Shop Trading Reform Act 1996

A shop is defined as the whole or any part of a building, structure or place or any vehicle that is used wholly or predominantly for the retail sale of goods, and in or at which goods are sold or exposed or offered for sale by retail on one or more occasions (s 3). This captures permanent retail premises, market stalls, and even mobile shops such as vans and trucks. The definition requires both use for retail sale and actual sale or exposure on at least one occasion. The occupier of a shop is broadly defined to include a person entitled to occupy the shop, a person managing or controlling (or apparently managing or controlling) a business carried on in the shop, and any person who is or appears to be the employer of persons working in that business (s 3). This expansive definition ensures that responsibility can be attributed to the person in control, not merely the legal owner. Ordinary shop closing times are fixed by reference to calendar dates and times: all times on Good Friday, all times on Christmas Day, and the period from 12.01 am to 1.00 pm on ANZAC Day (s 3 definition). These are the only periods during which closure is mandatory under the Act. Exempt shops are those whose predominant business is a chemist, petrol shop, an eating-house, restaurant, cafe or other shop selling cooked or prepared meals ready to eat on or off the premises, or a prescribed kind of business (s 4(1)). In addition, a shop is exempt at a particular time if the number of persons employed and working in that shop at that time does not exceed 20, and within the previous seven days the total number of persons employed by the occupier in any shops in Victoria (including those of related bodies corporate) does not exceed 100 (s 4(2)). The employee count is calculated by dividing the total hours worked by all relevant employees during the relevant period by 38 (s 4(3)(b)). Council is defined by reference to the Local Government Act 2020, but excludes the Council of the City of Melbourne (s 3). The Secretary is the Secretary to the Department of State Development, Business and Innovation (s 3). An inspector is an employee appointed under s 6A. Officer in relation to a body corporate includes directors, secretaries, executive officers, persons whose directions are followed, and persons concerned in management, and for offences relating to a shop, a person concerned in the management of that shop (s 3 definition). These definitions are critical to understanding who bears obligations and who may be liable.

The Act primarily affects occupiers of non-exempt shops in Victoria. Any person who manages, controls, or appears to manage a business in a shop that is not an exempt shop must ensure the shop is closed during Good Friday, Christmas Day, and the morning of ANZAC Day. This includes small retailers that do not fall within the exemption criteria, as well as large retail chains. The Act also affects employees of non-exempt shops - an employee who publishes a statement indicating that the shop will be open during restricted times commits an offence under s 5(3), though the maximum penalty applies to both occupier and employee. Officers of bodies corporate are directly affected by s 8A, which makes them criminally liable if they authorise or permit an offence under s 5(2) or (3), or are knowingly concerned in the commission of such an offence by the body corporate. This means directors, secretaries and senior managers of retail companies face personal criminal exposure. Landlords and tenants of retail premises are affected by s 7, which voids any lease provision that purports to require a tenant to open between 5.00 pm and midnight on a Saturday, or at any time on a Sunday or public holiday, for premises in a metropolitan municipal district; and between 1.00 pm and midnight on a Saturday, or any time on a Sunday or public holiday, for premises outside a metropolitan municipal district. Disputes about such requirements are dealt with under Part 10 of the Retail Leases Act 2003. Inspectors appointed under s 6A are affected: they must carry identity cards (s 6B), produce them on request (s 6C), maintain confidentiality under s 6G, and may seek court orders for information (s 6D). The Secretary has powers of appointment and approval. The public is affected only indirectly through the restricted availability of retail goods on those days, and through the ability of an aggrieved person to apply to the County Court for a restraining order under s 9(2)(c). The Magistrates' Court and County Court are also affected as they have jurisdiction over enforcement proceedings and restraining orders respectively.

The core duty is imposed by s 5(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. This is a strict duty - there is no element of intent required, though s 8(3) allows a body corporate's intention to be proved by showing an officer had that intention. The duty extends to not publishing any statement or indication that during the restricted times the shop will be open for retail sale, that a person will sell goods or receive orders, or that the shop will be open for inspection or delivery of previously sold goods (s 5(3)). This prohibits advertising or signage that suggests trading is occurring during the closed period.

Occupiers have the right to claim exemption under s 4. They may also rely on the defence that a shop is an exempt shop if they can meet the criteria, whether by type of business or by employee count. In proceedings, the onus is on the accused to prove that a person named in a charge is not an occupier of the premises (s 8(1)(c)). A shop is deemed not to have been closed if goods were sold, offered, exposed, available for inspection, delivered or available for delivery, or orders were received by a person in attendance (s 8(1)(e)). This deeming provision effectively reverses the burden: if any of those activities occur during restricted times, the shop is treated as not closed, regardless of whether a door was locked.

Inspectors have the right to enter and inspect any part of premises open to the public, and to purchase goods as a member of the public (s 6E). They may also apply to the Magistrates' Court for an order requiring a person to answer questions, supply information, or produce documents where there are reasonable grounds to believe a contravention has occurred (s 6D). A natural person has a reasonable excuse to refuse to give information or do any other thing if it would tend to incriminate them, but this protection does not extend to refusing to produce a document (s 6F). The Act also creates a right for any person aggrieved by conduct that constitutes an offence to apply to the County Court for a restraining order (s 9(2)(c)). Landlords have no right to require a tenant to open during the voided hours; any such lease provision is void under s 7.

The maximum penalty for an offence under s 5(2) (failure to close) or s 5(3) (publication that shop will be open) is 100 penalty units. As at the date of the Act's version, the value of a penalty unit is prescribed by other Victorian legislation, making the fine substantial. Breach of the confidentiality obligation on inspectors under s 6G(1) carries a penalty of 60 penalty units. Failure by an inspector to produce an identity card when required under s 6C carries a penalty of 10 penalty units. The Act does not specify daily penalties for continuing offences, though the words "keep it closed" in s 5(2) suggest the offence is ongoing; a failure to keep closed for the entire period may give rise to separate charges or be treated as a single offence depending on the interpretation of the legislation.

Enforcement is primarily through the appointment of inspectors by the Secretary (s 6A). Inspectors are employees of the public service body established under the Public Administration Act 2004. They have powers to enter premises open to the public and to purchase goods (s 6E). More significantly, they can apply to the Magistrates' Court for an order requiring a person to answer questions, supply information, or produce documents if the inspector believes on reasonable grounds that a contravention may have occurred, and the Secretary gives written approval (s 6D). The court may grant the order if satisfied there are reasonable grounds. The order must state a day (within 28 days) when it ceases. Inspectors may inspect, copy, seize and retain documents obtained under the order (s 6D(4)). After execution, the inspector must notify the court of the time, place, and documents seized.

Prosecutions are governed by s 8. In a proceeding, it is sufficient to allege that a shop is a shop without further allegation (s 8(1)(a)), and sufficient to state the name of the ostensible occupier (s 8(1)(b)). The onus of proving that a person is not an occupier is on the accused (s 8(1)(c)). It is no defence that the occupier was not in Victoria when the offence was committed (s 8(1)(d)). The deeming provision in s 8(1)(e) creates a presumption of non-closure if any of the listed activities occur. For bodies corporate, the intention of the body corporate can be established by showing an officer had that intention (s 8(3)). Additionally, s 8A creates accessorial criminal liability for officers of bodies corporate who authorise, permit, or are knowingly concerned in an offence under s 5(2) or (3). This applies whether or not the body corporate has been prosecuted or found guilty (s 8A(4)). The officer may rely on any defence available to the body corporate and bears the same burden of proof (s 8A(3)). The County Court may also grant a restraining order under s 9 against a person who has wilfully and repeatedly engaged in conduct that constitutes an offence, upon application by the Secretary, an authorised employee, or an aggrieved person (s 9(2)). The order restrains future conduct and can be rescinded or varied (s 9(3)). The court may act whether or not proceedings have been brought for the offence (s 9(4)).

The Act interacts with a range of other Victorian and Commonwealth legislation. The definition of Council is taken from the Local Government Act 2020, and municipal district also has the same meaning as in that Act (s 3). The metropolitan municipal district is defined by reference to the Public Holidays Act 1993 (s 3). The Retail Leases Act 2003 is central to s 7: the voiding of lease provisions applies only to retail premises within the meaning of that Act, and disputes about a landlord's requirement that a tenant open are treated as retail tenancy disputes under Part 10 of the Retail Leases Act (s 7(3)). Section 10 states that it is the intention of s 7(3) to alter or vary s 85 of the Constitution Act 1975, which otherwise limits the jurisdiction of the Supreme Court - this is a standard provision to ensure the retail tenancy dispute mechanism operates.

The Public Administration Act 2004 governs the employment of inspectors: they must be employees employed under Part 3 of that Act (s 6A), and their identity cards must state the name of the public service body under that Act (s 6B(2)(b)). The Crimes Act 1958 is preserved by s 8A(6), which states that the accessorial liability provisions do not affect the operation of Subdivision (1) of Division 1 of Part II of that Act - that is, the general law of complicity and corporate criminal responsibility.

The Corporations Act (Cth) is incorporated for two purposes: the definition of “officer” in s 8A(5) adopts the definition from s 9 of the Corporations Act (and the definition of “body corporate” from s 57A), and the employee count test for exempt shops under s 4(3)(a) requires that the occupier's employees include those of any body corporate related by reason of the Corporations Act. This extends the counting obligation to corporate groups.

The Interpretation of Legislation Act 1984 is referenced in the transitional provision s 12(2), which states that s 12 does not limit s 14 of that Act (which deals with the effect of repeal or amendment). The Criminal Procedure Act 2009 is indirectly affected: s 8(1)(c) was amended by that Act (Sch. item 113) to update references. The Statute Law Amendment (Directors' Liability) Act 2013 inserted s 8A and the transitional provision s 12. The Act also interacts with the Public Holidays Act 1993 via the definition of metropolitan municipal district, which is relevant to the lease voiding provisions. There is no stated interaction with the Fair Work Act or industrial relations legislation, though employee hours calculation under s 4(3)(b) uses a divisor of 38, which aligns with the standard full-time week under many awards.

The Shop Trading Reform Act 1996 received Royal Assent on 6 November 1996. Sections 1 to 4 commenced on that day; the remainder commenced on 26 November 1996 by proclamation. Significant amendments include the following:

The Retail Tenancies Reform Act 1998 (No. 14/1998) amended s 7(3) to update references. The Public Sector Reform (Miscellaneous Amendments) Act 1998 (No. 46/1998) amended s 9(2)(a)(ii) to update references to public service employees. The Corporations (Consequential Amendments) Act 2001 (No. 44/2001) updated references in s 4 due to the replacement of the Corporations Law with the Corporations Act 2001.

The Electoral Act 2002 (No. 23/2002) amended s 11(2)(b), though that paragraph was later repealed. The Public Holidays and Shop Trading Reform Acts (Amendment) Act 2003 (No. 1/2003) amended the definition of ordinary shop closing times and inserted then later repealed s 5A (related to Easter Sunday trading). The Retail Leases Act 2003 (No. 4/2003) amended s 7 to update references to the new Retail Leases Act. The Shop Trading Reform (Essential Goods Amendment) Act 2003 (No. 5/2003) amended s 4. The ANZAC Day (Amendment) Act 2003 (No. 96/2003) amended the definition of ordinary shop closing times to include the ANZAC Day restriction. The Shop Trading Reform (Simplification) Act 2003 (No. 112/2003) was a major amendment: it substituted the definitions of exempt shop and shop, inserted the enforcement Part 2A (ss 6A-6G), amended s 7 and s 8, and repealed the original Schedule and s 12. This Act commenced on 10 December 2003.

The Public Administration Act 2004 (No. 108/2004) amended ss 6A and 6B to update references to the new public service framework (commenced 5 April 2005). The Fair Trading and Consumer Acts Further Amendment Act 2008 (No. 2/2008) made significant changes: it repealed the definition of special local shop closing times, repealed s 6 (special local shop closing times), repealed s 3(2), and amended s 9. These amendments commenced on 12 February 2008. The Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (No. 68/2009) amended s 8(1)(c) on 1 January 2010. The Shop Trading Reform Amendment (Easter Sunday) Act 2011 (No. 3/2011) amended the definition of ordinary shop closing times and repealed s 5A (commenced 30 March 2011). The Statute Law Amendment (Directors' Liability) Act 2013 (No. 13/2013) inserted s 8A (accessorial liability for officers) and a new s 12 transitional provision (commenced 14 March 2013). The Justice Legislation Amendment Act 2015 (No. 20/2015) substituted s 8A(6) on 17 June 2015. The Local Government Act 2020 (No. 9/2020) amended the definition of Council and municipal district on 6 April 2020. The Act is up to date as at that date.

The text of the Act as provided does not contain any references to specific cases or judicial decisions. The Act itself does not name any litigation history. However, the Act contemplates several avenues for court involvement. Under s 6D, inspectors may apply to the Magistrates' Court for orders compelling information or document production. Under s 8, prosecutions for offences are likely to be heard in the Magistrates' Court. The Act provides for deeming provisions and reverse onus of proof (s 8(1)(c) and (e)) that have likely been tested in contested proceedings. Section 9 gives the County Court jurisdiction to grant restraining orders against persons who have "wilfully and repeatedly" engaged in conduct that constitutes an offence - the phrase "wilfully and repeatedly" sets a high bar and would require judicial interpretation. Disputes under s 7 about lease provisions requiring opening are to be dealt with as retail tenancy disputes under Part 10 of the Retail Leases Act 2003, which has its own dispute resolution framework (including the Victorian Small Business Commission and VCAT). The Act's s 10 limits the Supreme Court's jurisdiction to the extent necessary for s 7(3), indicating that the Supreme Court may not have original jurisdiction in such lease disputes. There are no reported decisions mentioned in the source, and the current version does not include any explanatory notes referencing case law. Practitioners should consult Victorian criminal and administrative law databases for any decisions interpreting the definition of shop, the employee count formula in s 4(3), the scope of the deeming provisions in s 8(1)(e), and the accessorial liability provisions in s 8A. The Act's long history of amendments, particularly the 2003 simplification and the 2013 introduction of directorial liability, suggest that litigation may have influenced those changes, but the Act itself does not record any such history.

Several provisions contain traps for the unwary. First, the definition of shop includes vehicles. A mobile food van that sells retail goods (not prepared meals) may be a shop and must close during restricted times, even if it is parked in a private location. Second, the definition of occupier includes a person who appears to be managing or controlling the business, and a person who appears to be the employer. This means a retail manager or franchisee could be held personally liable even if they are not the legal owner or lessee. Third, the exempt shop employee count test under s 4(2) is more complex than it first appears. The test has two limbs: the shop must employ 20 or fewer persons at the relevant time, and the total number of persons employed by the occupier in any shops in Victoria (including related bodies corporate) must not exceed 100 within the previous seven days. The calculation under s 4(3)(b) requires dividing total hours worked by 38 - this means part-time employees are counted pro-rata, not as whole persons. An occupier must monitor total hours across all shops in Victoria, including those of related corporations. A small chain that has 80 full-time employees but also 30 part-time employees working a few hours each week could easily exceed the 100 limit when hours are aggregated and divided by 38. Fourth, the deeming provision in s 8(1)(e) means that even if a shop is physically closed (doors locked, lights off), if goods are available for inspection inside the shop, or if orders are received by a person in attendance, the shop is deemed not to have been closed. This could catch a business that allows a customer to enter by appointment during restricted hours to view or pick up goods. Fifth, the self-incrimination protection under s 6F(1) does not apply to the production of documents (s 6F(2)). A natural person cannot refuse to produce a document on the ground that it would incriminate them, but they can refuse to answer oral questions or supply information on that ground. Sixth, the onus of proof on the accused under s 8(1)(c) to prove they are not an occupier is a significant litigation hurdle - it reverses the usual criminal burden. Seventh, the lease voiding provision under s 7 only applies to retail premises within the meaning of the Retail Leases Act 2003. A lease for a non-retail shop or a shop that is not a retail premises under that Act may still contain a valid clause requiring the tenant to open during restricted times. Also, the voiding differs by location: in metropolitan municipal districts, clauses requiring opening between 5.00 pm and midnight on Saturday and any time on Sunday or a public holiday are void; outside metropolitan districts, clauses requiring opening between 1.00 pm and midnight on Saturday and any time on Sunday or a public holiday are void. A landlord cannot require a tenant to open during the voided periods, but nothing prevents a tenant from voluntarily opening (subject to s 5 closure requirements). Eighth, the restraining order under s 9 requires proof that the person has "wilfully and repeatedly" engaged in the prohibited conduct - a single or accidental breach may not suffice.

An occupier of a shop in Victoria should take the following steps to comply with the Act. First, determine whether the shop is an exempt shop under s 4. Check the predominant business: if it is a chemist, petrol shop, eating-house, restaurant, cafe, or any shop selling cooked or prepared meals ready to eat on or off the premises, it is exempt by type (s 4(1)). Also check whether the shop qualifies as an exempt shop by size under s 4(2). Keep accurate records of the number of persons employed and working in the shop at any given time, and the total number of persons employed by the occupier (including related bodies corporate) across all shops in Victoria over the preceding seven days. Use the formula in s 4(3)(b): divide total hours worked by 38 to calculate the number of persons. Ensure that both limbs are satisfied: the shop has 20 or fewer persons working at the relevant time, and the total across all shops does not exceed 100. If the shop is exempt, no further action is required regarding closure, but be aware that the exemption is time-specific and could change if employee numbers fluctuate.

If the shop is not exempt, ensure it is closed and kept closed during the ordinary shop closing times (all of Good Friday, all of Christmas Day, and from 12.01 am to 1.00 pm on ANZAC Day). This means not only locking the doors but also ceasing all retail activities: do not sell, expose, offer for sale, allow inspection, deliver previously sold goods, or accept orders during those times. The deeming provision in s 8(1)(e) means that any such activity will cause the shop to be treated as not closed. Do not publish any statement - whether in advertising, social media, signage, or verbal communication - that indicates the shop will be open or that any of those activities will occur during the restricted period (s 5(3)).

Review all leases relating to the shop. If the lease is a retail premises lease under the Retail Leases Act 2003, any provision that purports to require the tenant to open between 5.00 pm and midnight on Saturday, or at any time on Sunday or a public holiday (for premises in a metropolitan municipal district), or between 1.00 pm and midnight on Saturday, or any time on Sunday or a public holiday (for premises outside), is void under s 7. Do not enforce such a clause. If a dispute arises with a landlord about a requirement to open, refer the matter to the dispute resolution process under Part 10 of the Retail Leases Act 2003.

Maintain records of employee hours and shop activities to demonstrate compliance and to support a claim of exemption if needed. If an inspector appears and requests to enter premises that are open to the public, allow entry under s 6E. If an inspector seeks a court order for information or documents under s 6D, comply with the order - a natural person may refuse to give information on self-incrimination grounds, but must still produce documents. Ensure that any person who acts as an inspector (including identity card requirements) follows the Act.

For bodies corporate, ensure that officers (directors, secretaries, senior managers) are aware of their personal criminal liability under s 8A. Officers must not authorise or permit an offence under s 5(2) or (3), and must not be knowingly concerned in any way in the commission of such an offence. Even if the body corporate is not prosecuted, an officer can be charged (s 8A(4)). Implement internal compliance policies that prohibit trading during restricted times and prohibit advertising that would suggest trading. Train staff, especially managers who could be considered officers under the broad definition, on these obligations. If a contravention does occur, consider whether a defence available to the body corporate (such as reasonable mistake or due diligence) can also be relied on by the officer (s 8A(3)), though the burden of proof is on the officer. Finally, if the occupier becomes aware of repeated wilful breaches, the County Court may grant a restraining order under s 9 - avoid a pattern of non-compliance that could be characterised as wilful and repeated.