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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 627 ..

MS TUCKER (continuing):

next door, obviously with the intent and the effect of undermining the existing business.

This amendment will allow tenants to apply for compensation when changes to the mix of tenants materially affects their business, not merely because the mix has changed but only and justifiably when that change to the mix affects the viability of their businesses.

A shopping centre is not a free market. A large proportion of retail business in Canberra is conducted in privately managed and owned shopping centres. One disturbing aspect of this shift from private to public space is the increased control that these major enterprises have over the retail environment, with a consequent loss of diversity and, on occasion, a shift from local to national businesses and franchises. Such changes can have a destructive impact on the economic, community and cultural fabric of our society.

It should be remembered that in applying for compensation under this amendment the onus would still be on the tenant to demonstrate that the change of mix has materially affected the viability of their business. Any business which has been struggling for some time would be hard pushed to shift all the responsibility onto the introduction of new tenants. Of course, shopping centre management may well have found that changing the tenant mix was a very useful tool in forcing businesses out. It seems only reasonable, however, that in such instances those businesses have recourse to compensation.

One of the arguments put is that tenants have recourse to the unconscionable conduct provision in the act. But this is disingenuous as the task of proving such conduct is significantly more complex legally and more daunting to tenants. The scrutiny of bills committee also raised questions as to the broad brief that this bill, in clause 22, gives to the Magistrates Court in determining harsh or unconscionable conduct. It does not, however, identify those occasions where the change of tenant mix is used to undermine the viability of the business. If the government was of the view that such unreasonable actions would constitute harsh or unconscionable conduct, it ought to have been identified. This amendment, however, makes clear that the act of altering tenant mix in order to materially disadvantage a tenant warrants compensation.

MR RUGENDYKE (5.08): Mr Speaker, I think it is important to put on the record that I will be supporting Ms Tucker's amendment. You just have to look at how the major malls treat small businesses. Have a look at the Canberra Centre where three, four or five bakeries were obviously materially affecting each other. You have just got to look at Westfield where there were, on my last count, about nine mobile phone retailers. A struggling mobile phone business like Phonies at Westfield mall has a very small area. Now they are competing with about eight others. Ms Tucker's amendment would be a great benefit to small businesses which are forced to compete unfairly against other like businesses. So I will be supporting this amendment.

MR STEFANIAK (Minister for Education and Attorney-General) (5.09): Mr Deputy Speaker, unconscionable conduct is dealt with in clause 22 part 5 of this bill. Under this clause, matters can be corrected if there is in fact unconscionable conduct.

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