Shop Trading Hours

Adjourned debate on motion of Hon. C.M. Scriven:

That this council—

1. Expresses its support for the decision by Millicent residents to oppose the deregulation of shop trading hours;

2. Acknowledges the Millicent community's overwhelming support for local businesses and local jobs; and

3. Calls on the government to support the Millicent community's efforts to support local businesses and local jobs and oppose the deregulation of shop trading hours.

(Continued from 4 July 2018.)

The Hon. R.I. LUCAS (Treasurer) (16:56): I rise to oppose the motion. In so doing I certainly acknowledge the part of the motion which is to acknowledge the views of many locals in the Millicent community who do oppose the government's position in relation to shop trading hours. Whilst we are opposing the motion we acknowledge the views as expressed through a local poll or survey not that long ago which expressed the views of the local community.

In speaking to this motion I think it is important to go through the background as to why we arrived where we have in relation to the unusual circumstances of Millicent. I have touched on this briefly in the past but I will provide a bit more detail during my contribution to this motion. It was approximately two to three years ago—we are not entirely clear because as a new government we are not, evidently, able to access all of the documents of the former minister and the former government but however it eventuated, someone dobbed someone in and it became clear that a significant number of independent supermarkets were trading unlawfully on Sundays in regional areas.

The whistle was blown on the unlawfulness of those actions and the issue was raised with the former Labor minister, John Rau, as minister for industrial relations. As I have outlined before, the minister adopted a defensible approach which at some stage he discussed with me and I think a number of other regional Liberal members, and that is that he did not propose to prosecute those independent supermarkets that had been trading unlawfully for I think in some cases more than 10 years, perhaps up to 15 years.

They had essentially been trading unlawfully on Sundays but I think, as it has transpired, it is possible they were also trading unlawfully on public holidays and possibly they were also trading unlawfully after hours on other nights of the week. I do not have the information to be able to go back and see what the trading hours were for those particular supermarkets at that particular time.

Nevertheless, it was sufficient that the minister was convinced they were trading unlawfully but he did not propose to prosecute, instead he set about a process of trying to deregulate to correct the problem, to allow those country communities who clearly wanted to shop in a deregulated shopping environment and he—again I repeat: a Labor minister for industrial relations—set about a process of supporting or enabling a deregulation of the market.

If one was to believe the rhetoric of the Labor Party now he could have issued prohibition notices and/or issued prosecutions to stop those supermarkets from trading in a deregulated environment but he chose not to. He and the Labor Party consciously chose the option of moving down or enabling a deregulation path in most of these regional communities.

The advice I have been given is that the regional communities involved include Cleve, Cowell, Kingscote, Lameroo, Mannum, Minlaton, Peterborough, Pinnaroo, Streaky Bay, Tailem Bend, Ardrossan, Maitland and Millicent. Most of them are IGAs or Foodlands; that is, groups commonly referred to as independent supermarkets. Some involved Drakes outlets in those particular areas. Nevertheless, they were trading unlawfully in all those areas.

The process that Labor minister Rau adopted was for the proclaimed shopping district to be abolished; that is, to be deregulated. That involved a process where the local councils—this was being coordinated through the Local Government Association working with SafeWork SA—went through a process of abolishing the proclaimed shopping districts. We need to understand clearly that the abolition of proclaimed shopping districts is a much stronger deregulation proposal than even this government has been game to put before the parliament. The Labor government and the Labor minister supported trading 24 hours a day, seven days a week, even including Christmas Day, Good Friday and ANZAC morning. Shops in all of those areas could open their shops and trade, irrespective of their particular size.

In essence, they would reflect all the other regional areas of South Australia: Mount Gambier, the cities in the Iron Triangle and all those other parts of regional South Australia that can trade 24 hours a day, every day of the year, if they choose to. The important point to note is that the reality of traders and communities is that traders do not want to trade all those hours and communities do not want to shop in all those hours either. They settle on a happy local circumstances decision where they want to trade on Sundays and public holidays and they may well want to trade a little bit later through the weeknights and a little bit later on weekends. Even though the restrictions did not allow it, that is what they wanted to do and they were able to do it.

That is what happens, for example, in my old hometown of Mount Gambier. They can shop whenever they like or open whenever they like, but of course shops do not open 24 hours a day, seven days a week. They make their own local decisions. The people of Mount Gambier are not screaming in opposition and the traders are not screaming in opposition. There seems to be a happy acceptance. That has been the reality in Mount Gambier and most regional areas.

Under the policy enabled by the Labor government, all of those areas, with the exception of Millicent, were completely deregulated. That is, there was 24-hour shopping, seven days a week, every day of the year. What happened in Millicent was that, with the support of the local mayor, Peter Gandolfi, and the council, there was a poll or a survey that was conducted which indicated that there was strong opposition to the Labor proposal to completely deregulate. That has obviously continued in relation to the slightly less radical proposal, although in relation to Millicent it is exactly the same. It is the same proposal from the Liberal government in this bill in relation to deregulating shop trading hours in Millicent.

The end result of that process was that everywhere in regional South Australia—which starts at Mount Barker, just north of Gawler and just south of Sellicks Beach—with the exception of Millicent, is completely deregulated. There is trading 24 hours a day, seven days a week, every day of the year.

There are two other minor exceptions in relation to two small communities, which do not have any large shops anyway, so it is of no great impact. These are the town of Mallala and I think the towns of Frances and a neighbouring town that have not completely deregulated at all. However, because there are no large shops there, all the small shops can trade whenever they want to anyway, so it has no impact. The only area in the regions that is impacted is the area of Millicent.

In relation to the Millicent trading community, there are three larger stores of some significance in terms of shop trading hour restrictions. There is the Woolworths, the Foster's Foodland and the Millicent IGA. It is the Millicent IGA that has been the subject of most controversy in terms of its trading hours. It advertises on its website that it trades from 7am to 9pm every day of the week, that is seven days a week, every day of the year.

Clearly, if that store is above 400 square metres, it is trading unlawfully. It is not just Sunday trading but, clearly, in a proclaimed shopping district in a regional area, through the week they are required to close at 6 o'clock and, if they are trading until 9pm, they are therefore trading unlawfully for three extra hours every night of the week, with the exception of Thursday because you are allowed to have late-night trading on Thursdays.

On Saturday, they are trading unlawfully, if they are above 400 square metres, because you have to close your shop at 5pm on a Saturday and they are trading through until 9pm, so they would be trading unlawfully for four hours on a Saturday. If they are above 400 square metres, they are trading unlawfully every Sunday that they trade and, if they are above 400 square metres and they are trading on a public holiday, they are trading unlawfully as well. So it is not just the Sunday trading or the public holidays, it is actually four weeknights a week that they are trading unlawfully, potentially, at three hours per night, and four hours on a Saturday as well where they would be trading unlawfully.

I am advised that the other two stores abide by the current laws; that is, the Woolworths and the Fosters do not trade outside the requirements of the current act and, to the best of my knowledge, there have been no complaints lodged against them in relation to their trading hours. Upon election to government, given that these issues had been raised with me and I had had lots of discussions with representatives of independent retailers for a year or so in relation to this vexed issue, which they frankly discussed with me—in particular their lobbyists—there were a number of stores that were greater than 400 square metres that were trading outside the current legislation.

Most of them related to stores in the suburbs of Adelaide, but one of them related to the IGA in Millicent. I am not a lawyer, but if you have a non-lawyer's view as to what is a 400 square metre shop, the non-lawyers of us might just say, 'That's pretty easy, you just measure the size of the shop and it's either more than 400 square metres or it isn't more than 400 square metres.' However, there is this perennial game that has been played for many years in terms of the legal interpretation of the current Shop Trading Hours Act, and in some cases with some validity, so I am told, although we have not had a court decision to determine it.

The majority view of the lawyers seems to be that you can exclude some parts of the internal part of a shop from this 400 square metre measurement. As I said, there is no court decision yet that has determined this, but the majority view appears to be that the entrance area into the store, which in some stores can be quite large—not so at Millicent IGA, but in some stores it can be quite large—can be excluded from the calculation of 400 square metres.

The majority view seems to be that the trolley area where all the trolleys are kept—and, again, in some stores that can be quite a large area—can actually be excluded from the 400 square metre calculation. As I said, there is still no court decision on this; this is just the majority legal view that seems to be floating around.

However, you then get into the vexed area of what else can and cannot be included. In relation to the Millicent IGA they sought to move the fridges and freezers in from the wall and have a vacant space between the back of the fridges or freezers and the edge of the shop. Their view was that that area between the back of the fridges or freezers and the externality of the shop should be excluded from the 400 square metre calculation.

There seem to be varying legal views as to whether that may be able to be validly argued in a court. A court may find that is the case or it may not, but it is certainly an argument in relation to using that particular device. I am not in a position, and SafeWork SA is not in a position, to be able to say that is a fact, that is what the law says, because ultimately it would be up to a court to determine whether or not that is an appropriate interpretation of the current act.

Then it gets even trickier. In some cases I have highlighted to members lawyers arguing for some retailers say that the only part of the deli area that should be included in the 400 square metre calculation is the actual display cabinet where the cold meats and cheeses are displayed, and that all the area behind the deli bar where the workers work—cut the meat or prepare the meat and the cheeses or whatever—should be excluded from the 400 square metre calculation.

I understand a similar argument has been used in relation to the baked goods section of supermarkets; that is, the display case at the front of the baked goods section is included in the calculation but the area where the bakers and attendants bake, work and take money, behind the counter, should be excluded from the 400 square metre calculation.

There are two other areas where there has been contention—and which, I understand, are potentially being argued in the Millicent IGA case. There is argument from some lawyers and retailers that the checkout area, where you go and check out your goods, should be excluded from the calculation as well. My assessment is that the majority legal view seems to argue against that; that is, if anyone goes through a checkout your goods are there, and in most cases not only are your goods there but there are also the inevitable chocolates and batteries and a variety of other things, together with the newspaper, which you can purchase at the checkout. Nevertheless, some are still arguing that it should be excluded from the 400 square metre calculation.

I understand that the other one that is being argued should be excluded is the area where cigarettes are sold. I am told that some lawyers and retailers are arguing that because the cigarettes are actually hidden behind a door the whole of the cigarette sales area should therefore be excluded from the calculation. Again, I understand that is an argument that has been raised in relation to the Millicent IGA case.

An audit was conducted at the Millicent IGA. As I said, they had moved in their fridges and freezers—this was done a couple of weeks ago now—but even with that, SafeWork SA advised that they believe they were still over 400 square metres and therefore they had been trading unlawfully in the Millicent community.

I am seeking final clarity on this issue, but I understand that the calculation that was discussed with the local manager down there at that stage, because of the doubts about it, had actually excluded the checkouts and the cigarette counter area. As I said, I do not believe, and I think the majority legal opinion more importantly—rather than me, because I am not a lawyer—would support that particular argument. Certainly, if that is the case, the floor area would be even more significantly above the 400 square metre mark than if those particular areas—that is, the checkout area and the cigarette counter area—were excluded. It would be even more significantly above the 400 square metre mark.

As I understand it, in the early hours of this morning I was faxed a story from the South Eastern Times, I think it was. I think I got it at about 1.15 this morning, so someone was up late at night feeding me information. That indicates that they believe the local retailer there had moved the fridges and freezers in even further to try to get it under 400 square metres. This has occurred, obviously, so I am told, since the audit was conducted. As I said, my understanding is that the numbers that the local manager was working on there have excluded the checkout and the cigarette counter area. I will need to confirm it, but if that is the case, then even with the further moving of fridges and freezers they might still be above 400 square metres.

I have had photographs sent to me from my contacts in the Millicent community of the layout of the store, and there is this extraordinary space now behind the fridges and freezers in the store down there in an attempt by the local retailer to try to get below the 400 square metre mark. As I said, it may well be, even with the most recent attempt, that that is still not the case.

I have explained that in detail, just to show how ridiculously silly the laws are at the moment. We have a situation where the local Millicent community happily wants to shop till 9 o'clock at night through the week, the local Millicent community wants to shop till 9 o'clock on a Saturday night, the local Millicent community wants to shop on Sundays, the local Millicent community wants to shop on public holidays, and the local trader wants to provide the opportunity for shoppers to shop during those particular hours, and the workers are quite happy to work.

It is not as the SDA and others claim that these people are being forced to work against their wishes and it is destroying their family life. There are clearly people in the Millicent community happy to work through these extended hours, until 9 o'clock at night, 9 o'clock on a Saturday night, and long hours on Sundays and public holidays. The trader wants to trade, the shoppers want to shop and the workers are prepared to work, but the trader, in this case, is having to move fridges and freezers further and further in from a wall in an attempt to get around the 400 square metre rule. More and more of his shop is incapable now of being used to sell goods as he attempts to try to get under the 400 square metre rule.

As I said, I as the minister cannot say to him, and neither can SafeWork SA, 'You are definitely complying with the law' or 'You are not,' because ultimately only a court will be able to determine whether the act has been interpreted correctly or not, and there has not been a recent court decision in relation to these issues, I am told, that does not relate to this case. You would have to go back to about 1981 for a court decision that relates to this issue of what constitutes the floor area of various stores. In that case, it was talking about service stations, not supermarkets.

Potentially, if the current act remains, it will ultimately only be a court that will be able to determine the outcome and whether or not the absurdities that we are seeing continue in terms of people trying to get around the law because they are desperate to trade, their customers are desperate to shop, their workers are very happy to work, yet the silly laws that we have endeavour to try to prevent them from doing so.

The detail of the laws are for the shop trading hours debate. This particular motion relates to the particular circumstances in Millicent. All I can say is, as I have said to local media down there, ultimately if the parliament says no to the proposed reform of shop trading hours, then the current act will have to be policed. The current act will have to be enforced, and ultimately that may well depend on a court determining the rightness or wrongness of the various interpretations that retailers and SafeWork SA and indeed others have entered into on how the act ought to be interpreted.

The silliness of all this is that potentially what might happen is that the people of Millicent, through what is about to occur or what might occur, may well deprive themselves of the shopping that they have been happily engaged in for many years—late at night through the week and on weekends, Sundays and public holidays. It may well be that the law says that Millicent IGA cannot trade in those hours because the law might say and a court might determine that it is over 400 square metres, irrespective of the gymnastics in relation to freezers and fridges that the local retailer has indulged in in recent years. That is the sad circumstance. All the government is trying to do is to allow the people of Millicent to continue to shop as they have been happily shopping and to provide the opportunity, clearly, for others to shop as well.

The final point I would make relates to something quite absurd I saw. I do not think even the Labor Party would support this, though I will leave it for them to speak for themselves. I noticed a column or editorial in the local newspaper which said that this is all very difficult, but essentially if the reform bill does not go through, the government—or the minister in particular, me—should just ignore the law and allow Millicent IGA to trade unlawfully outside the law. I think it said something like 'like the former Labor Party allowed them to do for 16 years'. I am not sure whether members of this chamber will stand up and say that that is a position they will defend; that is, the government and the minister should just ignore the law and that, if there is advice that they are breaking the law, that should be just be broken.

I think the question I would put back to the local newspaper and to those who might support that view is: what would they be saying to me as minister if the local Woolworths similarly broke the law and traded until 9 o'clock through the week, similarly broke the law and traded on a Sunday and similarly broke the law and traded on a public holiday? The screams would be coming from on high that the government was allowing the big multinational to trade unlawfully and outside the current provisions of the act.

I would hope that the local newspaper and indeed any of the others who might support that view might just actually think it through to say, 'Where does that all end?' If you say the Millicent IGA should be able to trade unlawfully outside the current act, are we also going to say that Woolworths and Foodland should also be able to trade unlawfully outside the act with impunity? I would hope that not even the Labor Party, with all of its bizarre, as I said, gymnastics on this particular issue and given their strong deregulation stance, as demonstrated by minister Rau, would support that particular point of view.

Ultimately, if the reform bill is defeated, then the local retailers are going to have to, on the basis of the best of their knowledge, comply with the provisions of the legislation. If they want to trade as we would want them to trade with these extended trading hours, they are going to have to somehow convince, potentially a court of law, if it ends up there, that they are under 400 square metres and therefore lawfully able to trade all of the hours that they seek to.

So, for all those reasons, on behalf of Liberal members, we oppose the motion that has been moved. The more substantive debate will be held in the September session when we get to go through the detail of the shop trading hours reform legislation.

Debate adjourned on motion of Hon. I.K. Hunter.