Shop Trading Hours Regulations 2018

The central concept is ‘hardware and building materials’, which is not given a single definition but is instead anchored to two schedules plus an open‑ended ‘similar class’ extension. Schedule 1 is the broader list, covering items such as timber, cement, bricks, doors, plumbing fittings, fencing materials, paints, ladders, wheelbarrows, and tens of other categories. Schedule 2 is narrower and includes household and minor electrical items: crockery, cutlery, kitchen utensils, light fittings, mirrors, small appliances, tapes, records, and others. The critical distinction is that the term in the Act (section 4) takes its meaning from both schedules, but for the purposes of section 13(5f)(b) only Schedule 2 matters, and that section applies a 20% cap. A retailer that sells hardware and building materials must calculate the aggregate price of all such goods sold, then calculate the aggregate price of goods falling within Schedule 2. If the latter exceeds 20% of the former, the shop’s trading hour exemptions may be restricted. That calculation must be done at the shop level, not the business level, so a chain with different stock mixes at different locations may have some stores compliant and others not without any change in overall business strategy. The second major concept is the licence to sell motor spirit and lubricants under section 17 of the Act. Regulation 6 imposes two substantive conditions: the shop’s business must be ‘predominantly’ the retail sale of motor spirit and lubricants, and the proportion of non‑exempt goods sold must not exceed 20% of motor spirit, lubricants, spare parts and accessories sales over any period of seven consecutive trading days. The term ‘predominantly’ is not defined anywhere in the regulations or in the Act as quoted. In practice, this may be interpreted as more than 50% of sales, but a shop with substantially higher fuel sales may still have a dispute if a regulator takes a different view. The non‑exempt goods are defined negatively: everything that is not motor spirit, lubricants, spare parts, accessories for motor vehicles, foodstuffs or drinks falls into the capped category. This could include convenience items like newspapers, batteries, sunglasses, or phone chargers, all of which would count toward the 20% limit. The third concept is the ‘yard’ in regulation 7. A yard that is part of a shop must be closed and fastened against admission of the public by a fence meeting minimum height specifications and requiring locked gates. The fence must be ‘impossible or difficult’ for a person to cross. This is a strict standard: even a fence that is difficult but not impossible would satisfy, but a fence that is merely inconvenient to climb would not. The regulation also requires that all removable parts of the fence be securely locked in place, meaning that sections designed to be taken out for access (e.g., a removable panel for deliveries) must be locked when not in active use.

The regulations primarily affect three categories of business. The first is any shop in South Australia that sells hardware and building materials and relies on trading hour exemptions under the Shop Trading Hours Act. These shops must categorise their entire inventory against the two schedules and monitor aggregate sales prices to ensure the 20% cap on Schedule 2 goods is not breached. This imposes an ongoing record keeping burden that is disproportionately high for smaller independent hardware stores compared to large chains with dedicated compliance teams. A small retailer that sells a few high‑priced Schedule 2 items (e.g., a small electric appliance) may inadvertently exceed the threshold and lose the exemption, even if the vast majority of its stock is traditional hardware. Secondly, service stations and any shop selling motor spirit and lubricants are affected by the licence conditions. They must apply for a licence under section 17 (details in regulation 6) and then maintain compliance with the predominant‑business test and the 20% cap on non‑exempt goods. This affects not only traditional petrol stations but also shops that sell fuel as a secondary line: for example, a rural general store that also sells diesel must assess whether it can meet the predominant‑business test. If it cannot, it may be forced to stop selling motor spirit or to operate under more restrictive trading hours without the licence. The 20% cap on non‑exempt goods also affects the ability of a service station to diversify into convenience retailing: if a station wants to sell a wider range of groceries, snacks, or household items, those extra sales count toward the cap, potentially limiting the business model. Thirdly, any shop with a yard (e.g., a timber yard, garden centre, building supply depot) is affected by the fencing requirements in regulation 7. The physical construction of a compliant fence imposes capital costs. The height specifications for chain or rail fences (800 mm to 1000 mm) may require replacing existing fences or adding extensions. The requirement that the fence be ‘impossible or difficult’ to cross is a subjective standard that may lead to disputes and enforcement action. The cost of compliance is a fixed cost that falls more heavily on smaller operators. Landlords of premises that include a yard may also be indirectly affected if they are required to supply a compliant fence under a lease. Finally, consumers are affected by the regulations because they determine what goods are available from which shops during restricted trading hours. If a hardware shop loses its exemption because its Schedule 2 sales exceed 20%, it may be forced to close on Sundays or public holidays, reducing consumer choice. The regulations thus affect the distribution and convenience of goods, particularly for do‑it‑yourself home renovators and motorists. The costs of non‑compliance - lost trading hours, penalties, or licence revocation - ultimately flow to consumers through higher prices or reduced availability.

The regulations impose several duties and create a small number of rights. The primary duty on any shopkeeper selling hardware and building materials is to ensure that the proportion of Schedule 2 goods sold does not exceed 20% of the aggregate price of all hardware and building materials sold at that shop (regulation 5(2)). This duty arises only if the shop relies on trading hour exemptions under section 13 of the Act. However, in practice, any shop that sells hardware and building materials must either comply with the cap or accept that it cannot rely on the exemption, which may mean it must close during restricted hours. The calculation is ongoing and requires tracking sales prices at the shop level, which is not a trivial accounting task. A shop that sells a mix of goods may need to assign items to Schedule 1 or Schedule 2 as they are sold, and the ‘similar class’ extension in regulation 4 means borderline items may require judgment. The shopkeeper has a right to rely on the exemptions if they do comply. For a shop selling motor spirit and lubricants, the duty to hold a licence is set by section 17 of the Act, and regulation 6 sets the application procedure and ongoing conditions. The shopkeeper must apply in writing, stating the shop address and the applicant’s name and address. Once granted, the licence is subject to the two financial conditions: predominant motor spirit/lubricant business, and the 20% cap on non‑exempt goods over any seven consecutive trading days. The duty to maintain compliance with these conditions is continuous. The shopkeeper also has a duty to produce the licence to an Inspector on request (regulation 6(2)(c)). Failure to produce it is a breach even if the licence exists; the regulation does not allow a reasonable excuse defence. The shopkeeper has the right to apply for a licence and to operate with the benefit of that licence, which may allow longer trading hours than would otherwise be permitted. Regulation 7 imposes a duty on any shopkeeper whose premises include a yard to ensure the yard is closed and fastened by a fence meeting the requirements. The duty is absolute: it applies regardless of whether the yard contains dangerous goods or whether the area is open to the public for business. The fence must be impossible or difficult to cross; gates must be securely locked; any removable parts (e.g., a panel for vehicular access) must be locked in place when not being actively removed. The regulation does not provide for temporary circumstances (e.g., a delivery vehicle partially blocking a gate), which creates a risk of technical breach. There is no right to keep an unfenced yard even if the shop is otherwise secure. The regulations do not grant any new rights to third parties such as customers or neighbours, but the fencing requirement may benefit neighbours by reducing trespass.

The regulations themselves do not create penalty provisions; they operate under the penalty framework of the Shop Trading Hours Act 1977. The Act provides for various offences, including trading outside permitted hours without exemption and failure to comply with licence conditions. The regulations create the substantive conditions that trigger those offences. For example, if a shop sells hardware and building materials and its Schedule 2 proportion exceeds 20%, it loses the exemption that would permit trading during restricted hours, so trading during those hours becomes an offence under the Act. The Act’s penalty structure is not reproduced in the regulations, but typical maximum penalties for a breach of the Act appear to be in the range of $5,000 to $10,000 for individuals and higher for corporations (based on the penalty units system of South Australia, though the specific unit value is not stated in the source). The principal enforcement mechanism relevant to the regulations is the power of an Inspector (appointed under the Act) to request production of a licence (regulation 6(2)(c)). Failure to produce the licence on request is a breach of a licence condition, which could lead to suspension or revocation of the licence under the Act. The fencing requirement in regulation 7 is also enforceable: if a yard is not properly closed and fastened, that may constitute an offence under section 19 of the Act. The standard of ‘impossible or difficult’ to cross is a question of fact that an enforcement officer or court must determine, creating scope for inconsistent enforcement. A small retailer might be penalised more readily than a large operator because of limited legal resources to challenge an interpretation. The percentage caps (20% thresholds) are self‑enforcing in the sense that the shopkeeper must monitor compliance; an Inspector could audit sales records and compare aggregate prices. If a shop exceeds the cap, it loses the exemption automatically; trading outside permitted hours becomes an offence without any additional warning. This strict liability approach places the burden entirely on the shopkeeper to remain within the caps even if the excess is inadvertent. The regulations do not provide a grace period or remedial process for a one‑off breach. Inspectors may also issue infringement notices (on‑the‑spot fines) for minor breaches, though the amount is not specified. The penalty risk is concentrated on small businesses because they have thinner margins and less capacity to implement the accounting systems needed to track percentages. The regulations also do not specify a record keeping period, so a shopkeeper could be asked to produce years of sales data to demonstrate historical compliance. The enforcement regime thus imposes a significant compliance burden in the form of record keeping that is not directly productive.

These regulations are subordinate legislation made under the Shop Trading Hours Act 1977 (SA). The Act is the primary source of trading hour restrictions, exemptions and enforcement powers. The regulations flesh out definitions and conditions left open by the Act, such as the meaning of ‘hardware and building materials’ in section 4 and the conditions for a licence under section 17. Where the Act uses a term defined in the regulations, that definition applies for all purposes of the Act. However, the definition in regulation 4 says that ‘hardware and building materials’ means goods of a class set out in Schedule 1 or Schedule 2 or goods of a similar class. This could interact with other South Australian legislation that uses the same term but for different purposes (e.g., workers compensation classifications, trade licensing). The regulations do not purport to bind other laws; a separate definition in a different statute would not be overridden. The regulations also interact with local council by‑laws that may impose additional restrictions on trading hours or shop operations. A shopkeeper cannot rely on compliance with these regulations to excuse non‑compliance with a local by‑law that is stricter. Conversely, where a local by‑law is more permissive, the state regulations still apply. The fencing requirement in regulation 7 may intersect with occupational health and safety laws (the Work Health and Safety Act 2012 (SA)) that require a safe workplace. A shop with a yard that contains hazardous materials might need a fence meeting a higher standard than these regulations require, but the regulations set a minimum. They also interact with the law of trespass: a properly fenced yard reduces the likelihood of unintended trespassers, but does not eliminate liability if a person manages to enter. The percentage caps in the regulations may interact with competition laws if they have the effect of foreclosing certain product mixes. For example, a service station that wants to sell a wide range of convenience goods might be limited by the 20% cap, potentially reducing competition with supermarkets. However, this is a state regulation and would not be invalidated by competition law unless it was found to be anti‑competitive in a manner contravening the Competition and Consumer Act 2010 (Cth). The regulations do not contain any provision saving or overriding Commonwealth laws. They also interact with the general law of contract: a lease for a shop with a yard might impose obligations to maintain fences that align with or exceed regulation 7. A tenant who complies with the regulations but breaches a lease covenant for a higher standard would still face a private claim. The regulations do not create any rights of action for individuals; enforcement is a matter for the regulator under the Act. The interaction with privacy laws is minimal, but the requirement to produce a licence to an Inspector does not involve sharing personal information beyond what is already in the licence application.

The Shop Trading Hours Regulations 2018 were made on 30 August 2018 and published in the South Australian Government Gazette on that date (Gazette 30.8.2018 p3263). They came into operation on 1 September 2018, as provided by regulation 2. They revoked and replaced the Shop Trading Hours Regulations 2003, as listed in Schedule 3. The 2003 regulations had been in force for 15 years. As of the date of the source materials provided, there is no indication of any subsequent amendments to the 2018 regulations. The legislative history notes at the end of the document refer only to the principal regulations and do not list any amending regulations. This means that the definitions and thresholds have been static since 2018, despite changes in retail technology and product offerings. For example, the rise of electric vehicles and battery storage systems may mean that goods such as EV charging units or home battery systems could fall under either schedule, but the regulations have not been updated to provide clarity. Similarly, the lists in Schedule 1 and Schedule 2 are exhaustive in their itemisation, and new product categories (e.g., 3D printers, smart locks) must be interpreted under the ‘similar class’ extension, which introduces uncertainty. The absence of amendment history suggests that either no need for change has been identified, or the regulatory process has not prioritised updating the lists. The 20% caps have also remained unchanged despite inflation and changes in retail margins, which may mean that the effective burden changes over time. A shop that was compliant in 2018 may now find it harder to stay under the cap as prices for Schedule 2 goods rise faster than those for Schedule 1 goods. The lack of amendment also means that any judicial interpretation of the 2003 regulations that was relevant to the 2018 provisions would persist unless overturned, but no litigation is cited in the source.

The source text does not refer to any litigation. However, given the detailed lists and the use of terms such as ‘similar class’ and ‘predominantly’, it is likely that interpretive disputes have arisen in practice. Shops may challenge a regulator’s classification of a particular product as falling within Schedule 1 or Schedule 2, especially where the product is not explicitly listed. The ‘similar class’ test requires a comparison of the goods with those listed; a court would need to assess similarity in function, nature and use. For example, a smart thermostat could be argued to be similar to ‘heater controls’ or ‘electrical switches’ in Schedule 1, or to ‘domestic appliances’ more generally. Similarly, the 20% caps could be the subject of dispute over the calculation method: whether the aggregate price is measured at cost or retail, whether GST is included, and whether the period is a rolling seven days or a fixed weekly period. The definition of ‘aggregate price’ is not elaborated. The ‘predominantly’ test for motor spirit licences is also fertile ground for litigation. A shop that sells 60% fuel and 40% other goods may be challenged if a regulator argues that ‘predominantly’ requires more than 50% but also some qualitative assessment of business character. In the absence of any cited case law, the regulatory landscape remains unsettled. The lack of litigation history in the source may indicate that enforcement is infrequent or that disputes are settled without court proceedings. Nevertheless, for practitioners advising clients, the absence of authoritative interpretations increases risk. The regulations may also be the subject of administrative review under South Australian law, where a licence decision could be appealed to the South Australian Civil and Administrative Tribunal (SACAT) or a court. A refusal to grant a licence, or a decision to revoke, would be reviewable. The fencing requirement could also be the subject of a prosecution where a shop argues that its fence is sufficiently difficult to cross, despite not meeting the exact height specification for chain or rail fences. The regulation only mandates the 800-1000 mm height for fences comprising a chain or rail supported at each end; other fence types have no specified height but must still be impossible or difficult to cross. That is an even more ambiguous standard.

The regulations contain several traps for the unwary. The first is the ‘similar class’ extension in regulation 4. A shopkeeper who reads only the lists in Schedule 1 and Schedule 2 may believe they are exhaustive, but the regulation explicitly includes goods of a similar class. This means that a product not listed could still count as hardware and building materials, and a shopkeeper who excludes it from their percentage calculation may inadvertently exceed the cap. The onus is on the shopkeeper to assess similarity, and this judgment may not be accepted by an Inspector. A second trap is the 20% threshold in regulation 5(2). It applies to ‘the aggregate price of all hardware and building materials sold at a shop’, not to the total turnover of the shop. If a shop sells a high volume of low‑priced Schedule 2 items (e.g., a large number of small kitchen gadgets), the percentage could be breached quickly even if the shop is primarily a traditional hardware store. There is no exclusion for low‑value items or de minimis thresholds. A third trap is the requirement in regulation 6(2)(b) to calculate the 20% cap over ‘any period of 7 consecutive trading days’. This is a rolling calculation, not a fixed weekly one. A shop that caps non‑exempt goods for a particular week but sells a large proportion at the start of the next week may still be in breach if those sales cross into a new rolling window. This requires continuous monitoring of a moving average. Fourth, the fencing requirement in regulation 7 applies to any yard that comprises ‘the whole or part of a shop’. This includes a small enclosed backyard used for storage of waste bins. The fence must be ‘securely locked’, meaning a simple latch may not be enough if it can be jiggled open. The height requirement for chain or rail fences (between 800 and 1000 mm) is narrow; a fence at 700 mm or 1100 mm would not comply, even if it is still difficult to cross. The regulation does not specify a tolerance for measurement, so strict compliance is required. A fifth gotcha is that the licence application under regulation 6(1) must be in writing and state the address of the shop and the name and address of the applicant. If the applicant operates multiple shops, each requires a separate licence application. There is no class licence or enterprise licence. Failure to have a licence for each shop premises is a breach. Sixth, the production of the licence on request (regulation 6(2)(c)) is a condition of the licence. If the licence is lost or not immediately available, the shopkeeper is technically in breach even if the licence exists. It would be prudent to keep a copy at the shop at all times. Finally, the revocation of the 2003 regulations in Schedule 3 means that any regulatory guidance or administrative practice built around the old definitions is no longer authoritative. A shopkeeper who relied on the old lists may find that goods previously considered non‑hardware now fall within the new schedules or the ‘similar class’ extension. The 2018 lists are more extensive, so fewer goods are excluded.

A shop selling hardware and building materials should begin by auditing every product sold against both Schedule 1 and Schedule 2. Products that clearly fit a listed category (e.g., bricks, cement) are Schedule 1. Products that fit Schedule 2 (e.g., toasters, kitchen scales) are Schedule 2. For any product not listed, determine whether it is of a ‘similar class’ to goods in either schedule. This should be documented in a written classification guide. The shopkeeper must then implement a system to track the aggregate price of all hardware and building materials sold, and separately the aggregate price of those items that fall within Schedule 2. The percentage of Schedule 2 goods must be calculated at the end of each trading day and compared to the 20% cap. Because the cap applies to the aggregate price of items sold, it is not sufficient to count units; the monetary value must be calculated. A point‑of‑sale system that categorises items by regulatory schedule is essential. If the percentage exceeds or approaches 20%, the shop must either reduce the price or volume of Schedule 2 goods, or accept that it cannot trade during restricted hours. Contingency planning: if the shop plans to rely on the hardware exemption, the product mix should be managed to ensure a margin of safety below 20%, perhaps 15%, to account for fluctuations. For a shop selling motor spirit and lubricants, the first step is to apply for a licence in writing under regulation 6(1). The application must be sent to the relevant state authority (likely Consumer and Business Services or the office administering the Act). The shopkeeper must then ensure that the business is predominantly the retail sale of motor spirit and lubricants. This likely means that more than half of the shop’s turnover (by price) comes from fuel and related items. If the shop has significant convenience sales, it may not qualify. The ongoing condition is to ensure that the aggregate price of non‑exempt goods (everything other than motor spirit, lubricants, spare parts, accessories, foodstuffs and drinks) does not exceed 20% of the aggregate price of motor spirit, lubricants, spare parts and accessories over any seven consecutive trading days. This requires daily tracking of sales across multiple categories. The 20% cap is relative to fuel and related items, not total sales, so a shop that sells more fuel can sell a higher absolute value of convenience goods. The shopkeeper must also keep a copy of the licence at the shop readily available for inspection, and must produce it on demand. For any shop with a yard, compliance with regulation 7 requires a physical inspection. The fence must be such that it is impossible or difficult to cross. A chain link fence of appropriate height (at least 1.8 metres) would generally satisfy, but if the fence is a chain or rail supported at each end, its height must be between 800 and 1000 mm from the ground. Gates must be securely locked, and any removable sections of the fence must be locked in place. The shopkeeper should install a padlock or similar securing mechanism on all gates. It is advisable to photograph the fence and keep a record of the installation to demonstrate compliance. Record keeping generally: the regulations do not specify retention periods, but as a matter of good practice, sales records that demonstrate percentage compliance should be kept for at least three years, or longer if the Act’s limitation period for prosecution is longer. A compliance manual setting out classification decisions and percentage calculations should be maintained and updated whenever the product range changes.