Smith DamienDAMIEN SMITH (ACT): This bill is typical of what Adam Smith called the misconception of the man in the system and it actually opposes individual freedom of businesses and consumers to interact together. It's based on the personal vision of the Minister based on the greater good for all as he perceives it and it's a leverage which lords over all of us. There is a myriad of rules and laws to protect unfair contract behaviour.Extending the prohibition against unfair contract terms and actually defining unconscionable conduct is a major omission from the parity that he's hoping to achieve with colleagues in Australia. It seems inconceivable to me to bring a bill to Parliament which is based on something that actually has 16 cases in Australia of businesses dealing with each other and established case law which clearly allows us to be able to define unconscionable conduct quite easily. In terms of retail leasing an example of that would be: a landlord has sought an unreasonable rent for the renewal of his shop lease which it represented as below market value and has required a very short time frame for its tenants to respond to the proposal of the rental offer. The landlord's conduct involved a small-business owner who had little or no ability to speak English and the landlord was aware of this so the landlord's conduct was deemed unconscionable because of its actions. It was reckless it showed no regard for conscience and that was irreconcilable with the rights and reasonable behaviours of a business transaction.So I've got a list of these which—this one's around franchises. This one's around door-to-door selling. As an example Craftmatic was found to have used misleading and unfair sales tactics to sell beds to elderly people during the course of home presentations. Craftmatic sales and promotional letters were designed scripted and conducted as found by the Australian Competition and Consumer Commission to unduly influence potential consumers to create and take advantage of an unequal bargaining position and so the conduct was deemed unconscionable. So there are various elements of Australian competition law which allows us to define unconscionable conduct quite easily and we find it a mystery that this is not included in the bill. It will lead to court time and will lead to a very very quagmired system where we believe this is to be unnecessary.Also the impact analysis left a lot to be desired. If you look at the noughts and crosses of it this is a sort of 50:50 call. It's a nice-to-have" bill but it actually doesn't change the landscape as such as opposed to overcomplicated transactions. So we would ask the Minister to consider looking at the redefinition of unconscionable conduct. It's not difficult and I'm sure his analysts could come up with a Supplementary Order Paper to that effect. We also believe that extending protection to businesses with a $250k transaction value cap is too small in this modern era and we recommend anywhere between $450000 and $650000 to allow reasonably priced transactions and negotiations to be resolved. So in that context we believe that it has a role to play in the system but it will affect free enterprise and free trade and for those grounds we can't support the bill."