South Australia
Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017
A Bill For
An Act to amend the Retail and Commercial Leases Act 1995 and to make related amendments to the Landlord and Tenant Act 1936.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Retail and Commercial Leases Act 1995
4	Amendment of section 3—Interpretation
5	Amendment of section 4—Application of Act
6	Insertion of section 6A
6A	Valuer-General to review prescribed threshold
7	Amendment of section 9—Commissioner's functions
8	Substitution of section 11
11	Copy of lease to be provided to prospective lessee
9	Amendment of section 12—Lessee to be given disclosure statement
10	Amendment of section 14—Lease preparation costs
11	Amendment of section 15—Premium prohibited
12	Substitution of section 16
16	Lease documentation
13	Amendment of section 19—Security bond
14	Amendment of section 20—Repayment of security
15	Insertion of section 20AA
20AA	Return of bank guarantees
16	Amendment of section 20B—Minimum 5 year term
17	Amendment of section 20K—Certified exclusionary clause
18	Amendment of section 20L—Premium for renewal or extension prohibited
19	Amendment of section 20M—Unlawful threats
20	Amendment of section 24—Turnover rent
21	Amendment of section 44—Premium on assignment prohibited
22	Amendment of section 51—Confidentiality of turnover information
23	Amendment of section 75—Vexatious acts
24	Amendment of section 77—Exemptions
25	Substitution of section 80
80	Regulations
Part 3—Amendment of Landlord and Tenant Act 1936
26	Insertion of section 13A
13A	Jurisdiction of the Magistrates Court
27	Amendment of section 24—Adverse claims

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Retail and Commercial Leases (Miscellaneous) Amendment Act 2017.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Retail and Commercial Leases Act 1995
4—Amendment of section 3—Interpretation
	(1)	Section 3(1)—after the definition of Fund insert:
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;
	(2)	Section 3(1)—after the definition of premium insert:
public company has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth;
	(3)	Section 3(1)—after the definition of statutory rights of security of tenure insert:
subsidiary includes a subsidiary within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth.
	(4)	Section 3—after subsection (1) insert:
	(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.
5—Amendment of section 4—Application of Act
	(1)	Section 4(2)—delete "if"
	(2)	Section 4(2)(a)—delete paragraph (a) and substitute:
	(a)	after the commencement of this paragraph—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
	(3)	Section 4(2)(ab)—before "the lease" insert:
if
	(4)	Section 4(2)(b)—before "the right" insert:
if
	(5)	Section 4(2)(c)—before "the lessee" insert:
if
	(6)	Section 4(2)(c)—after subparagraph (i) insert:
	(ia)	a body corporate whose securities are listed on a stock exchange outside Australia and the external Territories or a subsidiary of such a body corporate; or
	(7)	Section 4(2)—after paragraph (c) insert:
		or
	(d)	if—
	(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 functions of local government; and
	(ii)	the lessee is of a class specified by the regulations for the purposes of this paragraph.
	(8)	Section 4—after subsection (3)—insert:
	(4)	For the avoidance of doubt, after the commencement of this subsection, this Act may apply, or cease to apply, to a particular retail shop lease (whether entered into before or after the commencement of this subsection) from time to time depending on whether—
	(a)	the prescribed threshold under the Act is increased; or
	(b)	the amount of rent payable under the lease is decreased or increased (including, for example, as a result of a review of rent under the lease); or
	(c)	the lessee or lessor becomes, or ceases to be, a lessee or lessor referred to in subsection (2)(c) or (d).
Examples—
	(1)	The Act may, after an increase in the prescribed threshold, apply to a retail shop lease to which the Act did not apply at the time the lease was entered into, or renewed, because the rent payable under the lease no longer exceeds the prescribed threshold.
	(2)	The Act may, after an increase in the rent payable under the lease, cease to apply to a retail shop lease to which it applied immediately before the increase in rent because the rent payable under the lease now exceeds the prescribed threshold.
	(3)	The Act may, after a decrease in the rent payable under the lease, apply to a retail shop lease to which the Act did not apply immediately before the decrease in rent because the rent payable under the lease no longer exceeds the prescribed threshold.
	(4)	The Act may apply to a retail shop lease to which the Act did not apply at the time the lease was entered into, or renewed, because the lessee changed from being a public company to being a proprietary company.
	(5)	The Act may, after an assignment of the lease, cease to apply to a retail shop lease to which it applied immediately before the assignment because the assignee is no longer a lessee of a kind referred to in subsection (2)(c).
6—Insertion of section 6A
After section 6—insert:
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.
7—Amendment of section 9—Commissioner's functions
Section 9—after paragraph (f) insert:
		and
	(g)	any other functions assigned to the Commissioner by or under this Act.
8—Substitution of section 11
Section 11—delete the section and substitute:
11—Copy of lease to be provided to prospective lessee
	(1)	A person who, as a lessor, or acting on behalf of a lessor—
	(a)	offers to enter into a retail shop lease; or
	(b)	invites an offer to enter into a retail shop lease; or
	(c)	indicates by advertisement by any means that a retail shop is for lease,
must, as soon as the person enters into negotiations with a prospective lessee (and before a retail shop lease is entered into), provide the prospective lessee with a written copy of the proposed retail shop lease (but not necessarily including the particulars of the lessee, the rent or the term of the lease).
Maximum penalty: $8 000.
	(2)	At the time a copy of the proposed retail shop lease is provided to the prospective lessee under subsection (1), the lessor, or a person acting on behalf of a lessor, must also provide the prospective lessee with a copy of the information brochure (if any) about retail shop leases published by the Commissioner.
Maximum penalty: $800.
Expiation fee: $120.
	(3)	This section does not apply to or in respect of the renewal of a retail shop lease.
9—Amendment of section 12—Lessee to be given disclosure statement
	(1)	Section 12(1)—delete subsection (1) and substitute:
	(1)	A lessor, or the lessor's agent, must, before a retail shop lease is entered into, give the lessee a disclosure statement for the lease in duplicate signed by or on behalf of the lessor in accordance with the requirements set out in subsection (4).
Maximum penalty: $8 000.
	(1a)	A disclosure statement for a retail shop lease is not required to be given in respect of a renewal of a retail shop lease.
	(2)	Section 12(4)—delete subsection (4) and substitute:
	(4)	A disclosure statement provided under subsection (1) must be served on the lessee—
	(a)	by personal service on the lessee or the lessee's agent; or
	(b)	by leaving it for the lessee at—
	(i)	the lessee's usual or last known place of residence or business; or
	(ii)	in the case of a lessee that is a company, the company's registered office,
with someone apparently over the age of 16 years; or
	(c)	by serving it by post on the lessee or the lessee's agent at the lessee's or agent's address provided by the lessee or agent for the purpose; or
	(d)	by transmitting it by fax or email to a fax number or email address provided by the lessee or lessee's agent for the purpose (in which case the disclosure statement will be taken to have been served at the time of transmission); or
	(e)	in any other manner prescribed by the regulations.
	(4a)	Service by post is effected by addressing, prepaying and posting the disclosure statement, and service will be taken to have occurred when the disclosure statement would be delivered in the ordinary course of post.
	(4b)	A lessee or lessee's agent must, within 14 days of being served with the disclosure statement, return a signed acknowledgement of receipt of the disclosure statement to the lessor or the lessor's agent.
10—Amendment of section 14—Lease preparation costs
	(1)	Section 14(1)—delete ", stamping"
	(2)	Section 14(2)(a)—delete "the stamp duty payable on the lease and"
11—Amendment of section 15—Premium prohibited
Section 15(2)(a)—delete "$10 000" and substitute:
$15 000
12—Substitution of section 16
Section 16—delete section 16 and substitute:
16—Lease documentation
A retail shop lease is taken to include provision to the following effect:
	(a)	if the lease is not to be registered—the lessor must provide the lessee with an executed copy of the lease within 1 month after the lease is returned to the lessor or the lessor's lawyer or agent following its execution by the lessee;
	(b)	if the lease is to be registered—the lessor must lodge the lease for registration within 1 month after the lease is returned to the lessor or the lessor's lawyer or agent following its execution by the lessee, and the lessor must provide the lessee with—
	(i)	an executed copy of the lease; and
	(ii)	confirmation that the lease has been registered,
within 1 month of the date of its registration.
13—Amendment of section 19—Security bond
	(1)	Section 19(1)(b)—delete "four weeks' rent" and substitute:
4 weeks' rent (exclusive of GST)
	(2)	Section 19(1), penalty provision—delete "$1 000" and substitute:
$1 500
	(3)	Section 19(1), paragraph following the penalty provision—after "weekly rent" insert:
, exclusive of GST
	(4)	Section 19(2)—delete "four weeks' rent" and substitute:
4 weeks' rent (exclusive of GST)
	(5)	Section 19(5), penalty provision—delete "$1 000" and substitute:
$1 500
14—Amendment of section 20—Repayment of security
	(1)	Section 20(4)—delete "seven" and substitute:
14
	(2)	Section 20(5)—delete "seven" and substitute:
14
15—Insertion of section 20AA
After section 20—insert:
20AA—Return of bank guarantees
	(1)	A lessor who receives a bank guarantee for a lease must return the original bank guarantee to the lessee within 2 months (the maximum return period) after the lessee completes performance of the obligations under the lease for which the bank guarantee is provided as security.
Maximum penalty: $8 000.
	(2)	A lessor is not required to return a bank guarantee if it has expired or been cancelled.
	(3)	The maximum return period does not run for any period during which the matter of the lessor's entitlement to claim or realise the bank guarantee is the subject of proceedings pending in a court.
	(4)	A lessor who is unable to return an original bank guarantee is able to satisfy the requirement under this section, or an order of a court to return the bank guarantee, by providing any consent or release necessary to have the bank guarantee cancelled.
	(5)	A lessor is liable to pay to the lessee compensation for—
	(a)	any loss or damage suffered by the lessee as a result of any failure by the lessor to return a bank guarantee in compliance with this section, or an order of a court; and
	(b)	reasonable costs incurred by the lessee in connection with the cancellation of a bank guarantee because the lessor was unable to return the original bank guarantee in compliance with this section, or an order of a court.
	(6)	This section applies to a bank guarantee whether given in respect of a lease entered into or renewed before or after the commencement of this section.
	(7)	In this section—
bank guarantee means a guarantee from an ADI in satisfaction of any requirement to provide a security bond or other bond or third party guarantee for the performance of the lessee's obligations under the lease.
16—Amendment of section 20B—Minimum 5 year term
Section 20B(3)(b)—delete "with the consent of the lessor and the period of holding over does not exceed 6 months"
17—Amendment of section 20K—Certified exclusionary clause
Section 20K(3)—delete subsection (3) and substitute:
	(3)	A certified exclusionary clause is a provision of a retail shop lease in respect of which a certificate signed by the Commissioner, or a lawyer who is not acting for the lessor, is endorsed on the lease to the effect that—
	(a)	the Commissioner or lawyer (as the case may be) has, at the request of the prospective lessee, explained the effect of the provision and how this Part would apply in relation to the lease if the lease did not include that provision; and
	(b)	the prospective lessee gave the Commissioner or lawyer (as the case may be) apparently credible assurances that the prospective lessee was not acting under coercion or undue influence in requesting or consenting to the inclusion of the provision in the lease.
	(4)	The Commissioner may require payment of a fee prescribed by the regulations for the provision of a certificate under this section.
18—Amendment of section 20L—Premium for renewal or extension prohibited
Section 20L(2)(a)—delete "$10 000" and substitute:
$15 000
19—Amendment of section 20M—Unlawful threats
Section 20M, penalty provision—delete "$10 000" and substitute:
$15 000
20—Amendment of section 24—Turnover rent
Section 24(5), penalty provision—delete "$1 000" and substitute:
$1 500
21—Amendment of section 44—Premium on assignment prohibited
Section 44(2)(a)—delete "$10 000" and substitute:
$15 000
22—Amendment of section 51—Confidentiality of turnover information
Section 51, penalty provision—delete "$10 000" and substitute:
$15 000
23—Amendment of section 75—Vexatious acts
Section 75, penalty provision—delete "$5 000" and substitute:
$8 000
24—Amendment of section 77—Exemptions
	(1)	Section 77(2)—after "Magistrates Court" insert:
or the Commissioner
	(2)	Section 77(4), penalty provision—delete "$500" and substitute:
$800
25—Substitution of section 80
Section 80—delete the section and substitute:
80—Regulations
	(1)	The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.
	(2)	Without limiting the generality of subsection (1), the regulations may—
	(a)	be of general or limited application; and
	(b)	confer powers or impose duties in connection with the regulations on the Minister or the Commissioner; and
	(c)	prescribe codes of practice to be complied with by lessors and lessees; and
	(d)	fix fees in respect of any matter under this Act and provide for their payment, recovery or waiver; and
	(e)	exempt a specified person or class of persons, or a specified transaction or class of transactions, from compliance with this Act or a specified provision of this Act, either absolutely or on conditions or subject to limitations; and
	(f)	make provision of a saving or transitional nature consequent on the commencement of specified provisions of this Act or specified regulations under this Act; and
	(g)	make different provision according to the classes of persons, or the matters or circumstances, to which they are expressed to apply; and
	(h)	incorporate, adopt, apply or make prescriptions by reference to, with or without modifications, any document formulated or published by any body or authority as in force at a particular time or from time to time; and
	(i)	impose penalties not exceeding $2 000 for contravention of a regulation.
	(3)	If a document formulated or published by any body or authority as in force at a particular time or from time to time is incorporated, adopted, applied or referred to in the regulations—
	(a)	a copy of the document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and
	(b)	evidence of the contents of the document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the document.

Part 3—Amendment of Landlord and Tenant Act 1936
26—Insertion of section 13A
After section 13 insert:
13A—Jurisdiction of the Magistrates Court
	(1)	The Magistrates Court has jurisdiction to hear and determine any application or other proceeding under this Part.
	(2)	If a proceeding before the Magistrates Court involves a monetary claim, or property with a value, that exceeds the amount by reference to which the jurisdictional limit of the Magistrates Court is fixed, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court.
	(3)	If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part.
27—Amendment of section 24—Adverse claims
Section 24(2)—delete subsection (2) and substitute:
	(2)	The Magistrates Court, on hearing a claim under subsection (1), may make such orders, including orders as to costs, as the Court thinks fit.