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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-13 Daily Xml
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Retail Trading Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (16:55): Obtained leave and introduced a bill for an act to provide for the closing of retail shops in the metropolitan area of Adelaide on certain days, to repeal the Shop Trading Hours Act 1977, and for other purposes. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:56): I move:

That this bill be now read a second time.

Today, I am very pleased to introduce the Retail Trading Bill, which will be followed by the introduction of the Referendum (Retail Trading) Bill 2021. There is one central belief at the heart of the government's reforms to shop trading in our great state, and that is freedom of choice: freedom of choice for shoppers, freedom of choice for business and freedom of choice for all South Australians. Whether we live in the city, the suburbs or the country, South Australians deserve to have modern shop trading laws that reflect the reality of modern life.

Whether you want to shop before you take the kids to school or after you finish work, the government should not stand in the way of that. Whether you want to shop after five on a Saturday night or before 11 on a Sunday morning, the government should not stand in the way of that. Whether you want to shop on Boxing Day or on Black Friday evening, the government should not stand in the way of that. Whether you want to shop in the suburbs or in the CBD, the government should not stand in the way of that. Whether you want to open up your business for longer hours or expand the floor size of your store, the government should not stand in the way of that.

On 19 March 2022, South Australians should be given the chance to decide for themselves to support greater freedom of choice in shop trading hours. To all South Australians, the Marshall Liberal government's message is clear: we are open for business. This reform will provide greater and fairer competition between retailers and will attract new investment and jobs with better opportunities for young people in particular.

The embarrassment of turning up to the shops in the morning, in the late afternoon or on a public holiday, only to find them closed for no good reason, has become an unwelcome pastime for the vast majority of South Australians. But it is not shoppers' fault: the true embarrassment is our ridiculous shop trading laws, which are an impossibly confusing mess for all South Australians, shoppers and business owners alike, not to mention the bewildered tourists from interstate and overseas who, under the former Labor government, often found themselves in the middle of Rundle Mall but with nowhere to spend their money on their holiday.

Between factoring in the day of the week; the time of day; public holidays; the size of the shop's trading space; whether the store is a supermarket, a hardware store, a car or boat dealership or otherwise; the aggregate price and type of goods sold in the last seven days; whether the shop is in the city, suburbs or country; whether the shop is located in a proclaimed shopping district; and whether an exemption has been granted, it is no wonder the majority of South Australians want to get rid of these ridiculous laws.

The government hears you clearly: shoppers want to shop and traders want to trade. Just because some shops do not want to open does not mean the whole state should be a 'closed shop'. By the same token, under our reforms no shops will be forced to open when they do not want to.

On the issue of shop trading hours, history shows that reform is inevitable. The same interests that opposed Friday night and Thursday night trading also opposed Saturday trading, then Sunday trading and also CBD trading on public holidays. History shows they eventually lost all these battles. These same interests now continue to oppose the current reforms.

The elevation of this matter to the first state referendum in over 30 years is not a decision that has been taken lightly. Governments have accepted it is the role of parliament to resolve issues; however, the Marshall Liberal government made a strong commitment before the last election to deliver shop trading reform. It sought a mandate for reform and received that mandate. So the government returns this bill to the parliament, galvanised by the support of the majority of South Australians who share our belief in the fundamental principle of freedom of choice.

I do not propose to now revisit in any detail the numerous reports and surveys from the Australian Competition and Consumer Commission, the Productivity Commission, Business SA, UniSA and others extolling the many virtues and overwhelming popularity of shop trading reform in our state. I have every confidence that most South Australians agree with those experts and will not be influenced by the shoppies union and the unrepresentative lobbyists who saw this bill defeated two years ago. Of course, those lobbyists would have you believe that the current laws are perfectly fine, that there is something to be gained from keeping all our shops closed and that the insurance company Budget Direct is the official statistician for working out the average South Aussie grocery bill.

Make no mistake, the anti shop traders are the flat-earthers of the economic world. They are trying to convince us that Adelaide is about to be inundated by a massive tsunami of 24-hour trade that would put independent retailers out of business. Just do not tell them that shop trading hours are already completely deregulated across regional South Australia, from Mount Barker to the borders, with the exception of Millicent.

It is fitting that the hawkers of fake news, who seek to corrupt our democracy with nonsense arguments like, 'Shops won't open longer, even if it is profitable to do so,' should be comprehensively denounced by a popular vote. Indeed, it is fitting also to mention the illusory tsunami that was predicted to flood Adelaide in 1976 for another reason, namely, because it was none other than then Premier Don Dunstan of the Labor Party who first took the issue of shop trading to a referendum, over 50 years ago. In 1970, the Dunstan Labor government proposed changes to trading hours under the Early Closing Act, which had been determined during the early part of the Second World War under the emergency conditions prevailing at the time. In addition, the legislation only related to trade in the metropolitan area.

The then government contended that there were two main deficiencies in that act. Firstly, there was considerable inconvenience to the public and traders exempted by the act, who had to lock away many goods, particularly foodstuffs, for which there was considerable demand at night and on weekends. Secondly, the unrestricted trading hours of the large area immediately surrounding the metropolitan shopping district had resulted in shops in those areas being able to trade at night and during the weekend when the metropolitan shops were required to close.

Although the then government acknowledged the need to consider a complete overhaul of the old legislation, ultimately the referendum of 1970 only sought consensus on keeping metropolitan shops open on Friday nights until 9pm. Despite a very close ballot, the people of South Australia were not ready for late night shopping on Friday until it was eventually introduced seven years later in 1977 with the enactment of the current Shop Trading Hours Act. Crucially, the two main deficiencies in the legislation highlighted by the then government—restrictions on trading at night and on weekends, and inequality in trading hours based on location—were never fully addressed by the 1977 act.

Fast-forward to 2021 and we now live in the age of online shopping and ubiquitous petrol station convenience stores, which openly advertise themselves as supermarkets and trade without restriction. Now more than ever, the ridiculous regulations on trading that have applied to all other bricks and mortar stores since 1977 are completely out of step with community expectations and grossly inconsistent with what is best for our economy.

Decades have passed, yet these absurd inequities continue to arise. The local IGA at Moana cannot open to serve the many beachgoers on summer nights after 5pm, so they go to the servo instead. A CBD clothing store can open on a public holiday, while the same brand store in Westfield Marion has to stay shut. Shops and shoppers in Stirling are subject to onerous regulations, but shops and shoppers down the freeway in Mount Barker are free to trade whenever they like.

If you are a speciality store thinking of opening up in Harbour Town or expanding your store, watch out, because if your shop is over 200 square metres in floor size you will become subject to our ridiculous laws for no good reason. Similarly, if you are an independent supermarket over 400 square metres, you might find yourself closing a third of your shop from time to time in order to trade extended hours on public holidays.

It would be a fraud on the South Australian people for the opponents of the bill to pretend the current legislation is not a confusing mess. The current act is completely and utterly broken. That is why the Marshall Liberal government's reform is about far more than Sunday morning trading. We will let the people of South Australia decide whether to support the bill, not the union bosses.

The key features of the Retail Trading Bill include freedom of choice for non-exempt shops to trade every day of the year except Christmas Day, Good Friday and before 12 noon on ANZAC Day. The definition of an exempt shop uses a staffing model, not floor area. An exempt shop must have no more than 20 persons employed and working in a shop, and the total number of persons employed and working in the same shopkeeper's shops in South Australia cannot exceed 100. The staffing model option is used in all other states.

There is only one shopping district covering the metropolitan area. Regional South Australia will continue to be fully deregulated, with the three remaining country proclaimed shopping districts being abolished. There is a streamlined list of exempt shops that now only include shops that could exceed staffing levels and, based on current practices, are likely to trade on the days that remain restricted. The exemption power will remain, which can be invoked either on the minister's own initiative or upon application by a shop and which can be issued for the whole or part of the metropolitan area, a specified class of shops and individual shops.

Existing employee protections on Sunday remain, and an emphasis on the current protections already afforded to public holidays by the National Employment Standards under the commonwealth Fair Work Act 2009 is included as a note within the bill. Existing protections for tenants, being that a landlord cannot include a lease term requiring a shop to be open on a Sunday, remain for the metropolitan area.

Opponents of these reforms continue to argue that independent retailers will be wiped out if they are enacted. These claims were made for decades as each extension of trading hours was introduced, yet independent retailers continue to flourish because they continue to provide a niche market for themselves that is supported by many South Australian households. The reality is that for the last three years ministerial exemptions have been issued to allow trading in the suburbs on public holidays, and the sky has not fallen in and independent retailers continue to thrive.

Ultimately, we strongly believe that the government has no place dictating when shops can and cannot open on each day of the year. If the Retail Trading Bill is enacted, the decision of when to open will be left with shops, and the decision of when to shop will be left with shoppers, as it should be. The Marshall Liberal government will stand together with the majority of South Australians on election day for more jobs, for a stronger economy and for freedom of choice. I seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Commencement of the measure is dependent on approval of the voters at a referendum to be held in accordance with the Referendum (Retail Trading) Bill 2021.

3—Interpretation

This clause defines terms used in the measure. The restrictions in the Act apply to shops in the metropolitan area which is defined by reference to the list of council areas set out in Schedule 1 of the measure. The provision also defines the concept of an 'exempt shop', which includes premises licensed under the Liquor Licensing Act 1997, certain smaller shops (identified by reference to the number of employees working in the shop), chemists, petrol stations, cafes, restaurants and take away food outlets, hire shops and shops of a class prescribed by regulation. Under clause 7 of the measure, it is a defence to an offence to prove that the shop was an 'exempt shop' at the relevant time (or that a Ministerial exemption under clause 11 applied).

Part 2—Shop trading hours

4—Hours during which shops must be closed

This provision requires shops situated in the metropolitan area to be closed on Good Friday, 25 December and until 12 noon on 25 April.

5—Lease or agreement terms relating to Sunday trading

This clause replicates section 13A(1), (2) and (4) from the current Shop Trading Hours Act 1977 in respect of shops in the metropolitan area.

6—Staffing on Sundays

This clause is similar to section 13A(3) of the current Shop Trading Hours Act 1977 but applies in respect of shops in the metropolitan area and uses language similar to that used in the NSW Retail Trading Act 2008.

Part 3—Offences

7—Offences

This clause sets out offences for the purposes of enforcing the restrictions in the Act.

8—Advertising

This clause sets out an offence that is the same as the offence under section 14A of the current Shop Trading Hours Act 1977.

Part 4—Inspectors

9—Inspectors

Persons appointed by the Minister responsible for the administration of the Fair Work Act 1994 as inspectors under that Act are inspectors for the purposes of this measure and the Minister may appoint other inspectors.

10—Powers of inspectors

This clause sets out powers of inspectors in the same terms as section 8 of the current Shop Trading Hours Act 1977.

Part 5—Miscellaneous

11—Exemptions

This clause allows the Minister to grant exemptions from the Act or provisions of the Act.

12—Power of delegation

The Minister may delegate functions or powers under the measure.

13—Regulations

This clause allows for the making of regulations for the purposes of the measure.

Schedule 1—Metropolitan area

This schedule lists the council areas that comprise the metropolitan area for the purposes of the measure.

Schedule 2—Repeal and transitional provision

1—Repeal

The Shop Trading Hours Act 1977 is to be repealed.

2—Inspectors

People currently appointed as Inspectors under the Shop Trading Hours Act 1977 will be taken to have been appointed as inspectors under this measure.

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

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