Shop Trading Hours

The Hon. F. PANGALLO (14:37): I seek leave to make a brief explanation before asking a question of the Treasurer, the Hon. Rob Lucas, about shopping hours.

Leave granted.

The Hon. F. PANGALLO: During yesterday's questions without notice debate on the deregulation of shopping hours, and in a response to the Hon. Emily Bourke, the Treasurer said, in part:

What we are seeking to do for those businesses is to allow them to trade in hours at the moment they currently want to trade and perhaps some of them are trading unlawfully.

My question to the Treasurer is:

1. Can he name those businesses which he believes are trading unlawfully?

2. Have warnings been issued to those businesses?

3. Does the government plan to initiate proceedings to prosecute the businesses he believes are trading unlawfully, should the government's bill fail to pass the upper house, as his colleague in the other place, the member for MacKillop, Nick McBride, confidently told a forum in Millicent I attended last Friday?

The Hon. R.I. LUCAS (Treasurer) (14:38): At this stage, I am broadly following the position the former minister for industrial relations, John Rau, adopted in relation to shop trading hours. If I can briefly outline—because I have had a brief discussion with the Hon. Mr Pangallo about this issue a little while ago—the former minister became aware that some shops in regional communities, and in one particular regional community the Hon. Mr Pangallo has visited in the recent past, I forget the exact number but it was somewhere between, I think, 15 and 20 independent supermarkets, by and large, had been trading unlawfully for, and, again, I will need to check the detail but I think it was 10 or 15 years on Sundays. The Shop Trading Hours Act, as it was then and as it still is now, meant that these particular stores, which were evidently happily serving consumer demand in those regional communities for many, many years, were trading unlawfully.

The former minister's position that he adopted was that he, in essence, didn't proceed down the path of prosecution. He entered into an arrangement where most of those communities actually decided to abolish their proclaimed shopping district status so that they were completely deregulated, like the rest of regional South Australia. So they made a conscious decision to deregulate shop trading hours in all of those regional communities, with the support of the former Labor minister for industrial relations—in a delicious irony, I might say, given their current position.

They, in essence, went through a complicated process of getting rid of the regulated shopping hours, because their communities wanted completely deregulated shop trading hours in those particular areas. The only one where that didn't occur was in the area of Millicent. There was also, I think, one or two other small areas where there were no shops trading unlawfully, but they are still proclaimed shopping districts in small parts of country South Australia.

The answer to the question then, based on that precedent, is no. We are still establishing with absolute finality, for example, the size of some stores. As the member would know, under our complicated shop trading laws, whether or not you are above 200 square metres or 400 square metres means you are allowed to do certain things or not allowed to do certain things. So whether or not you are over and above that or not is a critical determinant.

There is another complicated provision which says you are allowed to have up to half that particular number in storage space. So if you happen to comply, if you are at 399 square metres in terms of shop trading space for a supermarket but you happen to have 205 square metres of storage space outside that, you are actually not complying with the law. So there are some complicated provisions. Some stores have willingly complied by indicating the size of their stores. Others have refused to do so and have invited SafeWork SA inspectors to come out and measure them and to do the work themselves. That task is still being undertaken at the moment.

Through that particular process we are aware that, whilst it was only anecdotal information before, there are a small number of stores that are trading unlawfully. They are either trading on public holidays or indeed trading after 9pm through weekdays or indeed opening up before they are meant to, sometimes on weekends.

Why are they doing it? Because their community is demanding the flexibility in terms of shopping hours. Why are they doing it? Because they believe that they are providing a service to their local communities. Why are they doing it? They have workers who are prepared to work quite willingly. Why are they doing it? Because they believe, as businesspeople, it makes sense commercially for them to trade in those particular hours, I would understand, because no-one is forcing them to trade in those particular hours.

There are other areas as well. I think I have highlighted, both to the honourable member and to others, the complicated provisions in relation to service stations; that is, the very popular 24-hour full-service service stations which have grown significantly in number in South Australia. They are trading 24 hours a day, seven days a week, providing all sorts of services. There are complicated provisions in the current act which essentially say that 80 per cent of the value of the goods sold should be, in essence, fuel and related products like that.

But there are some potential anomalies in the way the legislation has been drafted between the act and the regulations, which Crown law is still settling advice on in relation to the legality of the lawfulness or otherwise of some current trading arrangements in that area. In some of those areas, to answer the honourable member's question, there is no concluded Crown law advice in relation to some of those issues. It may well be that the only way they are ultimately settled is that it eventually ends up in a court and there's a judgement in relation to what the act means. That's if we stick with the dog's breakfast of an act that we have.

What the Liberal government is going to bring to the table is what we believe to be a much simpler act that will resolve a number of these issues. Ultimately, that will be a decision for the parliament to take, to answer the member's question. If the parliament says, 'No, we're not going to do that; we'll stick with the dog's breakfast of the act that we have,' then we will be left with the position of the dog's breakfast of an act that we have. If we do get concluded legal advice in relation to particular trading provisions, either lawful or unlawful, we will need to abide by the law of the state.

Whilst the former Labor minister gave a considerable amount of time and didn't prosecute people for 10 or 15 years of unlawful trading, he nevertheless understood that he had to seek some resolution to the problems that had been created. We are obviously more interested in seeking a solution to the problems that were perhaps created by the dog's breakfast of the legislation that we have before us. If the parliament says that we can't, we will have to work our way through the process from the law that we have, the law that the parliament says we have to implement, and we would need to follow that process through.

Ultimately, if that potentially leads to, sadly, some traders having to change their trading arrangements—that is, restricting choice in their area, acting against their own commercial interests and acting against the consumer demands in their particular area, but nevertheless amending their trading hours—that might be the result. It's not the result that the Liberal government wants. We would prefer to allow the freedom of choice to allow these traders to trade, but ultimately that will be the decision.

Finally, in relation to the member's kind invitation to name individual businesses in the parliament at this stage, I'm not going to take up that particular option at this stage. We will wait for the concluded view of the Crown law advice and the debate in the parliament. Hopefully, the parliament will see the wisdom of not having potentially to consider the option of prosecuting the traders who are just going about what they believe their consumers and customers want, and that's trading in flexible trading hours.

But that will be the challenge for the Hon. Mr Pangallo and, indeed, other members of the Legislative Council: to consider the balancing act of whether we support the dog's breakfast of the legislation that we have now or whether we actually seek to resolve some of these issues so that businesses that are currently trading are allowed to continue to trade in the hours that they have, given that they clearly have workers who are prepared to work and they certainly have customers who want to come to their shops in those particular times.