Part 1Preliminary

Part 1—Preliminary 1—Short title This Act may be cited as the Retail and Commercial Leases Act 1995. 3—Interpretation (1) In this Act, unless the contrary intention appears— accounting period means a period fixed as an accounting period in a retail shop lease; alternative dispute resolution includes mediation, but does not include arbitration or expert determination; certified exclusionary clause—see section 20K; collateral agreement includes a guarantee under which the guarantor guarantees the performance of the obligations of a lessee under a retail shop lease; Commission means the Small Business Commission established under section 3A of the Small Business Commission Act 2011; Commissioner means the person holding or acting in the office of Small Business Commissioner; core trading hours means the hours for which a retail shop is required under a retail shop lease to be kept open for business; demolition of a building of which a retail shop forms part includes a substantial repair, renovation or reconstruction of the building that cannot be carried out practicably without vacant possession of the shop; disclosure statement—see section 12; enclosed shopping complex means a group of three or more retail shops under common ownership or management with a common area through which public access is obtained to all or some of the shops and which is locked to prevent public access through that area when those shops are closed for business; Fund means the Retail Shop Leases Fund; GST means the tax payable under the GST law; GST law means— (a) A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; and (b) the related legislation of the Commonwealth dealing with the imposition of a tax on the supply of goods and services; lawyer means a person entitled to practise the profession of law in the State; lessee means the person who has the right to occupy a retail shop under a retail shop lease, and includes— (a) a sublessee; and (b) a prospective lessee or a former lessee; lessor means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes— (a) a sublessor; and (b) a prospective lessor or a former lessor; Magistrates Court means the Civil (Consumer and Business) Division of the Magistrates Court; outgoings means a lessor's outgoings on account of the expenses of operating, repairing or maintaining the retail shop or a retail shopping centre in which the retail shop is located (including rates, taxes, levies, premiums or charges payable by the lessor) but does not include outgoings which are directly proportional to the level of a lessee's consumption or use and for which the lessee is required to reimburse the lessor under the lease; party means the lessor or the lessee under a retail shop lease; premium means money paid, or a benefit given, to or as directed by the lessor or the lessor's agent in connection with the granting, renewal, extension or assignment of a lease (and a reference in this Act to the payment of a premium extends to giving a benefit); public company has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth; Registrar means the Principal Registrar of the Magistrates Court of South Australia; renewal of a retail shop lease extends to the lessor and the lessee entering into a new retail shop lease for the retail shop (whether on the same or different terms); retail shop means— (a) business premises— (i) at which goods are sold to the public by retail; or (ii) at which services are provided to the public, or to which the public is invited to negotiate for the supply of services; or (b) business premises classified by regulation as premises to which this Act applies, but does not include business premises of a class excluded by regulation from the ambit of this definition; retail shop lease or lease means an agreement under which a person grants or agrees to grant to another person for value a right to occupy a retail shop for carrying on a business— (a) whether or not the right is a right of exclusive occupation; and (b) whether the agreement is express or implied; and (c) whether the agreement is oral or in writing, or partly oral and partly in writing; retail shopping centre means a cluster of premises with the following attributes: (a) at least five of the premises are retail shops; and (b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within the same community plan under the Community Titles Act 1996 or units within the same strata plan under the Strata Titles Act 1988; and (c) the premises are located in the one building or in two or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the premises; and (d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade; statutory rights of security of tenure means the rights conferred on a lessee by Part 4A Division 2 and, if the retail shop lease relates to premises in a retail shopping centre, by Part 4A Division 3; subsidiary includes a subsidiary within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth. (1a) For the purposes of this Act— prescribed threshold, in relation to rent payable under a retail shop lease, means— (a) the amount of $400 000 per annum exclusive of GST; or (b) if a greater amount is prescribed by the regulations for the purposes of this definition and the Act—the amount so prescribed. (2) In the interpretation of this Act, accepted practices and interpretations in the industry concerning the leasing of retail shops are to be taken into account. 4—Application of Act (1) This Act applies to a retail shop lease if the premises to which the lease applies consist of a retail shop or a retail shop together with an adjacent dwelling. (2) However, this Act does not apply to a retail shop lease— (a) on or after the relevant day (whether the lease was entered into before or after that day), subject to subsection (3), during any period in respect of which the amount of rent payable under the lease exceeds the prescribed threshold (regardless of whether the Act applies or does not apply to the lease at the time the lease is entered into or renewed because of the amount of rent payable under the lease); or (b) if the lease is for a term of 1 month or less; or (c) if the right of occupation arises under— (i) an agreement for the sale and purchase of premises; or (ii) a mortgage; or (iii) a scheme under which a group of adjacent premises is owned by a company and the premises comprising the group are let by the company to persons who jointly have a controlling interest in the company; or (d) if the lessee is— (i) an ADI; or (ii) a body corporate authorised by law to carry on the business of insurance; or (iii) the Crown or an agency or instrumentality of the Crown in right of the State, another State or Territory, or the Commonwealth; or (iv) a municipal or district council or other authority with powers and functions of local government; or (e) if the lessee is— (i) in the case of a lease entered into on or after the relevant day—a public company, or a subsidiary of a public company, other than a public charitable company or a subsidiary of a public charitable company; or (ii) in the case of a lease entered into before the relevant day or a lease renewed after the relevant day (whether on the same or different terms) pursuant to a right or option conferred by a lease entered into before the relevant day—a public company, or a subsidiary of a public company (including a public charitable company or a subsidiary of a public charitable company); or (f) if, in the case of a lease entered into on or after the prescribed day— (i) the lessee is a body corporate that is incorporated in any jurisdiction outside the Commonwealth of Australia; or (ii) the lessee is a body corporate that is a subsidiary of, or is controlled by, a body corporate that is incorporated in any jurisdiction outside the Commonwealth of Australia; or (g) if, in the case of a lease entered into on or after the relevant day— (i) the lessor is— (A) the Crown or an agency or instrumentality of the Crown in right of the State; or (B) a municipal or district council or other authority with powers and function of local government; and (ii) the lessee is of a class specified by the regulations for the purposes of this paragraph. (3) Despite subsection (2)(a), this Act does not apply to— (a) a retail shop lease— (i) that is lodged for registration by the lessor within 3 months after both parties have executed the lease, and in relation to which the lessor has provided written notice of lodgement to the lessee within 1 month of lodgement; and (ii) that remains registered for the term of the lease; and (iii) under which, at the time the lease is lodged for registration, the rent payable exceeds the prescribed threshold; or (b) any renewal of a retail shop lease referred to in paragraph (a)— (i) that is, following execution by both parties, lodged for registration by the lessor not later than 2 months after the day on which the lease would, but for the renewal, expire, and in relation to which the lessor has provided written notice of lodgement to the lessee within 1 month of lodgement; and (ii) that remains registered for the term of the renewed lease, despite the fact that— (c) the prescribed threshold is subsequently increased such that the rent payable under the lease or renewed lease (as the case requires) no longer exceeds the prescribed threshold (and the Act would otherwise apply in relation to the lease or renewed lease by virtue of the operation of subsection (2)(a)); or (d) the amount of rent payable under the lease or renewed lease (as the case requires) is decreased (for example, as a result of a review of rent under the lease), such that the rent payable under the lease or renewed lease no longer exceeds the prescribed threshold (and the Act would otherwise apply in relation to the lease by virtue of the operation of subsection (2)(a)). (4) Subsection (3)— (a) does not apply to, or in respect of— (i) a retail shop lease entered into before the relevant day (regardless of any registration of the lease on or after the relevant day); or (ii) despite any other Act or law, the renewal of a retail shop lease on or after the relevant day, pursuant to a right or option conferred by a retail shop lease entered into before the relevant day (regardless of any registration of the renewal of the lease on or after the relevant day); but (b) may apply to, or in respect of, a new retail shop lease (whether on the same or different terms) entered into by an existing lessee and lessor after the relevant day. (5) The regulations may exclude from the application of this Act (either conditionally or unconditionally) a specified class of retail shop leases. (6) To avoid doubt, this Act may apply, or cease to apply to a retail shop lease of a kind referred to in subsection (2)(d), (e), (f) or (g) depending on whether the lessee or lessor becomes, or ceases to be, a lessee or lessor of a kind referred to in the relevant paragraph during the term of the lease— (a) in the case of a retail shop lease of a kind referred to in subsection (2)(d), (e) or (g)—on or after the relevant day; or (b) in the case of a retail shop lease of a kind referred to in subsection 2(f)—on or after the prescribed day. (7) In this section— prescribed day means the day on which section 24 of the Statutes Amendment (Small Business Commission and Retail and Commercial Leases) Act 2024 comes into operation; public charitable company means a public company limited by guarantee and registered under the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth; relevant day means the day on which this section comes into operation. 5—This Act overrides leases (1) This Act operates despite the provisions of a lease. (2) A provision of a lease or a collateral agreement is void to the extent that the provision is inconsistent with this Act. 6—When the lease is entered into For the purposes of this Act, a retail shop lease is taken to have been entered into when— (a) both parties have executed the lease; or (b) a person enters into possession of the retail shop as lessee under the lease; or (c) a person begins to pay rent as lessee under the lease or proposed lease (but not if the payment is an advance payment of rent made to secure the premises), (whichever happens first). 6A—Valuer‑General to review prescribed threshold (1) The Valuer‑General must, within the last year of each prescribed period and in accordance with the regulations, conduct a review of the prescribed threshold for the purposes of this Act. (2) On completing a review, the Valuer‑General must forward to the Minister a report on the review and the conclusions reached by the Valuer‑General as to whether or not, as a result of the review, the Valuer‑General recommends that for the purposes of this Act the prescribed threshold in relation to rent payable under a retail shop lease should be increased. (3) The regulations may make provision with respect to the conduct of a review by the Valuer‑General including (without limitation), by specifying requirements (if any) in relation to— (a) matters to be taken into account by the Valuer‑General; and (b) consultation to be undertaken by the Valuer‑General. (4) In this section— prescribed period means— (a) the period ending on 30 October next following the second anniversary of the commencement of this section; and (b) each successive period of 5 years thereafter.