006 (Are there any aspects of the Act or the Regulation which should be removed, simplified or streamlined to improve operational efficiency or reduce the regulatory burden for business?).
DJAG plans to further consult with key stakeholders after an assessment has been made of the Discussion Paper consultation results.
Interstate Legislation
The relevant interstate legislation is as follows.
Australian Capital Territory - Leases (Commercial and Retail) Act 2001 (ACT); Leases (Commercial and Retail) Regulation 2002 (ACT) – the Act commenced on 1 July 2002, replacing the Tenancy Tribunal Act 1994 (ACT) and the Commercial and Retail Leases Code of Practice.
Northern Territory - Business Tenancies (Fair Dealings) Act (NT); Business Tenancies (Fair Dealings) Regulations (NT) – the Act commenced on 1 July 2004. The Department of Justice released an Issues Paper as part of a statutory review of the Act in November 2011. Comments were sought on issues including rent reviews, assignment of retail shop leases, and the 1,000 square metre exemption. Submissions closed on 31 January 2012.
South Australia - Retail and Commercial Leases Act 1995 (SA); Retail and Commercial Leases Regulations 2010 (SA) - in early 2012, while acting head of South Australia’s Small Business Commission, Associate Professor Frank Zumbo commented that it was time to review South Australia’s retail leasing laws: Russell Emmerson, ‘Retail leasing law review “overdue”’, Advertiser, 21 February 2012, online.
Victoria - Retail Leases Act 2003 (Vic); Retail Leases Regulations 2003 (Vic); Retail Tenancies Reform Act 1998 (Vic); Retail Tenancies Act 1986 (Vic) – the Retail Leases Act 2003 established a new framework for retail tenancies, but some leases are still covered by the Retail Tenancies Reform Act 1998 and the Retail Tenancies Act 1986. Amongst other matters, the Retail Leases Act 2003 abolished the 1,000 square metre rule, replacing it with a prescribed threshold: Hon John Brumby MP, Treasurer, Retail Leases Bill, Second Reading Speech, Victorian Legislative Assembly, Victorian Parliamentary Debates, 27 February 2003, pp 230–233.
Western Australia - Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA); Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA) – the Act was reviewed in 2002-03, with the review report containing 61 recommendations. The Commercial Tenancy (Retail Shops) Agreements Amendment Act 2011 (WA) (the Amendment Act), which is anticipated to commence in mid-2012, implements “most of the outstanding review recommendations”: Government of Western Australia, Department of Commerce, ‘Commercial Tenancy (Retail Shops) Agreements Act 1985’ (webpage), last updated 6 February 2012. Amongst other matters, the Amendment Act proposes to amend the Act to require landlords to include additional information in disclosure statements provided to tenants: Commercial Tenancy (Retail Shops) Agreements Amendment Act 2011, Explanatory Memorandum, p 1.
Key Documents
Hon Paul Lucas MP, Attorney-General, Minister for Local Government and Special Minister of State, ‘Public Comment Sought for Retail Lease Legislation Review’, Ministerial Media Statement, 2 December 2011
Queensland Government, Department of Justice and Attorney-General, ‘Have Your Say on Queensland’s Retail Shop Leasing Legislation’ (webpage)
Australian Government, Productivity Commission, The Market for Retail Tenancy Leases in Australia, Inquiry Report, No 43, 2008
Australian Government, business.gov.au, ‘Retail Leasing in Your State or Territory’ (webpage)
Mary Westcott
General Distribution Research Team, Research and Information Service
