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Administrative Arrangements 

1.  Application form

Two decisions in the Administrative Decisions Tribunal (ADT) have clarified the operation of section 10 of the Retail Trading Act 2008 (the Act).

In December 2010 the ADT held that, before an exemption (from the restriction to trade) can be granted, a two-tiered test must be satisfied:

First: it is necessary to consider whether there are exceptional circumstances.

Second: if it is considered there are exceptional circumstance then the next test is whether granting of the exemption is in the public interest.

Copies of the decisions are available here:

Dwyer v Department of Services, Technology and Administration and Kmart Australia Limited (pdf - 91Kb)

Ashcroft's Supa IGA Orange Pty Ltd v Director General, Department of Services, Technology and Administration & Anor (pdf - 85Kb)

The application form to seek approval to trade on a restricted trading day reflects the requirements of section 10 as determined by the ADT. Specifically, there is a section that seeks information from applicants about the nature of the exceptional circumstances.

Application Form (pdf 90Kb and word versions).

Retail Trading Amendment Regulation 2011 (pdf 256Kb)

2.  Public comment period

Clause 4(1) of the Retail Trading Regulation 2009 provides that an application under section 10 must be publicly exhibited for a period of at least 14 days. It is only after this period has elapsed that the Secretary can make a determination on the application.

Section 11 of the Act provides that an application under section 10 must be lodged not later than 28 days in advance of the restricted trading day.