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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-03-19 Daily Xml
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Shop Trading Hours

The Hon. J.A. DARLEY (15:45): I seek leave to make a brief explanation before asking the Treasurer a question about shop trading law enforcement.

Leave granted.

The Hon. J.A. DARLEY: In The Advertiser on 22 February 2019, it was reported that SafeWork SA are pursuing a number of small businesses for breaching the Shop Trading Hours Act. There has long been ambiguity surrounding what constitutes the floor area of a shop. Can the minister advise:

1. Whether shop floor space includes the working area behind a counter or the customer waiting area in front of the counter?

2. Whether shop floor space includes the area taken up by a fridge or display cases?

3. What action has been taken to provide a comprehensive definition of shop floor space to assist owners?

4. What actions have been taken to work with these shops that could be prosecuted?

The Hon. R.I. LUCAS (Treasurer) (15:46): I thank the honourable member for his question. This is, indeed, an issue that I have canvassed and has been canvassed in this place and elsewhere on any number of occasions. The honest answer to the member's questions are that until, ultimately, it's resolved by this parliament—and the parliament chose not to take up the option—the only definitive answer anyone can give to the honourable member, or indeed to anybody, is until a court of law determines what the current silly, outdated, antiquated legislation means, we won't really know.

As I said before, there have been any number of legal views by lawyers, and with great respect to the legal profession those legal views canvass a whole variety of different interpretations of what 'floor area' and various other provisions of the shop trading legislation mean and should mean and how it should be interpreted. With great respect to members of the legal fraternity, they are the individual views of those lawyers and the legal firms they represent. Ultimately, if the parliament chooses not to fix up the silly, outdated, antiquated legislation, it will only be if and when it arrives in a court of law and a judge or judges determine what it actually means.

So there are, as I have indicated before, some who believe—as I said, I am a very simple non-lawyer. My understanding prior to becoming a minister in charge of the legislation was that it was pretty easy to understand what 400 square metres meant, or 200 square metres, you just measured the externalities of the store and if it was over 400 or under 400 that's what it meant. But it doesn't mean that; it means something else. I accept that. But what the something else is is impossible for me to say, or indeed for officers.

As some advocates have said, 'Well, why doesn't SafeWork SA issue definitive guidelines as to what it means?' They can't. They can indicate what the legal advice that the government at any particular time might have received might be, if that's what they choose, but ultimately that has conflicted with the views of some lawyers representing traders and other lawyers and until there is a court case then we won't really know. I will stand corrected but I think the last definitive court case that even touched on this might have been back in the 1980s when it referred to service stations and the vexed question of how some service stations, which are now 24-hour supermarkets operating around the clock 365 days a year, managed to circumvent perhaps the original intent of the legislation.

But that, I think, is the last time (and I will check that—I will stand corrected) that this issue of what it actually means—and that doesn't relate directly to the cases in point, which are supermarkets and enclosed shops, it was talking more about service stations, your petrol pumps and bowsers and various other bits and pieces in what used to be a traditional service station.

There are some lawyers for some retailers who believe that, if you move your fridges and freezers in from a wall and you have a spare space behind the wall, you can therefore exclude the spare space behind the fridges and freezers from the calculation. I am assuming that's on the basis of the legal advice they have.

There are some who believe that, because the area where you go in a supermarket and can purchase any number of cigarettes or tobacco products—and there is generally a designated area in many supermarkets where that occurs—that that whole area is excluded from the calculation because the cigarettes are not permanently able to be looked at by customers. You can look at them when you open the door, but because it is not permanent the lawyer is arguing for those advocates that they should be able to exclude all of that square meterage from the calculation so that they can get under the 400 square metre rule.

I have raised the question before that there are those who argue that in supermarkets where you have a smallgoods/delicatessen-type area, if I can properly describe it as that, the only part of that area that should be calculated in the 400 square metres is the bit at the front where your fritz, ham and corned beef is actually displayed, but the whole area behind it, where all the workers work and the butchers might carve up the ham—so if you ask for six slices of your favourite Barossa ham, the attendant takes the ham out of the front counter, which is countered, takes it to the back and slices off six slices (or whatever it might be)—all of that area is excluded from the calculation of 400 square metres.

The lawyers for some traders argue that that is a correct interpretation of the legislation. I could regale the house—or bore the house, depending on your perspective—with dozens of other interpretations of the legislation that are being used by lawyers on both sides of the particular argument.

In terms of what we are trying to do, SafeWork SA has had its advice in relation to how it should be interpreted. It has undertaken measurements to the best extent that it can. If ultimately, in seeking to enforce this silly, outdated, antiquated legislation that we have, a retailer and their lawyers decide to challenge a particular decision, we may well end up having a court of law at least determining some of the particular issues that are to be determined. But I cannot definitively say to the honourable member's question that this is what it actually means. Ultimately, until a court of law determines it, we don't really know.

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