Lee Melissa; Clark DavidMELISSA LEE (National): Thank you Mr Chair. Thanks to the Minister the Hon David Clark who has actually been very helpful in explaining last night and today in relation to Supplementary Order Paper 174 and explaining that through the select committee process there were many things due to the time constraint—that the select committee actually met—that it was quite difficult to explore further some of the issues that we were rather concerned about. And I acknowledge the select committee chair Jamie Strange who has actually worked very cooperatively with our spokesperson Andrew Bayly who's to my left.I believe the empowering of the commission to designate grocery retailers to supply information I think is something that the select committee recommended through our report. One thing that does actually worry me—there is another aspect that the committee was very concerned about—and that is the compensation side which I spoke about during the second reading. That is when a grocery retailer which is a duopoly now is in an exclusive covenant for example in a big supermarket chain like a Westfield's shopping complex—it is Westfield versus let's say Countdown—they are two big entities. So the power in for example debate over the lease negotiation is actually quite equal in the sense that they're both equally powerful but when you have a landlord that is in a very small town regional centre where the supermarket may have been located and they have negotiated an exclusivity covenant or a restrictive covenant preventing the land from being developed so another supermarket cannot be built there is a power imbalance with the supermarket chain versus the ma and pa" landlord.I thought that the Minister was going to be dealing with that compensation issue because we are in this House removing the covenants that the supermarkets currently have and saying that it is not a practice that we support and it is going to be illegal to put them in leases. If that is the case the hypothetical loss of revenue—the potential revenue that they're going to equate to those covenants—may potentially end up in court where the smaller ma and pa landlords might have to cough up money for the potential loss of hypothetical revenue because they're not a big entity with big law firms behind them to support them. I would like to ask the Minister what kinds of remedy there are for situations like that and does the Minister believe that the current laws that are in place actually guarantee that those legal actions would not take place. Otherwise how would he actually make us feel I guess more comfortable and confident that the law that we are passing today will cover those issues?Hon Dr DAVID CLARK (Minister of Commerce and Consumer Affairs): Thank you Mr Chair. I canvassed you'll appreciate in my introductory comments these issues but I'm happy to go over them again because I think they are important. I think these are really important questions about how this plays out.The committee itself as the member Melissa Lee said raised concerns that a designated grocery retailer may be able to make unreasonable claims for compensation or damages from their landlord because of the bill making exclusivity covenants in their lease unenforceable. And that's the nub of it. Section 89 of the Commerce Act has the potential to facilitate a process of renegotiating the lease if this is appropriate to reflect actual losses incurred by the supermarket from greater exposure to competition in the area. The committee's concern—at least as I understand it—was about landlords having little protection against the potential for supermarkets to abuse that process.So I'll say some more general things and then come back to the Supplementary Order Paper (SOP). There are general provisions in contract law the Commerce Act and the Fair Trading Act which prohibit the kinds of behaviours that the committee was concerned about—for example undue influence coercion and unconscionable conduct. Now at a theoretical level these provisions should provide protection to mall and shopping centre owners. However what I would say is that what gives this more legs is the SOP because I consider that the Government SOP will help mitigate some of the concerns by giving the commission the power to actively monitor those arrangements to assist with compliance with both Acts.The recommendation of the committee was unanimously agreed upon. The Supplementary Order Paper under Standing Order 315 gives effect to the recommendation of the committee. The SOP enables the commission to obtain any contracts arrangements or understandings to which section 28A may apply including information relating to the renegotiation of those arrangements. The section provides that this information may be used to assess compliance with specified provisions in both the Commerce Act and Fair Trading Act relating to anti-competitive conduct and unfair conduct.So that "proactive monitoring" thing which is what it comes back to is there for them to monitor any such negotiations or rearrangements as they see fit around that and that I think is the strength of the SOP. The committee put forward a recommendation that we should do that and the time available was challenging. We have had the time to make sure the SOP gives those powers in a way that's appropriate so that the commission can proactively monitor for that."