The provisions of the Trade Practices Act 1974 and the operations of the Australian Competition and Consumer Commission (ACCC) are also matters of interest to the Shopping Centre Council of Australia. In 1992 the unconscionable conduct provisions of the Trade Practices Act were extended to businesses (section 51AA) and in 1998 the unconscionable conduct provisions were specifically tailored to retail property with the introduction of section 51AC. These provisions have since been mirrored in retail tenancy legislation in Queensland, NSW, Victoria and the Northern Territory.

In response to recommendations of the Senate Committee inquiry into ‘the effectiveness of the Trade Practices Act 1974 in protecting small business’ the Federal Government announced in June 2004 a number of proposed changes to section 51AC. These are still to be considered by the Federal Parliament.

Some retailer associations have argued that the relatively few cases which the ACCC has pursued under section 51AC is evidence that these provisions are not working and should be expanded. SCCA has pointed out that this is actually a reflection of the very small number of complaints of unconscionable conduct which the ACCC receives. Last year, according to the ACCC’s own statistics, fewer than two in every 1,000 retail leases results in a complaint of unconscionable conduct. A complaint, of course, is not evidence that such conduct has occurred.

Amendments to the Trade Practices Act to facilitate collective bargaining by small businesses in response to recommendations by the Dawson Inquiry into the Trade Practices Act in 2003 are still before the Federal Parliament.

In the last few years the ACCC has increasingly taken an interest in shopping centre matters. It has advocated a national code, under Part IVB of the Trade Practices Act, as a means of ensuring greater national consistency in retail tenancy regulation. The SCCA has opposed this because of our concern that, in the absence of a commitment by State and Territory Governments that they would repeal their own retail tenancy legislation, a national code would simply mean an additional layer of regulation.