Shop Trading Hours

March 18, 2019

The Hon. J.A. DARLEY (15:45): I seek leave to make a brief explanation before asking the Treasurer a question about shop trading law enforcement. 

 

Leave granted. 

 

The Hon. J.A. DARLEY: In The Advertiser on 22 February 2019, it was reported that SafeWork SA are pursuing a number of small businesses for breaching the Shop Trading Hours Act. There has long been ambiguity surrounding what constitutes the floor area of a shop. Can the minister advise:

 

1. Whether shop floor space includes the working area behind a counter or the customer waiting area in front of the counter?

 

2. Whether shop floor space includes the area taken up by a fridge or display cases?

 

3. What action has been taken to provide a comprehensive definition of shop floor space to assist owners?

 

4. What actions have been taken to work with these shops that could be prosecuted?

 

The Hon. R.I. LUCAS (Treasurer) (15:46): I thank the honourable member for his question. This is, indeed, an issue that I have canvassed and has been canvassed in this place and elsewhere on any number of occasions. The honest answer to the member's questions are that until, ultimately, it's resolved by this parliament—and the parliament chose not to take up the option—the only definitive answer anyone can give to the honourable member, or indeed to anybody, is until a court of law determines what the current silly, outdated, antiquated legislation means, we won't really know.

 

As I said before, there have been any number of legal views by lawyers, and with great respect to the legal profession those legal views canvas a whole variety of different interpretations of what 'floor area' and various other provisions of the shop trading legislation mean and should mean and how it should be interpreted. With great respect to members of the legal fraternity, they are the individual views of those lawyers and the legal firms they represent. Ultimately, if the parliament chooses not to fix up the silly, outdated, antiquated legislation, it will only be if and when it arrives in a court of law and a judge or judges determine what it actually means.

 

So there are, as I have indicated before, some who believe—as I said, I am a very simple non-lawyer. My understanding prior to becoming a minister in charge of the legislation was that it was pretty easy to understand what 400 square metres meant, or 200 square metres, you just measured the externalities of the store and if it was over 400 or under 400 that's what it meant. But it doesn't mean that; it means something else. I accept that. But what the something else is is impossible for me to say, or indeed for officers.

 

As some advocates have said, 'Well, why doesn't SafeWork SA issue definitive guidelines as to what it means?' They can't. They can indicate what the legal advice of the government at any particular time might have received might be, if that's what they choose, but ultimately that has conflicted with the views of some lawyers representing traders and other lawyers and until there is a court case then we won't really know. I will stand corrected but I think the last definitive court case that even touched on this might have been back in the 1980s when it referred to service stations and the vexed question of how some service stations, which are now 24-hour supermarkets operating around the clock 365 days a year, managed to circumvent perhaps the original intent of the legislation.

But that, I think, is the last time (and I will check that—I will stand corrected) that this issue of what it actually means—and that doesn't relate directly to the cases in point, which are supermarkets and enclosed shops, it was talking more about service stations, your petrol pumps and bowsers and various other bits and pieces in what used to be a traditional service station.

 

There are some lawyers for some retailers who believe that, if you move your fridges and freezers in from a wall and you have a spare space behind the wall, you can therefore exclude the spare space behind the fridges and freezers from the calculation. I am assuming that's on the basis of the legal advice they have.

 

There are some who believe that, because the area where you go in a supermarket and can purchase any number of cigarettes or tobacco products—and there is generally a designated area in many supermarkets where that occurs—that that whole area is excluded from the calculation because the cigarettes are not permanently able to be looked at by customers. You can look at them when you open the door, but because it is not permanent the lawyer is arguing for those advocates that they should be able to exclude all of that square meterage from the calculation so that they can get under the 400 square metre rule.

 

I have raised the question before that there are those who argue that in supermarkets where you have a smallgoods/delicatessen-type area, if I can properly describe it as that, the only part of that area that should be calculated in the 400 square metres is the bit at the front where your fritz, ham and corned beef is actually displayed, but the whole area behind it, where all the workers work and the butchers might carve up the ham—so if you ask for six slices of your favourite Barossa ham, the attendant takes the ham out of the front counter, which is countered, takes it to the back and slices off six slices (or whatever it might be)—all of that area is excluded from the calculation of 400 square metres.

 

The lawyers for some traders argue that that is a correct interpretation of the legislation. I could regale the house—or bore the house, depending on your perspective—with dozens of other interpretations of the legislation that are being used by lawyers on both sides of the particular argument.

 

In terms of what we are trying to do, SafeWork SA has had its advice in relation to how it should be interpreted. It has undertaken measurements to the best extent that it can. If ultimately, in seeking to enforce this silly, outdated, antiquated legislation that we have, a retailer and their lawyers decide to challenge a particular decision, we may well end up having a court of law at least determining some of the particular issues that are to be determined. But I cannot definitively say to the honourable member's question that this is what it actually means. Ultimately, until a court of law determines it, we don't really know.

 

The Hon. T.A. FRANKS (15:53): Supplementary to the Treasurer: can he regale the council with any other area of the law where the government does not rely on Crown advice and the government's own legal opinion but on the debate and the legal advice obtained by players other than the government?

 

The Hon. R.I. LUCAS (Treasurer) (15:54): As I just outlined, we are relying on the best possible advice and interpretation that the Crown provides, so we are indeed—

 

The Hon. T.A. Franks: Where else are you doing it, was the question. What other area of the law—

 

The Hon. R.I. LUCAS: If the honourable member would like to listen to the answer I am about to give, we are using the Crown's advice in relation to the potential prosecutions at the moment. But, as minister responsible, ultimately we won't really know whether or not that is correct until a court of law determines it. Some of the interpretations, if challenged from lawyers representing retailers, are very creative. They may or may not be correct, but until we actually have someone test it we really won't know.

 

The Hon. T.A. FRANKS: Point of order, Mr President: my question was specifically to name another act or another area of the law, not to reiterate or regale us again with his original answer.

 

The PRESIDENT: Treasurer, you have heard the point of order.

 

The Hon. R.I. LUCAS: The original question to which supplementary questions apply relates to shop trading legislation. It doesn't relate to other pieces of legislation.

 

The Hon. T.A. FRANKS: Point of order: my question was, 'Name another area of the law where you would use this same argument and not rely on Crown advice.' That was the question, and the question was not answered.

 

The PRESIDENT: Treasurer, do you have anything else to add?

 

The Hon. R.I. LUCAS: Nothing further.

 

The Hon. C.M. SCRIVEN (15:55): A supplementary relating to the original answer where the Treasurer said that all SafeWork can do is indicate to traders the legal advice the government has received. My question is: has the Treasurer enabled SafeWork to provide that legal advice to traders?

 

The Hon. R.I. LUCAS (Treasurer) (15:55): I invite the Hon. Ms Scriven to check the Hansard. I never indicated that SafeWork SA was going to provide the legal advice to traders. What I did indicate—as the Hansard record will show—is that all we can do at the moment is, based upon the best legal advice the Crown has been able to provide to SafeWork SA, implement the law along those particular lines.

 

We are not providing legal advice to traders in relation to the interpretation of this particular provision of the shop trading legislation. What we are doing is, based on the best advice we have, seeking to implement the silly, outdated, antiquated laws we have. Ultimately, if someone chooses to disagree with that it will be up to a court to determine whose lawyers were correct.

 

The Hon. J.A. DARLEY (15:56): A supplementary: if the current legislation is not clear, why not amend the legislation to make it clear?

 

The Hon. R.I. LUCAS (Treasurer) (15:56): That is a very good idea; indeed, that is what we sought to do. One of the reasons I indicated—and the parliament, as is its prerogative, chose not to support that—was that I think virtually every other jurisdiction, for similar reasons to what we just outlined, has moved away from this measurement of square meterage or floor space area. For the reasons we are exploring now and they have obviously explored in their jurisdictions, they moved to a completely different approach to shop trading regulations in terms of numbers of employees.

 

During the debate I think I indicated that it is still not perfect, and in my view the reason we included it within our proposed legislation was because it is potentially a much easier measurement in terms of sizes of shops for the purposes of any regulation that might remain in shop trading regulations. The honourable member's suggestion is an excellent one, and we sought to do so.

 

The Hon. J.E. HANSON (15:58): A supplementary question: in the original answer given by the Treasurer the article he referred to reported that the government has considered it is a 'ridiculous' look to be strictly enforcing rules it considers to be 'stupid' but insists it can't pick and choose to whom the law of the land applies. Indeed, the Treasurer was quoted as saying, 'Sadly, this is the reality of what we said all along, that if we weren't able to make the change then this stupid law was going to have to be enforced.'

 

The Hon. J.S.L. Dawkins: Is this a supplementary?

 

The PRESIDENT: The member is giving some clarity for the benefit of the Treasurer.

 

The Hon. J.E. HANSON: My supplementary question is this: does the Treasurer stand by those statements, that the government cannot pick and choose to whom laws apply and that the law must be enforced? Does the Treasurer agree that that principle should also apply to his cabinet colleagues?

 

The Hon. R.I. LUCAS (Treasurer) (15:58): I am happy to answer questions in relation to shop trading legislation and indeed my responsibilities as minister. I am not going to proffer opinions about other pieces of legislation or other ministers. That is not the question I have been asked relating to this. In the area of the shop trading legislation—

 

Members interjecting:

 

The Hon. R.I. LUCAS: In responding to the member's question as it relates to shop trading legislation, I have said similar words to that in this place and elsewhere on any number of occasions, and of course I stand by that. The point that I have made both in that interview and a number of others is that, for example, if Aldi or Woolworths or Coles were to deliberately breach the shop trading legislation by opening 24 hours a day on public holidays and on weekends and through the week, there would be screams from members in this chamber, I suspect, and other stakeholder groups, saying, 'This is an outrage. Aldi and Woolworths and Coles are deliberately breaching the shop trading legislation. Why don't you do something about it?'—a very reasonable proposition to put if they were breaching the legislation.

 

If that rule of thumb should be applied to Aldi or Woolworths or Coles, it should be applied to other supermarket traders as well. That's what the Legislative Council and the parliament has voted for. It is a silly, outdated, antiquated piece of legislation but, ultimately, sadly, we are going to have to enforce it.

 

The PRESIDENT: The Hon. Mr Pangallo, a supplementary.

 

The Hon. F. PANGALLO (16:00): Yes, it is. Can the Treasurer answer: does the government enforce every law that is passed by this parliament then?

 

The Hon. R.I. LUCAS (Treasurer) (16:00): I am here to respond in relation to shop trading hours legislation. I am here to respond in relation to legislation that I have responsibility for, and I can certainly indicate to the Hon. Mr Pangallo, as minister in legislation that I have responsibility for, that will certainly be the intention that I have. I would expect that that would be the case for my other ministerial colleagues as well.

 

The Hon. F. PANGALLO (16:01): Further supplementary: why isn't it enforcing the labour hire law that was passed by the parliament?

 

The Hon. R.I. LUCAS (Treasurer) (16:01): A very simple answer: the legislation has not been proclaimed.

 

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