On 31 August 2026, the Australian Government released its consultation paper on harmonising retail tenancies and related commercial leasing across Australia. This consultation stems from the Government’s renewed focus on productivity, forming part of the National Competition Policy (NCP) reform agenda announced in the Federal Budget 2026-27.

Purpose of consultation

The consultation paper seeks views on whether, and how, the Government could improve consistency across the eight state and territory retail tenancies frameworks. Its focus is retail tenancies legislation in each state and territory, together with related commercial leasing settings where a jurisdiction operates a broader regime beyond a narrow retail-only model (for example, South Australia and the Australian Capital Territory).

Those frameworks pursue broadly similar objectives, including transparency, fair dealing and accessible dispute resolution, but ‘differ materially in coverage, disclosure settings, rent review rules, outgoings treatment, assignment procedures, dispute resolution pathways and enforcement arrangements’.¹ This creates real complexity for businesses, landlords and advisers operating multi-jurisdictional portfolios.

Two proposed models

The consultation paper proposes two alternative models to achieve harmonisation.

1. Single National Law: A single Commonwealth law to apply nationally, replacing state and territory retail tenancies legislation.
2. Model Law and National Minimum Baseline: A common legislative baseline adopted within each state and territory’s own legislation, focusing on high-impact areas while retaining jurisdictional flexibility outside the baseline, supported by governance mechanisms through the NCP to prevent re-divergence. Illustrative baseline areas flagged for consultation include:
   1. Definitions and coverage;
   2. Pre-lease disclosure;
   3. Outgoings transparency;
   4. Dispute resolution gateway; and
   5. Shopping centre transparency.²

Why now?

The immediate driver is productivity. This consultation sits within the Single National Market reform stream of the NCP, building on the Economic Reform Roundtable, and the Government estimates that the revitalised NCP reforms could increase long-run GDP by around $13 billion per year once implemented.

Retail tenancies settings shape entry, expansion and exit decisions for small and medium businesses by affecting occupancy costs, risk allocation and dispute exposure, making the sector a natural candidate for a national consistency push.

Reform has largely stalled since the Productivity Commission’s 2008 inquiry, which recommended a ‘nationally consistent regulatory framework, by reference to nationally consistent model legislation’.³ Although the Government ‘offered in-principle support’,⁴ no durable national alignment followed, and coordinated leasing responses have only otherwise emerged in targeted circumstances, such as the COVID-19 period.

Importantly, the consultation paper does not assume harmonisation is necessary in all cases. Divergence can reflect deliberate policy choices suited to different retail formats, and the Treasury has expressly flagged a key evidence gap: there is no published, jurisdiction-specific cost-benefit analysis of harmonising retail and commercial leasing law, and prior reviews have relied on qualitative submissions rather than detailed modelling. This is why the consultation places such weight on stakeholders providing practical examples, cost evidence and dispute data, rather than proceeding on assumption alone.

How would harmonisation be achieved?

The consultation paper sets out a common decision frame for comparing the two models, built around seven criteria: consistency of rights and obligations across jurisdictions; targeting and proportionality (focusing on high-impact divergences without unnecessary prescription); flexibility for jurisdictions to retain local tailoring outside a defined baseline; feasibility and effort (whether change requires primary legislation, subordinate instruments, guidance or templates); durability (how future divergence is managed); costs and distributional impacts (who bears transition costs and who benefits); and evidence readiness.

Implementation turns on several transition design choices flagged in the paper. These include implementation supports (national disclosure templates, guidance materials and education for landlords, tenants and advisers) and sequencing (whether reform is delivered as a single package or staged by topic, for example disclosure first, then outgoings, then dispute resolution gateways). Where a baseline model is adopted, the paper also contemplates governance mechanisms to maintain alignment over time, such as intergovernmental oversight, scheduled reviews and publication of any jurisdictional deviations.

The paper separately notes that retail-leasing-specific provisions can overlap with economy-wide protections under the Australian Consumer Law, particularly around disclosure and lease administration, and seeks views on whether greater consistency across retail tenancies frameworks would improve coherence between the two regimes without weakening existing protections.

Practical implications

The application and transition scope of any reform remains open, and retrospective alteration of existing leases presents a real risk for parties privy to a retail lease. The Government has requested feedback on ‘whether reforms apply to new leases only, new and renewed leases, or new, renewed and varied leases’.⁵ The framing of that question suggests reforms are more likely to apply prospectively, with existing leases grandfathered until renewed, varied or expired, but parties to a lease should not assume this outcome until the design choice is settled.

Harmonisation could reshape industry standards and expectations. Landlords operating across jurisdictions currently maintain separate lease templates, disclosure statements and outgoings reports for each jurisdiction. A common baseline on priority areas would push the market towards a single base lease with flexibility for jurisdiction-specific terms, lowering ongoing advisory and compliance costs. However, the transition itself, reworking precedents and legal documents across a portfolio, would be a one-off cost.

Landlords may lose favourable jurisdictional flexibility. For example, NSW and QLD do not impose a statutory minimum five-year term on landlords, and in Tasmania and the ACT, there is no express prohibition on rent ratchet clauses that prevent rent from decreasing on review. Landlords could lose negotiation leverage where a national framework favours tenant protection.

Assignment, sub-letting and change-of-control processes are also squarely in scope, given they directly affect a tenant’s ability to sell a business and realise the value of goodwill on exit. The paper notes that differing consent timeframes, conditions and liability-release rules across jurisdictions can delay or disrupt transactions and increase legal and advisory costs, particularly for franchise systems and multi-site operators. A national baseline on consent timeframes and liability release could shorten sale timeframes but would need to be weighed against jurisdictions that currently give landlords more control over incoming tenants.

Dispute resolution pathways diverge in whether mediation is mandatory, how mediation services operate, and which forum hears a dispute if mediation fails. A consistent mediation gateway with clear post-mediation pathways is one of the illustrative baseline topics, and could reduce forum shopping and shorten resolution times, but landlords and tenants accustomed to a particular jurisdiction’s tribunal or commissioner model may need to adjust to new procedures and evidentiary practices.

Shopping centre landlords face a further layer of complexity. Settings on marketing funds, centre-level charges and turnover information already differ across jurisdictions, and casual mall licensing currently operates as a voluntary industry code everywhere except South Australia, where it is a statutory code under the Retail and Commercial Leases Act 1995 (SA). A national minimum standard for marketing fund reporting and turnover information would likely require centre operators to revisit disclosure practices and existing industry code arrangements, even under the lighter-touch baseline model.

More broadly, the consultation paper itself asks stakeholders to identify the risks of harmonisation, including reduced flexibility, increased costs, or adverse impacts on investment. This is a useful prompt for landlords and tenants alike: any submission favouring a particular model should identify not only the divergences it would remove, but the local tailoring it would also remove, and whether appropriate safeguards (such as a genuinely minimum, rather than maximal, baseline) are built into the design.

Concluding remarks

No formal legislation has been tabled, and the consultation paper expressly does not represent government policy. Treasury will use submissions to inform advice to Government on whether, and how, greater consistency could improve outcomes.

While improved consistency across retail leasing regimes may reduce some compliance friction, a prescriptive national framework risks replacing commercial judgment with regulatory intervention. Harmonisation should be confined to genuine high-impact inconsistencies and avoid dictating market outcomes. Ultimately, landlords and tenants are best placed to negotiate risk, pricing and commercial terms that reflect their particular circumstances. A baseline model that balances national consistency with room for commercial negotiation, market responsiveness and flexibility in how parties structure their leasing arrangements would align well with the consultation’s stated reform criteria and support durable evidence-based reform.

For more information, or to provide feedback to the consultation paper, please refer to The Treasury Consultation Hub at Harmonising retail tenancies across Australia – Consult hub.

HWLE is well placed to assist landlords, tenants and industry participants in preparing submissions to Treasury. Given the acknowledged evidence gaps, submissions supported by practical examples, cost data and real-world dispute experiences are likely to be far more influential than views expressed at a purely policy level. We can help stakeholders identify, articulate and substantiate the issues that matter most to their businesses.

This article was written by Adam Rinaldi, Partner, Michael De Palma, Senior Associate, George Komninos, Associate, and Madeline Playford, Law Graduate.

¹ Australian Government, The Treasury, Harmonisation of Retail Tenancies and Related Commercial Leasing (Consultation Paper, August 2026) 3.
² Ibid 21-22.
³ Productivity Commission, The Market of Retail Tenancy Leases in Australia (Inquiry Report, No. 43) 260.
⁴ Senate Standing Committees on Economics, Parliament of Australia, Need for a National Approach to Retail Leasing Arrangements (Report, March 2015) 8.
⁵ Australian Government, The Treasury, Harmonisation of Retail Tenancies and Related Commercial Leasing (Consultation Paper, August 2026) 22.