Legislative Council
SHOP TRADING HOURS BILL - (DEBATE)
The Hon. T.G. ROBERTS: I move:
That it be an instruction to the Committee of the Whole that it
have power to consider an amendment to the Retail and Commercial Leases Act 1995.
Motion carried.
In Committee.
Clauses 1 to 4 passed.
Clause 5.
The Hon. M.J. ELLIOTT: During the second reading stage I posed some questions that
were not addressed at the end of the second reading, and I think since they largely relate
to this clause it is the appropriate point to ask them again. This clause extends shop
trading hours and effectively adds an extra two hours to each weeknight except Thursday
where trading already operates to 9 o'clock. I noted during the second reading debate
that, in fact, the overwhelming majority of stores in South Australia are capable of
opening any hours they want to right now, because they are exempt under the legislation.
It is largely stores over a certain size that cannot open.
When one makes a close analysis one finds that the stores which cannot open and
which are busting themselves to open are the supermarketsóColes, Woolworths and
Franklins. In fact, the extended hours of an extra two hours are more or less exactly what
they have been asking for to this point. So, the amendments strike very much to the heart
of what they wanted and are the very things that have been feared by many of their smaller
competitors. It has been claimed that the majors expect to increase their market share by
some 4 per cent simply on the basis of the change in trading hours. I ask the
Attorney-General whether or not that issue has been addressed, whether or not he is aware
of those claims and what his response to it is.
The Hon. K.T. GRIFFIN: I am just looking through the honourable member's
contribution at the second reading stage. He made a number of points but he did not seem
to me to be raising a number of questions, so that is why I did not answer them.
The Hon. M.J. Elliott: Well, I am posing an explicit question now, anyway.
The Hon. K.T. GRIFFIN: That's fine. I must confess that I did not discern from the
contribution that you wanted questions answered. You were making some political pointsó
The Hon. M.J. Elliott interjecting:
The Hon. K.T. GRIFFIN: You can make your points if you want to, but if you want to
raise questions we will deal with the questions. That's fine by me. I am informed that it
was one of the issues that was taken into account in considering the structure of the
Bill. Of course, the difficulty is that the issue of market dominance and the effect of
this legislation is not uniform. The Act may have the effect of advanta-ging some small
retailers in the food sector over their larger competitors, but it is not a uniform
advantage.
The Hon. M.J. Elliott: You mean an advantage to the large over the small, surely?
The Hon. K.T. GRIFFIN: No, the present Act. I said that the present Act may have the
effect of advantaging some small retailers over their large competitors with regard to
trading hours. I would have thought that the extent of the increase in hours would not
significantly, if at all, adversely affect small food retailers.
The Hon. T.G. Cameron: It should not be a question of what you think; you should
know, shouldn't you?
The Hon. K.T. GRIFFIN: Well, how do you know that? You tell me how you know that.
You can't know it. `Know it' means that it is irrefutable fact, and you can't determine
that.
The Hon. T.G. Cameron interjecting:
The Hon. K.T. GRIFFIN: That wasn't the issue. The Act only applies in certain areas
of the State. Woolworths in Victor Harbor is not covered by the Act and may therefore
trade at any time. Where it does apply, the Act also does not give uniform advantages to
small retailers over large retailers. The Act, for example, has the anomalous effect of
advanta-ging some large specialist retailers, such as hardware stores, over their large
department store competitors. So, the issue of market dominance, whilst it has been taken
into consider-ation, is not the only factor which determines the issue of trading hours.
The Hon. M.J. ELLIOTT: The Attorney-General said that the Government took it into
account. Does that mean that it acknowledged there was a very real possibility of a market
share change of 4 per cent? That figure was published interstate by Woolworths which
believed that a 4 per cent share change would occur in its favour. Does the
Attorney-General acknowledge that that was a real possibility even if it is not a known
fact?
The Hon. K.T. GRIFFIN: I am advised that the Govern-ment took that possibility into
consideration but that it had no numbers in front of it.
The Hon. IAN GILFILLAN: I am sure that it was of interest to the Government that the
major stores in the city opposed the offer of this extended trading period trial. Did the
Government note that the argument for the rejection of this offer was because they did not
think it would increase the volume of sales and the overhead costs for the extra hours
would not be recouped? There was very little enthusiasm for it. In fact, there was
virtually a rejection of it to the point where the Minister (Hon. Michael Armitage), I
think with some degree of pique, said that they were looking a gift horse in the mouth or
that they took a particularly obnoxious attitude to what he viewed as a very generous
offer.
I put to the Attorney that, if the people who know more about retail trade in South
Australia than anyone decide that it is not worth their while to extend their trading
hoursówhich reinforces the argument of those of us who have persistently said that there
are no more dollars and that there will be an increase in overheadsódoes that not
reinforce the argument that the clear motive for this whole push is to enable the big
players in the field to operate during periods of time which would crush their opposition
and leave them virtually with monopoly marketing outlets?
The Hon. K.T. GRIFFIN: The fact is that Harris Scarfe did not agree with the big
city retailers. Harris Scarfe said that they were madóor something like that.
The Hon. M.J. Elliott: Is that a direct quote?
The Hon. K.T. GRIFFIN: I read the newspaper article in which Harris Scarfe said that
they were mad for rejecting it. That is my recollection. At least that was the tenor of
Harris Scarfe's response. So, I do not acknowledge that there is a consistent view which
is demonstrated by city retailers and which might be used as an argument against extended
hours. It has always been the Government's view that the hours are the maximum hours. They
are optional hours. My recollection is that when Sunday trading came in many city
retailers were opposed, but now they are all fighting for it. The ball game changes as
their experience broadens. It may well be that Harris Scarfe's position will ultimately
carry sway and that the reflection which it has made on other retailers for rejecting
extended hours on weeknights will prove to be a valid criticism.
The Committee divided on the clause:
AYES (14)
Crothers, T. Davis, L. H.
Dawkins, J. S. L. Griffin, K. T. (teller)
Holloway, P. Laidlaw, D. V.
Lawson, R. D. Pickles, C. A.
Redford, A. J. Roberts, R. R.
Roberts, T. G. Schaefer, C. V.
Weatherill, G. Zollo, C.
NOES (4)
Cameron, T. G. Elliott, M. J.
Gilfillan, I. Xenophon, N.
PAIR(S)
Stefani, J. F. Kanck, S. M.
Majority of 10 for the Ayes.
Clause thus passed.
Clauses 6 to 9 passed.
New clause 10.
The Hon. T.G. ROBERTS: I move:
Page 4, after line 7óinsert new clause as follows:
Amendment of Retail and Commercial Leases Act 1995.
10. The Retail and Commercial Leases Act 1995 is amended by
inserting the following subsection after subsection (2) of section 61:
(2a) The lessor or the lessee under a retail shop lease (or an
officer of an association referred to in section 60 acting at the request of a lessee) may
call a meeting of the persons who are entitled to vote in a ballot to vote on a resolution
approving different core trading hours for the purposes of subsection (1)(c).
The Hon. IAN GILFILLAN: The Hon. Terry Roberts may confirm this but, as I read the
amendment (and let me make it plain that we have not had the amendment in hand for long,
so I cannot claim to have had an opportunity to really analyse it in depth), it appears to
enable a meeting. I do not read it as enabling a vote. The Attorney indicated earlier what
was in the current legislation involving the secret ballot, and so on, but I do not see
this amendment as varying that. I am not sure whether or not that was the intention.
The Hon. K.T. Griffin: It does.
The Hon. IAN GILFILLAN: It does? Well, subsection (2a) provides:
The lessor or lessee under a retail shop lease (or an officer of an association referred to in section 60 acting at the request of a lessee) may call a meeting of the persons who are entitled to vote in a ballot to vote on a resolutionó
The Hon. K.T. Griffin interjecting:
The Hon. IAN GILFILLAN: I am not sure how one interprets that. I refer to the words
`in a ballot'. If you stop there, you would ask, `What ballot?' I understand that the
latter part of the amendment identifies the ballot, in other words:
. . . in a ballot to vote on a resolution approving different core trading hours for the purposes of subsection (1)(c).
It may be that I have taken a shade different opinion to the intention of the mover,
but I argue that grammatically the amendment does not dictate that there be a vote. It
dictates that there can be a meeting of people who are entitled to vote in a ballot.
An honourable member: To vote.
The Hon. IAN GILFILLAN: No. This defines what the ballot is. The ballot is to vote
`on a resolution approving different core trading hours for the purposes of subsection
(1)(c)'. That could be a secret ballot. It is not deleting it. However, it may well be
that my interpretation, to which I still hold steadfastly, may not be the intention of the
original mover of the amendment and I would be interested to hear his views.
The Hon. T.G. ROBERTS: The Hon. Ian Gilfillan is saying, probably on advice that he
has received, that it may not necessarily cover the problem that we are trying to solve. I
may have to seek advice on that but, at this stage, we are pursuing the amendment for the
reasons outlined.
The Hon. IAN GILFILLAN: I listened intently to what the Attorney said earlier about
why he was opposing the amendment, and it appeared to me that there is a secret ballot and
there is `one enterprise, one vote'. That is how I interpret-ed what I heard. It appears
to me that there is in place a voting structure which is reasonably effective. The other
point is that, as honourable members know, we passed legislation, substantially a Bill to
amend the Retail and Commercial Leases Act, which is at the moment proceeding through the
Lower House. I have not had discussions to clarify this, but there may have been moves to
amend that Bill by members in another place along those lines.
I have had no briefing from the Small Retailers Associa-tion on the desirability of
this amendment and it leaves me rather reluctant to load this amendment into this Bill at
this stage. Quite frankly, apart from the advantage that I interpret-ed, that is, the
capacity to draw together those interested parties for a meeting in which there could be
an open discussion of the matter, it is better that the vote be a secret ballot rather
than a public vote in which heavyweights could in fact intimidate and score who voted in
which way.
Contrary to my expectations, because I felt that anything that came through from
Terry Roberts would have almost automatically had my support in this matter, to be fair
the Hon. Terry Roberts himself has indicated just a small degree of vagueness about it. It
seems to me to be somewhat dangerous to load this amendment into the Bill, if I have
understood the interpretation from the Attorney-General's explanation, and this amendment
in fact would open up the possibility of an open forum vote where everyone can see how
they are voting. I cannot indicate support for it. I think it is too hastily brought
forward into this debate.
The Hon. CARMEL ZOLLO: I have read a section of the original Act which certainly
provides for a secret ballot, and I understand the amendment is simply to be used as a
trigger to initiate a ballot.
The Hon. IAN GILFILLAN: With a little patience, I do hope we can wend our way
through this. Is the majority of wisdom in this House correct that this amendment does
indicate that it facilitates the vote but that the vote will still be a secret ballotóin
other words, it does not interfere with the actual method of the ballot? Can the
Attorney-General confirm whether that is the case?
The Hon. K.T. GRIFFIN: It is not my amendment.
The Hon. IAN GILFILLAN: I am asking whether you agree with what I am saying. Do you
believe that the amendment changes the method of the ballot?
The Hon. K.T. GRIFFIN: I do not think it does, but it enables anyone to call a
meeting at any time on any number of occasions. That is the problem.
The Hon. T.G. ROBERTS: It is a matter of common-sense. Those people who would want
to call numerous meetings for no reason at all would get short shrift in a retail shopping
area where they have a lot more to do than regularly attend meetings about nothing. The
amendment is pointed towards meeting around the changes to core hours. That is what the
amendment describes. I am not sure whether it rules out the ability for people to call
meetings around other issuesóthat is up to themóbut there is no point in knocking out
this amendment on the basisó
An honourable member interjecting:
The Hon. T.G. ROBERTS: That is right; it is a specifically aimed amendment.
Progress reported; Committee to sit again.
Debate resumes: 10 December 1998