Legislative Council
10 December 1998
 SHOP TRADING HOURS (MISCELLANEOUS) AMENDMENT BILL

 In Committee.
 (Continued from 8 December. Page 405.)
 The CHAIRMAN: I explain to the Committee that, when we reported progress, the Hon. Terry Roberts had moved his amendment for a new clause 10. That has been moved and we have had some debate on that. Since then the Attorney-General has filed his own new clause 10. I ask the Attorney-General to move his amendment.
 The Hon. K.T. GRIFFIN: 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) A meeting to approve core trading hours, or to approve a change in core trading hours for the purposes of subsection (1)(c) may be called in accordance with the regulationsó
 (a) by the lessor under a retail shop lease; or
 (b) by the number of lessees under retail shop leases prescribed by regulation.


  The Hon. IAN GILFILLAN: As the Attorney-General and the Hon. Terry Roberts well know, there has been a lot of extended discussion about this amendment. I enthusiastically support the amendment. I think it is appropriate to mention to the Committee what should be already obvious. The Democrats oppose the Bill in its totality on the issue of extended shop trading hours, but it is facing the inevitable that this legislation will pass. It is important that this measure is brought into effect because of the real fearó
 The Hon. K.T. Griffin interjecting:
 The Hon. IAN GILFILLAN: Justified or notóthat is not what we are debatingóthat lessees have that they will suffer if they are seen to be the instigators of moves to change or to oppose the change to core trading hours.
 The protection of having their association trigger it off and for a representative of the association to represent their interests in discussing a matter at a meeting before the secret ballot takes place is an essential part of giving a reasonable, fair and equitable approach by lessors and lessees to the issue of changes to core trading hours.
 The Attorney-General did question, I think (as he is perfectly entitled to), whether the issue of intimidation was a reality. I believe he has seen the memo that was sent to me from the Executive Director of the Small Retailers Association, John Brownsea. I made that memo available to him yesterday. But, he may not have seen material sent to me by Max Baldock of the Small Retailers Association. It was a memo from Westfield at Arndale dated 3 December 1998. It is addressed to `All Retailers' from Antony Ritch and the subject is `Christmas trading hours'. The memo states:
 I know that extended trading hours can strain our resources during the busy Christmas period, but we are a service industry and must satisfy our customers' expectations if we wish to succeed. At all times we must portray a service oriented and professional image to our customers, and nothing is less professional than a customer expecting stores to be open and turning up only to be disappointed.
 These hours form part of the centre's core trading hours, hence all stores need to be open. There is not only an obligation to our customers, but also to your fellow retailers to make sure that your store is open during all extended trading hours. As such, please review the attached trading hours and ensure that you are open for all the days and hours listed. These hours are statewide and designed to service our customers and increase sales. If you require any further information please do not hesitate to call. Kind regards, Antony Ritch, Centre Manager.

The first comment on that from Max Baldock was sent to Ralph Clarke and was made available to me, and I quote:

 Ralph, I thought you would be interested in noting that this letter was given to all Arndale retailers.

That is what I have just read. He continues:

 It was reinforced verbally by centre management that they [the lessees] had no choice but to trade on Sundays. Some retailers contacted me [that is, Max Baldock of the Small Retailers Associa-tion]. I contacted centre management and they eventually reversed the compulsory trading which they [centre management] asked me to tell their retailers in the centre.
 Your amendment is supported by this incident. The association was able to achieve what the individual retailers were unable to achieve. Your amendment is moving in the right direction to balance incidences of intimidation.

After a conversation with Max Baldock last night, I was encouraged that it was a move in the right direction and, in spite of the Attorney-General's doubts about how it would work, the main principle concerned continued to be the anonymity of the people who triggered off the meeting, those fearful of retribution or some form of intimidation. It is not easy to look at a method which could still allow an associa-tion to call for a meeting in a genuine context without revealing the specific names of those people or the lessees who had asked for it. There was some further discussion today about it, when Ralph Clarke suggested to me a procedure which I felt could be effective, that is, that the commission or tribunalóI am not sure which body it isó
 The Hon. K.T. Griffin: The Commissioner for Consumer Affairs.
 The Hon. IAN GILFILLAN: The Commissioner for Consumer Affairsó
 The Hon. K.T. Griffin: It's not acceptable to the Government. It is not a function of the Commissioner for Consumer Affairs.
 The Hon. IAN GILFILLAN: I should not be diverted; I was making my argument in a substantially progressive way. Ralph Clarke suggested that the Commissioner for Consumer Affairs could be the body to which an associa-tionósay, for example, the Small Retailers Associationócould provide the bona fide names of those people who had asked for the special meeting to consider the ballot for altering the core trading hours, thus retaining the anonymity of the people who had instigated the move. That seems to be an effective, practical way to achieve both things: that the lessor and the full body of the lessees could be assured that the request for the meeting made by their representative of the Small Retailers Association stemmed from a genuine request from a lessee of the precinct. That would be achieved. Secondly, the anonymity would also be retained so that all the lessees who may have felt that they wanted to have this matter revisited would feel they could make that initiative and still retain their anonymity.
 I thought that was a good procedure and thought the member from the other place would proceed to get an amendment drafted so the Hon. Terry Roberts could present it to this Chamber. That has not happened, but in my view the fact that it has not happened does not mean it is not still quite a good idea. However, it looks as if the original amendment is the one which will follow through. In fairness to the Small Retailers Association I think it is important to realise that the Democrats did not see this amendment until a couple of days ago, so we have not had a chance to canvass it in depth, but I got this response back from Max Baldock, dated today. He writes:

 Thank you Ian for your pursuit of the issue discussed last night.
 With regard to Ralph Clarke's amendment:
 As this amendment refers to an association pursuant to section 60 of the Act, it already establishes that only associations that have members or a particular interest in the lessees of a shopping centre are able to call a meeting with regard to trading hours. Hence, it reinforces section 60 where it states `. . . to represent or protect the interests of lessees'.
 The bona fides of the association might well be challenged in section 60, but it is interesting that the Attorney-General chose not to have any such clauses in this section of `his legislation' (or felt the necessity for such a clause).
 I believe that the Clarke amendment is a natural follow-on from section 60ó

perhaps I ought to refer to it as the `Roberts amendment' in this contextó

reinforcing the rights of a lessee to have representation by an acceptable and relevant association. However, we will be pleased to accept any amendment that reduces the opportunity for intimidation by a landlord (or his agent) to lessees.

He says he sent me a copy of the letter of the centre manage-ment to retailers at Arndale, which I have already read to the Chamber. The letter then continues:

 Whereas we might agree with some of the sentiments expressed by the letter [from the manager of Westfield, Arndale], it is deliberately misleading to suggest or link Sunday trade to core trading hours or to direct the retailers to `ensure that they are open for all the days and hours listed'. Verbal contact with centre management, I believe, by these retailers reinforced the `no choice but to trade' ultimatum. My first contact with the centre manager on Friday 4 on this matter reinforced the above position, but he agreed to check with others (I suppose within Westfield hierarchy). An hour later he rang me back, agreeing that the retailers did have the choice to trade on Sundays and would I [Max Baldock of the Small Retailers Association] let them know of that choice.

I comment that it is remarkable that the manager chose not to do so himself, having tried to push the lessees, somewhat deceptively, into accepting this Sunday trading and the full extent of the hours. Max Baldock goes on:

 This I did. Retailers can be produced to support the incident, but again are reluctant to be named, because of fear of future intimidation.

He then thanks me for my continued interest in the plight of small retailers.
 The Hon. R.R. Roberts interjecting:
 The Hon. IAN GILFILLAN: Justified thanks, don't you think? It is absolutely clear that lessees in large shopping centres do feel intimidated. I assume that either the Attorney is not aware of it or he is denying that it exists, but it is no good his saying that it does not exist, because the evidence is there and it keeps coming up. So, the Clarke-Roberts amendment goes at least some way to ensure that an associa-tion can be up-front in asking for or arranging that such a meeting can take place to consider changes to core hours and will be able to play a leading role in the discussion precluding the ballot. The Democrats support the famous RobertsóClarke amendment moved by the Hon. Terry Roberts.
 The Hon. K.T. GRIFFIN: I am not sure whether the Hon. Terry Roberts wishes to be associated with the amend-ment in that way, but acceptably the formal mechanism by which it is moved. My concern is that this has not been the subject of consultation across the industry. There are other groups representing retailers beside the Small Retailers Association, such as the Retail Traders Association, the News Agents Association, the Pharmacy Guild and the Small Business Associationóa whole range of themóand it may be that they are not even supportive of the way in which this has been proposed. Be that as it mayó
 The Hon. T.G. Roberts: They don't have to avail themselves of it.
 The Hon. K.T. GRIFFIN: No, they don't have to avail themselves of it, but their members might be adversely affected by it, particularly if they have one member who keeps calling meetings all the time on the basis that the vote to change core trading hours has to be 75 per cent of those who are present, not of those in the centre. Be that as it may, I have a very strong view that the amendment being proposed by the Hon. Terry Roberts is not a workable proposition. I note the contribution made by the Hon. Mr Gilfillan; I think it is a matter that we will have to revisit again at some time in the near future.
 The Committee divided on the Hon. T.G. Roberts's new clause:
 AYES (11)
 Crothers, T.  Elliott, M. J.
 Gilfillan, I.  Holloway, P.
 Kanck, S. M.  Pickles, C. A.
 Roberts, R. R.  Roberts, T. G. (teller)
 Weatherill, G.  Xenophon, N.
 Zollo, C.
 NOES (9)
 Davis, L. H.  Dawkins, J. S. L.
 Griffin, K. T. (teller) Laidlaw, D. V.
 Lawson, R. D.  Lucas, R. I.
 Redford, A. J.  Schaefer, C. V.
 Stefani, J. F.
  Majority of 2 for the Ayes.
 The Hon. T.G. Roberts's new clause thus inserted.
 Long title.
 The Hon. T.G. ROBERTS: I move:
 Page 1, line 7óAfter `1977' insert `and to make a related amendment to the Retail and Commercial Leases Act 1995.'
 Amendment carried; long title as amended passed.
 Bill read a third time and passed.
 

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