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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-08-02 Daily Xml
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Local Government (Mobile Food Vendors) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. J.A. DARLEY: I rise to put my contribution on this bill on the record. I understand that it is unconventional for these remarks to be included during committee rather than the second reading, and I want to thank the chamber for its indulgence. The opportunity for me to contribute to the bill during the second reading was taken out of my hands when the government decided to progress the bill, notwithstanding the fact that I had indicated that I was not ready to progress yet.

The reason I was not ready to progress with the bill was that I was still in discussion with the member for Kaurna, who had carriage of this bill on behalf of the government. I want to thank the member for Kaurna and his staff, who have been of great assistance on this matter, and I want to acknowledge the hard work they have put into this issue.

The bill itself is relatively simple, in that it outlines that councils must grant a permit for mobile food vending businesses and that they are able to attach conditions to it, which will be outlined in the regulations. If a business breaches the conditions then the bill provides for the cancellation of a permit by council. That is the full extent of the bill but, as in the case of many bills, the devil is in the detail or, in this case, in the regulations.

The member for Kaurna has kindly provided me with a copy of the proposed regulations and has consulted with me broadly and accommodated many, if not all, of my requests and concerns. The regulations outline a number of matters. For example, councils cannot restrict the type of food sold and can only charge a maximum of $2,400 per annum for a permit. Permit holders must abide by conditions to not impede traffic and abide by environmental food safety laws and the like. Councils are also required to establish location rules for their council area, which will outline where mobile food vendors are able to trade.

One of my primary concerns over this bill is the effect that mobile food vendors could have on existing businesses. In establishing the location rules, councils will need to take into account the location, number and operating hours of existing fixed food businesses in the vicinity. It concerned me that existing businesses might be adversely affected by the location rules and as such I asked the member for Kaurna to insert a review mechanism into the regulations.

While the member for Kaurna was happy to oblige this request for a review mechanism, upon consideration of this issue I have decided that the right for review should be inserted into the bill so that any changes to this arrangement would need to come before parliament. It is very important to me that existing businesses will have a way to be heard if they are grieved by the location rules, and I have filed amendments to address this.

I want to put on the record that I have tried to find a middle ground for stakeholders. However, this has been very difficult, as stakeholders did not want to be engaged. I provided the Property Council, representing bricks and mortar businesses, with a copy of the draft regulations for comment. Despite repeated requests for feedback, nothing has been provided to me or my office. I can only assume from this that they are not interested in and have no concerns about the matter, as I have previously been lobbied by the Property Council when they had concerns about an issue. They are not usually backward in coming forward, but in these circumstances they have provided nothing.

I have consulted with the Local Government Association representing councils, but have found the experience to be frustrating. Their position has been clear that they oppose this bill because they see it as the state government putting an additional regulatory burden on councils without financial compensation for this. Given councils will have the opportunity to recoup up to $2,400 per year per permit, I do not see how this can be argued.

The LGA has also advised that councils can develop their own rules currently without the need for legislation. This is certainly the response I received when I spoke to a number of councils myself. They did not want to be hit with a big stick because they would do it of their own accord. However, an investigation by my office could only find a handful of councils that had developed a policy on this matter. So, notwithstanding the fact that I have been told by the most senior staff at councils that they are supportive of mobile food vendors and encourage them to their council area, the council has done nothing about issuing permits.

When called to provide more information, this council advised that individuals should purchase their food truck first, make application, pay the fee, receive the permit and only then would they be told when and where they could trade. This is nonsensical. When questioned as to why more councils had not developed a policy, the response from the LGA was that it was because the current act did not require it. This response is contrary to the advice they had previously given to me.

I also make the point that I have not been contacted by any bricks and mortar businesses about this proposal. I have received feedback from a couple of landlords; however, the number of actual business owners who have contacted me is zero. In contrast, I have been contacted by several mobile food vendors who have pleaded with me to pass this legislation, as without it their ability to plan and run their businesses is severely hampered.

Ultimately, it is giving the ability for people to plan for their business that pushed me over the line. I do not believe in legislating matters where it is not necessary; however, in this case I see a need. The exercise undertaken by my office highlighted to me how difficult it is for people who want to establish a mobile food vending business. Answers from councils were slow and the information provided was scarce. It is no wonder that South Australia has a reputation for stymying business. It is all just too hard.

If people want to see where they can trade in a particular council area, they should be able to access this information easily rather than have to jump through hoops to find out. If they do not like the rules that council have posted, they can make an informed decision not to apply for a permit for that area.

Whilst I have previously strongly indicated that I will not be supporting this bill, I believe I have had a number of wins in inserting safeguard provisions for existing businesses. The amendments I have filed reflect what the government previously agreed to and has inserted into the regulations, so I expect there will be support for my amendments, too.

This bill will allow small business owners to operate their businesses more effectively and, more importantly, will make the rules available for those who are thinking of starting up their own business, rather than frustrate people with a plethora of red tape. This can only lead to growth in our economy and provide employment opportunities for the community.

The Hon. K.J. MAHER: I thank the Hon. John Darley for his comments at clause 1 in relation to the bill and the scheme in general, and for his support for the bill on the basis of, as he has outlined, discussions and negotiations with the member for Kaurna, who has had carriage of this bill for the government, and for what sounds like the very sensible way it has been negotiated in looking at what is in the regulations and what is in the legislation.

I know the Hon. John Darley has spent a great deal of time considering and consulting on this bill over the past six months and, on behalf of the member for Kaurna and the government, we thank him for the work he has undertaken, as we do with the Greens, the Hon. Kelly Vincent and others who have spent a lot of time considering this bill.

The government has agreed with the Hon. John Darley that the bill will include a system for handling disputes over a council's location rules through the Small Business Commissioner. The approach is two tiered: parties dissatisfied with the location rules may approach the Small Business Commissioner to investigate and make recommendations to that council. If the party is still unhappy with the council's rules after this process, they may then apply to the Small Business Commissioner, who may issue a direction for that council to amend their location rules.

There will be a penalty of up to $5,000 for councils that fail to comply with the direction of the Small Business Commissioner. This process, and the penalty provision, will be introduced into the bill through amendments put forward by the Hon. John Darley. The types of things the council should be aware of when drafting their location rules have been made clearer, such as proximity to fixed premises businesses.

Through the discussions and consultations with the Hon. John Darley, a number of other matters have been addressed and were raised through the consultations with councils, through the LGA, including that councils should have the flexibility to allow locations at different opening times, depending on the local circumstances, and an amendment to allow expiation notices.

I thank all those who have been involved with this bill and, when we finish the committee stage tomorrow, hopefully, I look forward to the bill passing as the amendments that have been put forward are considered during the committee stage.

Clause passed.

Progress reported; committee to sit again.

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