Willis Nicola; Clark DavidNICOLA WILLIS (National): I thank the Minister for that response. I note that his officials are bringing advice to the table so perhaps we'll get a bit more of a discussion of that Ministry of Justice advice and how it's responded to. But just a question here because I think the Minister and I can agree that while unconscionable conduct may exist in one person's mind it may not exist in another person's mind—which is to say that it is subjective—and that does create regulatory risk for individuals and businesses. So has the Minister had mind to what guidance may be published for small businesses? I am sure that the Minister would not want a situation in which small businesses are facing considerable legal risk and uncertainty and are having to take their own legal advice about what may or may not count as unconscionable conduct where they will lack clarity on that so is there an intention for guidelines to be issued about this or is this something that will simply develop as a matter of case law over time and therefore small businesses can expect to live in a jungle of uncertainty until the courts work this out? Again I'd put to the Minister given the Ministry of Justice concerns and given his officials' concerns: has he satisfied himself that this isn't going to impose an unreasonable burden of regulatory uncertainty and cost on small businesses? Hon Dr DAVID CLARK (Minister of Commerce and Consumer Affairs): I thank the member. Firstly I'll address perhaps the second part of her question which she's just raised and I'll come back to the Ministry of Justice concerns and the officials have duly supplied me with a brief outline of how their concerns have been taken into account. The jungle of uncertainty" has a certain poetry to it but I would say that that's probably an unfair characterisation. There are already as I say the grey areas outlined in the contracts with consumers so by extending this to business to business businesses can take some guidance from that existing law and practice that's already in place. So I don't think there really is a jungle of uncertainty per se. We do want as much confidence for businesses as possible about the environment they're in but I would note again as I have previously that this is an on-balance approach and it allows the flexibility for future situations that haven't been considered now for the courts to be clear on addressing any unconscionable behaviour based on the norms and expectations of society. But I come back to the member's previous point around the Ministry of Justice's concerns. I might even read this out—it's very short the way in which the Ministry of Business Innovation and Employment has responded to those concerns. It's noted that firstly "parallel civil and criminal remedies are an existing feature of the Act as well as a range of other commercial legislation;"—so that's not a new thing—"the level of penalty is consistent with the existing penalties in the Act and reflects the serious nature of unconscionable conduct; and while there is no explicit 'mens rea' element to the offence unconscionable conduct is inherently conduct in which a level of intent is likely to be necessary for there to be breach of the prohibition." I think actually in this conversation the member is drawing out a degree of explicit description that might help businesses that are at the margins of this or that are concerned."