Commercial Tenancy Relief Scheme Act 2021 (Vic)
Version No. 001
Commercial Tenancy Relief Scheme Act 2021
No. 27 of 2021
Version as at
10 August 2021
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Act binds the Crown
Part 2—Regulations temporarily modifying law relating to retail leases and non-retail commercial leases and licences
5Meaning of eligible lease
6Meaning of non-retail commercial lease or licence
7Regulations modifying law relating to certain retail leases and non-retail commercial leases and licences
8Effect of regulations and certain orders made under regulations
9No compensation payable
10Functions and powers of the Small Business Commission under this Act
11Certain requirements under Subordinate Legislation Act 1994 disapplied
12Regulations are disallowable by either House of Parliament
Part 3—Transitional regulations
13Regulations dealing with transitional matters
14Regulations are disallowable by either House of Parliament
Part 4—Repeal of Act
15Repeal of Act
16Regulations continue in force for 6 months after repeal of empowering section
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 001
Commercial Tenancy Relief Scheme Act 2021
No. 27 of 2021
Version as at
10 August 2021
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are to temporarily—
(a)empower the making of regulations to modify the application of the law of Victoria in relation to certain commercial leases and licences for the purpose of responding to the COVID-19 pandemic; and
(b)provide for transitional matters.
2Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3Definitions
In this Act—
2020 lease means a lease that was an eligible lease within the meaning of the COVID-19 Omnibus (Emergency Measures) Act 2020;
commercial licence means a licence, sub-licence or agreement for a licence or sub-licence, whether or not in writing or partly in writing, and whether express or implied, under which a person has the right to occupy, non‑exclusively, a part of premises for the sole or predominant purpose of carrying on a business at the occupied premises;
eligible lease—see section 5;
landlord, in relation to an eligible lease that is a commercial licence, includes the licensor (or sub-licensor) of that licence;
Note
An eligible lease is defined to include a non-retail commercial lease or licence which includes a commercial licence.
lease means a lease, sub-lease or an agreement for a lease or sub-lease, whether or not in writing or partly in writing, and whether express or implied;
non-retail commercial lease or licence—see section 6;
retail lease means a lease of retail premises within the meaning of the Retail Leases Act 2003;
Small Business Commission means the Small Business Commission established under section 4 of the Small Business Commission Act 2017;
specified rent relief means a waiver or deferral of rent payable under an eligible lease;
tenant, in relation to an eligible lease that is a commercial licence, includes the licensee (or sub-licensee) of that licence.
Note
An eligible lease is defined to include a non-retail commercial lease or licence which includes a commercial licence.
4Act binds the Crown
This Act binds the Crown—
(a)in right of the State of Victoria; and
(b)to the extent that the legislative power of the Parliament permits, in all its other capacities.
Part 2—Regulations temporarily modifying law relating to retail leases and non-retail commercial leases and licences
5Meaning of eligible lease
(1)An eligible lease is a retail lease or a non-retail commercial lease or licence, or a retail lease or a non-retail commercial lease or licence of a specified class, that is prescribed.
(2)An eligible lease does not include a retail lease or a non-retail commercial lease or licence, or a retail lease or a non-retail commercial lease or licence of a specified class, that is prescribed.
6Meaning of non-retail commercial lease or licence
(1)A non-retail commercial lease or licence is—
(a)a lease of premises under which the premises are let for the sole or predominant purpose of carrying on a business at the premises; or
(b)a commercial licence.
(2)A non-retail commercial lease or licence does not include a retail lease.
7Regulations modifying law relating to certain retail leases and non-retail commercial leases and licences
(1)The Governor in Council, on the recommendation of the Minister for Small Business, may make regulations for or with respect to the following—
(a)prohibiting the termination of an eligible lease;
(b)changing any period under the following—
(i)an eligible lease;
(ii)the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958 in relation to an eligible lease;
(iii)regulations made under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958 in relation to an eligible lease—
in which someone must or may do something;
(c)changing or limiting any other right of a landlord under an eligible lease under the following—
(i)that lease;
(ii)the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(iii)regulations made under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(d)changing or limiting any other right a person who is a landlord under an eligible lease has under an agreement related to that eligible lease;
(e)exempting a landlord or tenant under an eligible lease from having to comply with the following—
(i)an eligible lease;
(ii)the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(iii)regulations made under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(iv)an agreement related to an eligible lease;
(f)modifying the operation of an eligible lease or an agreement related to the eligible lease;
(g)modifying the application, in relation to an eligible lease, of the following—
(i)the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(ii)regulations made under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 or the Transfer of Land Act 1958;
(iii)the common law;
(h)extending the period during which an eligible lease is in effect;
(i)deeming a provision of the regulations as forming part of an eligible lease;
(j)imposing new obligations on landlords or tenants under an eligible lease, including requiring them to negotiate amendments to an eligible lease;
(k)requiring landlords and tenants under an eligible lease who are in dispute about any matter relating to an eligible lease to participate in mediation arranged by the Small Business Commission;
(l)requiring landlords and tenants under an eligible lease who are in dispute about any matter relating to an eligible lease to have a mediation certificate before commencing proceedings in VCAT or a court in relation to the dispute;
(m)requiring a landlord or tenant under an eligible lease who are in dispute about any matter relating to an eligible lease to get leave of a court to commence a proceeding in relation to the dispute in the court;
(n)the conduct of a mediation referred to in paragraph (k), including the payment of fees and expenses for the conduct of a mediation;
(o)the making of orders directing landlords under eligible leases to give or agree to give specified rent relief to tenants under eligible leases (binding orders) and the content of such orders;
(p)the process for applications by tenants under eligible leases for binding orders (rent relief applications), including the content of rent relief applications and documents that may accompany rent relief applications;
(q)requiring any matter in a rent relief application, or a document that may accompany a rent relief application, to be verified by statutory declaration;
(r)preconditions that must exist or be met before a rent relief application may be made;
(s)the process for dealing with and deciding rent relief applications, including the criteria to be applied in deciding rent relief applications;
(t)the amendment or revocation of binding orders;
(u)the process for applications for the amendment or revocation of binding orders;
(v)the process for dealing with and deciding applications referred to in paragraph (u), including the criteria to be applied in deciding such applications;
(w)the correction of errors or omissions in binding orders on the application of persons to whom the orders relate or by the entity that makes the orders on its own initiative;
(x)the enforcement of binding orders in cases of non-compliance with such orders;
(y)preconditions that must exist or be met before proceedings relating to compliance with binding orders may be commenced in VCAT or a court;
(z)the admissibility in evidence in a proceeding in VCAT or a court of specified material related to a mediation referred to in paragraph (k);
(za)conferring jurisdiction on VCAT to hear and determine disputes about any matter relating to an eligible lease;
(zb)conferring jurisdiction on VCAT—
(i)to review the making, amendment or revocation of a binding order;
(ii)to hear and determine proceedings relating to compliance with binding orders;
(zc)any matter or thing required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.
(2)Regulations made under subsection (1)(k) or (l) must not—
(a)require a landlord or tenant who are in dispute about any matter relating to an eligible lease to participate in mediation if either the landlord or tenant has commenced proceedings in VCAT or a court in relation to that dispute; or
(b)have the effect of preventing a landlord and tenant who are in dispute about any matter relating to an eligible lease from commencing proceedings in a court in relation to that dispute at any time.
(3)Regulations under subsection (1) may be made for and in relation to a 2020 lease as if the definition of eligible lease included a reference to a 2020 lease, but only to the extent necessary for the regulations to provide for the deferral of rent payable under a 2020 lease, in circumstances where—
(a)the eligible lease is in substance a renewal, extension or replacement of the 2020 lease; and
(b)rent payable under the 2020 lease was deferred under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020.
(4)Regulations under this section may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances;
(c)confer a function or power or impose a duty on a specified person or body or class of persons or bodies;
(d)apply, adopt or incorporate any matter contained in any document whether—
(i)wholly or partially or as amended by the regulations; or
(ii)as in force at a particular time; or
(iii)as in force from time to time;
(e)impose a penalty not exceeding 20 penalty units for a contravention of the regulations.
(5)Regulations made under this section may have retrospective effect to a day not earlier than 28 July 2021.
(6)The Minister for Small Business may only recommend that regulations be made under this section if the Minister is of the opinion that the regulations to be made on the recommendation are reasonably necessary for responding to the COVID-19 pandemic.
8Effect of regulations and certain orders made under regulations
(1)The following have effect subject to any regulations made under section 7 or an order made pursuant to regulations made under section 7(1)(o)—
(a)an eligible lease or any agreement relating to an eligible lease;
(b)the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 and the Transfer of Land Act 1958;
(c)regulations made under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Property Law Act 1958, the Retail Leases Act 2003, the Settled Land Act 1958 and the Transfer of Land Act 1958;
(d)the common law.
(2)To avoid doubt, any regulations made under section 7 that have retrospective effect to a particular day are taken always to have had effect on and after that day.
9No compensation payable
No compensation is payable by the State in respect of loss, damage or injury of any kind suffered by any person as a result of, or arising out of, the making of a regulation under section 7.
10Functions and powers of the Small Business Commission under this Act
(1)The Small Business Commission has the following functions under this Act—
(a)to make arrangements to facilitate the resolution by mediation, of disputes between landlords and tenants under an eligible lease about any matter relating to the lease;
(b)to monitor compliance with regulations made under section 7;
(c)to commence proceedings for offences against regulations made under section 7;
(d)despite section 5 of the Small Business Commission Act 2017, any other function that is prescribed.
(2)In addition, despite section 5 of the Small Business Commission Act 2017, the Small Business Commission may also exercise any powers conferred on it under regulations under section 7.
11Certain requirements under Subordinate Legislation Act 1994 disapplied
The following are not required for any proposed statutory rule that is to be made under section 7—
(a)consultation under section 6 of the Subordinate Legislation Act 1994;
(b)the preparation of a regulatory impact statement under section 7 of the Subordinate Legislation Act 1994.
12Regulations are disallowable by either House of Parliament
Regulations made under section 7 may be disallowed in whole or in part by either House of Parliament.
Part 3—Transitional regulations
13Regulations dealing with transitional matters
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the following—
(a)the repeal of Part 2.2 of the COVID-19 Omnibus (Emergency Measures) Act 2020 and the expiry of the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020;
(b)the repeal of Part 2 of this Act and the expiry or revocation of regulations made under Part 2 of this Act.
(2)Regulations made under this section may—
(a)be of limited or general application;
(b)differ according to time, place or circumstances;
(c)leave any matter or thing to be decided by a specified person or class of person.
(3)To the extent to which any provision of the regulations under this section takes effect from a date that is earlier than the date of its making, the provision does not operate so as—
(a)to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its making; or
(b)to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its making.
(4)Regulations under this section have effect despite anything to the contrary in—
(a)any Act (other than this Act, the Constitution Act 1975 or the Charter of Human Rights and Responsibilities); or
(b)any subordinate instrument.
(5)The following are not required for any proposed statutory rule that is to be made under this section—
(a)consultation under section 6 of the Subordinate Legislation Act 1994;
(b)the preparation of a regulatory impact statement under section 7 of the Subordinate Legislation Act 1994.
14Regulations are disallowable by either House of Parliament
A regulation made under section 13 may be disallowed in whole or in part by either House of Parliament.
Part 4—Repeal of Act
15Repeal of Act
This Act is repealed on 30 April 2022.
16Regulations continue in force for 6 months after repeal of empowering section
Despite the repeal of this Act by section 15, regulations made under section 13 that are in force immediately before that repeal continue in force on and after that repeal until 30 October 2022.
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Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 3 August 2021
Legislative Council: 5 August 2021
The long title for the Bill for this Act was "A Bill for an Act to temporarily empower the making of regulations to modify the application of the law of Victoria in relation to certain commercial leases and licences and for other purposes."
The Commercial Tenancy Relief Scheme Act 2021 was assented to on 10 August 2021 and came into operation on 10 August 2021: section 2.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the Commercial Tenancy Relief Scheme Act 2021 by Acts and subordinate instruments.
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.
4 Explanatory details
No entries at date of publication.
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