41 There is no express reference in the Act to a requirement of an intention to make a profit. Further, there is no express reference to the carrying on of a business in the relevant part of the definition of retail premises in s 4(1)(a). Nevertheless, at the relevant time, s 4 did contain references to businesses elsewhere : in s 4(1)(b) and s 4(2)(b) and (e). Indeed the Minister had power under s 5(1)(b) to make a determination to exclude premises from the ambit of the definition on the basis of the kind of business carried on at the premises.
42 At the same time, the Minister had a separate power, under s 5(1)(c) to make a determination to exclude premises of a kind determined by him. The Act, as it presently stands, now also empowers the Minister to exclude premises on the basis of the identity of the tenant[20] or the kind of lease[21] involved.
43 The interpretation contended for by Brimbank would have the result that the applicability of the Act would be uncertain. The Tribunal or a court would be obliged to determine, on a case by case basis, the intent with which services were provided for a fee. An analysis of the adequacy of a charge made by a provider, generally providing services in the course of business conducted with a view to profit, might be required. Even in the case of a "not for profit" service provider, an analysis of specific intent would seem necessary, where a service was provided at the premises for a fee, because there might be cross-subsidisation of other activities by the profitable provision of that service.
44 Such an outcome would not, in my view, further the stated legislative objective of replacing the former scheme with another to enhance the certainty and fairness of retail leasing arrangements and the mechanisms for dispute resolution between them.
45 I consider that the legislative objective is more likely to be achieved if the word "retail" in s 4(1)(a) of the Act is given the meaning attributed to it, in the context of the Retail Tenancies Act 1986, by Nathan, J in Wellington and Ashley, J in F P Shine. The passages of the Minister's Second Reading speech do not persuade me that the scheme was not intended to apply in the context in which there is no intent to profit from the provision of services.
46 Although the Minister did refer to the "commercial relationship between landlords and tenants of retail premises", I am not persuaded that the quantum of rental should be determinative of the issue as to whether premises are "retail premises" under s 4 of the Act. Any characterisation based of the adequacy of rent would involve a similar, case by case, analysis, militating against the achievement of the statutory objective of certainty. In the absence of any express reference in the statutory definition to the quantum of the rent, I am not persuaded that the meaning of the word "retail" should be interpreted so as to exclude premises in relation to which a nominal rent is charged.
47 The Act has at all relevant times given the Minister the option of specifically excluding particular premises from the definition of "retail premises". Such express reference to certain kinds of premises satisfies the statutory objective, stated in s 1, of giving certainty to landlords and tenants as to the application of the Act and, as a result, enhances "the certainty and fairness of retail leasing arrangements" between them.
48 In the circumstances, I am satisfied that the Tribunal correctly characterised decided that the premises, at which Westvale provides the "Neighbourhood House" services, permitted under the lease, for a fee to their ultimate consumers, were "retail premises" under s 4(1)(a) of the Act. In my view, the Tribunal had the jurisdiction to make the orders sought. The appeal should be dismissed. The questions of law should be answered as follows:
Question 4.1 : By reference to the answers to questions 4.2, 4.3 and 4.4.
Question 4.2 : Yes.
Question 4.3: No.
Question 4.4: No.