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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-08-08 Daily Xml
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Bills

Local Government (Mobile Food Vendors) Amendment Bill

Committee Stage

In committee.

(Continued from 2 August 2017.)

Clauses 2 to 5 passed.

Clause 6.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 3, lines 5 and 6 [clause 6, inserted subsection (2)]—Delete 'any requirement prescribed by the regulations.' and substitute:

—

(a) the location rules adopted by the council under section 225A; and

(b) any requirement prescribed by the regulations.

I will speak to all three of my amendments now as they are all related. As mentioned previously, one of the biggest concerns I had about this bill was the effect it would have on existing bricks and mortar businesses.

The member for Kaurna has been very accommodating in addressing my concerns, especially with regard to inserting a review provision. However, I believe this provision is so important that it should not be in the regulations but, rather, in the bill. Under the amendments, councils will be required to set location rules that outline where mobile food venders would be allowed to trade. Restrictions such as distance from existing bricks and mortar businesses will be prescribed by regulation. If a food business is aggrieved by the location rules, they can ask the Small Business Commissioner to review them.

The Small Business Commissioner can accept the location rules as they are or can recommend that council change them. If the council does not change them then they will be required to provide reasons why. If the original applicant is not satisfied with this outcome they can ask the Small Business Commissioner to direct the council to change their location rules. If the Small Business Commissioner does this and the council does not comply then there is a penalty of $5,000. I have consulted with the Small Business Commissioner about this provision, who has indicated that he is happy to facilitate these issues. With that, I move the amendment standing in my name.

The Hon. I.K. HUNTER: I will speak to each of the amendments separately, as they are moved. The Hon. Mr Darley's first amendment to clause 6 will be supported by the government. In the drafting of the bill and associated draft regulations, the government took the advice of parliamentary counsel as to the most appropriate structure course and formatting. The Hon. John Darley has discussed with parliamentary counsel the insertion of certain aspects of the regulations he deems of primary importance within the bill itself.

We have surveyed the amendments to the bill and are happy to support them. Primarily, I am advised, the Hon. John Darley wanted the Small Business Commissioner disputes process to sit within the bill, as opposed to regulations. This means that other aspects of the regulations need to be lifted into the bill for technical structural reasons, and I will come to those as we come to each clause.

The Hon. D.W. RIDGWAY: I thank the chamber for allowing this to sit on the Notice Paper for three or four more days. The government was keen to debate it last week but the Hon. Mr Darley said that he was quite relaxed for the opposition to have a chance to look at the amendments. We have looked at them and it probably comes as no surprise that we will not be supporting them. We have a process that members in this chamber are well aware of and it was somewhat disappointing, last week, that the initial response from the government was, 'Well, we don't care about the process, we want to debate this today.'

It is interesting, we have adopted the approach that we think the system we have today works well and there is no need to try to regulate these mobile food vendors. The government thinks we should regulate them, that we should have a one-size-fits-all approach. I am intrigued by the Hon. Mr Darley's amendments. Obviously, his first amendment brings the location rules adopted by council under section 225A and later on he inserts new section (I think it is his third amendment) 225A, which describes the location rules and brings in the Small Business Commissioner.

It just seems, with all due respect to the Hon. Mr Darley, a lot of extra bureaucracy for some mobile food vendors that local government (councils) can licence and regulate on their own, as they do now. With those few words, I indicate that we will not be supporting the first amendment. I will speak to the second amendment when we get to it.

The Hon. M.C. PARNELL: I am relatively new to this bill, given that my colleague the Hon. Tammy Franks has done most of the heavy lifting on it so far. I have a question, and whether the mover can answer it or maybe the minister has some advice close by. It strikes me that if under this new regime the local council decides to set location rules that effectively enable anywhere in the council area to be appropriate for mobile food vendors then the way these amendments would work is that, ultimately, if a bricks and mortar business complains, it would go to the Small Business Commissioner and the Small Business Commissioner might suggest to the council that they narrow their locations.

If the council chooses not to do that then the Small Business Commissioner can effectively step in and order them to do it. The bottom line is that the Small Business Commissioner is put in the position of setting the rules as to where these food trucks can go, against the wishes of the local council. I just want to understand whether I have understood how that regime works: effectively, the Small Business Commissioner determines that areas A, B and C are appropriate, D, E and F are inappropriate and, ultimately, it does not matter what the council thinks, at the end of the day the Small Business Commissioner will prevail. Have I understood that correctly?

The Hon. J.A. DARLEY: I advise that the Hon. Mark Parnell's interpretation of the issue is correct.

The Hon. I.K. HUNTER: My advice is that if we look at the regulations under the bill, and we are looking at subregulation (2)(1b), and 3 and 4, these are the sorts of issues that would be considered by the Small Business Commissioner. For example, we are looking at locations for council areas in which mobile food vending businesses may operate. They need to look at which mobile food vending businesses are permitted to operate by the use of maps. They need to look at mobile food vending businesses; fixed food businesses during operating hours; fixed food businesses, taking into account the location and the number; the operating hours of fixed food businesses in council areas—and there are a number of other things.

So, it is not quite the open picnic the Hon. Mark Parnell might have alluded to. There are a number of things the Small Business Commissioner must determine and give some recognition to. The first point of call, of course, is the council. Again, it is not the Small Business Commissioner setting it, it is the council. If a complaint is raised about it then the Small Business Commissioner can determine that he may advise council on a more appropriate setting, but he or she must take into consideration all these things that are in the regulations. If they do not, I suspect it would be open to a significant challenge.

The Hon. M.C. PARNELL: I have one more question for clarification. I know the Hon. Dennis Hood has a contribution. Again, so that I am clear in my mind and so that I understood what the minister said earlier on, ultimately the live question before us is whether the government's regime for the Small Business Commissioner's involvement is appropriately confined to regulations or whether it needs to be uplifted into the bill itself. However, ultimately, the intent of what the government is proposing and what the Hon. John Darley is proposing is that they are in furious agreement: it is really just whether it is in the regulations or in the act.

Secondly, the minister said that the government would be supporting amendment No. 1. Did he also allude to the fact that he would be supporting all of the remainder, as it is a package? I am interested in any guidance he can give us.

The Hon. I.K. HUNTER: Yes, the honourable member is right in how he formulates our position. We were wanting to put them into the regulations but the Hon. Mr Darley feels it is safer to put them into the act itself, and we concur. I did not give a position on the other two amendments but I can—and we will be supporting them all.

The Hon. D.G.E. HOOD: I indicate, as members are no doubt aware, that the Australian Conservatives will not be supporting the bill in any case but that said, should the bill pass—and I believe it may—then I believe this amendment is probably a slight improvement to what is a flawed bill, in our view. For that reason, we will be supporting the amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 3, after line 13—Insert:

(4) Subsection (2)(a) does not apply in relation to a permit for the purposes of a mobile food vending business primarily engaged in the sale of ice cream.

The Hon. I.K. HUNTER: As I indicated to the Hon. Mr Parnell, the government will be supporting this amendment for much the same reasons as we have already outlined, and this could be called the 'Save Mr Whippy' amendment, I suppose. This is a provision that previously sat with the regulations. While the location rules are well suited to most food trucks, ice-cream trucks in particular—a very important food group, ice-cream—in their everyday business operations are moving around and often starting and stopping in dozens of different locations. It has never been the government's intention to put any ban on Mr Whippy vans, hence the need for this particular provision. I am advised that parliamentary counsel has advised that if the Small Business Commissioner's disputes process and the location rules are to move into the bill then this provision needs to move also.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the amendment, the provision for Mr Whippy. As the minister said, it is interesting because Mr Whippy does not sell just ice-cream. I know you can get other types of fast food from Mr Whippy. However, in relation to the—

An honourable member interjecting:

The Hon. D.W. RIDGWAY: Cans of Coke, soft drink, chips, Twisties. Mr Whippy does not come to my street. Maybe I am too mean and miserable, but he does not come to my street. I do not recall him ever—

An honourable member: He doesn't know what he's missing out on!

The Hon. D.W. RIDGWAY: He does not know or he would come to our street. I always like to eat Golden North ice-cream and support South Australian manufacturers. However, I have a question to the mover because it may be supported. How does this impact on the mobile morning tea-type operators who go from building site to building site? They pull up, people have a cup of coffee and then they shoot through. How does that impact on those sorts of people?

The Hon. J.A. DARLEY: My understanding is that it does not impact on them at all.

The Hon. M.C. PARNELL: I am interested to hear the debate. As members have pointed out, the words are 'a mobile food vending business primarily engaged in the sale of ice-cream'. I take the point that there are multisales. I think I have seen vendors with hotdogs as well as ice-creams. I do not want to demean the fine Mr Whippy industry, but my recollection, as a lecturer in public health law 15 years ago, is that soft serve ice-cream was one of the least sanitary food products in terms of the various contaminants that were in there. So, it is not a product that I am fond of buying, although when my children were small they did enjoy it.

However, I accept what the minister is saying, namely, that these vendors are slightly different. It is not a barista in a caravan camped outside a bricks and mortar cafe; it is more likely something cruising the streets to the tune of Greensleeves. I think that is more what the minister has in mind, so we are happy to support this amendment.

Amendment carried; clause as amended passed.

New clause 6A.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [Employment–1]—

Page 3, after line 13—Insert:

6A—Insertion of section 224A

After section 224 insert:

224A—Breach of condition of authorisation or permit

A person must not breach or fail to comply with a condition of a permit for the purposes of a mobile food vending business under section 222.

Maximum penalty: $2,500.

Expiation fee: $210.

This amendment has come about as a result of our discussions with the Hon. John Darley in a roundtable meeting with the Local Government Association, I am advised, and a variety of council officers from across the state to discuss the legislation and draft regulations. The LGA and councils present at this round table advise that, under the current structure of the Local Government Act, in the event of a vendor breaching their permit conditions the council would face the choice of either not penalising the breach or cancelling the permit altogether.

Council suggested that an interim measure of a penalty provision should be included within the regulations to deal with minor breaches. This amendment takes on board the feedback and provides councils the ability to issue an expiation notice for breaches of mobile food vending permits that, in the opinion of the officers, do not warrant a total cancellation of the permit. The government has chosen to set the expiation level at $210, with a maximum penalty of $2,500. I am advised by the Local Government Association that this is in line with penalty levels for similar offences under the act.

New clause inserted.

Clause 7 passed.

New clause 8.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–1]—

Page 3, after line 29—Insert:

8—Insertion of section 225A

After section 225 insert:

225A—Location rules—general

(1) For the purposes of section 224(2)(a), a council must prepare and adopt rules (location rules) that set out locations within the council area in which mobile food vending businesses may operate.

(2) A council's location rules must comply with the following requirements:

(a) requirements prescribed by the regulations;

(b) requirements (if any) specified by the Minister by notice in the Gazette.

(3) A requirement specified by the Minister under subsection (2)(b) may relate to location rules of councils generally or those of a particular council or councils.

(4) A council—

(a) may from time to time amend its location rules; and

(b) must amend its location rules in order to ensure that the rules comply with—

(i) any requirement specified by the Minister under subsection (2)(b); or

(ii) any direction given by the Small Business Commissioner under subsection (7).

(5) If the Small Business Commissioner recommends under section 225B(5) that a council amend its location rules—

(a) the council must give consideration to amending its location rules in accordance with the recommendation; and

(b) if the council resolves not to amend its location rules in accordance with the recommendation—the council must provide written reasons for the resolution to the Small Business Commissioner and the applicant under section 225B.

(6) If the applicant under section 225B is dissatisfied with the written reasons provided by a council in relation to a recommendation under section 225B(5) that the council amend its location rules, the applicant may request the Small Business Commissioner to consider directing the council to amend its location rules in accordance with the recommendation.

(7) The Small Business Commissioner may, on a request under subsection (6) and if satisfied that it is appropriate to do so taking into account the written reasons of the council, direct the council to amend its location rules in accordance with the recommendation referred to in subsection (6).

(8) If a council is given a direction by the Small Business Commissioner under subsection (7), the council must not fail to comply with the direction.

Maximum penalty: $5,000.

225B—Location rules—disputes

(1) If the operator of a food business in a council area is directly adversely affected by the location rules of the council under section 225A, the operator may apply to the Small Business Commissioner for a review of the location rules by the Small Business Commissioner (who is conferred with the function of conducting such a review).

(2) An application under subsection (1) must—

(a) be made in a manner and form determined by the Small Business Commissioner; and

(b) include any information required by the Small Business Commissioner.

(3) The Small Business Commissioner may—

(a) conduct a review under this section in such manner as the Commissioner determines to be appropriate; and

(b) specify procedures and requirements that are to apply in connection with a review under this section.

(4) The Small Business Commissioner may, in conducting a review under this section, exercise any power of the Commissioner that applies under the Small Business Commissioner Act 2011 in relation to the performance of the Commissioner's functions under that Act.

(5) After conducting a review under this section, the Small Business Commissioner may, if the Commissioner considers it appropriate to do so, recommend to the relevant council that the council amend its location rules.

(6) In this regulation—

food business means a business the primary purpose of which is the retail sale of food or beverages.

The Hon. I.K. HUNTER: The government supports this amendment for the same reasons it supported amendment Nos 1 and 2. This amendment relocates the location rules and the Small Business Commissioner's disputes process from the draft regulations into the bill. So, the location rules where food trucks are able to trade will be determined at a local council level, as I said earlier. The provisions that are proposed to be moved into the bill as a result of this amendment will be accompanied by additional requirements covered in the draft regulations, including the requirements placed on councils and mobile food vendors relating to the conditions of the food truck permit, including:

maximum annual and monthly fees;

requirements that food trucks do not unduly interfere with other vehicles and thoroughfares; and

an awareness of disability parking spaces, amongst other requirements.

This outlines that mobile food vendors must comply with the requirements set out under the Food Act, the Public Health Act and a number of other state government acts. That should make the Hon. Mark Parnell a little happier. A list of things that council must take into account when adopting or amending its location rules include:

ensuring a reasonable distance between mobile and fixed businesses;

the potential impact a mobile food vendor may have on its surrounding environment; and

a penalty process for councils where a mobile food vendor fails to comply with the conditions of their permit.

The Small Business Commissioner's process for handling disputes was one that came up in negotiations with the Hon. John Darley. It is a process that the Small Business Commissioner is supportive of, I am advised. It enables a clear process for the handling of disputes where a local business is dissatisfied with the council's location rules.

These amendments also introduce a penalty provision into the Small Business Commissioner's process for handling disputes about a council's location rules. The penalty, as set out, is a maximum of $5,000 where a council fails to comply with a direction. The government thinks this amendment is also a reasonable one and is happy to support it.

New clause inserted.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (15:55): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 8

Noes 7

Majority 1

AYES
Darley, J.A. Gago, G.E. Hanson, J.E.
Hunter, I.K. (teller) Malinauskas, P. Ngo, T.T.
Parnell, M.C. Vincent, K.L.
NOES
Dawkins, J.S.L. Hood, D.G.E. Lensink, J.M.A.
Lucas, R.I. McLachlan, A.L. Ridgway, D.W. (teller)
Stephens, T.J.
PAIRS
Brokenshire, R.L. Franks, T.A. Gazzola, J.M.
Wade, S.G. Maher, K.J. Lee, J.S.

Third reading thus carried; bill passed.

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