An Act to amend the Shop Trading Act 2008 and the Shop Trading Regulation 2009 with respect to exemptions from trading restrictions.
1 Name of Act
This Act is the Shop Trading Amendment Act 2009.
2 Commencement
This Act commences on the date of assent to this Act.
Schedule 1 Amendment of Shop Trading Act 2008 No 49
[1] Long title
Omit “de-regulation”. Insert instead “fair regulation”.
[2] Section 3 Definitions
Omit the definition of Director-General from section 3 (1). Insert instead:Departmental website means the Internet website used for the time being by the Department of Services, Technology and Administration to provide public access to information for the purposes of this Act.Director-General means the Director-General of the Department of Services, Technology and Administration.
[3] Sections 10–11C
Omit sections 10 and 11. Insert instead:10 Director-General may exempt shops from trading restrictions(1) The Director-General may by order, on application by the occupier of a shop, exempt the shop from a requirement under this Act to be kept closed.(2) The Director-General must not grant an exemption for a shop unless the Director-General is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters:(a) the nature of the shop and the kinds of goods sold by the shop,(b) the need for the shop to be kept open on the day or days concerned,(c) the likely effect of the proposed exemption on the local economy, tourism and small businesses and other businesses in the area,(d) the likely effect of the proposed exemption on employees of, or persons working in, the shop.(3) An application for an exemption under this Division may not be made in respect of a shop that is not in existence when the application is made.(4) An exemption may:(a) apply in respect of one or more specified restricted trading days or all restricted trading days, or(b) apply in respect of specified times on a restricted trading day.(5) An exemption has effect for the period, not exceeding 3 years, specified by the Director-General in the order.(6) The period of the exemption may not be extended by an amendment to the order.(7) An exemption may be subject to conditions.11 Applications for exemptions(1) An application for an exemption by the Director-General is to be:(a) made in the manner and the form prescribed by the regulations, and(b) made not later than 28 days before the first day for which the exemption is sought, and(c) accompanied by the application fee, if any, prescribed by the regulations.(2) An application may be made in respect of more than one shop.(3) An applicant must, if required to do so, provide the Director-General with such additional information and documents in relation to an application as the Director-General may request.11A Publication of orders and reasons for decisions(1) The Director-General must publish on the Departmental website an order granting an exemption and the reasons for any decision made by the Director-General to grant or not to grant an exemption.(2) An order and reasons must be published as soon as practicable after the relevant decision is made.11B Deemed refusal of applicationIf the Director-General has not determined an application for an exemption before the end of the period of 40 days after the application was made to the Director-General (or such longer period as the Director-General determines with the consent in writing of the applicant), the Director-General is taken, for the purposes of section 12, to have made a decision to refuse to grant the exemption.11C Application of Division to applications for amendment or revocation of exemption orders(1) An occupier of a shop that is subject to an exemption under this Division may apply for the amendment or revocation of the exemption order.(2) This Division applies to any such application in the same way as it applies to an application for an exemption.
[4] Section 12 Reviews by Administrative Decisions Tribunal
Insert “amend or” before “revoke” in section 12 (a).
[5] Section 12 (2) and (3)
Insert at the end of section 12:(2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Administrative Decisions Tribunal for a review of any such decision.(3) The Administrative Decisions Tribunal is not required to review a decision on the application of a person (other than the person who applied for the exemption) if it is not satisfied that the person has a sufficient interest in the application for exemption.
[6] Section 15 Powers of inspectors
Insert after the note to the section:(2) An inspector may, for the purpose of investigating a possible contravention of this Act or the regulations, require an occupier of a shop to produce for the inspector’s examination, at such time and place as the inspector may specify, specified records indicating hours worked by employees in the shop, business receipts and other information concerning the operation of the shop at particular times.(3) A requirement duly made under this section by an inspector is taken to be a requirement made under Part 4 of Chapter 7 of the Industrial Relations Act 1996.
[7] Section 20 Delegation
Omit “Department of Commerce” from section 20 (a).Insert instead “Department of Services, Technology and Administration”.
[8] Section 22A
Insert after section 22:22A Certain lease provisions of no effect(1) A provision of a lease is void to the extent that it requires the occupier of a shop to keep the shop open at any time on a restricted trading day.(2) This section has effect whether or not the shop is the subject of an exemption under this Act.(3) In this section:lease includes an agreement or arrangement between the occupier of a shop and the owner of the premises in which the shop is located or, if the occupier is a sub-lessee of those premises, between the occupier and the lessee of those premises.
[9] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[10] Schedule 2, clause 2
Insert after clause 2 (3):(4) Without limiting subclause (2):(a) section 13 applies to an exemption referred to in that subclause, and(b) the occupier of a shop that is subject to an existing exemption may apply under Part 3 of this Act for an order amending the exemption.
[11] Schedule 2, Part 3
Insert after Part 2:Part 3 Provisions consequent on enactment of Shop Trading Amendment Act 20096 DefinitionIn this Part:2009 amending Act means the Shop Trading Amendment Act 2009.7 Existing applications(1) This clause applies to an application for an exemption under section 10 made, but not finally determined, before the commencement of the 2009 amending Act.(2) Sections 10, 11 (2) and (3) and 11A–11C, as inserted by that Act, extend to any such application.8 Existing exemptions(1) The amendments made by the 2009 amending Act do not affect the operation of an exemption granted after the commencement of this Act under Division 2 of Part 3 of this Act, and in force immediately before the commencement of the 2009 amending Act (an existing Departmental exemption).(2) An existing Departmental exemption is taken to have been made, and may be revoked or amended, under Division 2 of Part 3 of this Act as amended by the 2009 amending Act.(3) To avoid doubt, an existing Departmental exemption that applies in respect of a specified area or areas continues in force and may be so revoked or amended.(4) An existing Departmental exemption ceases to have effect 3 years after the commencement of the 2009 amending Act, or on the date on which it would otherwise cease to have effect, whichever occurs first.
Schedule 2 Amendment of Shop Trading Regulation 2009
[1] Clauses 4 and 5
Omit clause 4. Insert instead:4 Public review period for exemption applications(1) Before determining an application for an exemption under Division 2 of Part 3 of the Act, the Director-General must:(a) cause the application to be publicly exhibited for a period of at least 21 days, and(b) seek public comment on the application during the period of public exhibition, and(c) have regard to any public comment received during that period.(2) This clause does not apply to an application for an exemption made before the commencement of this clause.5 Application for exemptionAn application for exemption is to be in the form set out in Schedule 1.
[2] Schedule 1
Insert at the end of the Regulation:Schedule 1 Application form(Clause 5)Application for retail trading on restricted trading daysApplicant’s detailsApplicant’s name:Business name:Trading name:ABN/ACN:Contact detailsStreet address: [include city/town and postcode]Postal address: [if different from above]Telephone number: [include area code]Fax number:Email address:Person making the application:Position title:Details of exemption being soughtPlease identify the restricted trading day/s for which you are seeking an exemption:
Commencing at: AM/PM
Closing at: AM/PMInformation required to support the applicationThe Director-General of the NSW Department of Services, Technology and Administration may only grant an exemption if satisfied that it is, in the exceptional circumstances of the case, in the public interest to approve this application.What is the nature of the business and goods sold? ............................................................
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............................................................What is the need for the shop to be open on a restricted trading day/s?............................................................
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............................................................What is the likely effect on the local economy, tourism, small businesses and other businesses in the area if the exemption is granted?............................................................
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............................................................What is the likely effect on employees or persons working in the shop if the exemption is granted?............................................................
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............................................................Employees working on restricted trading day/s will be employed under which industrial instrument/s?............................................................
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............................................................Number of employees likely to work in the shop/s if the exemption is granted? [insert number]This application will be put on public exhibition by the Director-General of the NSW Department of Services, Technology and Administration. It is an offence to fail to comply with any conditions imposed on an exemption by the Director-General or delegated officer.
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