Senator MARGETTS (12:37 PM) —I am a bit taken aback. We tried to fit in with the speakers list today but I did not know Senator Schacht was speaking. I had lunchtime commitments, and then Senator Schacht spoke for his full 20 minutes. However, that is fine if we had known what was going on. We are trying to fit in with the practice of the Senate in trying to get the program through, but sometimes bills come on more quickly than it is possible to prepare for.

The Trade Practices Amendment (Fair Trading) Bill 1997 is an effort by the government to demonstrate its commitment and effort to the traditional coalition allies—that is, the small businesses of Australia. I think they have slipped down in the estimation of that particular sector. The opposition is also trying to rack up its small business points by heavily criticising the government's approach and proposing a wide range of amendments.

The report, Finding a balance, is the catalyst for this bill. The opposition claims that the government has not gone far enough to truly implement the recommendations of the report. The criticism does hold some weight. The Greens (WA) will be supporting some of the ALP's amendments which attempt to implement the report more fully.

Section 51AC, dealing with unconscionable conduct, has been mentioned. The bill seeks to introduce a substantive action available for unconscionable conduct. The problem is that in order to maintain some form of equity, the government is using a definition which accords with a very narrow dealing with that word. In practical terms, the words are limited to three narrow sets of circumstances which have been clearly inadequate in the situation of a commercial relationship where there are differences in bargaining power. It has been mentioned that the word `unfair' might be a better compromise because then you do not have to match it up with a particular piece of legislation, and it would appear to be a better approach. It is also the approach that was taken in the report.

Under small business definitions I would like to comment on the $1 million transaction cap placed on the access of section 51AC. The biggest problem with this provision relates to the question: what amounts to a transaction? Depending on the scope of a transaction, does it apply, for instance, if a retail shop lease is for five years? Is this each year? Does there have to be that $1 million cap each year or can it be the whole transaction? This might be a limiting factor for very small businesses. Is it the small-purchase expensive items over a period of time that might be all on one invoice—for example, the purchase of cars or machinery for a car dealership?

The Greens (WA) appreciate that a monetary cap of $40,000 is also placed on remedies available to consumers, so potentially there is some guidance from those provisions. It would also be wise to clear up such potential anomalies before the legislation passes.

The Greens (WA) see more potential problems with the insertion of an arbitrary number of employees as the limit to access to this remedy. It appears that the ALP would not allow a business with more than 20 employees, or 100 in manufacturing, to be deemed a small business. This could be problematic in industries where there is a high level of casual employment and hence a larger number of employees—for instance, in the hospitality industry. It may exclude many businesses it is aimed at from obtaining relief. I would think that large organisations such as Westfield may well have supported this definition—in fact, I think they did. So in this particular instance we are more likely to support the government's proposal than the ALP's amendment, though there are problems in the government's proposal as well.

As to the uniform retail tenancy code, the government obviously believes that there are some problems in terms of constitutional limits. We do not think these are major problems. It is interesting that the government finds constitutional limits as an excuse where it is convenient for itself but do not listen to it in such important issues as the debate on native title. They also make claims about uncertainty and possibilities of court action, saying that two layers of legislation may create uncertainty and potential litigation over more procedural issues such as jurisdiction and standing. They also have concerns about competition—whether or not competition in tenancy legislation lifts standards. I find that a bit bizarre.

The committee report and the ALP in this regard support a uniform retail tenancy code in order to implement best practice regimes throughout Australia, including measures to take account of the disparity in bargaining power, independent market rent reviews, pre-contractual disclosure statements and alternative dispute resolution procedures. Maybe the constitutional problems that the coalition identifies are justified. However, the code will lift the standards of South Australia, Western Australia and Victoria to rival the best practices in Queensland and New South Wales. It would also provide affordable dispute resolution procedures. Therefore, we think the constitutional problems and the holes created may not be sufficient for us not to support the ALP's amendments.

We have looked at something in terms of the alternative dispute resolution. The Greens (WA) propose an amendment in line with the committee recommendations, in light of the fact that this remedy of unconscionable conduct is aimed at providing relief to small businesses. The implementation of alternative dispute resolution procedures is crucial because small businesses presumably have less time and resources to spend battling out a long court battle. Thus, the alternative dispute resolutions provide true access to justice in a cost- effective and timely manner.

Often in commercial transactions there is a need to maintain a relationship, more likely to be facilitated by alternative dispute resolutions that offer a wide range of solutions than litigation, which is confrontational, adversarial and produces only one winner. We wish there was equal access to justice but it seems that the more money you have, the more access to justice you have. So the more you can remove that from the courts, the better. We look forward to participating in the votes during the committee stage of the debate.