Full transcript - Final

Transcription

Queensland
Parliamentary Debates
[Hansard]
Legislative Assembly
TUESDAY, 28 FEBRUARY 1984
Electronic reproduction of original hardcopy
Papers
28 February 1984
1557
TUESDAY, 28 FEBRUARY 1984
Mr SPEAKER (Hon. J. H. Warner, Toowoomba South) read prayers and took the
chair at 11 a.m.
ASSENT TO BILLS
Assent to the following Bills reported by Mr Speaker—
Superannuation Acts Amendment Bill;
Police Act Amendment BUI;
Pawnbrokers Bill;
Bail Act Amendment Bill.
APPLICATION OF SUB JUDICE RULE
Redcliffe Hospitals Board Building Contract; Mr P. A. Penklis
Mr SPEAKER: On Thursday, 9 February, I made a rulirtg on certain questions on
notice that referred to matters pertaining to the Redcliffe Hospital project. I subsequently
allowed some further comment on the matter and some questions without notice. I now
advise members that I wUl not permit any further reference to this matter by way of
questiort, statement or explanation until such time as the matter is determined by the courts.
CIRCULATION AND COST OF "HANSARD"
Mr SPEAKER announced the receipt from the Chief Reporter, ParUamentary
Reporting Staff, of his report on the circulation artd cost of "Hansard" for the session of 1983.
PAPERS
The following papers were laid on the table, and ordered to be prirtted—
Reports—
Gold Coast Waterways Authority for the year ended 30 June 1983
Air Pollution Council of Queensland for the year ended 30 June 1983.
The following papers were laid on the table—
Proclamation under the Sugar Equipmertt Stations Act 19(X)-1983
Orders in Council under—
Mines Regulation Act 1964^1983
Petroleum Act 1923-1983
ElectricUy Act 1976-1982 and the Statutory Bodies Financial Arrangements Act
1982
Industrial Development Act 1963-1981
Grammar Schools Act 1975 and the Statutory Bodies Financial Arrangements Act
1982
Harbours Act 1955-1982
Harbours Act 1955-1982 and the Statutory Bodies Financial Arrangements Act
1982
'River Improvement Trust Act 1940-1983 and the Statutory Bodies Financial
Arrangements Act 1982
AgricuUural Bank (Loans) Act 1959-1981
AgricuUural Bank (Loans) Act 1959-1981 and the Statutory Bodies Finartcial
Arrangements Act 1982
Primary Producers' Co-operative Associations Act 1923-1981
Wheat Pool Act 1920-1983 and the Statutory Bodies Financial Arrangements Act
1982
Fauna Conservation Act 1974-1979
62181—55
1558
28 February 1984
Ministerial Statements
Land Act 1962-1983
Schools of Arts (Wmding Up and Transfer) Act 1960-1981
Regulations under—
Agricultural Chemicals Distribution Control Act 1966-1983
Agricultural Standards Act 1952-1981
Brands Act 1915-1979
Dairy Produce Act 1978-1979
Fisheries Act 1976-1982
Fishing Industry Organization and Marketing Act 1982-1983
Fruit and Vegetables Act 1947-1972
Hen Quotas Act 1973-1981
PouUry Industry Act 1946-1979
Primary Producers' Cooperative Associations Act 1923-1981
Primary Producers' Organisation and Marketirtg Act 1926-1983
Stock Act 1915-1983
Wine Industry Act 1974-1982
Pay-roll Tax Act 1971-1984
By-laws under—
Queensland Museum Act 1970-1979
Harbours Act 1955-1982 and the Caims Airport Act 1981
Statutes u n d e r Griffith University Act 1971-1983
James Cook UniversUy of North Queensland Act 1970-1983.
ELECTION POLLING DETAILS
Return to Order
The foUowuig paper was laid on the table—
Return to an Order made by the House on 1 December last, on the motion
of Mr Neal, showing the details of polling at the State general election held on
22 October 1983.
FEES PAID BY CROWN TO BARRISTERS AND SOLICITORS
Return to Order
The following paper was laid on the table—
Return to an Order made by the House on 25 November last, on the motion
of Mr Elliott, showing all payments made by the Government to barristers and
solicitors during the 1982-83 financial year, stating the names of the recipients and
the amounts received separately.
MINISTERIAL STATEMENTS
Retail Shop Leases Legislation
Hon. M. J. AHERN (Landsborough—^Minister for Industry, SmaU Business and
Technology) (11.10 a.m.), by leave: Honourable members would be aware of the
introduction late last year of the very important retail shop leases legislation, which breaks
new ground in Australia in lease negotiations and other matters involving landlords and
retail traders.
I made it clear to the House when introducing the BUI that, because of the vital
nature of the legislation, public comment and input were invited and encouraged, and the
Bill would Ue on the table of the House. I also made it clear that the Govemment would
consider all public submissions and make appropriate changes to the BiU where necessary.
This commitment has now been honoured.
The public submissions that the Government has received have been evaluated and
a number of amendments to clauses to the legislation will be proposed when the debate on
the legislation is resumed.
28 February 1984
1559
I emphasise that the proposed amendments to the legislation are generally of a minor
nature. TTiey have been discussed with both the Building Ovmers and Managers Association
and the Queensland Retail Traders and Shopkeepers Association. Both organisations raise
no strong objections to the amendments.
Because of the complexity of the matters proposed, it is intended to make use of a
provision contained in the Standing Orders of this Assembly to introduce a consoUdated
BUI to provide for sensible passage of the legislation.
I have already explained the reasons for this decision to my colleague the honourable
member for South Brisbane, and to the Liberal leader (the honourable member for Nundah)
who would have become familiar with this course during his period as Minister for Health
in this State. Both honourable members were provided with the opportunity to question
my departmental officers yesterday concerning the legislation.
In addition—âgain because of the importance of this legislation—a copy of the Bill and
full clause by clause explanatory notes wiU be supplied to all honourable members on both
sides of the House when the debate resumes. Members will have the original Bill, a
consolidated Bill and a. broadsheet explaining amendments clause by clause and detailed
reasons for changes. Let me emphasise that the consoUdation is simply to faclUtate understanding of this legislation.
The amendments have been discussed with both retail trader representative bodies and
the landlord group, BOMA. All organisations consulted raise no strong objections to the
decision to introduce a consolidated Bill or to the amendments proposed.
Implementation of Two-man Crewing of Trains
Hon. D. F. LANE (Merthyr—Minister for Transport) (11.13 a.m.), by leave: For
some time commissioners of the railways of Australia region have been discussing the
implementation of two-man crewing of trains on workings on which the third man is
redundartt and unproductive.
On 6 Febmary 1984, Australian and New Zealand Railway Commissioners met and
reaffirmed their policy of reduced train crews and agreed that each system proceed toward
implementation of this objective.
In (êensland, in June 1983, advice was given to the unions involved of Queensland
Railways's intention to introduce two-man crewing of trains on a selective basis, and a
paper setting out an outUne of the department's proposals in this regard was distributed to
those unions.
Tests were conducted and, as a result, the original proposals were modified. The
revised proposal calls for—
(a) The removal of the third man from multi-unit coal trains between Jilalan
and Hay Point, JUalan and Dalrymple Bay, Pring and Abbot Point, and Callemondah
and Golding. In each of these instances the movement of the train is over a
comparatively short distance from the depot to the unloading point and retum, and
the necessary duties cau be handled adequately and safely with only two men, namely,
a driver and a fireman.
(b) The removal of the guards' vans from coal trains operating to Gladstone
from the Blackwater area and on the Moura short Une. On the Goonyella railway
system, coal trains operate under this method.
(c) The reduction of train crews from three to two men on selected through
workings and the extension of the number of through workings operated by
Maryborough-based trainmen between Maryborough and Brisbane and between
Maryborough and Gladstone in the first mstance.
On 3 January 1984, the three unions involved were notified by letter of the department's
intention to proceed with these proposals as from 5 March 1984. The unions were invited
to submit their response so that any necessary discussions with departmental officers could
take place.
As one of the uniorts cortcemed has not responded, and another has indicated its
unavailability to participate in discussions on this matter until after Friday, 24 February
1560
28 Febmary 1984
1984, it was not possible to arrange joint discussions until Thursday, 1 March 1984.
Consequently, a meeting between the Commissioner for Railways and the three unions
has been set for 2 p.m. on that date.
Further notice has been forwarded to unions this week that implementatiort of the
Queensland Railways proposal will proceed on Monday, 5 March 1984. As from that date,
there will be a withdrawal of guards from workings between JUalan and Hay Point and
between Jilalan and Dalrymple Bay. There will also be a progressive removal of guards'
vans from coal trains between Gladstone and the Blackwater coal-fields.
In the Maryborough area, applications will be called this week from guards and firemen
at Maryborough to undergo training as guard/observer. This is not a move restricted to
Queensland. It is a proposal that is underway in most other Australian States and, indeed,
is part of a world-wide trend.
Queensland Railways will save at least $3(X),(X)0 a year on the JUalan workings alone.
That means a direct saving to the tax-payers of Queensland. Progressive removal of the
guards' vans from the Blackwater/Gladstone operation saves a maintenance bill of more
than $300,000 a year.
As I said earUer, the unions involved have been notified and are due to have talks with
the Commissioner for Railways on Thursday, 1 March.
Mr SPEAKER: Order! There is far too much audible conversation in the Chamber.
I am having difficulty hearing anything. I ask honourable members for a little bit of quiet.
Fire Brigade Levy
Hon. M. J. TENNI (Barron River—•Minister for Environment, Valuation and Administrative Services) (11.17 a.m.), by leave: In recent days the Lord Mayor of Brisbane has
embarked on a so-called public relations exercise to explain the council's views on the fire
brigade levy, to be introduced from 1 July. Although I have welcomed constructive criticism
from local authorities on the Government's funding reforms, the recent statements and
press advertisements by Alderman Harvey have gone far beyond any reasonable bounds of
fair criticism. Unlike other local authorities, which have put their points of view forward
in an objective manner, the pubUc posturing by the Brisbane City (3ouncil on the fire levy
is little more than a calculated misinformation campaign, orchestrated by Alderman Harvey
for his own narrow political ends. So blatant have the half-tmths and distortions been about
the levy reform that I have been told that some of his own council colleagues have
dissociated themselves from his media statements. It is little wonder that Alderman Harvey's
leadership is under challenge when he has so little credibility as to put his name to such
untruthful press advertisements paid for by the rate-payers of Brisbane.
Opposition Members interjected.
Mr TENNI: If it hurts members of the Opposition, they will have to cop it.
It is clear that Alderman Harvey has so little understanding of fire brigade matters
that he does not believe that all property-owners have a responsibility to share the cost
of their own fire protection. Instead, he prefers to see the unjust sUuation contmue
whereby property-owners who fully insure subsidise the cost of fire protection for those
property-owners who under insure or who do not insure at all.
Given the fact that all property-owners expect to receive equal fire protection from
their local brigade, there is no logic in allowing the unjust fire insurance levy to continue.
It is significant that the Lord Mayor's campaign has failed to mention the fact that the
majority of pmdent home-owners and home-unit-owners serviced by an urban brigade
will be better off financially with the new fire levy.
Mr TENNI: Members of the Opposition should remember that.
The levy wiU be a set amount paid by all property-owners regardless of insurance
cover or the value of their property. The Lord Mayor also carefully avoids any mention
that the new levy wiU completely replace the existing insurance-based fire levy for
residential property-owners.
Questions Upon Notice
28 February 1984
1561
Alderman Harvey has gone so far as to claim that the owners of commercial and
industrial properties will escape meeting their financial obligation to maintain the city's
fire protection. That is completely false, because commercial and industrial owners will
continue to pay high contributiorts to the brigade with their existing insurance premiums.
Stage two of the funding reforms will extend the new levy system to include commercial and
irtdustrial properties.
By far the greatest distortion is the Lord Mayor's claim that the Metropolitan Fire
Brigades Board should be handed over to the council to overcome the State Govemment's
alleged mismanagement of the city's fire protection.
The Government is fully committed to maintaining the present board system of fire
brigade management and strongly opposes any attempt to amalgamate or take over existing
boards. As the council will be collecting slightly less than half of the revenue needed to run
the MetropoUtan Fire Brigade, its represerttation on the board will be increased from two
to three members.
If the council's recent approach to garbage contracts is any indication, Brisbane's high
fire safety standards could be jeopardised by any take-over by the council of the
Metropolitan Fire Brigades Board. This Government, unlike Alderman Harvey, is not
prepared to play poUtical games with the lives and property of Brisbane people.
Mr TENNI: Yes, it hurts!
It should be mentioned that the Brisbane City Council will be well and truly
compensated for collecting the levy on behalf of the State Government. Contrary to
Alderman Harvey's claim that his council wUl be liable for initial costs of more than
$200,0(X), the coUection of the new levy will not cost his council one cent.
The Brisbane City Council wiU be paid an establishment fee of more than $243,000
and an annual collection fee of more than $200,0(X). In addition, before passing the levy
collected on to the State Fire Services Council in May and December each year, the
council wiU be able to invest it on the short-term money market.
The Lord Mayor's memory on financial matters is so bad that he has forgotten to
mention that his council will no longer be required to make a direct contribution to the
running of the fire brigade. Based on the brigade's current costs, that will result in a
saving for the council and the rate-payers of Brisbane of about $2.7m annually. I will have
no hesitation in informirtg the property-owrters of Brisbarte that they can expect, in their
rate biUs from Alderman Harvey, a saving of at least $10 a year. If that saving is not
passed on, it wiU be the Brisbane City Council that will stand condemned in the eyes of
property-owners for its financial sleight of hand.
Mr SPEAKER: Order! I have asked for a reductiou in the level of conversation in
the Chamber. I cannot tell whether it is coming from the gallery or from honourable
members. It is almost impossible for me to hear the honourable member on his feet. I
again ask honourable members to lower their voices. It seems that many committee
meetings are taking place in the Chamber.
PETITION
The Clerk announced the receipt of the following petitionPublic Service and Parliamentary Superannuation Schemes
From Mr Bjelke-Petersen (909 signatories) praying that the Parliament of Queensland
wiU make public service and parliamerttary superartrtuation schemes conform to private
sector superannuation guide-lines.
PetUion received.
QUESTIONS UPON NOTICE
Questions submitted on notice by members were answered as follows—
1-
Reporting of Attempts to Bribe or Defraud
Mr R. J. Gibbs asked the Minister for Justice and Attorney-General—
What are the provisions within the Criminal Code or any other State legislation
that requu-e Mirtisters of the Crown, members of Pariiament, department heads.
1562
28 February 1984
Questions Upon Notice
magistrates, pubUc servants or other Crown employees to report to the police, the
Justice Department, himself or any law enforcement agency allegations regarding an
attempt to bribe or defraud a Queensland public instrumentality, board or quasiautonomous non-government organisation?
Answer—
No provisions within the Criminal Code or any other State legislation require
Ministers of the Crown, or any other person, to report to any person or body allegations
of the nature mentioned. That does not mean that allegations should not be considered
and, where relevant, directed to the appropriate body for inquiry.
Ministers of the Crown and other persons mentioned, acting responsibly, would
examine any such allegations and, if the allegations appear to have substance and
credibility, refer them for investigation,
AUegations may, of course, be of a vexatious, frivolous, or even maUcious nature,
and whether any allegation should be given credibility must be considered on its
individual merits,
2.
Advertising on Railway Property
Mr Elliott asked the Minister for Transport—
With reference to the upgrading of advertising on railway property, for example,
on land abutting Moggill Road at Taringa—
Does his department's income from this advertising cover the cost of these
improvements?
Answer—
AU advertising on the section of Moggill Road adjoining the railway west of Burns
Road is being upgraded and standardised by an advertising company, at no cost to the
department. Major companies in this line of business that have dealings with the
Railway Department were invited to submit proposals for upgrading the area, on the
basis of their funding all improvements and paying rental, in return for being granted
an exclusive licence to advertise on the area for a specified time.
All signs now displayed there are of a modern, high quality standard. Landscaping
is in progress, and the planting of several hundred trees, shrubs and ground cover plants
has commenced.
Upgrading work of this type is also to take place at Wynnum Road, Momingside,
and further sites will be selected and upgraded later.
These redevelopments are attractive, to both parties. The Railway Department
benefits by gaining a vastly improved site without expending any capital, and the
advertising companies have the security of a specified term of tenure over the site. At
the same time, the upgraded sites present a more pleasing aspect to people in the area,
3,
Surrogate Motherhood
Mr Yewdale asked the Minister for Justice and Attorney-General—
With reference to the announcement on 9 Febmary 1983 that Cabinet had decided
that the special committee looking at artificial insemination and in vitro fertilisation
would decide whether surrogate motherhood would be available to infertile Queensland
couples—
As this is a very delicate issue and might be repugnant to many people, wUl he
table the interim report, which was announced on 9 February 1983 as being available
in three months, and the final report, which was to be available in 12 months, that
is, February 1984?
Answer—
The terms of reference for the special committee appointed by the Queensland
Government to inquire into the laws relating to artificial insemination, in vitro
fertilisation and other related matters required that the committee make an interim
report to me wtihin three months from the first meeting of the committee and a
Questions Without Notice
28 February 1984
1563
final report within 12 months from the date of the first meeting of the committee.
I am informed that the first meeting of the committee was held on 2 March 1983,
and I expect to receive the final report next Thursday, 1 March 1984. In fact, the
chairman of that committee will be waiting on me at 4 o'clock that day. I propose
to take the final report to Cabinet when it is received. It wUl be a matter for Cabmet
to decide whether the final report wiU be released.
The interim report provided an indication to the Government of the interest shown
in this topic within the three-month period following the pubUcation of various
advertisements calUng for submissions from interested parties in the community. The
report irtdicated areas that were to be further explored by the special committee. In
view of the imminent receipt of the final report, I consider no purpose would be
served in releasing any interim report at this stage.
4.
Ethylene Dibromide
Mr Underwood asked the Minister for Health—
With reference to recent press reports indicating that United States authorities
had banned the use of the pesticide ethylene dibromide (EDB) after tests had shown
that it was one of the most carcinogenic chemicals ever tested—
Is the Queensland Government prepared to accept the guide-lines on the use
of this carcinogenic chemical as specified by the National Health and Medical Research
Council or will the people of the State have their health and well-being further
undermined by the continued use of this dangerous product?
Answer—
Action was taken last week to reschedule ethylene dibromide from schedule 6
to schedule 7 of the Poisous Regulations of 1973. I am proposing to take
action to include the substance in the Poisons (Fumigation) Regulations. This is
in line with the recommendations of the National Health and Medical Research
Council.
QUESTIONS WITHOUT NOTICE
Watts Construction Division Pty Ltd Claim on Redcliffe Hospital Building Project
Mr WRIGHT: I ask the Minister for Health: Has Watts Construction Division
Ltd, which is part of the Fletcher Watts Group, made a claim for monetary loss
expenses associated with the Redcliffe Hospital buUding project? If so, what was
amount of the claim, was the claim accompanied by a bill of quantities and whert
the claim submitted? Has the claim been resubmitted and, if so, what is the amount of
amended claim?
Pty
and
the
was
the
Mr SPEAKER: Order! I rule that question out of order.
Mr WRIGHT: Irt view of your ruling, I give notice that tomorrow, under Standing
Order 117, I will move—
"That Mr Speaker's ruling today that the following question asked by the
Opposition is out of order because it is sub judice be dissented from, namely—
(1) Has Watts Construction Division Pty Ltd, which is part of the Fletcher
Watts Group, made a claim for monetary loss and expenses associated with the
Redcliffe Hospital building project?
(2) If so, what was the amount of the claim?
(3) Was the claim accompanied by a bUl of quantities?
(4) When was the claim submitted, has the claim been resubmitted and, if so,
what is the amount of the amended claim?"
Watts Construction Division Pty Ltd Qaim on Redcliffe Hospital Building Project
Mr WRIGHT: In directing a questiort to the Minister for Justice and Attorney-General,
I refer to pamphlet "Hansard" No. 10 (1984), page 1505, on which he is recorded as saying
that his inqmries indicated that an unsubstantiated claim by Watts Construction Division
Pty Ltd
Governmertt Members interjected.
1564
28 February 1984
Mr WRIGHT: I have the right to refer to "Hansard"—had been under consideration
by the Redcliffe Hospitals Board. I ask: As there is consideration of a claim, how can
such a claim possibly be considered if the matter is sub judice?
Mr WRIGHT: On what grounds, Mr Speaker?
Mr SPEAKER: Order! The honourable member cannot question the Chair. I have ruled it
out of order.
Mr WRIGHT: I rise to a point of order. On what grounds, Mr Speaker?
Mr SPEAKER: I have ruled it out of order.
Mr WRIGHT: I rise to a point of order.
Mr SPEAKER: Order! I warn the Leader of the OpposUion.
Railway Freight Haulage
Mr NEAL: I ask the Minister for Transport: Will he advise me of the present level
of performance of the Railway Department
Mr SPEAKER: Order! I cannot hear the question being asked. I call the House to
order.
Mr NEAL: I ask the Minister for Transport: WiU he advise me of the present level
of performance by the Railway Department in the haulage of freight, particularly grain
and coal?
Mr LANE: I am very pleased to announce that only in the last fortnight two rtew freight
haulage records were established by the Queensland Railway Department. In the week ended
25 February, 859 342 tonnes of coal were hauled to ports and power houses in central
Queensland. That eclipsed the previous best weekly performance of 840000 tonnes set in
March 1981. In the previous week, 45000 tonnes of grain, mainly wheat but some barley,
were hauled from the south-western division to the Pinkenba export terminal and Brisbane
mills. The previous best was 44 000 tonnes set in May 1982. Those performance records are a
clear demonstration of the efficiency and capacity of heavy bulk haulage by the railways.
Advice to Mr Speaker by the Minister for Justice and Attorney-General on Sub Judice
Mr WARBURTON: I ask the Minister for Justice and Attorney-General: On
3 or 4 February 1984 did he provide Mr Speaker with any communication relative to a
ruling that questions about a certain hospital building contract in Queensland be deemed
sub judice
Mr SPEAKER: Order! Before the honourable member contirtues with that question,
I wish to partly answer it. I bring to the attention of aU honourable members that I
indicated to the House that I received a letter from the Minister for Justice and AttorneyGeneral on 4 February. I advise the House, particularly the honourable member who has
asked the questiort, that I have corrected that statement and indicated that I was advised
that this matter was to be dealt with on 3 January 1984.
Mr Wright: 3 January?
Mr SPEAKER: Yes, on 3 January 1984.
Mr WARBURTON: I will continue wUh my question to the Minister. All honourable
members have heard what Mr Speaker has said.
Will the Minister explain the basis for his recommendation, and will he table any
documents that he made available to Mr Speaker or any other documents that he may
have to support his recommendation?
28 Febmary 1984
1565
Mr WRIGHT: I rise to a point of order. Mr Speaker, when you make such a ruling,
which is your right, do you intend to give your grounds based on Standing Orders?
Mr SPEAKER: Order! No. The honourable member for Rockhampton, as Leader of
the Opposition, should know my position in Parliament. I have ruled that question out of
order. I do not intend to debate it.
Contract Tendering Procedures
Mr WARBURTON: In asking a question of the Minister for Industry, Small Business
and Technology, I refer to Mr Justice Connolly's decision on the Brisbane City CouncU
cleansing contracts in which it was made dear that only tenders lodged in the tender box
by the time of closing of tenders are admissible. Given that decision, are not the Government's
tendering procedures, as outlined in a circular letter dated 8 September 1983 that states that
negotiations are permitted with Queensland firms in order to reduce the initial tender price,
now contrary to that court decision? What steps has the Minister taken to revise the
Government's tendering procedures to disallow the current practice of renegotiating tenders
after the date for closing of tenders has passed?
Mr AHERN: I am weU aware of the ruling by Mr Justice Connolly. On the last day
of sitting I had it in the House and quoted from it. I have discussed the impact of that ruling
with my departmental officers and sought advice on any impact that it might have on the
Government's tendering procedures.
The first thing that became clear is that in its tendering arrangements the State
Government does not operate under an ordinance, which is the way in which the Brisbane
City Council must operate. That was one of Mr Justice Connolly's specific reasons in giving
his decision.
Other questions raised by Mr Justice Connolly's judgment have been under discussion
by my department, and I have sought Crown law advice on them. I am not prepared to say
in this instance that, because of that ruling, the Government has been acting iUegally. I
repeat that I have sought Crown law advice on the matter and, if it is necessary, an
appropriate amendment will be made.
Mr Warburton: The wheels turn slowly.
Mr AHERN: The Government is entitled to take legal advice on the matter.
The specific matter before Mr Justice Connolly related to the interpretation of the
Brisbane City Council ordinances, and that matter was settled by him. Whether there is any
flow-on to State Government tendering procedures is something on which the Government
is entitled to take advice. I assure the honourable member that if it is necessary to amend
the procedures, that wiU be done.
Brisbane Amalgamated Terminals Ltd; Fisherman Islands No. 2 Terminal
Mr EATON: In asking a question of the Minister for Water Resources and Maritime
Services, I refer to Cabinet's decision to grant 70 per cent control of the Fisherman Islands
No. 2 terminal to Brisbane Amalgamated Terminals Ltd, thus giving BATL virtual monopoly
control of the entire port of Brisbane. I ask the Minister: As more than $90m of public
money was spent in building the Fisherman Islands complex—
(1) Was the Port of Brisbane Authority negotiating with any other company
over the operations of the No. 2 terminal?
(2) At what stage were negotiations when the Government made its announcement?
(3) Could the apparent monopoly at the Fisherman Islands terminals result in
the loss to road or raU of shipping from the port of Brisbane to interstate ports?
(4) Will he comment on the economic disadvantage that must flow to the shipping
industry through its now having to contend with this monopoly?
Mr GOLEBY: First of aU, I make it quite clear that no operator within the port of
Brisbarte has been given a monopoly.
Mr Eaton: What rubbish!
1566
28 February 1984
Mr GOLEBY: If the honourable member wants the answer, I will give it to him.
BATL has been given 40 per cent usage of the second terminal; the balance is available for
other operators. Neither I nor Cabinet was made aware of any negotiatiorts at that time.
I have had quite satisfactory interviews with other port operators. Let me make it quite
clear that only ceUular containerisation cargo is being unloaded at the Brisbane port terminal.
None of the other operators handle that type of cargo. In my discussions with them, they
made it quite clear that they were not handUng cellular containerisation cargo.
The honourable member alleged that BATL has been given a monopoly. It has only
60 per cent of the traffic through the port of Brisbane, so his allegation is totally untrue.
Mr EATON: In asking a question of the Minister for Water Resources and Maritime
Services, I refer to the Government's decision regarding the Fisherman Islands No. 2 terminal,
and I ask: What involvement did the Port of Brisbane Authority have in the determination
that Brisbane Amalgamated Terminals Ltd be given virtually a monopoly control of the
entire port of Brisbane? What discussions were held by him with representatives of the
business community of Brisbane or the chambers of commerce in Queensland relative to
the BATL decision? WUl he table any documents that relate to the economic effect of
that decision, particularly as it involves the cost of shipping goods and the provision of
regular, reliable and competitive services through the port of Brisbane?
Mr GOLEBY: I repeat that no competition has been removed from stevedoring wUhin
the port of Brisbane. I make that point quite clear. I thought I did so in answering the
previous question.
Vertebrate Pest Legislation
Mr STEPHAN: I ask the Minister for Lands, Forestry and Police: Do constituents and
aviculturists need to be concemed about the statements and correspondence circulating in
electorates in relation to a so-called vertebrate pest ACt?
Mr GLASSON: I thank the honorable member for Gympie for asking the question.
The rumours have been a shock to me and, I am sure, to the people charged with the
responsibility of introducing legislation. I should take the honourable member back to where
the Queensland Government begms in any commitment to introduce uniform legislation.
In this case, the move was the result of Queensland's representations to the Australian
Agricultural CouncU about three years ago.
Mr Urtderwood interjected.
Mr GLASSON: Representations were made for the States to pursue some form of
uniform legislation.
Mr Underwood interjected.
Mr GLASSON: Much conjecture has taken place in the media. It was engendered by
the member for Ipswich West, who is irresponsible and lacks knowledge about what is
taking place. The honourable member for Ipswich West said, through the media, that the
legislation would be introduced in two weeks' time. I will explain to the honourable member,
ignorant as he is, the procedure that takes place before legislation is introduced in this
Chamber. Officers of the department are charged with the responsibility of preparing a brief
for submission to the Minister in the first place. He takes it to Cabinet and requests permission
to draw up a Bill. It then goes to the committee of the party and back to Cabinet before
any move is made to bring it into the Chamber. AU that Mr Stephens and the honourable
member for Ipswich West did by way of their cheap political ploy through the media, was to
put the fear of the Lord into many people that either their budgerigars, canaries, finches
and other birds would be confiscated and destroyed, or they would require a permit to
keep them. That was completely dishonest.
This mornirtg I had an interview, with three very responsible people. If the honourable
member for Ipswich West had been so concerned he could have done the same. I interviewed
Mr Garwood, Mr Westbrook and Mr Moore. They are private owners, not men who are
in the industry to make money.
I intend to issue a press statement outlining that the legislation which will eventually
be introduced to the Chamber will not cover birds or fish.
Honourable Members interjected.
28 February 1984
1567
Mr SPEAKER: Order!
Mr GLASSON: I view with regret the action taken by the member for Ipswich West.
I state emphatically that there will be no categorisation of birds or fish.
Honourable Members interjected.
Mr SPEAKER: Order! I would like less conversation or shouting across the Chamber
while the Minister is speaking.
Mr GLASSON: A press statement will be issued this afternoon to let everyone who is
fearful know that there will be no categorisation of birds or fish.
Wivenhoe Dam/Split-Yard Creek Complex
Mr STEPHAN: In directing a question to the Minister for Water Resources and
Maritime Services, I refer to the Wivenhoe Dam pump storage hydro generating project
on SpUt-Yard Creek. I ask: Is this project proceeding on schedule? If so, when is it
expected to come on stream to hook up to the Queensland electricity grid?
Mr GOLEBY: Work on the Wivenhoe Dam/Split-Yard Creek complex is nearing
completion. In fact, the first turbine in the SpUt-Yard Creek dam section of the contract,
which is for the generation of hydro electricity, wiU come on stream by the end of June.
It is being tested at presertt It is expected that the second turbine will come on stream by
late November. It is expected that the Wivenhoe Dam will be completed by the end of
November.
The generation unit at SpUt-Yard Creek wUl put 500 MW of power into the system
for the South East Queensland Electricity Board. That station wUh 500 MW wUl have
about one-third of the capacity of the new Tarong Power House and also of the Gladstone
Power House.
Mr McLEAN: In directing a question to the Minister for Water Resources and
Maritime Services, I refer to the decision to give Brisbane Amalgamated Terminals Ltd
virtual monopoly control of the Fisherman Islands terminal complex. I ask: What
investigations were undertaken to ascertain the number of jobs that would be lost by
granting BATL control of 70 per cent of the No. 2 terminal and by the decision of BATL
to close its Hamilton operations? Will the Minister advise the House of the ramifications
of these decisions in terms of job losses? Moreover, what plans have been made by the
Government or the Port of Brisbane Authority for the Hamilton terminal after BATL
closes its operations there?
Mr GOLEBY: I thought I made it quite clear originally that there .is no monopoly.
Again, for the benefit of Opposition members, I point out that prior to this arrangement
BATL had leased the second terminal and had total use of the Rsherman Islartds complex.
Under the present arrangements, BATL is closing Us Hamilton operations and moving
its operations, including its crane, to the port at Fisherman Islands. It will have 40 per
cent of the second terminal. If that is not clear, I do not know what is.
Mr McLean: Which 40 per cent?
Mr SPEAKER: Order! The member for BuUmba has asked a question and the
Minister has given a reply. Is that a second question that the member is now asking?
Mr McLean: No. I place my second question on notice.
Mr BURNS: Mr Speaker, could I ask a supplementary question arising from the
answer that the Minister has just given? I ask the Minister
Mr SPEAKER: Order! I have not said that the honourable member may ask a
supplementary question. I ask him to resume his seat.
Mr BURNS: Mr Speaker, may I ask a supplementary question?
Mr SPEAKER: Yes.
1568
28 February 1984
Questions WUhout Notice
Mr BURNS: I understand that the 40 per cent that the Minister keeps taUcing about
refers to the front area of the wharf. What is left is of no value to any other operator.
I ask: Is that so?
Mr GOLEBY: That is where the honourable member is wrong. Even the railway line
has been preserved to give all users access to it as well as to the port frontage.
C^ms Intemational Airport
Mr MENZEL: I ask the Minister for Tourism, National Parks, Sport and The Arts:
With the opening of the new intemational airport at Cairns only weeks ago, what is
the Government doing to promote far north Queensland as a tourist destination?
Mr McKECHNIE: The Queensland Tourist and Travel Corporation and the Caims
Port Authority have been very active behind the scenes in trying to get more flights into
north Queensland. Recently Qantas announced that it would offer a reduced air fare
for people flying from Vancouver, San Francisco and Los Angeles into Caims between April
and July. The Government received a lot of support for encouraging Qantas in that way.
I bring to the notice of honourable members and the people of Queensland that I
was advised yesterday that this promotion, which offers a fare of about half the normal
rate, has already attracted 4 800 advance bookings. It is exciting news for tourism because
international visitors spend an average of $79 per day while in AustraUa. I commend
Qantas for its initiative in introducing these cut-rate fares.
I also commend the honourable member for Mulgrave, who asked the question, for
his untiring efforts to promote tourism in north Queensland and for his support of the
international airport at Cairns. Tourism has an exciting future, and the intemational division
of the Queensland Tourist and Travel Corporation is doing much to encourage an increased
number of flights into Queensland.
Oriental Throwing Star
Mr McPHIE: In directing a question to the Minister for Health, I draw his attention
to a recent article in "The Courier-MaU" about the sale in America of replicas of an
ancient oriental weapon, a throwing star, that has sharp metal points and can be lethal. I
ask: Is he aware of this new children's toy that will, no doubt, shortly appear on the
Australian market, and will he take urgent action to have it banned in Queensland?
Mr AUSTIN: The honourable member has already brought the matter to my attention
and I have raised it with officers of my department. At this stage they have been unable to
procure the toy, but the honourable member can rest assured that my officers keep a watchful
eye on products coming onto the market in Queensland through Brisbane and other ports.
As soon as my department can obtain samples of the product, it will be tested and any
necessary action will be taken.
Trading Hours in the Motor Trade
Mr HENDERSON: In directing a question to the Minister for Employment and
Industrial Affairs, I refer to a serious problem in the motor trade caused by unscmpulous
dealers blatantly flouting current laws relating to trading hours. This is threatening
the viability of business operations carried out by dealers who trade within legal hours. A
recent ballot conducted by the Australian Automobile Dealers Association resulted in 68
per cent of south-east Queensland motor-dealers voting to retain the current legal trading
hours. In view of the attitude of the majority of Queensland motor-dealers, who employ
a large labour force, I ask: WiU the Minister take action to significantly improve the
poUcing of current legal trading hours and increase the penalties for breaches of the law
so as to severely discourage offenders? Will he consider introducing a minimum penalty
of SI,OCX) for a second offence and the loss of licence to trade for a third offence?
Mr LESTER: It would seem that the majority of motor dealers want to
present trading hours. At one stage it was suggested that six-day trading be
Prior to 1 September last year, some trading provisions were very loose. The
association applied to the Industrial Conciliation and Arbitration Commission
result, certain provisions were tightened up. Since then, 89 persons have been
retain the
introduced.
automobUe
and, as a
prosecuted
28 Febmary 1984
1569
for trading out of hours. Inspectors are working very hard inspectirtg the trading operations
of motor dealers, service station and caravan yard proprietors, hairdressers, boatyard
proprietors and others. If a company trades out of hours, it can be fined up to $10,000
by the courts. For a simUar offence, an individual can be fined up to $2,000. The
Department of Employment and Industrial Affairs is concerned about the low penalties.
An Opposition Member interjected.
Mr LESTER: The honourable member cannot have it both ways. Many Opposition
members come to me and say, "We want aU-day trading all the time." The present law
must be made to work. A number of provisions in the Act are being examined with a
view to tightening up the situation even further. The minimum penalties, as referred to by
the honourable member, are among the present considerations.
Tourist Levy
Mr BORBIDGE: I ask the Minister for Tourism, National Parks, Sport and The Arts:
What is the Government's attitude to renewed calls for the introduction of a tourist levy,
or tourist taxes, on the Gold Coast?
Mr McKECHNIE: The Government's attitude has not changed. It remains adamant
in its opposition to such new taxes. When the mayor of the Gold Coast talks about a
tourist levy, it is quite obvious that he is referring to a tourist tax in disguise. The Government
is not prepared to introduce such a tax or to allow a local authority to introduce it.
The simple fact of Ufe is that extra taxes and tourism just do not mix. Queenslartd is
experiencing great success with improved tourist numbers from overseas, intrastate and
interstate. At the last election the Queensland Government successfuUy campaigned on a
policy of lower taxation. It is my intention and, I am sure, the intention of all Ministers
and Government back-benchers to implement that policy. We want to ensure that Queensland tourist facilities remain competitively priced. The Government wants to ensure that
Queensland has great job opportunities. As far as I am concerned, the new levy or
tax—whatever the mayor of the Gold Coast wants to call it—is not on.
Racing Development Fund
Mr VEIVERS: In directing a question to the Minister for Local Government, Main
Roads and Racing, I refer to the recent criticism of the financial position of the Racing
Development Fund and a recent report which quoted him as saying that there was nothing
wrortg with merchartt bankers. I now ask: Have funds been obtained from merchant banks
for the Racing Development Fund and has that been done with the approval of Cabinet?
Mr HINZE: The honourable member might know something about cricket, but he
obviously knows nothing about racing. Funds are made available by various banking
authorities, such as BAC, National Australia and Westpac. They were the banks to
which I referred. Somewhere along the line the honourable member has picked up my
statement that there was nothing wrong with merchant bankers; and there is nothing wrong
with them. In fact, his Federal leader is breaking his neck to get as many of them into
AustraUa as he possibly can.
I repeat that, as far as I am aware, the Racing Development Fund today is stronger
than it has been. It is a credit to the Government. As I said previously, it is recognised
throughout Australia as such. No Labor State has a clue what to do when it comes to
the racirtg irtdustry. The honourable member has given me the opportunity of saying that.
I could give his mates in the south a lesson in how to fund racing, but why should I?
Let them learn from experiertce.
Mr Veivers: Thank you for saying that some funds have come from merchant banks.
Mr HINZE: Surely the member would know the difference between an ordinary
trading bank and a merchant bank. Can't he work that out for himself? I tried to convey
to the honourable member that funds were coming from various sources. I named those
sources. It is entirely up to the member to work out whether BAC is a merchant bank or
not.
;570
28 February 1984
Sorghum Crop; Congestion at Gailes Weighbridge
Mr FITZGERALD: I ask the Minister for Transport: Is he aware of the huge
sorghum crop on the Darling Downs and surrounding areas, a large percentage of which
will be transported by road to the port of Brisbane? Is he aware that that will not only
congest the roads but will also cause undue delays to other highway users, particularly
trucks wishing to use the GaUes weighbridge? Will he assure me that he wUl do everything
in his power to minimise the delays likely to be caused at the Gailes weighbridge during
the next two months?
Mr LANE: I am happy to give the honourable member the assurance that there will
be no undue delays for heavy trucks at GaUes. I will issue that instruction today because
of the question asked by the honourable member. I am sure that the capacity of the
railways to carry grain down the range
Mr R. J. Gibbs: It is always congested. You refuse to do anything at aU about it.
Mr LANE: The leader of the socialist Left continues to
in an interesting position. The Leader of the parliamentary
to the leader of the old guard, who is sitting next to the
who is sitting next to the young leader of the new guard. I
Opposition in this place today.
butt in. The Labor Party is
Labor Party is sitting next
leader of the sociaUst Left,
wonder who speaks for the
Mr SPEAKER: Order! Has the Minister answered the question? I ask the Minister
to relate his comments to the question.
Mr LANE: There is no problem about my answering the question. I just thought I
would deal with the honourable member. He is normally rude.
Mr R. J. Gibbs: You can't deal with anybody, you scab.
Mr SPEAKER: Order! I warn the member for Wolston.
Mr LANE: He loses his cool, too. He cannot take it.
Between the railways and road transport, the grain will be moved from the Darling
Downs. I will ensure that there are no delays at the Gailes weighbridge. Next time, the
member for Wolston can burst into tears.
Establishment of TAFE College at Biloela
Mr HARTWIG: In asking a question of the Minister for Education, I welcome his
recent announcement that a technical and further education centre will be established at
Biloela. Can the Miruster inform the Parliament when the centre wiU be established
and any other detaUs associated with the much-needed college at Biloela?
Mr POWELL: My department is starting a pUot program at Biloela as soon as it can
be fitted into place. The idea is to establish at Biloela a facility basically to look after TAFE
programs. The department wants to ally as closely as possible the work done in secondary
education with that of TAFE colleges in country areas. It is unrealistic to expect that
TAFE coUeges be built in every country area of Queensland, but it is also unreaUstic
to expect that the country people of Queensland should not receive that type of instmction.
Because of that, at Biloela the department wiU run a pilot scheme that will aUy the TAFE
facility with the high school so that students will have the opportunity of going on to do
some TAFE courses while they still live at home.
A similar pilot scheme is under way in Nambour at the moment with the Sunshine
Coast TAFE College and the Burnside State High School. Those two institutions are side
by side, so programs have been established to enable students to do some of the course
work at the high school and some at the TAFE college. That is basically the aim for
Biloela. I cannot give the honourable member a definite starting date. All I can say is
that it will be as soon as is humanly possible, because I am very keen to see that project
get under way.
28 Febmary 1984
1571
Conditions of Employment of Taxi Drivers
Mr DAVIS: I ask the Minister for Transport: Is he aware of an advertisement by the
Black & White Cab Co. Ltd that states that taxi drivers are required to pay between $200
and $285 in advance for a single shift? Does the Minister approve of workers having to
pay to work, and will he have the matter investigated?
Mr LANE: I am not aware of the advertisements. I have not seen them; they have
not been drawn to my, attention by my department or by the honourable member. Now
that I am aware of them, I wUl have the matter investigated.
Change of Location of Interstate RaUway Station
Mr DAVIS: I ask the Minister for Transport: Is he aware of reports that if the
interstate railway station is moved to Roma Street, interstate roUing-stock such as containers
and carriages will not be able to negotiate the tunnel between South Brisbane and Roma
Street? Are those reports true? Have engineering reports been made on the matter? If such
a report has been made, what are the costs involved?
Mr LANE: It is not intended that the New South Wales rail freight operations be
transferred to Roma Street. The intention is to transfer to Roma Street the passenger
terminal used for the Brisbane Limited that comes from Sydney, so that Brisbane will have
one consolidated transport passenger terminal. That idea is a wonderful concept to which
the State Govemment has agreed in principle. I am currently investigating the possibiUty of
developing at Roma Street a large transport terminal for the three modes of raU passenger
transport—suburban, interstate standard-gauge rail, and main-line rail—^which will also act
as an interchange with coach services, other modes of transport and tourist facilities.
The matter of New South Wales freight has no relevance to Roma Street, as plans
are currently under way to shift that operation to the south side of Brisbane—^probably to
Acacia Ridge—to consolidate the railway freight operations there.
Imported Tropical Fish
Mr INNES: In asking a question of the Minister for Primary Industries, I refer to the
answer given this morning by the Minister for Lands, Forestry and Police relating to aviary
birds in which he referred also to fish. I ask: Have there been any changes to the laws
affecting, firstly, the importation of tropical fish; and, secondly, the sale and keeping of
certain species of non-indigenous tropical fish in Queensland? If that is so, what are the
species, for how long have they been kept in Queensland in the past, and why have they been
so affected?
Mr TURNER: I point out that the Government has a responsibUity in this area. The
Minister for Lands, Forestry and Police and I have a responsibility to protect the existing
environment and the State's existing industries. Time must be taken to look at the number
of species of pests that have been introduced into this country over a long period and the
astronomical cost, amounting to billions of doUars, that has been incurred in attempting to
control them. We should look, for instance, at the effect that the introduction of carp has
had on our inland waterways. In addition, we have had to contend with rabbits, prickly pear,
harrisia cactus and cane toads, to name but a few. So the Government has a definite
responsibility in that area.
I have received deputations in relation to aquarium fish, and further irtvestigations will
be conducted by my departmental officers before any regulations are promulgated. They are
looking at the species of fish that will be Usted. But it must be borne in mind that the
Government has the final responsibUity to see that these species do not escape into the
State's waterways and cause the sort of severe problems that have occurred in the past
wUh other pests. In view of the fact that the honourable member has raised the question, I
will confer wUh him and give him a Ust of the species about which the Government is
concerned.
Queen Elizabeth II JubUee Hospital
Mr INNES: In asking a question of the Minister for Industry, Small Busmess and
Technology, I refer to a recent answer by the Minister for Health about the Queen Elizabeth
II Jubilee Hospital in which he referred to the strong demand for the services provided by
that hospUal. I ask: Is there any truth in the reports that the reserve adjacent to the
1572
28 February 1984
hospital is under investigation as a she for one of the proposed technology parks? If that is
so, will the investigation cover the whole of the reserve, and would the taking of arty part
of that reserve affect the possible expansion of the hospUal to cater for further growth?
Mr AHERN: The answer is purely and simply, "No."
Tragedy in Car-park at Manly Boat-ramp
Mr SHAW: In asking a question of the Minister for Water Resources and Maritime
Services, I refer to the recent tragedy when a young man was electrocuted at the Manly
boat-ramp when the mast of a sailing boat came into contact wUh overhead power lines. I
note that no positive action has yet been taken to eliminate that dangerous situation. I ask:
WiU the Minister indicate when some posUive action will be taken? Will he ensure that the
power lines are placed underground to prevent a repetition of that unnecesary tragedy?
Mr GOLEBY: I am aware of the tragedy that occurred at the parking area at the
Manly boat-ramp. I must inform the honourable member that the tragedy did not actually
take place in the parking area. It occurred when the vehicle was leaving the parking area
with the mast of the boat still up. I understand that the electricity authorities have erected
signs warning people of the potential danger. The electrical wires within the parking area
are underground, but the accident involved the overhead lines leading to the distribution
point on the edge of the parking area.
Contracts for Humes Concrete Sleeper Plant at Mackay
Mr CASEY: In directing a question to the Minister for Transport, I draw his attention
to a telegram from me, dated 14 February, and to subsequent local media publicity in
Mackay about the proposed closure of Humes concrete sleeper-manufacturing plant at
Mackay this Friday, that is, 2 March, because of its failure to obtain more Railway
Department contracts. Because the Minister has found time in the last five weeks to fly to
Europe and Japan to organise work for overseas companies wishing to be suppliers under
the Queensland Railways future electrification contracts, I now ask: What has he done to
reorganise future concrete sleeper supply contracts for this Australian company and thus
secure the jobs of 50 Queenslanders who otherwise will be in the dole queue next week?
Mr LANE: To put the record straight, I point out that my visit to Europe and Japan
in the last few weeks was directed at securing work for Queenslanders in Queensland.
Specifically, I have in mind tenders for the supply Of electric locomotives, the overhead
wiring contracts and the supply of wayside transformers and other electrical gear associated
with the contracts. The contracts themselves will total in the vicinity of $600m. Most of
the work will be carried out in Queensland. The Government has already received a large
number of tenders for the locomotives. Every tenderer proposes that the locos will be
built in Queensland, by Queenslanders, with the maximum use of Queensland materials.
If the honourable member wanted to be fair dinkum on this issue, he should examine the
terms and conditions of the contracts and take out the specifications in the tender documents.
In them he would see that they contain an insistence that the work be carried out in
Queensland.
I can assure the honourable member that some very good prices have been received
from all of those Queensland companies. What will be imported from overseas with respect
to the locomotives is the technology, know-how and design for the building of those
locomotives. Their type has rtot been built anywhere in Australia before.
A plant will be established in Queensland to construct 25 000-volt AC electric locomotives
to run on Queensland railway lines. They will carry coal more economically from central
Queensland to our ports for export overseas. That will raise revenue to make Ufe more
comfortable for some of the lazy people in the community, such as the honourable member
for Mackay, and for the good, hard-working Quenslanders who appreciate what private
enterprise can do for them.
As to the overhead wiring contracts—'all of the tenderers for this work have connections
overseas to assist them with the design of this high technology system that will be
constructed in Queensland. Obviously, electricity masts cannot be planted in the ground
Matter of Public Importance
28 February 1984
1573
in Europe to find out whether they can be used to run locomotives in Queensland. That
is so simple and straightforward that I thought the honourable member would have
understood it.
To get round to the subject of Humes, which the honourable member endeavoured to
incorporate in his question
Mr Casey: That was my question.
Mr LANE: That was not the question at all.
Mr Casey: It was.
Mr LANE: Well, perhaps I answered the smear first. I shall answer the question now.
How does that suit the honourable member?
,,.
The capacity of Queensland RaUways to use concrete sleepers, steel sleepers that are
manufactured in Gladstone, timber sleepers that are cut in Queensland, or treated timber
sleepers that are also cut and treated in Queensland, depends on the number required.
It just happens to be the fact that the boom in laying new railway lines in central
Queensland, which is the area in which concrete sleepers are used, is over. So the necessity
for Queensland RaUways to order more sleepers is no longer present. Therefore, Queensland
Railways cannot order more concrete sleepers from Humes; nor, at this stage, can
Queensland Railways order more from the other suppUer in Mackay, Austrack, which has
established a factory near Humes and is operating in competition with that company.
Nothing can be done about the matter at this stage. Queensland Railways has gone as
far as it possibly can to keep afloat two concrete sleeper-manufacturing plants in Queenslartd,
one treated-sleeper plant in the Isis electorate, sleeper-cutters throughout the State, and a
steel-sleeper manufacturer in Gladstone. Queenslartd Railways can do no more.
MATTER OF PUBLIC IMPORTANCE
Inadequate Staffing of Queensland's PubUc Hospitals; Strike by Nurses
Mr SPEAKER: Order! Honourable members, I wish to report that I have received the
following brief written statement from the Deputy Leader of the Opposition.—
"28th February, 1984.
The Honourable J. H. Warner, M.L.A.,
Speaker,
Parliament House,
Brisbane.
Dear Mr Speaker,
In accordance with Standmg Order No. 137 I desire to propose today that
the following definite matter of public importance be submitted to the House for
discussion, namely:—
The inadequate staffing of Queensland's Public Hospitals and the associated
dispute which led to unprecedented strike action by nurses.
Yours sincerely,
Nev Warburton,
Deputy Leader of the Opposition."
Not fewer than five members having risen in their places to indicate approval—
Mr WARBURTON (Sandgate) (12.25 p.m.): Mr Speaker, I move
IT
Hon. C. A. WHARTON (Burnett—Leader of the House): I move—
"That the House do pass to the next business."
Mr SPEAKER: Order! The Leader of the House has moved, "That the House do pass
to the next business."
Mr WARBURTON: I rise to a point of order,
, ,. ,
Mr SPEAKER: Order! What is the honourable member's point of order?
Mr WARBURTON: In view of your ruling, Mr Speaker, I have no option but to
seek leave to move a motion without notice.
1574
28 February 1984
Retail Shop Leases Bill
Mr SPEABCER: Order! Under Standing Order 137, any member has the right to
move that the House do pass to the next business, which the Leader of the House has
done. I shall now put the question.
Question—^That the motion (Mr Wharton) be agreed to—^put; and the House divided—
Ayes, 48
Miller
Ahern
Hartwig
Muntz
Harvey
Alison
Newton
Henderson
Austin
Powell
Hinze
Bailey
Row
Innes
Bjelke-Petersen
Simpson
Jennings
Booth
Stephan
Katter
Borbidge
Stoneman
Cahill
Knox
Tenni
Chapman
Lane
Turner
Cooper
Lee
Wharton
Elliott
Lester
FitzGerald
Lickiss
White
Gibbs, I. J.
Lingard
Glasson
Littleproud
Tellers:
Goleby
McKechnie
Neal
Gunn
McPhie
Randell
Harper
Menzel
Campbell
Casey
Comben
D'Arcy
Davis
Eaton
Fouras
Gibbs, R. J.
Goss
Hamill
Hooper
Resolved in the affirmative.
Noes, 31
Kruger
Mackenroth
McElligott
McLean
Milliner
Prest
Price
Scott
Shaw
SmUh
Underwood
Vaughan
Veivers
Warburton
Warner, A. M.
Wilson
Wright
Yewdale
Tellers:
Burns
De Lacy
RETAIL SHOP LEASES BILL
Hon. M. J, AHERN (Landsborough—^Minister for Industry, Small Business and
Technology): I move—
"That the Order of the Day be discharged."
Motion agreed to.
Hon. M. J. AHERN (Landsborough—Minister for Industry, SmaU Business and
"That the Bill be withdrawn."
Motion agreed to.
Hon. M. J. AHERN (Landsborough—^Minister for Industry, Small Business and
"That the original Order for the introduction of the Bill be now read."
Motion agreed to, and the Clerk read the original Order.
Suspension of Standing Orders
Hon. M. J. AHERN (Landsborough—^Minister for Industry, Small Business and
Technology): Mr Speaker, I move—
"That another Bill be brought in founded on this Order and that so much of
the Standing Orders be suspended to enable the Bill to proceed through its remaining
stages forthwith."
28 Febmary 1984
1575
Question put; and the House divided—
Ahern
Alison
Austin
Bailey
Bjelke-Petersen
Booth
Borbidge
Cahill
Chapman
Cooper
Elliott
FitzGerald
Gibbs, I. J.
Glasson
Goleby
Campbell
Casey
Comben
D'Arcy
Davis
Eaton
Fouras
Gibbs, R.
Goss
HamUl
Hartwig
Hooper
Innes
Knox
Ayes, 41
Gunn
Harper
Harvey
Henderson
Hinze
Jennings
Katter
Lane
Lester
Lingard
Littleproud
McKechnie
McPhie
Menzel
Muntz
Noes, 38
Kruger
Lee
Lickiss
Mackenroth
McElligott
McLean
Miller
Milliner
Prest
Price
Scott
Shaw
Smith
Underwood
Newton
Powell
Row
Simpson
Stephan
Stoneman
Tenni
Turner
Wharton
Tellers:
Neal
RandeU
Vaughan
Veivers
Warburton
Warner, A. M.
WhUe
Wilson
Wright
Yewdale
Tellers:
Burns
De Lacy
First Reading
BiU presented and, on motion of Mr Ahern, read a first time.
Second Reading
Hon. M. J. AHERN (Landsborough—Minister for Industry, Small Business and Technology) (12.41 p.m.): I move—
"That the Bill be now read a second time."
In my speech to this House on 20 December 1983 I asked that honourable members,
members of the public, landlord organisations, tenant organisations and other interested
organisations study the Bill and refer written comments on the Bill to me for consideration.
As a result, some amendments have been made to the BiU. In addition a number of
machinery amendments have been made. I have given some thought to the best way to
proceed and I have come to the conclusion that a new BiU consolidating the amendments
would be the best way.
The leader of the Liberal Party, the member for Nundah, divided the House when I
initiated procedures today. I had already given a lengthy explanation of my reasons for
adopting this procedure. I indicate to the House that the precedent upon which my action
is based was action taken by the then Minister for Health (Sir William Knox) on 29 April
1980. Now, more than ever, the honourable member is voting with the Labor Party.
Frankly, at present I have some concern for his politics.
Sir WILLIAM KNOX: I rise to a point of order. The Minister's remarks are untrue.
The matter the Liberal Party objected to, because it is not a matter of urgency, was
proceeding with all stages of the BiU in one day. The Liberal Party has no objection to
the substitution of the Bill.
1576
28 February 1984
Mr DEPUTY SPEAKER (Mr Row): Order! Will the Minister accept that explanation?
Mr AHERN: Yes, I accept the explanation.
I recognise that honourable members could be at a disadvantage. However, I advised
Opposition spokesmen—all of them—that they could be briefed by departmental officers
yesterday, if they so desired, on the amendments consolidated into this new Bill. In
addition, I now propose to distribute to aU honourable members a comparative document
which shows in the left-hand column the original Bill, in the second columu the amended
clauses opposite the clause in the origirtal Bill, and in the last column a brief explanation
of the reason for the amendment. This wUl allow honourable members to identify the
amendments very quickly.
In addition, I have also provided explanatory notes on each clause in the consoUdated
Bill, again with irtformation about amendments where appropriate. I believe that these
arrangements will allow members to appreciate the reasons for the clauses in the BUI and the
amendments made and consolidated into the new BiU.
1 would point out that this is pioneering legislation. This Government is the first State
Govemment in Australia to grasp the nettle. I do not expect that the legislation will satisfy
everybody. However, a major effort has been made to come to grips with the major causes
of concern in present retail shop leases.
I thank aU those who made submissions on the original Bill. Because of the innovative
nature of the legislation, I sought comments on how the legislation could be improved. I
particularly wanted advice on how the Bill's provisions would stand up against the realities
of everyday commercial and legal practice.
Submissions were received from many persons and organisations interested in the proposed
legislation. Valuable advice was received from my coUeague the Minister for Justice and
Attorney-General and his officers. The Minister also made available to me comments he
received from the chairman of the District Courts. The Committee of Subordinate Legislation
also made comments on the Bill.
Discussions on possible amendments have been held by officers of my department, the
chairman of the Small Business Development Corporation or myself with BOMA, the Retail
Traders and Shopkeepers Association of Queensland, the Queensland Law Society and others.
I wish to express my thanks and sincere appreciation to the representatives of those
associations and societies. They accepted that the Government was determined to do
something about retail shop leases and they worked hard to ensure that the Bill would
provide a remedy for many of the problems faced by small retail traders.
I am well aware just how difficult it is to reconcile the very different interests of
landlords and tenants and yet maintain an environment in which the Government does not
intrude too far into their commercial dealings. I believe that the Bill before the House wUl
improve the lot of tenants in retail shops and stUl maintain the essential rights an owner of
property has in his dealings with that property.
I now propose to deal with those clauses in the consolidated BUI that are different
because of amendments to the original Bill.
Qause 2—Commencement—page 1 in the comparative document. It would be unreasonable to provide that the amendments proposed to the original Bill should apply from the
date that Bill was introduced. Subclause (1) has been amended to provide that aU parts
of the Act except Parts IV and V shall commence on the date of assent.
Qause 4—Interpretation—pages 1 and 2 in the comparative document. The definition
of common areas in the original Bill is deleted because no reference is made to that term
in the consoUdated BUI.
Some words have been deleted from the definition of key money and included more
appropriately in clause 8. The definition of retaU shop has been amended in the consolidated
Bill to exclude businesses such as service stations and hotels.
The definition of retail shop lease has been amended to exclude from the provisions of
the Act tenancies held by national retail chains such as Woolworths.
The definition of retail shopping centre has been amended in the consolidated Bill
to provide that the premises must be let by the one landlord and to exclude offices in
multilevel buildings.
28 Febmary 1984
1577
The definition of turnover has been deleted and included in clause 9 of the consoUdated
Bill. Subclause (2) has been deleted because it relates to turnover.
Clause 5—Application of Act—^page 5 of comparative document. This clause is amended
in the consolidated Bill to make it consistent with the commencement date in clause 2. The
clause is further amended to provide that the Act will not apply to certain leases and
agreements entered into before the commencement date. The clause has also been amended
to ensure that the Act will apply to every retail shop lease that provides for a tenancy of
premises in Queensland.
Qause 6—Determination of rent as a fraction of turnover—page 4 of comparative
document. This clause has been amended to cover the case in which rent is determined as
a base cost plus a percentage of tumover above a certain amount and to provide that tne
notice is to be in the prescribed form.
Qause 7—^No entitlement to turnover figures in certain cases—page 4 of comparative
document. This amendment provides for the situation in which rental is determined as a
combination of a base and percentage rent.
Qause 8—Certain payments to landlord prohibited—^page 4 of comparative document.
The amendmertts to this clause are made to ensure that certain payments made on the
exercising of an option are also prohibited and to provide that a landlord can recover his
reasonable costs of investigating a proposed assignee and of documentation. Importantly,
however, the clause has been amended to provide that goodwill can be paid in the case
of an owner who maintains his freehold title but sells his business and leases it to the
purchaser.
Clause 9—Requirements if rent determined as a fraction of turnover—page 5 of
comparative document. These amendments provide that this clause applies also if part
of the rent is determined as a percentage of turnover and that gross sales certificates and
audited statements are provided at times agreed upon between the parties. The definition of
turnover deleted from clause 4 is included in this clause as an amendment.
Clause 10—Rent review—page 6 of comparative document. The amendment to this
clause provides that if the review is based on market rent, then the rent is determined on
the basis of the use permitted in the lease.
Clause 12—Sharing of operating expenses—page 6 of comparative document. The
amendments to this clause provide no listing of particular expenses as set out in the original
BUI. The amendment provides that the lease must specify each item of expense to be
included in operatirtg expenses, how these operating expenses will be determined and
apportioned, and how the landlord can recover them. In addition, the landlord has to furnish
annual estimates and audited statements of annual expenditure with respect to each of the
items.
The original clause would have led to new lessees paying a restricted set of items of
expense as operating expenses and old lessees paying a different set of items of expense.
The amendment still provides the tenant with more certainty than he now has in relation
to further expense commitments.
Clause 13—Option to renew lease—page 7 of comparative document. The amendment
to this clause provides for an implied option to extend a lease to an overall term of five
years where the retail shop in question is being leased for the first time.
Clause 15—Implied provisions concerning compensation—^page 7 of comparative document. The amendment to this clause now makes it clear that the landlord may be made Uable
for compensation in certain circumstances irrespective of whether or not the lease provides
for those actions.
A further amendment has been the omission of subparagraph (ii), which if left in the
Bill could have been construed to mean that an owner in preventing a tenant carrying
on a business not permitted by the lease could be liable for compensation.
Qause 22—Records of mediator—page 9 of comparative document. A minor amendment
is made to this clause to provide that the authorised representatives of parties to a reference
may also search the records kept in the registry.
Clause 23—Jurisdiction of mediator—page 9 of comparative document. By this amendment, the mediator can now hear all disputes, except those dealirtg with rent, between
landlords and tenants, including those that do not relate specifically to the legislation.
1578
28 February 1984
RetaU Shop Leases BiU
Clause 24—Reference to mediator—^page 9 of comparative document. This amendment
allows the mediator the discretion to permit an agent with legal qualifications to appear
before him.
Clause 36—Extent of jurisdiction—page 12 of comparative document. This amended
clause clarifies the jurisdiction of the tribunal and ensures that matters that are more
properly dealt with in other courts are not heard by the tribunal. Matters concerning rent
cannot be referred to the tribunal. Similarly, leases that contain provisions for arbitration
fall outside of the tribunal's jurisdiction.
Clause 41—Orders requiring performance or discontinuance of action—page 13 of
comparative document. This is a new clause that serves to strengthen the powers of the
tribunal and improves its abiUty to enforce its orders.
Clause 42—Orders requiring payment of money—^page 14 of comparative document.
This is a machinery amendment that provides for the inclusion of some additional words
concerning the correctness of affidavits.
Clause 45—Appearances before tribunal—^page 15 of comparative document. This clause
has been amended to make it clear that a company may be represented in references to a
tribunal, to allow the tribunal the discretion to permit agents with legal qualifications to
appear, and to ensure that hearings of references before a tribunal shall not be open to
the public.
Clause 55—Êxclusion of other jurisdictions—^page 17 of comparative document. This
amendment serves to clarify the situation where matters referred to the mediation and
determination process fall outside the jurisdiction of either the mediator or the tribunal.
Clauses 61 and 62—^Power to amend schedules/Orders in CouncU—^page 19 of comparative
document. Both of these clauses have been deleted on the advice of the Committee of
Subordinate Legislation. Instead, an additional provision has been added to the end of each
schedule to aUow for additions to be made to the schedules by way of regulation.
First and Second Schedules—pages 20 to 22 of comparative document. Some minor
additions and deletions have been made to the schedules. As I have mentioned, art additional
provision has been added to allow for additions to the schedules to be made by regulation.
As members will have noted, the major and essential elements of the Bill remain
unaltered. The Bill still prohibits—
Percentage rent unless requested by the tenant;
The collection of turnover figures unless the tenant has requested a percentage
rent; and
The payment of key money or the apportionment of goodwill on assignment to the
landlord.
The Bill still proposes that—
If a percentage rent is paid by a tenant, only basic turnover figures need to be
provided;
Rental reviews are to be clearly identified and, if market rent is used, a provision
is made for any dispute to be referred to arbitration;
Requests for assignments must be answered wUhin a reasonable time and only
reasonable costs of investigation of the proposed assignee can be recovered.
Tenants have the right to select soUcitors of their choice; and
The mediation panel and the triburtal remain.
The Bill makes no attempt to deal with some issues raised in the Cooper report.
They are—
(a) Preparation of a model lease. The parliamentary committees of the Minister for
Commerce and Industry and the Minister for Justice and Attorney-General met on
many occasions during the term of the last Parliament to draw up the guide-lines
on which the legislation is based. They requested advice from the Queensland Law
Society as to whether a model lease was practicable and possible. It was not
proposed that the model lease should be part of the Bi'l. AUhough the advice to
the committees was that a model lease would be very difficult to prepare, BOMA
has, in Us Practice Manual, prepared a model lease. That model lease does not
meet all the provisions of this BUI, but it is a start.
28 February 1984
1579
(b) Merchants associations, advertising expenses, etc. Many submissions to the Cooper
committee, and many submissions since, proposed more control of merchants
associations. Tenants in large shopping centres contribute funds to the advertising
costs of the centre and the promotions, etc., are often decided upon by merchants
associations. After a great deal of consideration it has been decided that the
Bill should not provide for any form of interference with what is really a
private organisation handling the promotion of the centre.
The Cooper report also suggested that centre management expenses and major structural
repairs, etc., should not be included in operating expenses. I dealt earlier in this speech with
the problem of listing what expenses might be included in operating expenses.
There will be a continuing need to educate tenants and prospective tenants with respect
to leases and the obligations under lease conditions. The pamphlet "Shop Leases—What the
tenant should know" was prepared to bring, to the prospective tenant's attention, his
obligations under a lease under existing legislation. The Small Business Development
Corporation is at present preparing another pamphlet which wUl be useful to prospective
tenants when the Retail Shop Leases Act becomes law.
I would also commend BOMA fOr the continuing work that it is putting into its
Practice Manual. That manual advises landlords and makes suggestions on how to best
overcome many areas of complaint in leases. The Australian Council of Shopping Centres
Code of Practice, which is included in that manual, if followed by landlords, would overcome
most of the problems with leases.
What is now before members is a clearer and more certain piece of legislation. It will
do the job it is intended to do. As I said in introducing the Bill to the House in December
last, it will establish the ground rules upon which leases in future wiU be drafted, and it will
provide the hard-working tenant and the landlord with recourse to a form of low-cost
resolution of disputes.
I commend the Bill to the House.
[Sitting suspended from 12.58 to 2.15 p.m.]
Mr FOURAS (South Brisbane) (2.15 p.m.): There has been a great deal of poUtical
grandstanding in the rather lengthy gestation period preceding the birth of the Retail Shop
Leases BiU. It is unfortunate and sadly ironic that, as a result of the procrastination by the
Government and its political grandstanding in the matter of shop lease legislation, problems
have been compounded. Landlords have become united about the contents of leases. WhUe
the Goverrtment has been talking about protecting the interests of small retail tenants, the
landlords have been conspiring to the detriment of small businessmen. Many landlords are
now applying undue pressure that has resuUed in ever-increasing costs for tenants.
The Minister for Industry, Small Business and Technology and his advisers have shown
a complete lack of business knowledge. Many of the National Party's election promises
have not been put into effect, nor have the recommendations of the SmaU Business
Development Corporation report and the Cooper report.
The legislation is insipid; it is a toothless tiger. The legislation is pathetic and, in effect,
the Government is attempting to fight a raging bush fire with a water pistol. The Australian
Labor Party is unimpressed by the RetaU Shop Leases Bill.
AUhough the Bill prohibUs a number of undesirable practices, it is both inadequate
and ineffective in meeting fts intended aim of ending the exploitation of tenants by
unscrupulous landlords.
On 20 December, in introducing the BiU, the Minister stated—
"I am therefore honoured as smaU business Minister to be delivering this address
to implement National Party policy as detailed before the election."
I emphasise "as detailed before the election"
The legislation falls a long way short of deUvering National Party poUcies on retail
shop leases as detailed before the election and does not put into effect the major
recommendations of the Cooper committee. It is a very much watered down version of
what is needed to alleviate the problems of the exploitation of retail shop tenants.
1580
28 Febmary 1984
RetaU Shop Leases Bill
The legislation is very pretentious and poses no threat to unscrupulous landlords. It has
plenty of bark but lacks any real bite. The National Party promises have been watered down
at the behest of developers such as Westfield. The watering down is further proof of the
power of a small group of developers who now know that, by contributing to the BjelkePetersen Foundation, they can protect their interests. It is a monumental sell-out of retail
shop tenants.
The National Party promises were detailed in an article in the May 1983 edition of
"The Retailer of Queensland" In that article the National Party argued that legislation
should be introduced because—
"Unlike the situation where shop premises are individually owned, a tenant who
successfuUy establishes a business and builds a goodwiU is unable at the termination
of a lease to effectively remove the goodwill to alternative premises.
This has the effect of establishing a monopoly in the developer.
Exploitation of the tenant by a developer must ultimately cause high costs to
the local community."
That exploitation has been exposed by ALP parUamentarians, in particular by Mr Wright,
the Leader of the Opposition, and by Mr MUliner, the former spokesman, and by the Small
Business Development Corporation and the Cooper committee.
In order to firmly establish the Opposition's case that the National Party promises have
been either watered down or broken I intend to compare some of the promises and the
problems that they were to specifically alleviate with the final response in the RetaU Shop
Leases BiU.
Landlords have recently adopted the practice of demanding that tenants sign a
disclaimer or waiver to the effect that no statements, representations or claims, oral or
otherwise, have been made to the tenant by landlords or their agents other than those
appearing in the lease document. In many cases the tenant has been coerced irtto signing
a disclaimer, thereby relinquishing the right of recourse to legal action.
The National Party poUcy states—
"There is evidence of an increasing trend towards 'disclaimer' clauses being
included in lease documents, whereby the tenant effectively, upon signature,
relinquishes all other rights to redress civil and otherwise, in case of dispute with
the landlord."
The National Party promised to prohibit such disclaimer clauses. No such clause
appears in the Bill before the House. It contains no prohibition of disclaimers, as promised
by the National Party. If the member for Surfers Paradise (Mr Borbidge) is still listening,
I would point out to him that that was the first promise.
I turn now to the
Development Corporation
should be prohibited. The
be quoted and based on a
the annual commitment.
issue of percentage rents. In its report, the Small Business
took the view that rents based on a percentage of tumover
Small Business Development Corporation felt that rents should
fixed amount per unit area so that a tenant would be aware of
The Cooper committee made the following finding—
"The provision for a tenant to pay percentage rents based on turnover was
not a desirable practice in the form it appears at present in most leases."
Most small tenants in
economic rent. They are
their profitability or on
usually fixes a base rent
level.
large complexes are paying a basic rent, which is the real
also being charged a percentage rent, which is a rent based on
their initiative. Where percentage rent is charged, the landlord
and applies a percentage to any turnover above a predetermined
The Cooper committee came to the following conclusion—
"The base rent for small traders in many complexes had all the appearances and
substance of a market rent for the space rented."
It said that the tme market rent is the base rent and that any rent charged above that
is totally iniquitous, totally immoral, and should be prohibited.
28 February 1984
1581
The committee went on to say—
" . . . these were more direct correlations between rental levels and floor areas
than rental areas and the type of business or turnovers involved."
If one examines the rent structure and looks not at the business but at the amount
of area being leased and the amount being paid as a base rent, one finds that the base
rent is the tme economic rent. The National Party stated and implied directly in its
promise that it would not be a party to such an iniquitous situation.
The Cooper committee found that any percentage rent that is sought over and above
the base rent is not in essence a rent at all but a clever ploy whereby the owner of the
retail centre has an inbuilt share of the profitability of each tenant's business.
Federal legislation that governs chemists prohibits the payment of percentage rent
based on turnover because for years the Federal Govemment has had, of necessity, a
vested interest in restraining the costs of chemists in rented premises. The pubUc is being
forced to become cognisant of the costs involved in providing a service to the public,
and I instance the retailing industry. That practice has been prohibited by the Federal
legislation governing chemists. It is not good enough for the small tenants in our community.
The Cooper committee reported—
"There was universal opposition to the levying of percentage rent. SmaU
traders felt strortgly that they would be penaUsed for their initiative. They further
felt that their increase in turnover would be the basis of lifting the base rent."
During the 1980 election campaign the National Party policy stated that the tenant must
be offered, as an alternative, rent stated as a cost per square metre of leased area. However,
although the Bill prohibits the detennination of rent as a fraction of tumover, it provides
an out for the developer who wants to force such a system on a small tenant. The out
results from the provision that the prohibition standi, urtless the tenant seeks such a
lease based on turnover by notice in writing. A popular shopping complex with tenants
galore has been opened in a particular place. There is no shortage of people in our community who see themselves as entrepreneurs and as people who would like to have a go.
They put their superannuation into a business. They mortgage their house and invest
their whole life-savings in the business because they believe they can make a success of it.
An unscrupulous landlord will say to a person, "If you want a lease, put it in
writing for me that you want your rent as a percentage of turnover." Let there be no
misunderstanding by honourable members that there has been any attempt at all to
prohibit rent as a percentage of turnover. Particularly is that highUghted by the specific
exclusion from the legislation of large landlords such as Woolworths and Coles, who are
suited by percentage rents.
What a shocking charade it is! We see a classic watering down of the prohibition on
percerttage rents. One does not have to be a genius to realise what unscrupulous shopping
complex owners or their agents will do. They will suggest, as I have just said, that a tenant
has no hope of securing a lease unless a percentage rent is requested by the tenant.
That let-out has been included not for the benefit of smaU tenants, who universaUy do not
want percentage rents, but purely for the benefit of landlords in large shopping complexes.
The current method of a fixed percentage of turnover does not take into account the
fact that gross profit can decline in relative terms as the cost of sales increases. An increase
in turnover does not rtecessarily mean an increase in the capacity to pay. 'Only an increase
in gross profit does that. The let-out in regard to the prohibition on rent based on a
percentage of turnover will facilitate the continuation of a despicable practice—a practice
that I believe the Government should have had the moral fortitude to prohibit forthwith.
The legislation falls short of looking after the interests of small-businessmen.
It is disgraceful for a so-called free enterprise Government to allow rent based on turnover, which is an attack on initiative. It means also that a landlord is entitled to a
percentage of a tenartt's investment in stock. It results in a strong disincentive to "speciaUing",
which results in the sale of large volumes at smaller margins. That affects not only the
consumer but also manufacturing sector employment prospects.
Percerttage rents will continue for ever and a day as a result of this legislation. Because
of it, smaU-businessmen wiU have to increase their margins. That is the ortly way they
will be able to survive in a shopping complex. A fruiterer in a shopping complex will have
1582
28 February 1984
to impose a mark-up in excess of 100 per cent to survive. He cannot "special" He cannot
afford to go out to the Brisbane Market and buy large quantities of tomatoes and put
them out as a special on only 30 per cent mark-up. That type of activity will not be
profitable for him. To survive, retailers with leases in shopping centres will have to become
rip-off merchants. The effect will be felt by the primary producer, the manufacturer, the
consumer and the person seeking employment opportunities in the work-place. It is time
that that was said.
The let-out of allowing people to seek in writing an amount of rent based on turnover
is a sell-out of small tenants, who will be coerced not only into applying for percentage
rent but also into including disclaimers in their leases to firmly protect unscrupulous landlords. Those two factors on their own tell a story. It is of more than passing interest to
note in the revamped legislation an aniendment that specifically excludes large tenancies held
by national retail chains such as Woolworths and Coles from the provisions of the Bill. Such
an exclusion makes it all the more reprehensible that percentage rents are to be aUowed.
Woolworths and Coles have always preferred percentage rents, under which they enjoyed
the best of both worlds. With percentage rents they are able to commence a tertartcy in a
large shopping centre with a low rent untU their business builds up. Their percentage
declines with increasing turnovers, unlike what happens to the small retailer. They have
a vested interest in seeing the continuation of percentage rents. However, that is not the deal
that is offered to the small-businessman. He is offered a base rent, which is really his true
economic rent. On top of that is a super tax—a tax on his profitability.
I vehemently contend that this legislation is nothing more than a pretence. The Labor
Party would rather see in the Bill an unequivocal statement making it mandatory for a
landlord to offer a tenant a rent stmcture based on a fixed rate per square metre per
annum. If another basis were required, why could it not be as a fixed percentage of gross
profit? That Would enable a person to use his initiative by increasing turnover through
"speciaUing" certain lines. However, under this provision he will be penalised for his
initiative.
The Labor Party believes that when a tenant elects to accept a rent based on a percentage of gross profit, that percentage should be fixed for the term of the lease and
no rental increase should be payable other than that generated by an increase in gross
profits. Perhaps the worst aspect of this Bill is the reluctance of the National Party to
come to grips with proper guide-Unes for lease periods and options. That is the Unchpin
of the failure of this legislation to protect small tenants from unscmpulous landlords.
The only provision in the Bill dealing with the term of lease is the option that a
tenant is entitled to a minimum term of five years if he gives notice in writing to that
effect to the landlord before the execution of the lease. That is totally inadequate and an
abrogation of a firm commitment. In its retail shop leases policy, the National Party argues
that shopping complex premises are not mdividually owned; that a tenant who successfuUy
establishes a business and builds up goodwiU cannot at the termination of the lease effectively
remove the goodwill to another site. So a businessman is locked in to his site. The National
Party policy further argues that that effectively establishes a monopoly in the deyeloper
and leads to the exploitation of the tenant. The National Party has broken its promise
contained in its small business policy, part of which states—
"Upon notification of termination of a lease by the landlord to the tenant, the
existing tenant shall have the first right of refusal within 30 days prior to such
termination."
That was an unequivocal and posUive statement by the National Party. That simply states
that at the termination of a lease the tenant shall have the first right of refusal within
30 days prior to such termination. However, that provision is not included in the
Bill. That is a most glaring sell-out of what was a firm commitment by the National
Party.
The most fundamental and vital issue for small retail tenants is security of tenure.
It is totally incomprehensible to relate the significance of a minimum five-year provision
in the Bill to security of tenure. Under the first Bill that was presented a tenant could,
in writing, seek a five-year lease. Such a condition is considered by experienced retailers to
be most imprudent of the small retail tenant. An amendment in the revamped legislation
provides that when a retail shop lease is the first such lease, it is now mandatory that the
28 February 1984
1583
aggregate of the initial term of the lease and the term of an option or options be a
minimum of five years. I grant that that is an improvement but it is a long way from
what was promised. What has happened to that very brave new world National Party
promise, which I wiU quote again—
"Upon notification of termination of a lease by the landlord to the tenant,
the existing tenant shall have the first right of refusal within 30 days prior to such
termination."
Many examples exist of instances in which tenants are given no altemative to taking
a fixed five-year lease, accompanied by a personal guarantee for the performance of the
conditions of the contract. Out in the market-place, tenants will have no choice but to
accept a fixed five-year lease in a new retail complex. The new tenant wiU also have to
give a guarantee of performance. Under the revamped legislation, unscrupulous landlords
will still be able to coerce tenants into a fixed five-year lease. However, if the shopping
complex is a failure, the tenant is locked in by the long-term lease and, when the business
fails, the landlord is able to enforce the lease conditions and the guarantee. So the house
that has been mortgaged and the superannuation that has been put into the business go
down the drain. The only reason why such coercion and stand-over tactics can succeed is
that in the community people believe that they have the skills to be able to survive in these
circumstances.
A tenant needs the protection of a minimum term of three years so that U the shopping
centre fails and/or if the landlord fails to manage the centre efficiently, the risks taken
are minimised. The Bill makes no mention of options. As promised on termination of
any lease, options do not exist beyond the first five years of a new lease.
The ALP has a firm policy that there must be a mandatory requirement for a landlord
to offer a tenant a minimum aggregate lease term of nine years, made up of an initial
three-year period and two three-year options. This Bill lay on the table from 20 December
last year, and if the Minister had spoken to small tenants and listened to their views, they
would have said that that was what they wanted—a minimum nine-year term, with two
three-year options. Such a practice should have been instituted instead of the five-year
minimum term which, in many cases, would, because of coercion from landlords, not include
the option term that this Bill envisages. It is an accepted principle in the field of retailing
that the ideal situation is a three-year lease with two option periods of three years, each
attaching.
Not only is the Bill devoid of options, other than in the case of an initial lease that is
less than five years; as I stated previously, it also reneges on the promise that—
"The existing tenant shall have the first right of refusal withirt thirty days prior
to such (lease) termination."
That is just one more promise on which the National Party has reneged.
It needs to be repeated that unacceptable power is vested in the landlord while no
options are included in the terms of the lease of when the term of the lease or when the
term of the lease expires and a renewal is wanted. That is the crux of the problem. That
is what really worries most small businessmen, and that is when, to use a colloquialism, they
get screwed well and truly by unscrupulous landlords. It has been proved beyond doubt
that under such circumstances tenants have only one altemative to rejecting unreasonable
demands, that is, the forfeiture of their businesses and the loss of thousands of dollars in
investment and goodwUl.
To cite Aldous Huxley, "Facts do not cease to exist just because they are ignored." That
is the basic problem faced by smaU tenants in shopping complexes. Unfortunately, although
the Minister chose to ignore those facts they did not cease to exist. I believe that the
National Party must be aware of this problem but has chosen to ignore it—further proof
that the prime requirement of this Bill is that the legislation be ineffective, and that it has
been made ineffective through connivance between the Government and developers. The
fact is that fundamerttal to the security of tenants is the necessity that options be given to
all tertants as a right on termination of any lease. The National Party was aware of that fact.
It promised the option, but, in a monumental sell-out, it broke that promise.
How can the Minister justify such reprehensible inaction when his party's retaU shop
leases policy states—
" T h e industry can throw up numerous examples of forced sales of business (often
to the landlord) by tenants who have been denied optional lease extensions."
1584
28 February 1984
We agree that m a 1983 edUion of "The Retailer of Queensland" the National Party said
quite clearly that U knew of forced sales and of the inability of tenants to obtain an option
to continue the business at the termination of the lease. The National Party knows that
landlords are holding loaded guns to the heads of businessmen, but it has done nothing
about it—a scandalous sell-out of the interests of small tenants.
It is imperative that any meaningful legislation contain a provision that, on the expiry
of the term of any lease, the tenant has the first option to negotiate a new lease with the
landlord and that any failure to reach agreement should be taken to arbitration.
The Opposition supports the provision in the BUI prohibiting certain payments to landlords
such as key money or any amount for the goodwill of the business. That is the only positive
aspect of this legislation, the only thing on which the National Party has delivered. I believe
it was part of a quid pro quo. The National Party had to make some small offerings to the
small tenant. It could not have the score at the end of the day, "Landlords 100—small
tenants 0", although I believe that, when one reads this legislation, the score is very close
to that mark.
However, there is some concern with regard to the rent review provision, which I now
want to discuss. Many leases contain a provision for periodic review of rental during their
currency. The provision is common to many leased premises. Indeed, some lessees face the
problem every year. In some instances the adjustment is related to the consumer price index.
The Opposition has no argument with that. However, in most instances the increase depends
on negotiations between the tenant and the landlord.
The Opposition has no argument with the provision that, in the event of a breakdown in
negotiations, the matter be referred to arbitration. However, the Opposition is concerned in
that the legislation provides for rent review based on the principle that regard has to be
taken of the rent that could reasonably be expected for the leased premises if they were
unoccupied and offered for rental on a full and open market.
The revamped Bill provides that this clause shall have particular regard to the use
of the premises permitted under the lease. It is difficult to understand why that provision
is included in the revamped Bill. Surely the arbitrator could not act fairly with such a
provision in mind. It is absolute nonsense to suggest that the amendment is desirable.
Obviously it will, by way of sharp increases in rent, penalise efficiency in the management
and running of a retail business.
If one were to be cynical one could deduce that this clause was included to balance the
prohibition of goodwill payments to the landlord. It wUl certainly prove to be a bonanza for
the landlords in thriving shopping centres. Government members suggest that those who
take risks should be rewarded but, after small-businessmen take the risk, under this clause
they have to negotiate future rents, and the Government provides that an arbitrator will
have to take into account what the market will bear. Prospective small-businessmen who
see a shopping centre thronging with people regard it as a thriving business centre and are
therefore willing to pay high rents to get into it. But businessmen who have taken the
risk and have worked hard to build up a business will virtually have to pay more for doing so.
The effect of this provision wiU be an escalation of rents for those who succeed in building
up their businesses.
It could also be construed as another means, apart from percentage rentals, of landlords
dipping into the more enterprising businessman's increased profits. The Labor Party has a
firm policy of limiting rent increases to no more than the CPI increase in any year. That is
reasortable and should be acceptable in the majority of leases. I know that reasonable landlords
use this procedure. Opposition members are worried not about reasonable landlords but about
unscrupulous ones who have been ripping off their small tenants for many years.
It is regrettable that the so-called free-enterprise Queensland Government has not
considered the sensible option of limiting rent increases to CPI increases. Instead it has
provided for those with the most entrepreneurial skills to be penalised by the most horrendous
rent increases. Without doubt, allowing increases on an estimate of what the market can
bear is, again, a sell-out to the large developers.
It is ironic that the Premier was quoted as objecting to the first version of this legislation
because he felt it was "socialistic". Of course, that was just a clever political ploy to enable
the subsequent watering down of the legislation. It never ceases to amaze me that the
National Party, which can best be described as the agrarian socialist party, can, under the
guise of fervent private-enterprise ideology, find no difficulty in embracing socialist principles
28 February 1984
1585
to protect the income of farmers and, now, the incomes of developers of large shopping
complexes. According to the Premier, it is sociaUstic to protect small tenants. The National
Party believes that the big fish must be allowed to swallow the small. That policy is clearly
visible throughout the legislation. The Opposition is absolutely appalled at the Government's
lack of regard for basic business principles and basic concern for smaU-businessmen.
The Cooper committee also became aware of the concern of tenants seekmg the landlord's permission for the assignment of their leases, particularly in regard to costs
and delays in obtaining decisions that are claimed to be excessive in some cases. With regard
to unacceptable delays, the Cooper report stated—
"Owners or their agents should indicate to lessees within at least 14 days of
the request whether or not it is likely that an assignment will be approved or
otherwise."
It is difficult to comprehend why the legislation stipulates a period of 42 days before the
landlord need reply. I really cannot understand it. Perhaps the Minister, in his reply, could
explain to the House how the Cooper report recommendation of 14 days became 42 days
in this Bill. It may be a small point, but it is indicative of the way in which the recommendations in the Cooper committee report, the recommendations of the Small Business
Development Corporation and the wishes of small tenants have been ignored in the interests
of the large and rather hungry developers. Again we have the situation of umpiring
decisions by the Government in favour of the landlord over the tenant by more than
10 to one.
Moreover, although the problem of overcharging on the costs incurred in the investigation of the assignee has been resolved, another problem has been wilfully ignored. In this
instance I refer to the fact that many leases provide that lessees are not able to assign
away all their obligations to their landlord when an assignment of lease is approved. The
Cooper report recommended that the practice should cease, as it appeared unreasonable
that an assignor should remain responsible for the future performance by the assignee
of the conditions of the lease. Again, that recommendation has been ignored.
I am finding it hard to keep score. I think that the score is now: landlords 11, tenants
nU. The Premier, in the guise of a latter-day Nero, time and time again gives the thumbs
up in favour of landlords and the thumbs down to the less affluent and influential tenants.
Another commitment not honoured by the National Party is—
"The need for the landlord to be required to produce a written lease to a
tenant prior to the tenant making any significant financial commitment to the
occupancy and that, if the landlord fails to do so, legislation provide for the tenant
being entitled to a lease for a reasonable term at a rental based on proper market
considerations."
Again there was a firm commitment by the National Party that that practice would be
prohibited. The Cooper committee report found that a substantial number of complaints
about the failure of landlords to produce leases prior to the occupation of premises were
weU founded. The National Party said, "It is a problem and it is very well documented
in the Cooper report", but nothing has been done about it in this legislation. It is
unacceptable that this legislation does not redress this serious problem that has led to
much dissatisfaction and dispute among landlords, their agents and tenants.
The Cooper report stated—
"Tenants in many cases claim that they have to rely on oral representations as
to their conditions of tenancy.
The committee believe that in all cases a document covering in detail the major
provisions of the intended lease, but expressed in layman's terms, should be
exchanged between landlord and tenant."
This legislation does not incorporate that necessary reform. Again, it is a sell-out by the
National Party.
Furthermore, the view was expressed that the need for the industry to adopt standard
leases was vital for the effective martagement of shopping complexes. I am not as concemed
about the standard lease provision as I am about the need to provide for it in legislation
so that people have, in layman's terms, an understandirtg of the lease provisions prior to
1586
28 February 1984
their mortgaging their houses, buying shop fittings and going into business. They do not
want an oral agreement that does not hold up in court. The Government should be
condemned for not honouring that promise.
A good deal of concern has been expressed about the high charges and the great
variance in the range of charges for the preparation of leases by the legal profession.
Although the Bill does allow tenants the choice of solicitor, and although the overcharging for legal services could not be within the province of the legislation, it is hoped
that the legal profession could, via self-regulation, bring its house to order with regard to
standard charges for retail shop leases.
In the past, landlords would say to a tenant, "You have got to take this legal person
of mine for your lease." The tenant would be billed accordingly. The Bill provides for
the tenant to have a choice; but there is a wide variation in what people are being charged
for their leases, and the legal profession should look at that situation.
The report by the Small Business Development Corporation showed that small tenant
dissatisfaction is generally widespread. One of the problems highlighted by the report is
that of developers acting as middlemen to the detriment of tenants. The ALP has a
policy of eliminating the middleman by prohibiting the taking of a head lease and the
subletting of premises to tenants by any person or corporate entity. It is unfortunate that
the Govemment did not see fit to legislate for such a prohibition. The taking of head
leases and the use of middlemen adds to the costs that normally should be incurred by
small tenants in shopping complexes.
The Oppositiort is concemed at the use of the schedules specifying business and service
occupations excluding a bona fide business and/or occupation. Surely a suitable definition
of "retail shop" was not beyond the drafting resources of the Queensland Govemment. A
notable absence from the first schedule are service stations. That sector has had many
problems with oU company managements. I believe that the Government could not find a
suitable definition for "retail shop" because it wanted specifically to exclude such a
definition from the Bill. That is the only justifiable reason. It is ludicrous that solicitors
are mentioned but barristers are not. It is a bit of a joke.
There must be many other retail businesses and/or occupations not in the schedules.
Those that are not mentioned do not get the meagre protection offered by the Bill. Tenants
wUl have to check whether their shop or occupation is in the schedule. If it is not, they
will not be covered.
In the original BiU, additions or deletions could be made under an Order in Council.
It was pointed out to the Minister by the Committee of Subordinate Legislation, which
is one of the few committees functiorting properly in this moribund Parliament, and of
which I am a member, that it was far from im.|>ressed by the provision to amend the
schedules by an Order in Council, Such clauses, commonly referred to as "Henry the
Eighth clauses", are out of place in the modern Parliament. It is an unacceptable practice
to amend an Act of Parliament by an instrument of subordinate legislation. The 'Minister
must be commended for amending the provision so that additions but not deletions can
be made to the schedules. I give the Minister credit for that because he is cognisant of the
role of the Committee of Subordinate Legislation artd he took notice of what was asked
of him on this occasion. In the portfolio that he held previously he also had dealings with
the committee.
The Opposition is concerned that, with regard to the Retail Shop Lease Mediation
Panel and the Retail Shop Lease Tribunal, it is provided that the parties to a reference shall
have to present their own cases and shall not be entitled to be represented by an agent
without the approval of the mediator or the tribunal, as the case may be.
I have had experience with the Social Security Appeals Tribunal, which disqualifies
the appearance before it of anybody with legal qualifications but does aUow the appearance
of another person to help the appellants present their cases. The first draft of this BiU
had a similar provision. I have appeared before the Social Security Appeals Tribunal in
a number of cases for many constitutents. I recommend the exercise to honourable members
opposite; it is interesting. In one case that I remember, I believe that I was able to win it
because I could get expert informatiort. I shall diverge from the Bill to state the case
briefly.
RetaU Shop Leases BUI
28 February 1984
1587
A lady in my electorate was accused by the Department of Social Security of claiming
a supporting mother's benefit while she had a de facto husband. Departmental officers
visited her and told her that she owed many thousands of dollars to the department. When
she was visited by the Social Security Department officers, she was asked, "Do you have
a de facto?" She said, "Yes." It was automatically sugested by the officers that the
lady had pleaded guilty. In the meantime, the man had disappeared and the department
then began deducting a certain amount of money from the lady's meagre payments.
It was only the woman's concept that a de facto relationship existed. There was nothing
permanent about it. The man did not contribute anything .to the welfare of that family. He
did not play with the children and was never there at week-ends. He had spent time in prison.
The fact that he may have visited that lady from time to time was an acceptance that a
de facto relationship existed. Following consultation with very good legal advisers as to
whether any argument could be advanced, she was able to win her case. Had she visited
the department with a friend, she would have been damned by her own words and justice
would not have been served at aU.
The concern of the Opposition is that a major corporation such as Westfields would
be represented by highly qualified staff with expertise in business, management, acountancy
and economics, whereas the tenant may be totally lacking in aU or most of those skills.
I ask the Minister to clarify whether tenants requesting to be represented by an agent
will be allowed to be represented by an agent as a matter of course or whether, for example,
only tenants without a good grasp of EngUsh will be allowed to be accompanied by an
agent. Furthermore, can the Minister assure the House that a tenant can, as a matter
of course, be represented by a professional advocate and that that wiU not be related to who
the advocate may be? Can the Minister assure the House that where professional advocates
are allowed to make representations, it will not depend upon whether the advocate is Joe
Blobs or John Smith.
If those tenants who feel that, for whatever reason, they need to be accompanied
by a professional advocate or an agent are not so allowed, the mediation panel or the
tribunal would be clearly disadvantaging that tenant. I cannot understand why such a
situation should be left to the discretion of the tribunal or the mediator. How can it
be even-handed to have a highly quaUfied and articulate employee of a shopping complex
development arguing against a retail shop tenant with no experience in presenting a case
or evidence and no economic and accountancy knowledge?
Over the past few years, many cases have been .taken to the Federal Court of Australia
for alleged breaches of the Trade Practices Act. As a result of that, substantial awards
have been handed down in favour of tenants where it has been shown that landlords or
their agents have committed breaches of the Trade Practices Act. In most cases the
breaches have been by way of misrepresentation.
I was concerned about the clause in the original BUI that precluded the right of a
tenant to seek recourse for breaches of the Trade Practices Act. I ask the Minister in his
reply to indicate to the House whether amendments to that clause in the revamped Bill
will now give a tenant the right to seek recourse for breaches of the Trade Practices Act
and recourse in other jurisdictions. I ask the Minister to give an unequivocal reply to
that question.
Last week, when the Minister informed me that the Bill would be presented in a
revamped form with major and numerous amendments, I believed that, perhaps after
lengthy consideration and perhaps even as a result of reasonable reappraisal, the new Bill
would be a vastly superior piece of legislaiton. Unfortunately, that was not so. In the
first instance, the Minister presented a Bill that was undoubtedly a product of his
predecessor. The revamped BUI, although obviously the Minister's baby, has weakened
in a number of ways both the legislation and the meagre protection given to small tenants.
Sadly, the watering-dowm process was accentuated rather than weakened. I foolishly
thought better of the Minister.
It is incortceivable that the prohibited condUions, such as key money and goodwill
payments, and the implied conditions, such as rent review, assignment of lease, sharing
of operating expenses and minimum term of lease, wUl now commcrtce on the day on
which the Governor gives his assent rather than on the day on which the Bill was tabled
and the day on which it was origirtaUy irttended to operate.
1588
28 February 1984
The reason given by the Minister is that a number of amendments have been made to
the original Bill and that, consequently, it would be unreasonable for them to apply from
the date on which the BiU was introduced. Such a claim is rather hollow considering that
the amendments are a further dilution of the meagre protection the original BiU offered
small tenants. I am aware of tenants being charged key money and a percentage of goodwiU
since 20 December, when the Bill was introduced. In fact, I advised one tenant that the
key money charged could be recouped when the Bill became law. I hope that that tenant
does not beUeve that he was wrongly advised and does not decide to sue me for giving him
false information.
Not for one moment did I believe that, when Parliament had before it a BiU stating
that its provisions would operate froni the date of the BUl's introduction, as a member of
Parliament, I could not give that advice to a tenant. Now I have egg all over my face.
Really, however, the fault lies with the Government. The excuse given—that is, that there
are a large number of amendments—is ludicrous. It is pathetic and has no substance. I
cannot accept what the Minister has done. It is incomprehensible and ludicrous that such
a change is wrought by these amendments. I give notice that the Opposition will not
support that concept and will be moving for the inclusion of the original clause.
The major change in the revamped Bill is, however, the new provision for the sharing
of operating expenses. This must have been a provision that most concerned the hungry
landlords in our major shopping complexes. Irrefutably, one of the most positive aspects
of the original Bill was the definition of the extras that might be charged. Under the
original Bill, they were limited to increases in land taxes, increases in rates, charges,
excluding the capital cost, of providing water, gas and oil for heating, electricity, sewerage
and garbage, charges for cleaning, costs of providing adequate security service, and no
other charges. Quite specifically, the legislation stated, "and no other expenses"
The new Bill contains provision for payments by the tenant in addition to the rent
payable under the lease "of all or part of the expenses of the landlord in operating,
repairing or maintaining the building of which the retail shop
forms a part." The
Bill provides that the lease shall specify—
"(i) Those items of expense which are to be included as operating expenses;
(u) how those operating expenses will be determined
; and
(iii) how those operating expenses may be recovered
"
I further give notice that the Opposition wiU be opposing the total dilution of one of the
few meaningful provisions of the original Bill. The rationale for this classic back-down,
obviously at the behest of the developers, is that tenants in the shopping centre with leases
with long unexpired terms would be unaffected by the legislation whereas tenants with new
leases would have to comply with the legislation. The Govemment argues—rather weakly,
I believe—that, because of those differences, practical difficulties would arise for those
required to administer differing methods of charging operating expenses.
The legislation now allows tenants to be ripped off. The amendment wUl aUow landlords
to specify in leases what will constitute operating expenses and how they may be determined
and are covered. It is the classic rationalisation, by the use of a fallacious argument, for
removing a positive provision and substituting it with one that wiU benefit landlords
absolutely. When I played sport, I learned that winners can laugh and losers have to
please themselves. Unfortunately, in this game the score is obviously: developers, the
winners, and tenants, the losers. One can but feel sad for the losers in this uneven battle—
the tenants—for they have been so cruelly deceived. Their expectations, so often raised
during two election campaigns, have now been dashed. Doubtless, the Premier is right.
The big fish must rtot be inhibited in any way in their right to swaUow the small fish.
The Opposition is concerned also about the amendments to provisions dealing with
compensation. Compensation is no longer payable if the landlord demands that the tenant
in a shopping centre change the nature of his business in any substantial manner. The
Minister justifies that deletion on the basis that it could have been constmed to mean that
an owner could not prevent a tenant carrying on business activities that were not permitted
by the lease without being liable for compensation.
I have read and reread the clause. Perhaps the Minister can elucidate it for me. I
cannot see that provision being justifiable. One of the major problems in shopping centres
arises when tenants are told to change the nature of their business and are not compensated.
28 February 1984
1589
It is ludicrous to suggest that the argument put forward by the Minister has any validity. In
fact, it is sheer nonsense. I again give notice that the Opposition will move for the inclusion
of this clause in the new Bill.
I am concerned at the addition of the word "substantially" to the clause that deals
with the payment of compensation as a result of the landlord taking action to alter or
inhibit the flow of customers. Certainly the task of the mediator or the tribunal is made
much more difficult by being required to adjudicate on what constitutes a substantial alteration
or inhibition to the flow of customers. Surely if it can be argued that there has been an
inhibition or that something has been done by a landlord in a major shopping complex
that affects the ability of customers to get to a particular premises, the word "substantially"
should not have to be argued before the tribunal. What should be argued is the level of
compensation to be paid, which may be a small amount or a large amount. The word
"substantially" will affect a large number of tenants who will now not be able to be
compensated under that provision.
In conclusion I wjsh to examine one of the statements made by the Minister in his
second-reading speech. He said—
"I am well aware just how difficult it is to reconcile the very different interests
of landlords and tenants and yet maintain an environment in which the Government
does not intrude too far into their commercial dealings. I believe that the BUI before
the House will improve the lot of tenants in retail shops and still maintain the
essential rights an owner of property has in his dealings with that property."
The Minister is saying that he had great difficulty in coming to grips with what is in the
interests of tenants as opposed to what is in the interests of landlords. I make this statement
without emotion: I firmly believe that ultimately the Government has come down very,
very strongly on the side of landlords.
Apart from the prohibition on the payment of key money and any amount for goodwill,
the Bill does very little for tenants. Although the Bill prohibits percentage rent, there is
the out that a tenant can request it. Whenever a large developer wants to, he wUl coerce
tenants into requesting percentage rent. The Bill also prohibits the collection of turnover
figures, but once again that does not apply if the tenant has requested percentage rent. The
only positive aspect of this Bill is the prohibition of key money and the apportionment of
goodwUl on assignment to the landlord.
The worst aspect of the legislation is that the Government has not come to grips with
what allows unscrupulous landlords to put tremendous pressure on small tenartts. The National
Party has not honoured its promise to allow an option if sought within 30 days prior to the
termination of a lease. Why does the Bill not contain an arbitration provision covering that?
If the Govemment could introduce legislation containing that sort of a provision it would
go some way to taking away my concern.
Another sell-out has been the fact that the legislation will not operate from 20 December
1983 but from some time in the future. This House has been presented with what in many
ways is a very diluted or a very watered-down BiU, and it is not good enough for the
Government to suggest that it has ventured too far into the brave new world and that, by
introducing this legislation, it has been trail-blazing.
Westfield, BOMA and the other shopping complex landlords—even the SGIO, which is
not the greatest landlord in the world when it comes to providing good conditions for its
tenants—wUl be laughing all the way to the bank because of this legislation. The Government
stands indicted for its weak and rather pathetic attempt to do something about this problem.
As I said at the outset, it is very much a toothless tiger; it has a bit of a bark but certainly
no real bite. In trying to help smaU tenants the Govemment has given itself a weapon, but
it is like using a water pistol to stop a raging bushfire.
Mr BORBIDGE (Surfers Paradise) (3.11 p.m.): The RetaU Shop Leases BiU is one of
the most important legislative proposals to come before this Parliament, yet the response
from the Opposition is disappointing, but not unexpected.
Figures released by the Australian Small Business Association indicate that 90 per cent
of all enterprise in Australia, 55 per cent of private sector profits and taxes, 60 per cent of
private sector employment and 90 per cent of all job creation in the country are generated
by small business.
62181—56
1590
28 February 1984
Retail Shop Leases BiU
,-> Despite the assertions of the honourable member for South Brisbane, this consolidated
BiU honours, meets and fulfils the National Party's election policy of October 1983. I have
here a document titled "National Outlook", which is the policy of the National Party. It was
issued specially for the last State election campaign. I commend it to the honourable member
because he might learn something from it. I wUl read to the honourable member and to the
House the section headed "Small business policy initiatives"
Mr Cahill: The winning policy.
Mr BORBIDGE: As my friend from Aspley says, it was the winning policy. I refer to
page 17 of the document, which states—
"Your National Party Govemment has a commUment to legislate in the next
session of Parliament to provide fair lease conditions. This legislation will outlaw a
number of practices which have been the subject of dispute in the past.
Issues to be dealt with include percentage rent
payment of key money,
goodwill on assignment, sharing of operating expenses, lease terms and negotiations
for lease renewal.
In addition, the legislation will provide for a mediation panel and a tribunal . . .
to cater for the failure of mediation, a tribunal with the teeth to ensure its decisions
are abided by will also be established."
That was the policy of the National Party prior to the last State election, and it was endorsed
by the people of this State. The requirements in that policy are met and honoured in this
consolidated BiU.
It is relevant to review the situation in regard to retail shops lease legislation on a
State by State basis. It is interesting to note that Labor in government has not acted when
it has had the opportunity to do so.
Mr Hendersort: That is not often.
Mr BORBIDGE: I agree with the honourable member.
Mr Hamill interjected.
Mr BORBIDGE: I will gladly tell the honourable member what the four Labor States
and the Federal Government are doing in regard to retail shop lease legislation. It is nothing
much at all.
Let us examine the situation in the Wran Labor State of New South Wales. Last year.
Judge Macken completed an inquiry into retaU trading hours in New South Wales. In his
report he says—
"The RTA throughout the course of the inquiry has been negotiating with the
Building Owners and Managers Association to have leases re-written to exclude
restraints in trade.
The RTA has asked that I should not recommend to the Govemment the
introductiort of legislatiort to outlaw such leasiug provisions but that it should be left
to industry regulation to reverse such practices.
I have accepted the assurances of Mr Lawrence that a suitable agreement has
been reached wUh BOMA, but, if the future were to see such an agreement faU apart,
U would once again be open to small shops and the RTA to raise the matter and have
such leasing provisions outlawed."
That is the situation iu New South Wales. I am advised that that report was accepted
by the Wrart Government and that no action has been .taken.
In Victoria, which is another bastion of Socialism, imder the Cain administration—Mr Henderson: And it is broke.
Mr BORBIDGE: As the honourable member said, it is broke.
Irt Victoria, the Minister for Economic Development, the Hon. I. R. Cathie, appointed
a retaU tenancies committee to advise the Government on how it should implement Us
policy of legislating for a fair standard lease for retail tenancies. I am advised that this
committee has reported to the Minister. In effect, Victoria is where Queensland was in
November 1981 when the Cooper report was tabled in this Parliament.
Mr Comben interjected.
28 February 1984
1591
Mr BORBIDGE: I was asked to look at the other States. Opposition members were
saying how good their colleagues are in Government. I am going right through them.
In South Australia, a working party set up by the State Government to inquire into
retail leases has not yet made its report. An inquiry into commercial leases has been set
up by the Western Australian Government under the direction of Mr Nigel Clarke, an
independent barrister. To date, no further action has been taken.
In the Australian Capital Territory, legislation covering commercial leases has been
drafted by the Department of Territories and Local Government, largely at the instigation
of Roslyn Kelly, who is a member of the Federal House of Representatives. The draft
business leases review ordinance of 1983 is reported to draw heavily on National Party
proposals from Queensland.
To go a little farther south—in Tasmania, no action has been taken.
Mr BORBIDGE: I can understand why Opposition members are so touchy; it is
because their colleagues in Government interstate have simply not performed. The interstate
record speaks for itself. It reveals the blatant hypocrisy and the political opportunism
of the Opposition in this Parliament. Whert the Labor Party has had an opporunity to
perform it has done nothing.
I noted as a matter of interest an article in this morning's "Daily Sun" to the effect
that a little later this year, at the irtvitation of the Minister for Industry, Small Business
and Technology, approximately 200 prominent South Australian small-businessmen wiU be
coming to Queensland to examine the feasibility of moving their operations to this State.
As time goes by, that trend will certainly be consolidated.
When in Government, Labor's policies on small business are a further condemnation
of the Labor Party's criticism of this Bill and the Queensland Government. In Government,
no political party has been so anti-small business and so anti-small employer as the
AustraUan Labor Party.
Interstate Labor Governments are presiding over massive increases in State taxation
and Govemment charges, crippling workers compensation premiums and the implementation
of new employment protection legislation whereby small business has to make application to
the bureaucracy for permission to retrench and reorganise staff.
The Labor Govemments in Canberra, New South Wales, Victoria, South AustraUa
and Westem Australia have supported the shamefiU and disgraceful Australian CouncU
of Trades Unions job-security claim presently before the Australian Conciliatiort and
Arbitration Commission.
Today, Opposition members have the effrontery and duplicity to ridicule a positive and
genuine attempt to secure retail shop lease justice while their colleagues in Govemment
interstate fail to act. The Opposition in this Parliament lacks credibUity. Its very participation in the debate is an act of political fraud.
This consolidated BiU sets a precedent for every Parliament in Australia. The background
to the legislation is important and is of relevance. Few proposed laws have been subjected to
such careful scrutiny and such sustained public input and review. Fair-minded members of
this House should acknowledge that fact.
It may well be asserted by honourable members who should know better that this
consolidated BiU has been watered down and that it differs considerably from the earUer
BiU. Such claims are simply not correct. It is substantially the same Bill as was endorsed
by the Government last year.
Changes have been made. The legislation has been improved and made more practicable
and it is more relevant to the requirements of the community and the people whom it
seeks to protect. This consolidated BiU has been streamlined by public comment, reaction
and response. In fact, it is an outstanding example of open govemment in action.
At the direction of the Minister for Industry, SmaU Business and Technology, departmental officers met with the Law Society, the Queensland RetaU Traders and Shopkeepers
Association, and BOMA. Submissions received from those organisatiorts and the public have
been subjected to detailed scrutiny and examination. This consolidated BUI is the end
product.
1592
28 February 1984
I place on record my appreciation of the local submissions and comments from the
Surfers Paradise Chamber of Commerce, the Gold Coast Combined Chambers of Commerce
and the Gold Coast discussion group of the Australian Institute of Valuers. The Surfers
Paradise Chamber of Commerce also provided valuable assistance in the collection of data for
use in the schedules to the Bill.
The legislation wUl work in practice. To suggest that this is a watered-down version of
the original product is simply untrue. I make that comment as a member who was involved
in the preparation of this legislation in both the previous ParUament and the present one.
Mr Hamill interjected.
Mr BORBIDGE: The honourable member for Ipswich has not been a member of this
Chamber for very long. When he has been here for a while he might learn something about
how this Chamber operates. After that, he might be able to make better contributions than
he has made to date.
In some areas the legislation has been strengthened considerably. I refer to clauses
13, 15, 23, 41 and 55. Indeed, clauses 15 and 41 are new clauses. Clause 13 deals with
impUed options;, clause 15 refers to compensation, clause 23 deals with the mediator, clause
41 refers to the tribunal and clause 55 provides for a court of law to deal with a problem
that cannot be, solved by mediation and is outside the scope of the tribunal, or with a
problem that is outside the scope of both.
Difficulties with retail shop leases were first drawn to my attention shortly after I
entered this Parliament in late 1980. The Government received a report from the Small
Business Development Corporation, and subsequently the Cooper committee of inquiry was
established. The Cooper committee report, which was debated in this Chamber, confirmed
the findings of the earlier report of the Small Business Development Corporation. The very
real concern of many Government members at that time was confirmed and endorsed.
General conditions in lease agreements were overwhelmingly in favour of the landlord.
Percentage rents, disclosure of turnover figures, operating expenses and outgoings, shorter
lease terms, goodwiU, and unnecessary delays in assigning leases were major problems in a
generally deteriorating situation.
Subsequently, the Government adopted the Cooper committee's report and its deadline
for effective industry self-regulation. Considerable discussions took place between the
Government and landlord and tenant groups; but history shows that industry self-regulation
proved to be a dismal failure.
As a member of the Government commerce and industry committee in the previous
Parliament, I know that discussions ensued and, at a later time, that committee participated
in joint sittings with the justice committee. A discussion paper was subsequently formulated
and released for public comment in January 1983. It should be recorded that at the time
there were fundamental differences of approach between National and Liberal members. I
am sure that that will be acknowledged by other speakers in this debate.
Along with my National Party colleagues, I felt that it was imperative that the legislation
relate to all retail shop leases, not just major shopping complexes. On the Gold COast most
of the reported incidents that had given rise to concern occurred in arcades, strips of shops
and smaller centres. The tactics used by these smaller landlords were, however, becoming
more prolific in larger centres.
I felt then, and still firmly believe, that a tribunal is the key to effective legislation. To
establish a mediator only would have been ineffective, pathetic window-dressing. A tribunal
with teeth remains absolutely crucial, and I must question the motives of those who would
oppose its creation. If necessary, I will have more to say about the tribunal at the Committee stage.
In 1983 a draft Bill was submUted to Cabinet. That draft Bill remains the basis of this
legislation, albeit with practical and realistic streamlining.
It is a sad reflection on a relatively small section of the retail shop lease industry that
this legislation is being enacted and that this debate is taking place. The failure of industry
self-regulation is a monument to a greedy, unethical and totally irresponsible minorUy of
landlords who have constantly demonstrated a complete lack of business ethics and basic
morality. Certain practices adopted by certain landlords—some local and some interstate—on
a considerable number of my constituents are nothing short of shameful. Many of the
arcades and strips of shops along the Gold Coast have witnessed disgraceful conduct
28 February 1984
1593
bordering on commercial thuggery by some landlords and their henchmen. Although many
landlords have clearly tried to play the game, a sizeable minority have not. They have
created the impetus for this legislation, because their business practices have alienated all
fair-minded members of this Parliament and convinced the Government that legislative
action had to be proceeded with as a matter of urgency.
This legislation will not overcome every problem or every difficulty that can arise in
landlord/tenant relations. It is, however, the first attempt by any Government in Australia.
The Retail Shop Leases Bill will go a long way towards restoring the balance in landlord/
tenant negotiations. It does not socialise lease agreements.
Obviously, from the comments of the honourable member for South Brisbane, that is
what the Labor Party in Queensland wants. And that is despite the inaction of its colleagues
in other States. The legislation does recognise the legitimate rights of both landlord and
tenant. Its effectiveness will be closely monitored. I am advised—and I welcome the assurances
of the Minister—that considerable publicity is to be given to the provisions of the legislation.
This is vital, because many small businesses have in the past given insufficient attention to
the lease agreement that they have entered into. This legislation cannot and will not change
that. It wUl however, establish the ground mles from now on.
It is unrealistic to suggest that any legislative Act of Parliament can overcome every
problem that may arise. However, percentage rent, disclosure of turnover figures, key
money, goodwill and other payments to landlords, rent review procedures, assignment of
leases, operating expenses, options to renew, the right of a tenant to obtain independent legal
advice, provisions for compertsation, mediation processes and a retaU shop lease tribunal
are all effectively dealt with in this legislation. That is more than can be said for any other
State, Government or political party.
I commend the Minister and the Government. The Bill deserves the enthusiastic support
of the House.
Mr INNES (Sherwood) (3.30p.m.): The legislation before the House is controversial.
It has followed a great deal of public debate and examination. The member for Surfers
Paradise said that he found disappointing the response of the Opposition. I do not often
agree with the Opposition, but perhaps U is because the product is disappointing. The
legislation contains imperfections.
Mr Davis: Don't forget, Mr Innes, that you are part of the Opposition now.
Mr INNES: The Liberal Party will be its own party run by its own members. The
members of the Liberal Party will make their own statements and vote as they think fit.
The legislation is disappointing because what went before—the time, the amount of
attention and the number of man hours involved—could, and should, have led to a better
product. No amount of huffing, puffing and window-dressing wiU overcome some of its
more obvious defects.
The first deficiency is that the legislation has not been read by the majority of
members of this House and will not have been read by the time that it becomes the law
of this State. That is the reaUty. It has been changed in significant particulars and in
numerous particulars, and I will guarantee that, as I speak, the majority of members of
this House have not read the BiU.
Mr McPhie: It has been explained to you and other members that this is being done
to avoid an endless procession of amendments. You know very well what is involved.
Mr INNES: Perhaps I have been a member of this Assembly long enough to understand
certain things; perhaps I have been involved with the law long enough to understand certain
thmgs. If, as with aU laws, people's rights are affected, and if, in particular, so many
people's rights are affected, they deserve, first, to be told about the things that wiU affect
their rights and, second, to be told that they can seek the advice of the member of
Parliament or such other person whom they think fit to consult with regard to the potential
effect upon them.
ml^^
P''°P^®^ '^^ changes significantly what was understood to be the proposal at
12.15 p.m. today. I point out that I must not be misunderstood. I am grateful for the
minimal courtesy to consult with the Minister's advisers that was extended yesterday to
Mr Fouras and me on behalf of the people on this side of the House. That was little
1594
28 February 1984
enough, and what one would have expected from the Minister concerned. I went from
that meeting to four other meetings and arrived home at midnight. It still means that I
have not had the benefit of talking wUh those people in my electorate who wiU be affected
by the legislation, and my coUeagues have not had time to read the legislation on the run
in order to understand the proposed amendments in perspective. The amendmertts will affect
f)otentially every small-businessman who rents a retail premises that is covered by the
phrase "retail lease" in this State. That is not good enough.
Mr McPhie: This legislation has been coming forward for years. It has been moulded.
Mr INNES: If one accepts the simpUstic approach that the honourable member obviously
adopts, which is that to talk about the legislation is sufficient, no doubt one is quite
satisfied. But the reality is that people's rights are affected by words. There is an obligation
on legislators to read legislation and try to understand it—^not as it is supposed to be or
as we hoped it would be, but the words used—so that we can understand its significauce
and find out whether or not the proposed law expresses the intention as evidenced in the
debates that have taken place at great length in relation to it.
As we all know from the interest that this legislation has generated, a whole range of
bodies have devoted their own time and the time of their advisers to makirtg represerttations
on precisely this subject. We know that this is a matter of great interest to buUding
owners, to tenants and to the advisers of owners and tenartts. It is so important that it
deserves the benefit of longer consideration than the time we have had from the proposal
by the Minister to introduce extensive amendments. The fact that Cabinet had made a
decision, while satisfying the ego of the Cabinet of Queensland, does not follow the due
processes that should occur in the House. Timetables shoiUd not be immutable and should
not be such as to cut across the legitimate interests of the people and their representatives
who will be affected by the Bill.
Mr Ahern: Would it have been OK for me to proceed with all of these amendments
in the Committee stage? Would that have been a better way?
Mr INNES: No. They are too extensive. They deserve to be ventilated in the House
and have a few days to be absorbed.
Mr Ahern: The time-honoured approach has been to amend the clauses of the Bill
at the Committee stage. It has been done that way for decades.
Mr INNES: The amendments are so numerous and of such significance that the
Minister thought it appropriate to replace the former Bill with new legislation. That is a
very tidy way of approaching it. The amendments are significant and extensive. They alter
not just detail but principles as well. The alteration of those principles, in particular, is
sufficient to warrant people's having time to absorb them. Certainly it is not satisfactory
that substantial amendments of any sort be debated on the rim in half an hour at the
Committee stage.
We know that this legislation is of great concern. The member for Surfers Paradise
said that the problem first came to his attention shortly after he entered - Parliament.
Doubtless it is the sybaritic lifestyle on the Gold Coast that caused him not to read his
newspapers before he came into ParUament; otherwise he would have realised that I and
others had raised this matter a year or more before he was elected to the HouSe. It has
been a matter of concern for almost five years,
Mr McPhie: And you are still trying to staU it?
Mr INNES: Not at aU. If I had had my way, this legislation would have been before
the House irt August last year. Certainly there would have been a couple of points of
difference, and the member for Toowoomba North wUl hear about those differences.
What of this total legislation? In some ways it is a powder-puff package. The container
is reasonably substantial, but one might say of the contents that the touch is in places
imperceptible. It masks reality—and is intended to—ând it is clearly surrounded by fragrant
clouds for the users. It is cosmetic in approach in many cmcial parts. There are certairtly
proposals in some clauses that do have, and have always had, my support. There are
improvements in detail between the first draft and the second draft, which in fact go
back to the proposals that I know were before the joint parties and certainly were
proposed by the Liberal Party as far back as July last year.
28 Febmary 1984
1595
Let us recaU what were the crucial areas of dispute. They involved, first of all, the
refusal by landlords to consult with tenants. No doubt there were landlords who could
rightfully complain about the faUure of tenants to consult with them. However, there were
complaints, particularly in the bigger shopping centres where a professional manager is
the intermediary. I do not mean to cast any slur on centre managers at large; but
in individual cases there appeared to be a refusal to deal directly about a matter of
grievance. That, indeed, is the source of the whole proposal for mediation. I and the
Liberal Party support the proposal for mediation. It is a device that will encourage people
to come together to have their differences aired in front of a mutual but weU-informed
third party. That is good. It has always been a matter of agreement among the various
parties in the House.
A matter of great dispute has been the length of leases. A person who enters into
a lease has substantial commitments. He might have to fit out a completely new shop
with tens of thousands of dollars worth of fittings and plant. Apart from shelving and
things of that nature, he might require freezer plants and other expensive equipment, some
specially built for a particular location. In numerous cases lessees were refused a lease of
sufficient time to allow them to amortise the cost of their equipment. In many instances
the length of leases was seen to be a matter of concern. In some cases landlords could rightly
claim that people wanted a short lease first to see how the business went. In other words,
they wanted the benefit of being able to get out early. That argument has to be acknowledged. .
There were many cases of a policy refusal on long leases. That simply meant that people
were tied in to expensive commitments, which were only suitable for a particular location,
and were compeUed to chase their losses and to renew leases irrespective of the demands
put upon them. Unless the demands were totally and absolutely financially crippUng,
tenants had to agree to them. Under that system 100 per cent increases in rent had to be
borne 'because tenants had to try to get their money back on the fittings and fixtures.
As a result of those things, reflected in this legislation is an attitude towards renewal
of leases, particularly of first leases, which now has achieved a reasonable form. The
proposal in the first draft was quite different from the current proposal. In discussions I
had with my Liberal colleagues and in the joint committee, I certainly contended that a
deemed statutory option was the best approach. I am glad to see that a deemed statutory
option that allows a person to get at least a five-year lease is the approach that has
finally been settled upon. By giving notice before the expiry of his two-year or three-year
lease the tenant can have his lease extended to at least five years. If a longer period is
involved with options or fixed term, that does not matter; that stands by force of its own
lease. So the question of short leases has been addressed and that will have the effect of
overcoming other matters of complaint that particularly relate to the fact that people
could not get their money back and were forced to settle for terms for which they would
not otherwise have settled.
I now turn to a matter of greater current complaint which is, in the end result,
treated in a disappointing and powder-puff way. This important matter is operating expenses,
and complaints about them are legion. Some of the complaints might weU be caused by
the paranoia that can exist between a landlord and a tenant. However, only two days
ago I received the latest in what must amount to hundreds of complaints about the
basis upon which tenants are bUled for operating expenses. Tenants believe, right'y and
justifiably in many cases and perhaps wrongly in some oases, that they are the victims of
profiteering, that they are paying more than their fair share, that they are bearing more
than their fair proportion of operating exF>enses or that operating expenses are being
billed out at a cost greater than the actual operating costs of the centre.
The proposal that was to have been discussed, and is mirrored in the first piece of
legislation that has now been replaced, was, to my mind, a practical and sensible proposal
to delineate what would be operating expenses and to remove items which were not
mainstream operating expenses.
I do not want to be understood to say that I or the Liberal Party accepted that the
first list of operating expenses was necessarily complete. I think we would have been of the
mind that insurances could fairly be part of the operating expenses and that the tenant
could fairly shoulder part of the burden of any necessary insurance, perhaps of the common
area of public risk.
1596
28 February 1984
So there were items of detail which could have been addressed, but the proposal
to have a list of what were operating expenses, and to make them the only operating
expenses, was a practical approach to a matter which gives rise to a great number of
complaints. The proposal that the Minister has gone back to in this case is misleading
in its title, wUl be misleading to anybody who relies upon it, and in fact is no change
at aU from the present position so far as the type of expenses is concerned.
What the Minister had proposed was a fixed list of what could be included in operating
expenses. Anything else would be excluded, so the landlord would have to recover it in
his rent. That is a better approach because, throughout the representations by many people
from our party, it was found that the best approach would be to try, at the very
beginning of the contract, to set out the financial obligations so that people would
know what they were up for. If they went in with both eyes open, knowing what they
were up for, they could not come complaining to the Parliament or anybody else if the
costs were such that they could not make a go of it.
Operating expenses are frequently buried or interwoven in leases that can run for 90
or more pages. I have said before in this Assembly that many of those leases are
incomprehensible to anybody but the lawyer. They are a vast change from what they used
to be. From the brief document that used to be a fair deal between the landlord and the
tenant—^between two arm's length parties—ithose leases have changed and, I say as a lawyer,
they have changed for the worse. I wonder at times whether they are deliberately
created in their length and complexity so that people do not fairly understand the bargains
and the agreements they are going into. If the first Bill had contained the proposed device
—the legislative list of operating expanses—the intending tenant would have had a ready
reference point. We now come back to exactly the same position as applied before.
The title of the clause is, "Sharing of operating expenses" It says nothing about the basis
of sharing—nor did the previous one, in fact, although it gave a list of what would be
operating expenses. It did not say how they would be shared. It did not say that the
proportion shall be the proportion that the area bears to the total rentable area in the
shopping centre
Mr MHler: Which it shouldn't be.
Mr INNES: Exactly. There should be a fair basis on which a person can assess what he
should be paying.
The earlier legislation—ând it relates particularly to this matter of operating expenses—
had a very important difference. It included the major tenants, and a frequent complaint
by the small tenant is, "We in fact pay the operating expenses and subsidise the major
tenants."
In most instances one is unable to refute that because one does not know what the
deal is with a major tenant. In fact, minor tenants do not know what the deal is in relation
to their fellow small tenants. They are in no man's land. They believe themselves to be
the victims of the receipts and invoices that are sent out monthly or quarterly and, in many
instances, add up to more than 50 per cent of the value of their rental. That makes a
crucial difference to the viability of their enterprises. In the first Bill the major tenants were
included. One provision refered to the sharing of expenses. If all tenants were in, that would
be a concept that we could come to grips with. But what does "sharing" mean in this new
legislation? Who is sharing with whom, and on what basis? The Bill only provides that the
basis of overheads and apportionments shall be whatever is decided in the lease. The word
"share" is misleading. Nothing to do with sharing is provided in the legislation. The legislation
is deceptive for those who would seek to rely on it in the belief that it provides for a fair
apportionment of operating expenses between the tenants according to the amount of space
they occupy.
Tenants must go into leases with their eyes wide open. Under the earlier legislation,
as I said, we may have been arguing about whether a couple of items should have been added.
I think the owners put forward some additional items that could have been taken on board by
way of operating expenses; but this legislation goes right back to the jungle—^to the jungle of
complaint. At present, the only overheads that people can be charged are those that exist
in their leases. That is exactly what was provided in the original Bill. The only additional
provisiort is that a budget will be presertted at the beginning of the year and accounts will be
sent at the end of the year. That is typical of what happens already, either voluntarily or
involuntarily, in many instances. The Bill is window-dressing; it avoids a hard subject.
28 Febmary 1984
1597
Why should there be this change from the original proposal, which was an honest
attempt to come to grips wUh a very difficult matter and a great source of complaint? We
certainly struggled with the matter for a year or so to try to get our minds clear,
I guarantee that matters of apportionment, overheads or operating expenses will be
matters of great complaint. It would be far better to have an identifiable list of what was
included. What was not included would then flow up front in the rental. People would know
exactly what they were going into. It could be akin to the Hire-purchase Act approach, wUh
a single sheet showing the essentials of the agreement.
Other provisions relate to mediation followed by a tribunal. The honourable member for
Surfers Paradise was right when he said that there was a difference in attitudes. The Liberal
Party's attitude on this matter has been to recognise the reality of complaint and the
reaUty of a certain amount of exploitation of the type that the honourable member himself
admitted was his experience on the South Coast. There is also the sense of injustice that has
been abroad, perhaps because of the emergence of the bigger shopping centres and the
more modern, long, complicated and tortuous leases.
The Liberal Party's approach was to seek to make the contract comprehensible by the
intending tenant so that he knew clearly what he was up for, to outlaw certain bad practices
such as key money, to deem other things to be involved in all contracts, such as the power
of option and, thereafter, to set up a voluntary mediation with no judgmental powers except
the power to report to Parliament. The Liberal Party's idea was to get the contract right,
and to leave the parties free to estabUsh the amount of the contract, the additional length of
the contract, and the place of occupation and what have you in the normal market
operation.
Let me deal with the tribunal. A judge will be in charge of a special tribunal. This is
an interesting precedent. Some people, whose business is commerce and to make money,
will be provided with a special legal system. The average man in the street has to fight
his battles in the courts of the land and bear legal costs. But for people whose business is
to make money—they are all businessmen, whether they be tenants or landlords—a special
system of "justice" is being set up, and it will be underwritten entirely by the State
and will cost those people nothing. As I say, that is an interestirtg precedent. I suppose
another example can be found in the building units title area, except that there most
disputes go to the courts. All the people covered by this legislation will have the benefit
of a special legal aid system—but one wonders about the word "legal"
The Liberal Party is totally opposed to the absence of the right of a person to appear
by his agent or legal representative in front of a tribunal that has the power to impose
substantial judgments. We are not talking about minor matters; we are talking about business
that could involve tens of thousands, hundreds of thousands or even millions of dollars.
A person in that situation is entitled to the benefit of expert or professional assistance.
The right to have such assistance should be granted not at the whim of the tribunal but
as of right; not because it helps the big fellow.
As the member for South Brisbane (Mr Fouras) rightly said, a new Australian or a
Greek greengrocer, hard-working as he is but who has a limited facility in English, might
want to pursue his valuable rights with the big boys, that is, his tenants or landlords. As
the honourable member for South Brisbane also said, there is no doubt that within the big
landlord organisations there wUl be a professional group of representatives or employees
who have commerce or business degrees, with units of law, and who will be very skilled in
this area. They wUl appear regularly on behalf of their companies and will have great
superiority.
The Liberal Party opposes the giving of a discretion in this matter. A person must have
the right to appear for himself or be represented by his agent or legal representative. It
should be a matter of his choice. Cost is another matter. I shaU use as an example the City of
Brisbane Town Planning Act and the appeals that occur in Brisbane. A small tenant is not
terrified or scared by the fact that he might have to pay the other side's costs. The Liberal
Party will be moving for an amendment to provide that there shall be no order for costs in
cases under this retail shop leases legislation. Under it, an unsuccessful party wiU not have to
pay the costs of the other party. It wiU be entirely a matter for the person to decide
whether he is represented by a voluntary agent, by a member of the Retail Traders
Association or by a solicitor or barristei-. He will be able to make his own arrangements.
He wiU not be worried or terrified by the possibility that a Queen's Counsel wUl represent
the other party and that he might have to pay for that party's costs.
1598
28 February 1984
What we in the Liberal Party propose is traditional, it is conservative in its principle
and it is absolutely right because it relates to a man's right to pursue, with aU the vigor
he wants, his own welfare, future and legal rights.
As weU, we contend that these matters should not be heard in a closed court. It is a
court; a judge will make important legal decisions that could involve tens of thousands of
dollars. The Federal Labor Government tried to provide for a closed court when it introduced
the family law legislation. It said. "We must not have people airing their linen in pubUc.
We want a more intimate arrangement."
After the first substantial review of that legislation, it was decided that, the law must
be judged in public. So should the tribunal be a public court. I do not suggest that that
should be so for the mediation panel, but it should be so for the tribunal. The Liberal
Party wiU be moving an amendment in that regard'
Members of the Liberal Party support some provisions in the legislation and have always
done so. But it must be said that the Government has squibbed on some very controversial
areas and on some matters that have given rise in the past and will give rise in the' future
to a great deal of ill-feeling and unnecessary dispute.
(Time expired.)
Mr BAILEY (Toowong) (4.1 p.m.): Despite the protestations of members of the
Opposition and the member for Sherwood, I consider the Bill to be one of the greatest and
most far-reaching pieces of legislation ever introduced for the security of small business m
Queensland. It is pleasing to see Queensland settirtg the pace in developing practical
legislation to help aUeviate some of the unfair and unacceptable practices that have
developed over the years in the smziU business leasing and rental areas.
The legislation has had a long gestation, period. There have been a number of reasons
for that, not the least pf which was the need to ensure that it was effective and realistic.
Members of the joint party committees that drafted the BiU could not agree on many of its
clauses and priorities. That difficulty was resolved with the creation of the National Party
Government.
Many remarks have been made outside the Chamber about the RetaU Shop Leases
Bill. Marty of those remarks were ill-informed and based on speculation. Other comments
expressed attitudes that were inconsistent with the reaUstic protection of small-businessmen
in Queensland and also inconsistent with fair business practices for commerce generally in
Queensland. It is impossible to make laws that help only one section of the community; It
was imperative that this legislation assist small shop people and the professional man and,
at the same time, did not completely disadvantage the developers, the landlords and larger
commercial firms who are very iinportant to the financial and employment well-being of
Queensland.
As can be seen in the amendments and the explanatory notes that have been provided,
a rationale of fairness and consensus was applied in creatirtg artd amertdirtg the BUI. I
congratulate the Minister on the innovative step he has taken in allowing members access
to the decision-niaking process of the BUI. I hope that the Opposition now appreciates that
the Bill is not a hastily written document and that the hundreds of hours of consultation
and discussion with small business organisatiorts, landlords and other interested groups have
resulted in a very workable and practical document.
I was surprised that other members have alluded to the Bill as a sell-out. I would like
to know to whom it is a sell-out. Perhaps it h^s been a sell-out to the impractical attitudes
of certain legal gentlemen, most of whom are no longer members of this Assembly.
Mr Borbidge: They make that accusation, but they cannot back it up with facts.
Mr BAILEY: That is true.
Perhaps they think it is a sell-out to lobbyists and companies who did not want strong
legislation such as this to go through. It is certainly not a sell-out of the small-businessmen
and women of Queensland who came to the Government for help and have received it.
The Bill set out to prohibit malpractice and to ease the burdens of unfair and
unacceptable shop leases that for too long have hung like albatrosses around the necks of
the most important sector of the business community. The BUI does what it set out to do.
28 February 1984
1599
Obviously, the best way to resolve a disagreement is to discuss it and negotiate. That
is why the mediation panel has been created.. Sane and rational men should be able to
sit down around a table and reach a compromise or understanding. However, in many
instances such discussions need the input of an impartial observer to ensure that the
participants do not get overheated or become side-tracked and that the arguments are
cogent enough to estabUsh criteria that lead to results being reached. That is the role that
the mediator will play under this legislation.
It has been suggested that that also is a sell-out and that the mediator alone is
sufficient to handle all the problems. How on earth that could be suggested, I do not know.
In the draft Bill prepared by the joint committees of the former Government, there was
much argument about the role of the mediator. That was underwritten by the member
for Sherwood. Some members were disincUned to take the matter any further than that
style of involvement.
The member, for Sherwood seemed to suggest that the mediator is capable of being the
Red Adair of the retail industry. Mediation might not necessarily be enough. If a satisfactory
agreement could not be reached by consensus in conversation and debate, there had to be
a way of resolving the situation by more arbitrary and forceful means; thus the need for a
tribunal.
Mr Divis: Are you reading all the script?
Mr BAILEY: I have most of U right.
A tribunal is needed to enforce those decisions and to impose penalties on those who
do not conform with its rulings. One would feel that that was a normal progression, that
there was nothing out of order, and that a special court or a special set of circumstances
was not created. It is a natural way of ensuring that fair decisions are reached. It is the
process that is used in most irtdustrial disputes; it is certainly used in the normal day-to-day
processes of the law; and frankly, it is a commonsense progression to decision-making that
needs teeth to ensure respect from those who might prefer that such tough decisions were
put off indefinitely or not resolved at all.
How Can that be put forward as a sell-out? Yet it has! One can only wonder how such
confused thinking by so-called battlers for the small-businessmen—and it has been given
exposure by the media—can be given any credence by the people of Queensland.
Mr Borbidge: They wUl still be talking about it in two years' time.
Mr BAILEY: Probably.
One of the responsibilities of Government is to introduce and implement legislation
that is capable of doing the job that it is intended to do. One of the reasons why this Bill
was tabled was to enable everyone who thought they could make an input to do so. An
enormous number of valuable contributions from the community have been made to the
final document. I commend the Minister and his senior staff for the way in which they
have put together this pioneer legislation. For the first time in Australia, legislation exists
that looks after the rights of the small-businessmen and yet does not assault the rights of
the landlord to run his or her operation but establishes guide-lines and sets strictures to
combat unsavoury practices.
One needs to understand the realities. No-one, big or small, goes into business to make
losses or not to make money. However, by imposing unrealistic conditions on business, a
Government can contribute to circumstances that interfere with the successful operation of
companies of all sizes. The BiU certainly will not do that, because its aim is to enhance the
chances of the small operator and his concern doing weU by having stabUity of tenancy and
fair leasing arrangements.
Mr .Pavis: What about the Indooroopilly shopping complex?
Mr BAILEY: Certain companies and individuals have been ripping off the small business
community. That might answer the honourable member's question to a degree.
It is to be hoped that key money, or whatever it is cleverly called by the rapacious
nasties who impose it, is a thing of the past. However, let us be honest. No matter what
laws are passed, there will always be the smarties who will attempt to find ways to get round
them. One cannot legislate for honesty and morality any more than one can legislate for
1600
28 February 1984
common sense. Guide-lines have been set by the Bill. An enforcing arm wiU protect the
majority of small businesses from those unacceptable practices that existed previously. If
others are discovered or even created because of this BUI, obviously amendments will be
introduced to ensure that those practices also are dealt with. The Minister is keen to do that.
Not only large centres are capable of ripping off small business people. In my electorate,
one landlord—a woman—has held her tenants to ransom for years with demands for key
money and increased rents. Under this BUI, she is just as vulnerable as the large companies
that people feel are responsible for many of the onerous arrangements imposed on small
operators. I am sure that lawyers are working feverishly to find ways of getting round the
Bill. That is why it is designed in its present form. It is simple and practical so that there is
little legalese to overly interpret and use to circumvent not only the regulations under the
Bill but also its intentions. It is a fair deal for the small-businessmen and a criteria for
landlords.
The definition of "smaU business" was a difficult one to resolve. As a result, the
businesses and services included in the Act are listed with the capacity to expand that list
and grouping if and when necessary. A new Bill has been introduced to make sure that the
definition does not accidentally include businessmen who could have restrictions placed on
them purely because they sell a limited quantity of goods normally sold by a business specified
in the first schedule. It is hardly a sell-out provision. It is a considered document that wUi
regulate without imposing hardships on sections of business by accident or wrong
interpretation.
It goes without saying, I suppose, that anyone who goes into business knows that a risk
factor is involved; that he or she could fail. How does one overcome that concern or that
possibility, while giving the new operator a chance to make a decision on whether he wants
to continue a lease agreement or not? That has to be decided when the operation has existed
sufficiently long for a rational judgment to be made. Is it worth whUe continuing? Is he able
to continue? That is the reason for including the option for a lease of another two years after
the first three-year period on a first business agreement. It is not a watering down of the Bill.
In fact, it is a strengthening of the Bill. There have been suggestions that the lease should be
for an obligatory five years or that the second, two-year period should be forced on the
landlord. This is still a democracy. Although impositions of that sort might suit a socialist
attitude, they are not compatible with true free enterprise and a free society.
The area that seems to be of most concern is percentage rental, which is a rental
calculated on a percentage of turnover. The Minister has explained that under the Bill the
tenant has to nominate in writing whether he wishes to have his rental determined in whole
or in part as a fraction of turnover. The Bill has very sensibly created conditions under
which the tenant is protected by being provided with a clear formula on how the rental will
be determined. On the other hand, he does not have to provide the landlord with total details
of his business and operations. Under the BiU, the tenant has to provide only a gross sales
certificate, specifying with reasonable accuracy the turnover of the business, and an audited
statement of that turnover at least once a year. What could be fairer than that? The result
is that no tenant will enter into such an agreement wUhout knowing exactly what he is in
for, and he can make a decision on whether the business proposition is feasible or not.
Mr Davis: After this speech, can we cross-examine you on it?
Mr BAILEY: Why not?
Those tenants who are not involved in percentage rental now cannot be pressured into
revealing their turnover. A substantial fine for landlords who attempt to coerce them into
providirtg such information will protect their privacy.
Mr Davis interjected.
Mr BAILEY: There are, of course, those who want to abOUsh the determination of rent
as a fraction of turnover. The member for Brisbane Central probably does not know what he
wants. However, many businessmen have seasonal upturns and downturns and they prefer
the turnover concept.
Mr Davis: Take your eyes off the script and we are even Stephen.
Mr BAILEY: If the member for Brisbane Central sat up, I would probably be able
to see him.
28 February 1984
1601
Why should businessmen with seasonal fluctuations be penalised? We cannot dictate
to them how they should run their business; nor should we. I assume that the member for
Brisbane Central would agree with that. We will not dictate to them. If a person has a
business that is seasonal, for example in the area of the Gold Coast represented by Mr
Borbidge
Mr Hooper: Would "Bailey and the Birds" be classed as a small-business enterprise?
Mr BAILEY: It was very much a small-business enterprise. I thank the member for
Archerfield for raising that matter. I appreciate his comment. It was a very successful small
business. Fortunately, we did not have any rental problems.
Mr Hooper: I appeared on a few occasions.
Mr BAILEY: Yes, but it was successful nonetheless.
The option should remain for people to exercise. In areas of seasonal fluctuation,
percentage rental is an option that business people would like. That is the reason it is still
there.
One of the other areas to ensure that the small man is not placed at a disadvantage by
the money and legal buying power of large concerns—and this was another matter raised by
the member for Sherwood—is in representation before the mediation panel or tribunal. The
Bill is so written that each person shall handle his own case unless the tribunal decides that
other representation is appropriate or necessary. This seemed to be of great concern to the
member for Sherwood, What it means, of course, is that high-powered barristers and other
expensive advocates will not be involved, to the disadvantage of tenants who cannot afford
such representation. In many cases, they would not be required anyway. However, the
provision protects the right of companies or individuals who seek such representation if they
deem it to be necessary and if they are able to convince the tribunal that such a need exists.
It is certainly not unfair. As the member for Sherwood suggested, it is not an unusual way
of setting up a new court. It wUl lead to a commonsense approach to problems that normally
require commonsense answers rather than to disputes on the somewhat esoteric level that
legalese can create.
Some options obviously have to be left to the businessman. We cannot legislate for
success or for common sense. However, we can legislate for fairness and for good business
practice. That is what the Bill sets out to do. It will ensure that the small-businessmen of
Queensland are looked after.
Mr HAMILL (Ipswich) (4.15 p.m.): Not surprisingly, one can understand what a
hot potato this Retail Shop Leases Bill has been when one realises the time taken for
the draft, the redraft and the committee reports to be finally put together. The House has
at last received this legislation, which has been long promised, and I am pleased that it
has now appeared.
Could I borrow some of the words of the previous speaker, who said it was far-reaching
legislation? I agree with him; some of its important particulars are far reaching. But
the Bill does not grasp the nettle. It is not the saviour of small business that Government
members have been claiming. It is of somewhat limited application. In the time that it
has taken for the legislation, to be drafted, redrafted, rediscussed, reintroduced and so on,
no a;id has been forthcoming to the long-suffering small business tenants in their dealings
with shopping centre landlords.
Nevertheless, I do not want to be uncharitable in my criticism, because the legislation
is a step in the right direction, even if it is watered down.
I take this opportunity to offer some limited condemnation of the Minister's approach
to this legislation. Too often in this House criticism has to be levelled at the system under
which legislation is put in at one end, tumed over and turned out at the other end without
ample time for discussion. It appeared, for a while at least, that this legislation would be
the exception to that unfortunate practice. The legislation was introduced some time ago
to give everyone an opportunity to discuss its provisions, to bring forward amendments
and to improve the legislation. I was delighted that that process was being adopted by the
Minister.
Mr Hooper: You realise that the Minister is a member of the trendy Left in the
National Party, don't you?
1602
28 February 1984
Mr HAMILL: The very fact that he undertook this process indicates that he would
be a member of the trendy Left of the National Party. However, by presenting the House
with the consolidated Bill today and pushing it through all stages, he has tried to reinstate
himself.
Presenting the consolidated Bill was not improper; in fact, it was a very worthy
action, as was the provision of additional back-up material. What is unworthy of the
Minister is that the Bill has to be debated this afternoon. It is all very well for members
of the Government to carry on about having had time to discuss the matter.
Mr Menzel interjected.
Mr HAMILL: The members of the Government can go back to colouring in and connecting the dots. I am sure they do not understand the proposals contained in this Bil.
I am sure that if the member for Mulgrave (Mr Menzel) gets a new paint palette he will
be able to work out which colour belongs in which part of the picture.
The fact is that members have not had the opportunity to consider the proposals put
forward in the consolidated Bill. Only yesterday the Opposition spokesman was furnished
with a copy of the consolidated Bill. Yet, as the honourable member for Sherwood pointed
out, the provisions contained in the Bill are substantial; they are not minor and in many
respects substantially alter the operation of the Bill.
The areas that the Bill does not address are most alarming. I am sure all members
have received numerous complaints from constituents on a whole range of abuses that
have occurred with shop-leasing. Even the member for Surfers Paradise spoke of Iâl
thuggery being perpetrated by some Gold COast landlords. It is a shame that he did not
name these legal thugs. The member for Toowong spoke about shop-leasing malpractices
in his electorate, and it is a shame that he did not expose these people for the legal
thugs that they are—to use the term of the member for Surfers Paradise.
In turning to an instance in my electorate of the imposition of turnover rent, I am
delighted that .the BiU addresses this problem.
I refer to a business that was originaUy paying rent on the basis of space and, after
its first two years of operation, found that the lease to which it was subject provided for
a turnover rent. Once that was put into effect, that smaU business was paying some 40
times the rental it was paying previously under the terms of its original contract with the
landlord. That is a classic case of a landlord virtually pUlaging and plundering the small
business in its shopping complex.
It is interesting to note just who that landlord was. I am prepared to mentiort names.
It was one of the State Government's own instrumentalities, none other than the State
Government Insurance Office. It is an utter tragedy that this Government, which purports to
be so concemed about the issue of turnover rents, allowed its own instmmentaUty to be one
of the greatest perpetrators of turnover rents and plunderers of smaU business. Clearly what
is needed is a fair rents mechanism; but unfortunately this BUI does not go that far.
In another area the Bill is particularly deficient. I suggest its most glaring deficiency
is in the area of service station proprietors. In the consolidated BUl that the Mirtister
presented a few hours ago, one provision seeks to remove any doubt as to the appUcabUity
of this legislation to service station proprietors. That is one area in which there is truly a
very great need and one in which the Govemmertt has been most remiss in not aUowing'
the UmUed protections that are being provided to other smaU businesses to be extended
to service station proprietors.
This problem needs to be addressed. Let me outline one of the very great problems that
smaU business proprietors in the service station field find in relation to leasing;
Mr MilUner: It is quUe obvious that the Government cannot come to grips with the
problems confronting service station proprietors.
Mr HAMILL: Indeed. As I said at the outset, the Government claimed that this
legislation is far-reaching; but certainly in the area of the service station proprietor it has
failed to grasp the nettle.
Mr Borbidge: What is your solution?
Mr FitzGerald interjected.
28 Febmary 1984
1603
Mr HAMILL: If the honourable member for Surfers Paradise listens instead of
muttering and carrying on, he wUl probably learn a thing or two. As for the member
for Lockyer, we all know his babblings.
One service station proprietor in my electorate has with the Caltex company a leasing
agreement which provides that Caltex must supply him with no less than 51 per certt of
his fuel. If he wishes to seU any other fuel through his outlet, he must seek the permission
of Caltex.
Mr Borbidge: This is the RetaU Shop Leases BiU.
Mr HAMILL: The honourable member is very clever, but he should know that, tinder
the terms of the proposals the Minister has brought forward, one of the areas irt which this
Goverrtment was finding its own legislation to be particularly sloppy is service' stations artd
the appUcatiort of the Bill to them. The honourable member referred to deficiences in the
Bill. This is an area of very grave deficiency.
As I said, this proprietor must receive permission from Caltex to seU other fuel,
but this permission is not being given. In fact, not only does this oil company not give
permission to its lessee to seU other than Caltex fuel, but it will not even aUow him to sell
fuel that he could obtain from its nearest depot. It requires that the fuel be bought from
Brisbane, even though the price of fuel at the local depot has, in a number of instances, been
significantly lower than that at which the same company suppUes fuel from Brisbane.
At one stage, the proprietor was having to buy petrol in Brisbane at 41,1c a litre,
at a profit of 2.7c a litre, when the local depot of the same oil company was selUng its
fuel to other service station proprietors, who did not seU under the banner of Caltex,
at 38.9c a litre. That is a classic case of the use of leasing arrangements l ^ big < business
landlords to disadvantage their tenants. Who are the losers? The losers are the small
business operators and, of course, the consumers.
Recently the enormously expensive petrol in Queensland compared with the price
paid in the southern States was discussed. The Government does not have to look
further than the leasing practices that it tolerates on the part of oU companies but which
it is trying to crack down on when they are indulged in by shopping centre proprietors——
Mr Menzel interjected.
Mr HAMILL: If the honourable member for. Mulgrave knew the Constitution and
the powers that the State Government has, he would rtot make such inane comments.
Quite clearly. Government action is needed to protect the interests of service station
proprietors. This BUl does nothing to help them. Action is also needed in the same area
N
for the benefit of Quensland consumers.
The Bill presented to us today contains a number of other deficiencies. They are matters
that the Government should consider seriously before the legislation is pumped .through the
parliamentary process this evening.
In the original Bill, one area of particular concern to a number of people relates to
the lack of any definition of the term "entered into" Very often in the original Bill and in
the consoUdated Bill, the term "entered irtto" is used, but there is no clear defirtkion
of what the Government intends in the Use of those words. That is importantj because
the operation of the BiU is subject to its being assented to by the Governor.
Negotiations, leases and contractual arrangements wiU be in a state of Umbo for a
time because the Bill will operate from a certain date. Will a lease entered irtto before the
Bill is assented to be regarded as being operative if negotiations for the lease were concluded
before that date, or wiU it only be entered into if the lease is executed before that date?
The difference here is between the negotiation stage and the execution stage. Secondly,
for the purposes of this Bill wUl a lease be entered into if negotiations have beert concluded
on all the major terms of the lease,. with minor aspects of the agreement still. to be
negotiated? Again the difference is between the agreement and the execution of the lease.
What wUl be the true sUuation when a party has agreed, prior to the date on which the
Bill is assented to, that a lease wiU be granted on a building yet to be constructed? If .the
building is not completed until after the date on whicfi the Bill comes into operation,
wiU the lease be regarded as having been entered into at the time of the agreenient, or will
it be regarded as having been entered into at the time the lease starts to rurt? These
1604
28 February 1984
deficiencies leave room for untold dispute. They are areas of uncertaiinty that the Minister
and the Government should address. To simplify the matter and to put it beyond disputation, the Bill should give some explanation of the term "entered into" as it relates
to a lease.
I suppose it is because the consolidated Bill was brought in prior to the luncheon recess
that the procedure of scrutiny was undertaken only by the National Party back-bench
committee. However, it is quite obvious that the expertise of some of the committee members
is somewhat lacking because the Bill contains a number of deficiencies, as the honourable
member for Sherwood and I have pointed out.
In a number of other ways the. wording used in the Bill is deficient. I was very surprised to
hear the Minister say this morning that the term "common areas" was being removed
from the BiU, The Minister might have thought that, and his National Party back-bench
committee—^the trendy Left of the National Party—^may also have thought that. But,
alas, they are mistaken! The term "common areas" has not been removed from the
BUl.
I know that the member for Surfers Paradise (Mr Borbidge) claimed to have looked
through the BUI, given it a lot of consideration and had a lot of input into it. He, too,
has been negligent in not noticing that a definition, which obviously the Government
has deemed it necessary to remove from the Bill, is still required to give meaning
to certain parts of the Bill, particularly to that part that sets up possible liability in
the case of landlords in actions for compensation for tenants.
It refers to the obligation on the landlord to keep premises, etc, clean. It refers to
common areas. According to the Minister, the National Party and all those people who
profess to have such wisdom in relation to this BiU and who had time to consider the
provisiorts of the BUl before it was irttroduced this moruing, that term does not appear in the
BUI. That shows a certain lack of ability on the part of those people to read the legislation
that is introduced into this House.
A definition of "common area" is needed. Unfortunately, the definition that was
provided in the original Bill was still deficient.
Mr Hooper: Most Government members are deficient.
Mr HAMILL: I am coming to that conclusion myself. Certainly their power of
comprehension in reading is beyond understanding.
Mr McPhie: What about speaking to the Bill?
Mr HAMILL: The honourable member can return to joining the dots. I do not
wish to disturb him when I am pointing out deficiencies that exist in the legislation.
Mr McPhie: You might not agree with them, but they are not deficiencies.
Mr HAMILL: Spoken by a legal mind!
Mr McPhie: You might not agree with the philosophy.
Mr HAMILL: It has nothing to do with philosophy; it is to do with the black and the
white in the Bill. The honourable member is claiming that the Billis not deficient, but it is
clear, in black and whUe, that the Minister was incorrect in what he said this morning.
Mr McPhie: Where was he incorrect?
Mr HAMILL: I shall show the honourable member afterwards so that even he will
be able to see it.
Mr McPhie: No, show me now.
Mr HAMILL: If the honourable member knew his Standing Orders, he would
know I cartrtot speak to clauses at this stage of the debate.
The common areas defined in the original Bill that was brought forward by the
Minister—not the consolidating BiU—referred only to areas of vehicular and pedestrian
traffic. Even that definition in the original Bill was too restrictive. A landlord was responsible
purely for areas in which people walked or in which they drove their cars.
28 Febmary 1984
1605
In other areas landlords are required to service the tenants in the buildings and the
public who want to purchase goods in the buildings. I refer to areas such as toilet areas, rest
rooms and gardens. Often, shopping centres have garden areas and fountains to beautify the
premises, to make it a more appeaUng area in which to shop. There was no mention of the
maintenance, cleaning or upkeep of those areas. Those aspects should be incorporated in the
definition of "common areas" Such a definition will be needed to make sense of a provision
that has been left in the BUl.
This legislation is by no means the perfect instrument that some of the back-bench
members of the National Party would have us believe it is. Its application is limited.
Protection for service station proprietors is of major concern to the small business
community. In fact, the Government has gone out of its way to specifically exclude service
station proprietors from such protection as the Bill does offer.
If we are to be subjected to considering so many amendments, as is happening in this
case—it looks Uke a brand, spanking new Bill—and to being asked to debate them on the
same day, I am sorry that the Minister's approach in giving free and ample time to scrutinise
Bills has been overcome. It is a travesty when this sort of occurrence takes place. It does
not give ordinary members of Parliament the opportunity to discuss the import of Bills.
Certainly, the Minister for Industry, Small Business and Technology did afford that
opportunity to the spokesmen from the Opposition and the Liberal Party. But back-bench
members did not have that opportunity. If the opportunity was afforded to National Party
back-benchers, it is obvious that they do not understand the provisions in the Bill. Through
you, Mr Deputy Speaker, I ask that in future the Minister, when introducing measures of
this type or a range of measures that so totally alter the substance of legislation, will permit
all honourable members to have a fair go so that they can discuss the Bill with their
constituents who are vitally interested in such measures. In that way, the House wiU not be
subjected to the nonsense that some of the proposed amendments have in them in trying
to afford the protection that the BUl seeks to achieve.
Mrs HARVEY (Greenslopes) (4.36 p.m.): The introduction of the Retail Shop Leases
Bill is heartening for all small business people, and it should be recognised as such by
members of the Opposition, who are very negative in their outlook and frame of mind.
It can be said that the National Party is the only party that has perceived the cmcial
importance of small business to any real economic recovery in Australia. Small business
accounts for 98 per cent of all enterprises. It creates 60 per cent of all jobs in the private
production work-force and 90 per cent of new jobs. The fundamental philosophy of the
National Party is based upon the recognition of the importance of the rights of individuals
and, wherever possible, non-interference by Governments, The National Party believes
that Governments should intervene in the market-place only when there is a demonstrated
need for Government action and should ensure that all participants in economic activity
have the maximum ability to compete successfully, one with the other. That is precisely
what the Bill is all about.
The legislation is based on National Party policy. Item by item. National Party policy
can be matched with the clauses in the Bill. The National Party promised legislation to
small business people, the retailers of the State, and has brought the BiU before the House
to honour its election commitment. The Queensland Government's attitude is unlike that
of all Labor State Governments and the Labor Federal Government, which have promised
the world to small businesses aud reneged after gaining office.
It is the Labor Party's modus operandi to promise and renege. Mr Hawke promised
to introduce a model lease into Labor's policy for small business. An action prog'âm was
released in Perth on 13 February 1983. No action has been taken by the Federal Government on the model lease even though it has had 12 months to implement its policy. The
Labor Party cannot agree about small business. The Labor Premiers—Burke, Cain,
Bannon and Wran—have all promised to tackle the complex problems facing smallbusinessmen. However, either they do not have the capacity to handle this issue or they
just do not care about the retailers in their States.
I notice that the member for Ipswich has absented himself from the Chamber, but I
would like to say to him that, although the Bill may not be a perfect instrument, it is an
instrument, and it is a great deal better than any Labor effort so far.
1606
28 February 1984
The National Party cares for smaU business. The party has grown out of caring for
people. Sixty years ago the party was established to defend the rights of farmers, graziers,
stock and station agents and shop-keepers in rural areas. It is a natural progression for the
National Party to introduce this BiU.
Members of the National Party received many complairtts over the last three years
and became worried and concemed about leaising problems and asked the Small Business
Development Corporation to investigate leasing. It reported that there were problems with
leases, and from that time on my party, through its political wing, wanted to see legislation
brought before the House. Not only did the political wing of the party want lease protection
for small business people; the organisational wing of the party supported that view. The
National Party small business committee has spent much time debating the issue and many
resolutions have been made.
I stress that the Retail Shop Leases Bill owes its beginnings to National Party grassroots
structure, that is, to the very people experiencing the problems of small business. The Bill
has been drafted from the calls of the humble private enterprise employers, not from the
initiatives that have been carried from the desk of the parUamentary bureaucrat. Perhaps
if the other parties had listened to the ordinary people in their ranks and Ustened to the
needs that they expressed, they may not have been left out in the cold on this BUl.
Debate has taken place on whether the Bill offends the free enterprise philosophy for
which my party stands. The National Party puts people first, and if politidal philosophy
was put before people's lives, a party would not survive. The National Party's pragmatic
and unbridled laws were soon accepted in the electorate and certainly were acceptable to
the Natiortal Party of Queensland. Any party that puts phUosophy before people will
be reduced to a poUtical rump.
The Bill before the House is just one further development of the concern that the
National Party has for small business. The first plank of the National Party platform
on small business was the formation of the Small Business Development Corporation—
a National Party initiative. My party stood behind the retailers when others wanted to
deregulate trading hours. They personaUy appealed to my leader, the Honourable the
Premier. The Bill was passed in haste when he was in Tokyo. He stood up and was counted
for the retailers. They were so very grateful that they placed an advertisement in "The
Courier-Mail" thanking the Premier. It read, "Thanks Joh on behalf of 70000 retaUers and
shop assitants who earn their living from the retaU industry in Queensland." He supported
the bakeries and the bread industry and brought in legislation that is before the House as
further support for small business.
It is no wonder that the figures in the last Gallup poll showed 43 per cent support
for the National Party Government, which was 3 per cent above the support for the ALP.
It is no wonder that 63 per cent of small business people in Queensland supported my leader
and his Govemment.
Retail shop lease legislation is pioneer legislation. This is a first in an honest attempt
to cover the problems of retailers in this State. Over the last few years Govemment
members recognised that a small number of landlords had not been playing the game
fairly. Some landlords were making conditions so hard that they reduced tenants to the
status of serfs. They were barely allowing them to make a living. As the retailers' sales
increased, so did the rent. Terms were applied to leases connecting rent to turnover, then
adding CPI cost increases to the rent. Key money was irttroduced at the end of a lease. Sharing
of operating exp>enses had been abused. In effect^ in many cases retailers in shopping centres
were subjected to hard condUions with which they found it virtually impossible to cope.
Retailers knew what square-foot rent they had to budget for but were unable to cope
wUh the sharing of expenses. From one month to another they did not know what their
outgoings would be. How can anyone operate a business if he does not know what his
overheads will be? Landlords would even want some of the retailers' goodwill.
Mr Davis interjected.
Mr DEPUTY SPEAKER (Mr Booth): Order! If the member for Brisbane Central
wishes to interject, he should return to his usual seat.
Mrs HARVEY: In answer to the suggestion made by the member foi- Brisbane Central
that I do not know anything about this, I point out to him that some weeks ago T was
instrumental in starting in the Ck)Orparoo section of the Greenslopes electorate a Coorparoo
RetaU Shop Leases BUl
28 February 1984
1607
traders' association. Despite the fact that I do not have heavy Unes on my face to demonstrate
that I know something, I assure the honourable member that I have stUl managed to
achieve something.
The Bill will redress the practices to which I referred earUer, There are many other
iniquitous practices that the Bill disaUows. But the greatest protection now is that the
retailer and landlord have access to a mediator, and if they are unable to negotiate a successful solution, the complaint goes before a tribunal of which a judge is chairman. That
tribunal is to be a low-cost court to which a tenant can go and defend himself without the
expense of a legal representation. That was National Party policy.
I make it quite clear to honourable members that more than than two years ago the
National Party asked the building owners to get their house in order. The Minister asked
BOMA to bring down a code of ethics for owners. The organisation representing the owners
had no power to insist that the owners observe the code of ethics. The Government extended
the original period of grace from six months to 12 months, but the leasing position in this
State had not improved. Therefore, the Government had no alternative but to bring down
the legislation.
Having been instrumental in initiating the Coorparoo Traders Association in the Greenslopes electorate, I am particularly aware that such self-help efforts on the part of small
traders, although beneficial to their trade, are nevertheless def)endent on fair dealings by
landlords. The legislation ensures such fair dealings and firm guide-lines for both landlord
and tenant. From visiting a number of small businesses in the Greenslopes electorate it
became very obvious that many were barely surviving in the present slow economic climate..
Those and others contemplating commencing business need an assurance that the Government
recognises their plight and is prepared to give them a fair deal.
I say in conclusion that this pioneering legislation offers the State prosperity and progressIt offers the person in small business security that he has not experienced in the past. It
offers to the person thinking of entering small business an idea of what he is in for. Overall,
it is commendable legislation. I support it and ask that every member support it.
Mr MILLINER (Everton) (4.47 p.m.): I congratulate the Minister's speech-writer for
the briefs that he prepared for National Party members. If ever he leaves the employment
of the Minister, he would quite readily obtain a job with Crawford Productions. After
listening to the contributions by the members for Surfers Paradise and Greenslopes, I am,
sure that he can write both drama and comedy. He is very talented indeed.
Mr Casey: It has taken him five years to write the script.
Mr MILLINER: That is so. It has taken a considerable time.
Suggestions for the introduction of legislation to correct anomalies that have crept intoretail shop leases have been made for a number of years. At the outset, I indicate my
agreement with the contributions made by the members for Sherwood and Ipswich expressing
concern about the way in which the Retail Shop Leases Bill mark 1,1 has been introduced.
It is well known that the original Bill was allowed to Ue on the table so that affected parties
might be able to comment on its contents. That is very desirable. Following submissions made
to him, the Minister wished to amend the legislation. He saw fit, properly, to withdraw the
original Bill and introduce completely new legislation. I commend him for taking that
course of action. It is a much tidier approach than moving a series of amendments. However,
surely it would have been much more desirable for him to introduce the new legislation
today and allow it to lie on the table for further scrutiny and comment by those people
affected. It is rather unfortunate that the legislaticm, which was introduced by the Minister
at 12.15 this afternoon, will be debated this afternoon and be passed to the Govemor for his
assent without adequate consideration being given to it by those affected.
The problems confronting the small tenants in major shopping centres have been with,
us for a number of years. I feel sure that aU members, particularly those with a major
shopping centre in their electorates, have been made aware of the problems.
In 1980 a number of my colleagues and I visUed the Westfield Shoppingtown at
Indooroopilly where tenants had considerable problems. As a matter of fact, the number
of complaints to members of Parliament from aU political parties was so large and
covered such a broad spectrum that the Government decided that the Small Business
Development Corporation should inquire into the problems confronting tenants in shopping.
1608
28 February 1984
complexes. Unfortunately that report was never made public and I would be very, very
interested to read it. After that report was presented the Government established
the Cooper committee to inquire into the first report. Part of the Cooper committee
report, which was tabled in Parliament in 1981, reads—
"The Committee's first term of reference was to examine the reports of the
Small Business Development Corporation, Generally, the Committee is in agreement
with the Corporation that there is a degree of small tenant dissatisfaction with lease
conditions and that the relationship between landlord and tenant in a number of
shopping complexes is under considerable strain. However, it was the Committee's
view that legislation, as suggested by the Corporation, is not the most appropriate
course of action open to the Government at this time."
Obviously the report prepared by the Small Business Development Corporation recommended
legislative action to correct existing anomalies.
The Cooper committee went on to say—
"The Committee's view is that these areas of discontent should be remedied by
industry-led solutions and a number of recommendations has been made for industry
self regulation. However, if the industry fails to take action along the lines of these
recommendations, the Government may need to legislate in certain areas."
Obviously the Government had known for at least a couple of years that there may be a
need for legislation to correct the problems. The conflict between the National and
Liberal Parties in coalition did not help this matter and, as a result. Cabinet set up a joint
committee comprised of officers representing the Minister for Justice and Attorney-General
and the Minister for Commerce and Industry in an effort to draft legislation that would be
acceptable to both the National and Liberal Parties. However, that never came to fruition.
The Cooper committee also recommended that the report of the Small Business
Development Corporation be accepted by the Government as it clearly illustrated the problems
being experienced by some tenants in major shopping complexes.
Another of its recommendations was—
"That the Government should fix desirable and yet achievable time limits in
which these matters are to be resolved. The Committee suggests that matters
should be well in hand by 30th June, 1982 with action being implemented by 31st
December, 1982."
The organisation that looks after the interests of shopping centre owners, BOMA,
issued in volume 1, No. 1 of its newsletter an article about these problems in the following
terms—
"For the past two years, BOMA (Queensland) has been working to persuade
the Queensland Government against legislation in this area of landlord/tenant
relationships."
That document is dated April 1983. so at least since that time that organisation has tried
to persuade the Government not to introduce legislation.
The Cooper committee recommended that if the industry had not regulated Uself
by 31 December 1982, legislation would have to be introduced. It went on to say—
"That the Govemment reconsider the position after 30th June, 1982. In the event
that no resolution to the question appears likely at that stage, then the Committee
suggests that the problems are of sufficient importance and concern to warrant the
Government taking positive action to resolve the matters then at issue by legislative
means."
It is quite clear that the Cooper committee, having investigated the original Small
Busirtess Development Corporation, very strongly recommended that legislation be introduced to correct the many problems confronting small business tenants.
The Bill can best be summed up as being far too little far too late. I am very
disappointed with some of the amendments that have been made to the original Bill.
As was pointed out by my very good friend and colleague the member for Ipswich, the
Government has seen fit to delete the provision that related to service s'.ations and/or
hotels because they could be considered to be retailers. It is a fact of Ufe that at the
moment many service stations are retailers by definhion because they seU far more than
28 Febmary 1984
1609
products associated with the motor industry. As I interjected when the honourable member
for Ipswich was speaking, it is obvious that the Government as yet has not been able to
come to grips with the many problems confronting the service station industry.
But the problems confronting the retail industry in general have also been very
great. One problem that has confronted small tenants in major shopping centres is that
of key money; another is the handing over of money on the goodwill component of a
business. I have visited many small businesses in major shopping centres, and this has been a
constant source of complaint. I have received many complaints regarding assignment or
key money.
It is interesting to note that some of the major shopping centre landlords are very
reputable organisations. The lease from which I am about to quote was entered into by
the Australian Mutual Provident Society. It illustrates some of the things landlords get up
to. Article 13.01.4 of the lease states—
" . . . the Tenant pays to the Landlord as consideration for the granting of its
consent forty per centum if the assignment occurs in the first rental year fifteen per
centum if the assignment occurs in the second rental year and ten per centum if
the assignment occurs in any subsequent rental year of so much of the purchase
price receivable by the Tenant as relates to the value of this lease and/or goodwill
and produces to the Landlord such evidence of such value as the Landlord shall
reasonably require;"
That article was part of the second lease the tenant had entered into with AMP Society.
He had been in business for some five years. He had estabUshed himself in the shopping centre and was faced with a new lease. When he got it he found a clause about
assignment. So if, after five years' trading in that shopping centre, he signed the new lease
and decided that he wanted to put his business on the market in the first 12 months of the
lease, he would have had to pay to the AMP Society 40 per cent of the goodwill of that
business. That is not good enough. It is disappointing when one sees well-respected major
organisations such as the AMP Society engaging in that sort of practice. In my view the
traditional contact between landlord and tenant has changed considerably. In the past it
was the responsibility of the landlord to construct premises and rent them out to tenants
so that those tenants could conduct their businesses. The landlord would receive, by way
of rent, a return on his investment. We on this side of the House have absolutely no
objection to people being able to make a legitimate profit, 'but we do object to the
exploitation of people in the retailing industry. Mr Deputy Speaker, I suggest that you,
the honourable member for Brisbane Central, have been a very successful businessman and
have probably experienced some of those problems but, being the very astute person that
you are, I am sure that you overcame them.
Mr Ahern: I have heard differently.
Mr MILLINER: I think the Minister is being most unkind to Mr Deputy Speaker
who, unfortunately, cannot defend himself in his present position, although I doubt that he
needs defending.
The problems associated with major shopping centres have indeed been great. I was
very disappointed to note that the Government has not tackled a number of them. One
concems tenants' associations. Some of them, as is the case with the National Party, are not
very democratic.
One shopping complex that I investigated had a major tenant and 40 specialty shops.
Under the constUution of the tenants' association the major tenant had 41 votes and each of
the other tertants had one vote. At a tenants meeting, the major tenant exercised 41 votes
and the other tenants exercised their 40 votes, which meant that the major tenant's will
prevailed. I am disappointed that the Government has not come to grips wUh that problem.
On the matter of tenants furnishing audited balance sheets—in another shopping centre
that I investigated the tenants had contributed about $30,000 for the management of the
centre. The centre was managed by a real estate agent at Kenmore, yet the shopping centre
I am referring to was at Strathpine. I am led to believe that the person supposedly
responsible for managing the centre would make scarcely one visU a week. The tenants were
paying out a lot of money for apparently very little work.
A Government Member: He must have been doing a good job or the owners would
have been told.
1610
28 Febmary 1984
Mr MILLINER: One of the problems confronting the tenants was getting to the Owners.
When they Complained to the owners they were referred to the management of the centre,
who was the real estate agent. The tenants were unable to get anywhere. Because of the
undemocratic basis of the tenants' association, the tenants could not get a formal motion
passed. As I pointed out, the major retailer had enough votes to out-vote the other tenants.
The smaUer tenants had to approach the owners of the complex individually, The tenants
were told to refer their complaints to the managing agent, and the managing agent asked
them to make their complairtts through the tenants' association. It was a catch-22 situation.
This problem should be looked at very quickly. Unfortunately the proposed legislation does
not deal with it and, no doubt, the problems confronting tenants' associations will continue.
It is unfortunate that this legislation should come before us in the way that it. has.
The Opposition has not been given sufficient time to study it in detail. The community in
general, or those who will be affected by the legislation, have not had sufficient time to
scrutinise it and, as I pointed out earlier, it is far too little, far too late.
Mr STONEMAN (Burdekin) (5.4 p.m.): I congratulate the Minister on introducing
this pioneering legislation. Anyone can criticise, but it takes a strong Minister, a strong
party and therefore, a strong Government to introduce such legislation. It is obviously
successful legislation, because its drafting is backed by all sections in the industry.. In other
words, it is true concensus legislation—legislation with teeth that will do what it is designed
to do.
I am sure all honourable members will agree that this legislation must enhance private
enterprise in Queensland—and that is what the Government and the National Party are
all about. I am proud to be a part of it. I am pleased that the legislation encompasses the
far-flung areas of the State. Opposition members who criticise the legislation should consider
that the formation of new and attractive small businesses throughout the State must be
stimulated. Towns throughout the far-flung areas of this most decentralised of all States
are dying because in some cases, unfortunately, there has not been that stimulation.
This legislation wUl do much to encourage the spread of private enterprise and
successful small businesses throughout Queensland. Decentralisation must be maintained if
Queenslartd is to continue to lead this nation. Honourable members would know that
Queensland is the leading State in Australia in free enterprise and productiort.
All sides of the business community need to be supported. Investors, retaUers, landlords
and consumers all need to be supported in any legislation, and they certainly are supported
in this legislation. The legislation will do much to stabilise business operations, and the
StabiUty of busness operations wiU have a direct flow-on effect for the consumer. Stable
business means stable supply and a lack of knee-jerk pricing and knee-jerk business
operations. This legislation will protect aU parties, and it has been accepted by aU parties.
Mr Casey: The only time that there will be a knee-jerk on this one is when the
landlord boots the tenartt.
Mr STONEMAN: The hortourable member can point to isolated instances. Opposition
members have done little constructively today. They have not come up with anything.
In fact, they are upset that the Government, in introducing this legislation, has taken the
initiative not ortly in Queensland but in Australia.
A problem arises when large shopping centres are built in small country towns. They
disrupt the operations of existing retailers and landlords. This legislation will provide a
foundatiort for the corttirtuity that is ueeded. Existirtg small business people wiU know
where they stand. They wiU diversify and expand into new shoppirtg centres in the knowledge
that they will be able to exercise their options and not be priced out of the market overnight.
That expansion is needed.
No-one wants a situation in which new businesses are established and old businesses
are simply wiped out, but that happens in many small towns when a large shopping complex
is built. It is all very well to build a large shopping complex in a big cUy, but the; position
is different when such a complex is built in a small town, such as Ayr or Home Hill in
my electorate.
Without this type of legislation, many sad sUuations would arise. When a small
community is suddenly confronted with a huge shopping complex expansion, aU sorts of
unfortunate situations arise. Again, I congratulate the Minister on the way in which,he has
28 Febmary 1984
1611
provided for these large shopping complex expansions. Local communities wUl be able to
understand the position. The legislation wUl smooth the transition when a large shopping
complex is suddenly built.
Of course, on the one hand, consumers are demanding the benefits that are provided
by big chain stores, and rightly so; but, on the other hand, they want the old, faithful
store-keeper round the corner. We want expansion, but not at the expense of existing
landlords and retailers.
Obviously the Opposition parties were taken aback by the National Party's honouring
its election commitment to the people of Queensland. That must be very upsetting to them.
I comniend the Minister for the open, frank and reasonable manner in which he has
approached this most difficult legislation. Although words of thunder and lightning have
been spoken, they have not really had any force.
Mr FitzGerald: They have been weak.
Mr'STONEMAN: That is right; but perhaps I am biased in this matter.
The Government should be commended foir demonstrating a pioneering spirit in which it
has accepted that no legislation in itself is perfect and amendments need to be made. That
is a very necessary part of reasonable government. I was disappointed that the hortourable
member for Sherwood suggested that the Government should fiddle with words while Rome—
or, in this case, smaU business—burns. I notice that he is out of the Chamber at the moment.
If a Government waited for ever for perfect legislation or to have it perfectly worded,
it would never support those members of the community who need to be supported. I
cannot honestly beUeve that members of the Labor Party and the Liberal Party want to debate
the hodgepodge of clauses rather than the consolidated Bill that is now before us. I have
noted that gradually the speakers in the debate have come to accept that it is a reasonable
piece of legislation. The Labor and Liberal Parties must be bitterly disappointed that all
sections of the industry have accepted the reality of this consolidated BiU.
The member for Ipswich, who is also out of the Chamber, ran right off the rails when
he went for his gallon of petrol at the service station, because that area of retailing is
covered by Federal and State legislation and does not appear in either of the schedules
to the BiU.
The key to continued decentraUsation artd business confidence at aU levels is the
broadening of the base of business activity. Provision must be made for tourist services, for
example. Without a sound base, there will be no expansion in this gteat State of ours.
Business activity must be stimulated and supported.
Lessees need security of tenure to maintain positive growth and to reap the reward
of their labours. A person going into business must be able to plan ahead. Tenants who do
not have a large resource backing will have some security under this legislation.
On the other hand, landlords similarly are supported in the legislation. A landlord is
not in business unless he has a tenant. I quote one passage from the Cooper report which
follows on from what I have been saying—
"From the Committee's investigations it would be fair to comment that a
successful shopping complex requires the funds and management expertise supplied
by the owner, combined with the retaiUng expertise of each tenant. A complex is
mn for the mutual benefit of both parties and each should receive an adequate
retui-ri on the furtds and efforts contributed.
It would follow then that the relationship between landlord and tenartt in an
integrated.shopping complex is rather unique."
This pioneering legislation is unique and wiU bring great benefits to the whole of
Queenslartd. I commend the Minister for his work and the planning that has gone
into what will,become a milestone in the support of free enterprise in this State and nation.
Mr PREST (Port Curtis) (5.13 p.m.): It is a pleasure to have a gentleman of the
calibre Of the member for Brisbane Central in the chair when an important Bill
such as this is being debated. It is very timely that the member for Brisbane Central
shejaldr be thes Deputy Speaker because he has been waiting a long time to attain that high
office. However, the smaU business people, particularly those in the retail trade, have
been waiting a very long time for a BiU such as this to be introduced.
Mr Casey: Wouldn't you agree that he is the best Chairman who has sat in that chair?
1612
28 February 1984
Mr PREST: I agree with the honourable member for Mackay, and I am not one to give
praise to those who are not entitled to it.
The Bill has been awaited for a very long period. The Government cannot be charged
with rushing legislation into the House, because this legislation must have been given
years and years of serious consideration. A great shemOzzle occurred this morning because,
although the earlier Bill was introduced in December 1983, it was amended before it reached
the second reading stage.
So marty changes have been made to the Bill that it could be said that it is entirely
different from the one that was introduced two months ago. Recently a press release
was forwarded to all honourable members after the Minister for Industry, Small Business
and Technology had spoken to small-businessmen in Adelaide.
It stated—
"Queensland Industry and Small Business Minister, Mr Mike Ahern, today urged
South Australian Small Businessmen to begin lobbying their State Government for
the introduction of legislation modelised on Queensland's Retail Shop Leases
legislation."
At that time, the legislation to which the Minister referred was worth two knobs of
droppings. Today, another Bill has been introduced and the model legislation has been thrown
out the door.
The press release further stated—
"Until other Australian states follow the lead of the Queensland Government in
the area of Retail Shop Leases legislation, retailers will continue to fall victim
to greedy landlords."
Undoubtedly, that has been so for some years in Queensland.
In 1976. when I first entered this Chamber, I asked a question about the dealings
between small business people and the SGIO. On 7 December 1976 I asked the Deputy
Premier and Treasurer (Sir WilUam Knox)—
"Does the S.G.I.Q. have a clause in its lease agreement regarding shops in the
Kin Kora shopping maU, Gladstone, that, in the event of the business being sold,
20 per cent of the sale price in relation to goodwiU must be given to the S.G.I.O.?"
I received the following answer—
"Yes. This is not an uncommon commercial practice in shopping centres. The
success of an incoming tenant can be prejudiced by high goodwiUs based on the
success of a centre as a whole. It does not apply in certain forced sales."
It is obvious that with a forced sale not very much goodwill would be attached to the
business.
Five years later, on 26 November 1981, a debate took place on small business interests
in major shopping complexes. On that occasion, the former member for Mt Gravatt (Mr
Scassola) stated that the Government was unaware of the lease arrangement problems in the
smaU business sector.
On 26 November 1981, the Honourable V. B. Sullivan was Minister for Commerce and
Industry. He moved the following motion—
"That this House take notice of the need for effective self-regulation to protect the
interests of small business in major shopping complexes and that the need for action
to support such self-regulation be recognised."
That motion was moved in 1981. It is now 1984 and we are just dealing with the problem.
In 1976, I drew the attention of the House to the problems that existed. In 1981, Mr
Sullivan stated—
"I would Uke to draw the attention of the House to the report which was
prepared by a special committee set up to investigate conditions existing in shopping
complexes, particularly as they apply to what can be termed small tenants."
A committee had been established. Mr Sullivan further stated—
"I would like to compliment the commUtee for the exceUent report it has submitted in such a comparatively short space of time."
The preparation of the report was hurried, and it was rushed through. The committee met
deputations in city and provincial areas. The Minister showed that a great need existed
28 Febmary 1984
1613
and that great problems existed with shopping lease arrangements. However, it was not
till December 1983 that the Government got off its butt and did something to protect
people in small businesses. Two months later, in 1984. a Bill that is absolutely useless is
introduced.
Today, as a result of consultations with people who have been ripped off in no uncertain
manner by landlords, a completely new Bill is before the House.
Undoubtedly, it is long overdue. The Opposition's spokesman, the member for South
Brisbane (Mr Fouras), gave credit where credit was due. However, he made it known that
many parts of the Bill are no more than a paper tiger. As our spokesman, he will be seeking
changes to the Bill. Doubtless, there will be divisions.
When one considers that problems have existed for so long and that such legislation
has been National Party policy and Liberal Party policy—^though more particularly during
election time—one realises that those parties had the power to introduce legislation. Instead
of doing so, they sat back and made promises to protect the owners of the big complexes at
the expense of the small tenants in retail businesses in those complexes. Those people have
been ripped off completely. Their rental has been based on gross tumover. It has also been
brought to my notice that the solicitors for the owners of buildings, instead of charging a
flat figure of $1(X) for drawing up contracts, would charge according to the amount of
tumover.
I repeat that the legislation has been introduced at a late stage. It could result in
improvements, but I am certain that it will be necessary to amend it before very long. It
must give a little protection to some tenants, but the Opposition will be monitoring its
operations within the community after it is assented to.
Many small business people have gone to the wall because of this Government's lack
of action over a long period. Now, some seven years later, a Bill is being introduced to give
some protection to small business people. It is long overdue.
Mr WHITE (Redcliffe) (5.23 p.m.): I commend the Minister and the Government
for bringing the legislation forward. Members of the various parties have endeavoured to
make poltical capital in the debate; but in reality all parties, in their own way, have
endeavoured for some time to do something for small business. It was rather unfortunate
that two members on the Government side sought to be critical of the Liberal Party. When
we were in Government, we had the same objective of endeavouring to do something to
help small business.
It is not easy to resolve the great conflicts that have existed in a few instances between
landlords and tenants. The debate has tended to concentrate on a few points in the legislation
instead of looking at the broad thrust of where we are going with smaU business and what
we really ought to be doing to foster and develop small enterprises in the State. Several
members have referred to the importance of small business to the private enterprise system.
I support their comments wholeheartedly.
I am pleased to see, in the gallery, members of the Retail Traders & Shopkeepers
Association of Queensland, COSBOA and other organisations with which I have had a
long association during my business career.
A Government member made reference to the member for Sherwood. It is fair to say
that throughout the history of the development of this legislation a number of former
Liberal back-benchers as well as the member for Sherwood actively worked to bring about
change and to bring in legislation. Although members of the Liberal Party may have
argued about which way to go about it, the intention of the Liberal Party has been very
clear. It is to do something constructive for the small business community. Therefore, the
legislation is a step in the right direction. No doubt, the Bill wUl soon come back to the
House for amendment because in a real sense, as many honourable members have pointed out,
it is pioneering legislation.
The Opposition has attempted to make capital out of this Bill and tried to pinpoint
its weaknesses, which is its responsibility. However, it is pertinent to reiterate that this
is the first time that a piece of legislation of this nature has been brought into any
Parliament in this country. For that reason the Minister in particular, despite having to
travel a rocky road to get the legislation this far, needs to be commended for his fortitude.
Mr Lee: He stuck to his guns.
1614
28 February 1984
RetaU Shojp Leases Bill
Mr WHITE: As the honourable member for Yeronga has just said, he stuck to his
guns and delivered the goods for the small business community.
Nobody should be under the illusion that this legislation is the great panacea for small
business. Undoubtedly those of us who have been involved in this area for a long time
realise that the central problems facing smaU business today are the question of management
and the development of skUls. So often all members of Parliament who have had problems
dropped on their doorstep by small business people have foimd that they have been caused
by a lack of basic management skiUs, a lack of irtformation and a lack of know-how.
Tragically, very often many of the failures in the small business community are a consequence of a lack of those skUls.
I commend to the Minister, who I know has a great interest in this field, that he
continue to develop the sorts of things that were started in DID years ago, and on which
the Small Business Development Corporation is working, in terms of information and
management skiUs. One of the things that the Minister ought to look at is the development
of inter-firm comparison digests: I well remember some 12 or 13 years ago being a party
to initiating such digests in the pharmaceutical industry. If the Minister has not already
made contact with Professor Meredith at the University of New England at Armidale
I suggest that he do so. In a real sense that university has done a great deal of pioneering
work in that field, and it can be presented to small business people in a way that can be
understood; it is not complicated by either accountancy jargon or legalese.
Mr Ahern: I meet him regularly.
Mr WHITE: As I know of the Minister's interest in this field, I thought that he
would have. I am very pleased to hear that and I would be grateful if the Minister would
pass on,my kindest regards when next he sees him.
A matter that is crucial to the future success of small business is the unfortunate
and perhaps conservative nature of banking institutions in this country. If one compares
the lending ratios in this country with, for argument's sake, those in the United States,
one finds that in Australia a considerably higher percentage of equity is needed to get
finance to start a new business or to develop an already successful business.
I was interested to read in "The AustraUan Financial Review" the anrtouncement by
the Liberal and National Parties in New South Wales of their new policy for. small
business. If the Minister has not read the article, I refer him to yesterday's "AustraUan
Financial Review"
In that policy a proposal is put forward that the future Govemment of New South
Wales wiU, I hope, be able to establish a new small business bank that would be
sympathetic to the interests of small business. It will be not a State bank but a bank
initiated through the private sector. A bank of that nature, or a branch of an existing
facUity, which is sympathetic towards and understands small business, could do a
tremertdous amount to assist small business—far more than this legislation would ever do.
Having referred to those new poUcy announcements in New South Wales, I would like
to draw to the Minister's attention the prospect of new industrial agreements and the
abolition of red tape, because unquestionably red tape is one of the great bones of
contention for anybody starting off in small business. The mere fact of having to deal with
so many Government instrumentalities at both the State and Federal levels, quite apart
from the associated expense, is a challenge for many people.
As was mentioned earlier, this is pioneering legislation. It deals with the aboUtion of
some capricious practices that have redeveloped recently, having first emerged in the 1930s.
I refer particularly to the payment of key money, which has been a most odious practice.
People have enough trouble starting off in a business today without having to fork out key
money.
Another odious practice that has developed recently is landlords demanding a share of
goodwUl on the sale of a small-businessman's business. I am pleased that that practice wUl
be outlawed under this legislation.
Much discussion has gone on this afternoon about the desirabiUty of various types of
leases. Basically, the legislation provides a format for three types of leases that have been
in vogiie, and gives the tenant a choice. It is common knowledge that some of the more
demanding and capricious landlords, who are very much in the minority—^landlords have
28 Febmary 1984
1615
been a very much maligned group of people recently—have demanded inordinately high
percentages of turnover as a condition of a lease. Basically, the legislation provides for the
traditional form of lease based on space, a lease based on a percentage of tumover and
a lease based on a combination of a base rental and turnover. It is a good option to have,
because tenants who are operating in the retail sector today, where there has been a
proliferation of shopping centres, have seen their turnovers fluctuate and, in reaUty, taking
the option of a percentage of turnover could be very helpful in periods of downturn.
Much has been said about mediation and arbitration, so I do not intend to canvass
those subects. The honourable member for Sherwood and some Opposition speakers
adequately covered them this afternoon.
The major criticism I have of the legislation is the lack of detail in respect of operating
expenses. I think it is unfortunate that that change has been made. The change to the
original Bill is unfortunate because one of the great bones of contention is that when
tenants have been handed an account for operatirtg expenses they just do not know what
they are paying for. The new clause is a generalisation and is, unfortunately, a move away
from the original definitive clause under which tenants would know precisely what they
were up for. People going into business today ought to know where they are going and
what their expenses will be.
Reference has been made to the exclusion of service station proprietors, and that is a
matter of some regret. The oil industry is a difficult one. It is basically controlled by an
oligopolistic group of large oil companies which basically controls the market from the
wellhead through to the retail outlet.
I hope that the Minister who was on a platform with me three or four years ago, before
about a thousand service station operators, remembers some of the comments made to him
and some of the difficulties that small business operators are facing in that industry.
Mr Jennings: Those are different circumstances.
Mr WHITE: As the member for Southport pointed out, there are difficulties, but it is
fair to say that service station operators have been harshly treated and manipulated for a
long time.
I am referring particularly to lessee operators who virtually have no command of their
business and are dictated to, very largely, by some of the oil companies—not all of them. The
Minister may have to give consideration to this matter in separate legislation. I hope that,
in the future, the discussions which took place in Cabinet some time ago bear fmit.
Much has been said about the plight of tenants and the capriciousness of landlords. In
reality, the capricious landlords have been few in number. Unfortunately, some of the
practices they introduced have become par for the course. Enormously complicated leases
are now being poured out by word-processors in legal firms. Frankly, most of us would
have a great deal of difficulty in coming to terms with them. The honourable member for
Sherwood referred to the old leases that were simple documents which people such as I
could understand when we entered business. Unfortunately, today's leases are very
complicated. They are full of legalese, and that makes it very difficult for tenants to
understand them.
The whole quality of centre management needs close attention. The Minister, in
discussions with BOMA, should give thought to raising the quality of centre management.
Many of the problems and difficulties that small traders have experienced recently have
been due to a lack of sympathy and a lack of understanding by centre managers of the
problems confronting the tenants. It is to be hoped that bodies such as BOMA will give
attention to these matters.
Basically, the Liberal Party is supporting the Bill. I understand that the honourable
member for Sherwood may be moving one or two amendments at the CommUtee stage. It is
gratifying to have this legislation before the House. I congratulate the Minister on having
the fortitude to bring it forward.
Mr LINGARD (Fassifern) (5.37 p.m.): I congratulate the Minister on the way in
which he has handled this Bill, Not only has he brought forward urgent legislation for the
benefit of every person involved in renting or leasing business premises, but also he has
been able to foil the attempts of Opposition members who have tried in every possible way
to delay this legislation.
1616
28 February 1984
The Government has realised the urgency of the legislation. It has also honoured an
election promise to create a Minister responsible for small business and to protect the rights
of small businesses—businesses that are so important to the success of this country in the
service they provide and in the number of people they employ.
In the debate we have heard the OpposUion's criticism of free enterprise. The people
of Queensland and Australia know what the ALP socialists would do. They would grab hold
of all businesses and nationalise them, and implement socialist Government-controlled
policies such as Medicare. This Government, which detests the sociaUst thoughts of the
Opposition, promotes free enterprise and has shown that h is prepared to introduce
legislation to prevent oppression by the large companies.
It is considered that there are two fundamental reasons why landlords are currently able
to impose oppressive terms on business tenants as part of their leases. Firstly, they are able
to impose oppressive terms on the original grant of leases. Secondly, they are able to impose
oppressive terms on renewal of the original, or any succeeding, lease. That is obvious, but it
is important to reaUse that the reasons why the landlord is in such a strong bargaining
position are different in each case.
Firstly, it is known that the landlord is able to impose a hard bargain on the tenant in
the initial grant of the lease because, as a result of the existence of zoning controls, which
artificially restrict the supply of suitable business premises, he enjoys a monopoly.
That is why the most acute problems are currently found in the large shopping centres,
where the landlord's monopoly is most absolute. Problems are found to a lesser degree—
although there is evidence that they are still present—în the smaller shopping centres and
individual business premises.
In the large shopping centres, there is the consequential factor that often the centres
contain such a large proportion of the retail business in a particular locality that competition
among prospective tenants for leases is artificially increased. To put it briefly, so much
of the consumer's dollar is spent in shopping centres that retaUers wUl do virtually anything
to obtain a lease of premises there. All too often one hears of tenants signing leases
in such centres, in the face of clear and unequivocal legal advice not to do so.
Furthermore, the prevaiUng view among retailers is that when a new shopping centre
opens they must at all costs obtain a shop there, presumably to protect their existing business
from competition. That means that the existence of a monopoly in shopping centres has
given rise to a monopoly aspiration on the part of retailers. This is a far cry from the
free enterprise system involving competition, which it is the National Party's philosophy to
foster and which has been outlined so well by the member for Greenslopes.
There is an additional factor. The existence in the community of a widespread belief
that running any shop in a shopping centre is a bonanza has resulted in an influx of a number
of tenants not possessing sufficient business acumen or sufficiently realistic expectations to
succeed in the retailing business. The willingness of such persons to sign leases on virtuaUy
any terms has compounded the problem.
Although a free enterprise philosophy demands that Government intervention in the
market-place should be kept to an absolute minimum, legislation to regulate the relationship
between landlords and business tenants on the original grant of leases is justified on two
grounds.
First of all, the truly free market has been destroyed by stringent zoning and townplanning requirements, and further legislation is needed to correct the market distortions
that have arisen as a consequence of such initial intervention in the market.
Secondly, a distinction must be drawn between Government intervention in the market
through legislation and the mere setting of a legal framework, which there must be of
necessity, within which the free market system must operate. Where such legislation assists
rather than hinders the operation of the free market, it is supportive of, rather than detrimental
to, free enterprise.
I congratulate the Minister and the committee who have framed the new consoUdated
Bill. One problem will be overcome. Where a lease purports to reserve a rent based on
the turnover of a business or some related quantity, the tenant will have an effective right
to elect for a rent fixed by reference to some other quantity not involving turnover or any
28 February 1984
1617
other related quantity. This right has been implied by the legislation, with the lease itself
making provision for an effective alternative and the tenant having the right by law to opt
for an alternative.
I congratulate the Minister on the provision of an optional two years after
lease. It has taken into account the fact that on renewal, because of the
and loss of goodwill that the tenant will suffer if he relocates to other premises,
position is stronger than on the initial grant of the lease. This enables the
secure from the existing tenant, a rent above fair market value, and has
imposition of increasingly onerous terms on tenants.
a three-year
disturbance
a landlord's
landlord to
led to the
This fundamental problem has been resolved by comprehensive legislation conferring
on the tenant of business premises the right of renewal of the lease, subject to exceptions
on defined grounds where the landlord either has a legitimate reason for refusing to renew
or offers suitable alternative accommodation. When a tenant has been required to leave
for grounds other than his own default, he has been compensated for any improvements
that he has made to the premises, other than under the terms of the lease or any previous
lease, and for loss of goodwill, as outlined in clause 15.
However, the Retail Shop Leases Bill protects not only the tenant but also the landlord
who is allowed to oppose on specified grounds the grant of a new tenancy. These conditions
appear to deal with all reasonable grounds for requiring possession, given that the landlord's
legitimate interests are the enjoyment of a fair market return and the protection of his
property. This procedure may seem to be an interference with the free market, but I submit
that it works well in practice and so enhances rather than restricts the operation of the free
market.
I submit that the legislation faUs more into the category of legislation setting out the
framework within which transactions are carried out, as the Property Law Act does, rather
than being within the category of interventionist legislation about which Opposition members
have made such a song and dance. I have explained why there is a need to protect the small
business tenant by providing some kind of right of renewal. Without that protection the
landlord can exploit the loss of goodwill and disturbance which the tenant would otherwise
suffer by relocating so as to secure the payment by him of a rent above open market value.
Legislation in the form that is now before the House accommodates the reasonable aspirations
of landlords, who are not in any way prevented from securing a fair market rate of return,
and of tenants, who are protected against unfair exploitation on renewal. The guarantee of
the right to renewal will enable the tenant to adopt a more robust negotiating stance on
renewal, which appears to be the time when landlords are able to force tenants to accept
oppressive terms.
1 am pleased that moves are being made towards developing a model lease, and the
Minister referred to this. The suggestion has been made many times but, quite apart from
its undesirabUity, it is not possible to prescribe a standard form of lease, since there must be
scope for variations to meet individual circumstances. This means that any legislation
imposing a model form of lease would have to allow for variations and it would either
become impossibly complicated or fail to meet its objective by allowing freedom to contract
out. The only remaining option is to prescribe a standard form to be used for all business
leases but to allow free variation subject only to a requirement that such variation will have
to be clearly stated as such on the lease itself. That option may meet the requirements of
the proponents. The tenant would clearly see where the lease differed from the model form.
It would app)ear to be the only workable system that could be employed, beyond operating
by way of moral pressure.
The dominance of the large shopping complex owner will be a continuing problem. In
the United States of America, antitrust legislation is used to break up the concentration of
ownership. Accordingly, a large shopping centre would be divided into two or more parts
as to ownership so that the forces of competition would operate between the separate parts
to reduce or eliminate monopoly power. This solution is firmly in Une with free enterprise
philosophy. By way of variation, rights to purchase their shops could be conferred on tenants
at fair market value so that a shopping centre could become a strata title complex to be
managed by a body corporate as are units under the Building Units and Group Titles Act
1980.
1618
28 February 1984
In summary—the Minister should be congratulated for the way that he has overcome the
tactics of the Opposition and has used the method of getting through the House this BiU that
will give the small business community the protection it deserves.
Mr VEIVERS (Ashgrove) (5.48 p.m.): I rise to make some criticism of the legislation.
Some very commendable words have been spoken by members on both sides of the House
about the legislation and the timing of its introduction.
Initially, I would like to correct a couple of points that the member for Fassifem made.
He was quite vocal in his criticism of the Opposition and our supposed anti-free enterprise
approach to the legislation. I would like to set the record straight and ask this question:
Why has the National Party Government, the self-called champions of free enterprise, taken
so long to come to grips with the problems of small business people who are really at the
heart of the free enterprise system in this State?
Initially, the BiU was introduced by the Minister on 20 December 1983—70 days ago!
What has happened in those 70 days? The Bill has been completely withdrawn and a new
Bill has been introduced in US stead. I did not think that things moved so quickly irt
Queensland.
I understand that yesterday the shadow Minister for Industry, Small Business and
Technology was notified of the specific changes to the legislation. Opposition members have
had virtuaUy no chance to study the BUl in detaU. Are we again back to the old sausagemachine approach to legislation in the Queensland Parliament? For the second time in a
very short period, legislation has been introduced into this House and substantially amended
or completely withdrawn, as has happened with this legislation. There is quite a significant
difference. I have heard some comments made about that today. It is one thing to place
BiUs before the House and then to move amendments foUowing submissions that have
been made by various organisations; it is a completely different thing to withdraw a BiU.
The Police Act Amendment BiU was substantiaUy amended because sections of it were
ill-conceived and insufficiently researched. In the present instance, outside pressure and
community objections have forced the Government to begin all over again and to introduce
a new BiU. That is a relevant comment concerning the operation of the Queensland
Parliament. If anyone wants to see evidence of the type of Government that exists in
Queensland, it can be seen once more. In my terms, it is called "fly by the seat of your
pants and hope everything turns out OK."
The Minister has admitted that the original BiU was unsatisfactory. To whom, may I
ask, was it unsatisfactory? What pressures were put on the Minister to change the BiU?
Does the new Bill come to grips with the problems faced by smaU business in this State?
If we accept that the Minister is now satisfied, we must conclude that, in his eyes, the new BiU
provides the answers to the multitude of problems facing small business in Queenslartd,
and there is a multitude of problems. For what other reason, therefore, has he decided
that it should be rushed through the House?
The provisions of the Bill will not provide satisfaction to the many smaU business
operators in this State. They will still find themselves at the mercy of unscrupulous landlords.
The Government's track record proves that it has no affinity for smaU busiuess in
Queertslartd. Big business, yes; small business, no. Why has there been a change of heart?
Are there many smaU shop-keepers who are continually battUng to survive, who work
long hours for a meagre profit, and who are forced to work their chUdren for long hours
in their shops to keep their heads above water? Ask them how they feel about it! The
legislation really does nothing to solve their problems; it is cosmetic. It does not tackle the
real problems of small business operators. Sections of it are like a wolf dressed in sheep's
clothing. Many people who believed that they would be protected under the provisions of
the Bill irttroduced on 20 December, will now, because of the somersault by the Government,
find themselves severely discriminated against under the new legislation.
Today I received a call from the proprietor of a small shop who, during the intervening
period, under considerable duress from a landlord, a large company based in Melboume,
was presented with an account for the legal expenses incurred in the preparation of the new
lease. Because of the location of the landlord—Melbourne—and the means at the disposal
of the landlord—a large corporation—the tenartt is left almost without recourse.
The other point I make about the legislation is that, because of the change to its date
of operation, it is of no assistance. How niany other persons could have been—în fact,
were—in the situation to which I have referred?
28 Febmary 1984
1619
The new BiU provides no real assistance to tenants who are in that position; Why? The
very large landlord will not be concerned about legal costs or other expenses in a case heard
before a mediator or the tribunal. As I see it, that is a substantial weakness in the
legislation. Although the Government has amended the provisions to enable legal
representatives to be caUed up at the discretion of the mediator or the tribunal, the small
operator is still at a considerable disadvantage. As all honourable members know, large
corporations have at their disposal trained and talented personnel, apart from outside legal
support. They are able to—and do—completely subjugate the small business operator. The
cost to the big landlord-ând I refer to the comments of the member for Redcliffe on
this matter—will be irrelevant, provided the case is won by the big lartdlord. I see that as
a substarttial weakness in the legislation.
Another very serious weakness that I see in the provisions relating to leases and
options, which in some cases are heavUy loaded against small business operators, is the
nuinber of leases that fall due at different times in a large building. The costs to small
tenants when leases are being prepared and negotiated can be quite exorbitant, as all
honourable members would appreciate. It could be to the advantage of the landlord to
create such a set of circumstances. In the end, it would be to his very considerable gain.
The second serious weakness that I see is where a matter in dispute falls outside the
jurisdiction of the mediator or the tribunal. I am pleased that clause 55 of the original
Bill has been amended to allow for recourse to the courts. However, that again could be
used to the advantage of an unscrupulous landlord if a tenant were forced into difficult
circumstances in the drawing i up of the lease or option in the first instance, particularly in
large buildings with a multitude of shops and variable leases.
The omission of service stations is very serious. It is common knowledge that many
service station proprietors in this State are at the mercy of the oil companies.
Mr Eaton: That is purely the pressure of big business in the form of the oil companies.
Mr VEIVERS: It is big business again, the favourites of the present Government.
Those who lease service stations from oil companies in some cases have margins as
low as two cents a litre. I ask honourable inembers opposite, in particular, how one could
possibly operate a viable business on a margin as low as that. An independent operator, on
the other hand, could have a margin as high as 14 cents a litre on his wholesale purchase
price. Many service station operators leasing their sites from oil companies dare not
purchase fuel outside that company to provide themselves with a reasonable return. If
they do, they do so at their own peril. The oil company makes life almost impossible for
them. It is a very serious matter, one of concern to all of us here, that the Govemment
should ignore the pUght of the small service station proprietors in this State and not be
prepared to come to grips with the massive problems that they face.
The Bill still does not provide sufficient protection for small business people against
large corporations. Honourable members have heard much today from the Government
benches about free enterprise. Surely that is what the legislation ought to be about. It
ought to protect the small business person in his dealings with unscrupulous large
corporations, which are quite numerous and wiU go to great lengths to push the small man
under.
[Sitting suspended from 6 to 7.15 p.m.]
Hon. Sir WILLIAM KNOX (Nundah) (7.15 p.m.): The BUl has been hailed as being
new, differertt, unique and innovative. Because it has been needed for some time, I congratulate the Minister on introducing the legislation. The general thrust of it is supported,
I would hope, by all members of the House and, although it has some imperfections, it
should pass through the House.
The method by which the Minister has introduced the amendments is not new. It has
been done, as he said this morning, in legislation for which I was responsible. Of the nearly
200 pieces of legislation that I introduced into the ParUament, five had to be withdrawn
and a new Bill containing all the amendments presented to the House. In that way it is easier
to follow and it is a very desirable method of introducing a large number of amendments.
The only quarrel the Liberal Party had with the Minister this morning was that, having
mtroduced the new BUl, he proceeded with the debate immediately. As the legislation is not
urgent—it is no more urgent today than it was a week or two ago—it could well have lain
on the table in its new form for critical comment and study by interested parties.
1620
28 February 1984
I know that the Minister has consulted a number of groups in the community, and
they have welcomed his confidences, but unfortunately a number of other groups were not
consulted in the production of the legislation and they are somewhat upset at not being
consulted. Because I have had some experience in introducing legislation, I know that
it is not possible to consult everybody who is involved. No doubt the Minister has
consulted the principal groups. I noticed on the television tonight that Mr Black, who
represents one of the groups that the Minister consulted, is very critical of what the
legislation does not achieve. I advise all of those who may not be happy with the
legislation to be patient because, with new legislation, there is always the opportunity
of reviewing it, and I hope that the Minister will review it in the light of experience.
At this stage in the introduction of legislation of this sort, concern must be shown
to ensure that rights that people already have are not taken away. That is rather
fundamental to legislation of this type because as soon as legislation tries to defirte people's
rights, whether they be their commercial rights or their rights as individuals in the
community, those very rights are limited. That is one of the great dangers of interfering
in the normal, accepted practice of contracts and commercial undertakings that people make
with one another. Although there have been in contracts, particularly in relation to leases,
some unconscionable and harsh provisions that have caused concern, in the main people
are socially and commerciaUy responsible and do not enter into contracts that will
prejudice them.
An honourable member who spoke earlier in the debate quite rightly pointed
out that the people who are creating most of the problems are not the big shopping
centre landlords but rather some of the smaller ones in the community who are more
rapacious. Perhaps it is there that the greatest social and commercial concern might be.
The legislation has taken some time to get into the House, and the Liberal Party
welcomes it. It has been suggested that the Liberal Party, when it was in coalition, was
holding the legislation back. Of course, that was not so, as honourable members who
participated in that coalition Government would know. Honourable members might recall
that it appeared as though the legislation would not enter this House at aU. The
Premier was reported as saying that the legislation was socialistic. Then the President
of the National Party stated in the media that the legislation would go ahead. Honourable
members do not know the internal problems associated with that matter, but nevertheless
the legislation has been introduced and the Liberal Party welcomes it.
Many interested groups are concerned with the legislation. One has only to look at the
great Ust of various interests represented in the schedules to realise the far-flung areas
that the legislation touches.
Special interest has been shown in the legislation by BOMA, which represents a
group of the major landlords in shopping centres, as well as the Queensland Retail Traders
& Shopkeepers Association and people of that sort. But many other people, such as butchers,
hardware merchants, people who provide services, catering people and restaurateurs, are
involved.
Strange as it may seem, in spite of the fact that the Bill covers banks, insurance
companies and even the electorate offices of members of Parliament, service stations have
been deliberately excluded. This is of some concern to the service station operators.
Some of them are under the impression that they were promised that they would be looked
after in this legislation. I do not know the background to that opinion, but service stations
appear to have been omitted from the long list that appears in the schedule. Some
explanation could be given as to why that is so.
A rather strange amendment has been made to the definition of a retaU shop. It
excludes all shops of over 1 000 square metres in size owned by corporations or public
companies. For instance, a hardware shop that does not fit into that category comes
under the control of the legislation. But if a hardware shop happens to be owned by a public
company, it is excluded from the provisions of the legislation. I bring that to the attention
of the Minister because it is one area which wiU ultimately cause some concern. Many
small tenants in shopping centres will be concemed to discover that retail shops of more
than 1 000 square metres in size will be excluded from the provisiorts of the legislation.
It is true that Woolworths, Coles and organisations of that size can look after
themselves extremely well. In fact, they are often encouraged to go into shopping centres
as market-leaders, as merchandisers who add something to the centre. There is no doubt
28 Febmary 1984
1621
that when such operators enter shopping centres the benefits do flow on to other tenants.
There is absolutely no doubt that those people can look after themselves in negotiations
with landlords. But I bring to the Minister's attention the fact that the new definition may
be too arbitrary, may be self-defeating and may be an inhibition to the proper working
of this legislation.
Members of the Liberal Party are concemed about the protection of the rights of the
landlord and the tenant, so I am pleased to see the Minister has accepted the principle
that people should have professional advocacy before the tribunal. We in the Liberal
Party do not particularly see merit in such advocacy before the mediator; nevertheless, that
has also been included. However, this provision does not go far enough and, as has
already been foreshadowed, we intend to ensure, by way of an amendment, that those
rights are further protected.
In view of the new principles involved in contractual obligations which this legislation
introduces, it should be reviewed with some care; it should be watched and mortitored. I
hope that the Minister wUl take on board, as they occur, events which might cause some
concern and necessitate revision of the legislation.
One of the new amendments puzzles me. It seems to be extraordinarily complicated.
It relates to the monitoring of the turnover of a retail shop. It has been my experience
with numerous tenants of shopping centres that no complaint has been made regarding
the monitoring system. It has related to gross turnover, and tenants generally favour that
system because, although there may be some inconstencies, they realise that in their shops
certain things are always happening and those things are reflected in the turnover.
Although ups and downs and different fashions in merchandise cause turnover variations,
over a long period gross figures reflect the share of the various lease-holders in the marketplace.
Concern has been expressed about the monitoring going further than merely getting
returns from the lease-holders. It has been said that terminals could be placed on registers
and so on. To my knowledge that has not happened in AustraUa, and I hope that it does
not. If at any time that practice does appear in Australia, I hope legislation will be
introduced to prohibit it. In developing a shopping centre it has been found .that the
monitoring of turnover has been a useful tool for both the lease-holder and the landlord.
This information has been kept confidential, I have every reason to believe that there
has been no disclosure. Very few complaints have been made about the system, I ask the
Minister why it has become necessary in the new provisions before us to make the
monitoring arrangement so complicated.
Under the eariier conditions it was a fairly simple matter. I do not believe that
lease-holders or landlords will welcome this complicated method of measuring turnover
when lease-holders elect to come under those conditiorts which, of course, many of them
will do.
It has taken a long time for this legislation to come before us. About three years
has elapsed since the pen was put to paper and about five years since the original discussions.
Originally some concern was expressed about certain landlords who seemed to adopt a
fairly heavy-handed attitude to their tenants but, generally speaking, many of the problems
which arose, particularly those referred to in the Cooper report, which was thoroughly
debated here and elsewhere, led to an improvement in the situation. In my view, unconscionable and harsh provisions in contracts should be outlawed. The difficulty is to define
what they are.
An attempt is made in this legislation to do that, I sound a note of warning that such
contracts could come in new forms—în forms that we have not yet seen, I hope that
that will not be so, but I am sure that they wiU appear. I believe that, ultimately, these
matters have to go before a judicial tribunal.
This legislatiort provides that a District Court judge will preside over these matters
and make rulings which, I hope, will stand the test of time and become precedents. It is
pleasing to note that, under one of the proposed amendments in this legislation, transcripts
will be kept of the proceedings. If room is provided for an appeal, that sort of informatiort
must be available. That was a very serious shortcoming in the earlier Bill.
62181—57
1622
28 February 1984
People who believe it necessary that they should appear before tribunals wUl find
that a District Court judge, with the assistance of advocacy on both sides, wiU help to
bring justice to both sides. The Government must ensure that that is continued.
This legislation does deal with tens of thousands of dollars; in many instances
it could deal with miUions of dollars. People's livelihoods, their investments and everything
they own could be prejudiced by a decision of such a tribunal. It is therefore imperative
that everyone's rights before a tribunal be protected.
I still wonder why it was necessary to include the long list of people in the second
schedule. Indeed, I wonder why it was necessary to print the schedules at all. The definition
of a retail shop should have covered the operations with which we are principally concemed.
It seems that the addition of the schedules has widened the net of the legislation beyond
that originally envisaged. Maybe special reasons exist for including all of those people.
I notice that five additional categories have been added to the first schedule, but service
•Stations are not yet included. I presume that the Minister will tell us the reason for that.
Service stations also are shops and are controlled by the Factories and Shops Act. Apart
from providing petrol, they employ people and sell goods. They occupy space in quite
a number of shopping centres. For some peculiar reason they have been omitted from the
schedules.
I wish the Minister well with this legislation. I hope that it is generally supported.
Mr CAMPBELL (Bundaberg) (7.31 p.m.): If the National Party Government believes
in small business, it should be providing more money for the Department of Commercial
and Industrial Development. If the Government is really committed to supporting small
business, why did it reduce the budget for that department by 15 per cent last year? There
are only two reasons for that reduction in the budget. The first is a personality clash between
the Premier and Treasurer and the Minister for Industry, Small Business and Technology.
The second is that the Government has no commitment to support small business.
The
minority
conduct
member
member for Surfers Paradise referred to different landlords. He talked about a
of landlords who lacked business ethics, acted shamefully and engaged in disgraceful
and commercial thuggery. Two large corporations fit the description given by the
for Surfers Paradise.
Sir William Knox: I bet you are not game to name them.
Mr CAMPBELL: I refer to Kern Corporation Ltd and to Westfield Ltd. To me, they are
the godfathers, and they should not be assisted. For the last six months, the Kern Corporation
improved its previous record profit by 10.6 per cent, yet its turnover dropped by 21.42 per cent.
That is a great way in which to increase profit! That increased profit was achieved at
the expense of the small business people operating in shopping centres in Queensland.
Westfield Ltd manages many large shopping centres. It was able to increase its profit
by 12 per cent over the previous year. Many small business people who are working 80
hours a week would not be able to increase profit by 12 per cent.
Sir William Knox: There is nothing to stop those small business people buying shares
in Westfield.
Mr CAMPBELL: They cannot afford to do so.
The member for Sherwood said that there was a worsening trend in the granting of
leases for small business. I wonder why. If the Government has this commitment to support
small business, why should there be a worsening trend in the granting of leases? These small
businesses are being disadvantaged under the proposed umbrella of support of the National
Party.
I also agree with what the honourable member said about the sharing of expenses in
large shopping centres. He said that small tenants are subsidising larger tenants. I agree
that that is happening. The small tenants in the Sugarland Shoppingtown disagreed with the
amount of money that was being spent on gardening. They got their own quotes for the
work. Those quotes showed that people could look after the gardens at that centre for less
than half the price quoted by the managing agents. Kerns. Small tenants have the right to
question the expenditure of money on such work.
28 Febmary 1984
1623
The member for Toowong said that the Retail Shop Leases Bill was rtot wrUtert hastily
and that all members had had time to read it. But it was introduced and Standing Orders
were suspended. He believed that there was no sell-out to anybody. If there has not been a
sell-out, why has the Government decided to not give small business people the same benefits
and protection that are offered to investors and developers through retrospective legislation?
Mr Lee: Surely you don't like retrospective legislation?
Mr CAMPBELL: I do not Uke it; but if retrospective legislation can be introduced
for investors and developers, why can it not be introduced to protect small business people?
In shopping centres that are owned by the SGIO, smaU business people sign leases that
have an either/or concept for paying rent. The rent can be paid at a base level or as a
percentage of turnover, whichever is the greater amount. Rent should be determined on a
commercial, economic basis; that is, so much per square metre. Rent paid as a percentage
of turnover is worse than a profits tax because percentage of turnover has nothing to do with
profit. If a person improves his business and increases his turnover to reduce a loss, he could
be charged increased rent but not be able to afford it.
If this Bill is not a sell-out, why has no provision been made for service station
proprietors?
Mr Jennings: That is a different set of circumstances.
Mr CAMPBELL: Suddenly there is a one set of circumstances for one small business
person and a different set of circumstances for another. Small businesses should be regarded
as having something in common. The member for Nundah wondered why schedules were
needed. I suggest that if small businesses are to be categorised differently, this legislation
may never be implemented.
The member for Greenslopes said that the National Party puts people first. If that is so,
why does the Government have the lowest expenditure on education per student in
Australia, why do pensioners pay the highest electricity charges in Australia and why does
Brisbane have the highest cost of milk of any capital city in Australia? If those policies are
people oriented, something should be done about them.
The Opposition does not criticise every provision in the Bill because it attempts to
cover an extremely difficult area. The member for Burdekin said that policies should be
implemented that protect the small business person and the person who is already set up
in a business. He said that shopping centre developments should not be approved at the
expense of the established businesses. Social impact studies should be undertaken when a
new shopping centre is proposed, so that the people who already have a small business are
protected. Despite the comments about decentralisation made by the member for Burdekin
and other members, I do not believe that the Government has a real commitment to
decentralisation.
If decentralisation is so important, why has the Minister proposed in the last couple
of days that high-technology industries be established in special parks around Brisbane?
If high-technology industries are to be established, why can they not be established in areas
such as Bundaberg and Rockhampton, and in western areas?
Mr Borbridge: Are you saying that they shouldn't be on the Gold Coast?
Mr CAMPBELL: Yes. They should not be in the golden triangle of Queensland.
There is no reason why they cannot be located outside the south-east corner of the State.
If they were located elsewhere, it would contribute to decentralisation.
SUicon Valley in America is in the centre of a State that can be developed with high
technology. There is no reason why one of those areas could not be established in the
country areas of Queensland rather than in the little golden triangle of south-east
Queensland.
The member for Redcliffe referred to the Bill in detail. He said that in the near future
the Bill will probably have to be further amended. The legislation is supposed to be good.
If the legislation is so good, why do people suggest that amendments will be necessary in the
near future? It is interesting that amendments wiU have to be made to supposedly good
legislation that has to be pushed through this House under suspension of Standing Orders.
Members have said that the legislation wiU need to be amended in a few weeks' time.
1624
28 February 1984
The member for Redcliffe recognised the State of New South Wales when he referred
to the establishment of a bank for smaU business. I agree that Queensland is lacking in
facilities to provide financial assistance to persons wishing to estabUsh smaU businesses.
The member for Nundah made a relevant commertt whert he said that we should
be looking not only at the rights of a tenartt but also at the rights of the laudlord. There
should be a balauce in the legislation to ensure that the tenant is protected and to ensure
that the landlord is not put into a situation in which he cannot have some say in his own
establishment. I agree with the member for Nuudah, who said that he could see no real
reason for the need for schedules to define those businesses that should be covered and
those that should not.
The SGIO owns many shopping centres. Why does the SGIO need agents to organise
lease agreements between the tenants and the landlord? Surely if the Govemment has any
confidence in the staff of the SGIO, they could sign and deliver the agreements without
profits being directed to a middleman or agent such as Kern Corporation. There is no
reason why the SGIO should not be able to handle its agreements through the retaUers'
association.
I shall refer to an incident involving the SGIO in Bundaberg. If the Government
is so concerned about small business, why does the SGIO allow its agent, Jones Lang Wootton,
to demand a 76 per cent increase in rent on SGIO buildings? When one small business person
said, "I believe that that rent is excessive", the Co-ordinator-General said to the small
business person, "You arc at liberty to go elsewhere." That should not be the Government's
reaction to small business. Having worked for many years to build up a business, a small
business person, faced with a 76 per cent increase in rent, should not be told to go elsewhere.
The Government can give a lead by requesting the SGIO, in its shopping centres, to
do away with some of the questionable practices that presently exist. Let the SGIO give a
lead. That will be a commitment through action rather than words.
The last matter to which I refer is the appointment of members of the tribunal. There
wiU be a representative of the landlords and a representative of the tenants. The person
chosen to represent tenants ought to be a member of an association that really does have
the interests of the tenants at heart. Unless is he a strong, independent person who is
prepared to support their rights, the tribunal will be useless. I refer to organisations such
as ESBAS, certain members of which have been shown to be strong and independent.
Perhaps the Minister should consider some of those for appointment to the tribunal.
Honourable members know that they would protect the interests of the tenants. Unless he
is prepared to select a strong, independent member of the tribunal, the Bill wiU not achieve
its aim of protecting the interests of the tenants.
Mr WRIGHT (Rockhampton-Leader of the Opposition) (7.46 p.m.): I have been
waiting for this legislation for something like four years. I am sure that other members of
the Assembly, especially members of the Opposition—I refer also to members of the Liberal
Party, and particularly to the member for Sherwood—are extremely pleased that finaUy
An Opposition Member: Those who are left.
Mr WRIGHT: Yes, those who remain as members. I mention the member for
Sherwood because he was party to discussions goirtg back four years when a group of us in
the Assembly launched something of a campaign to attempt to change the law relating to
small business in Queensland. It has been a four-year campaign and, after reading the
legislation, I am pleased and displeased.
I am pleased that we now have in some type of legislative form certain protections in
black and white that the tenant will be able to fall back on to obtain redress at law. I
am pleased that matters that I personally have raised in this Assembly over a period have
at least been listened to. I criticised the concept of gross turnover rental. I am pleased
that that is now being changed so that at least there is a choice. When I first raised the
matter, I was howled down by the members of the Government. When I talked on such
impositions as key money, I was howled down. So it has been with other iniquitous practices
that I endeavoured to have abolished or remedied.
I acknowledge that it is pioneering legislation. Queensland will be the first State to
have such legislation on the statute-book. However, I am displeased that the BiU has not
gone as far as it should have. I remiud hortourable members that over the past four years
28 Febmary 1984
1625
there have been a number of investigations. Two studies were followed by reports from the
Small Business Development Corporation. There was the Cooper report. The recommendations in that report were subsequently referred to a joint parties committee on which were
the Minister responsible for smaU business and also the Minister for Justice and AttomeyGeneral. The House now has before it legislation that was originally promised to be a
panacea—^the solution to all the problems faced by smaU business.
When the Minister introduced the legislation in December last year and was questioned
about the date of its application, he said, "As from now". I must admh that I then
thought that at long last we had a Minister who was prepared to put his chin forward and
stand up for people in smaU business. I really believed in him. I could have criticised some
aspects then, but I thought, "No, I shaU wait" He said unequivocally in his second-reading
speech to the Parliament, I beheve, that the legislation would apply from 21 December.
That was his commitment—a commitment to Queensland; a commitment to the 2(X),000
people linked either directly or indirectly to small business; a commitment to every tenant
who was about to enter into a lease.
Hundreds, if not thousands, of people have entered into leasing arrangements in the
last two months. Many entered into leases believirtg that they would be protected by
legislatimi introduced by the Minister. Despite that undertaking, despUe that promise and
despite that guarantee of protection, the Minister has presented a Bill in which the first
amendment removes retrospectivity. I question the actions of the Minister and the
Government. I say to the Minister that many people have relied on this legislation.
One of the reasons I chose to speak last in this second-reading debate was that I
wanted to see whether Government members would raise some of the problems brought
forward by many tenants throughout Queensland. Those problems have arisen because
of the excesses of landlords in these last two months. I regret to say that Uttle has been said.
I am amazed that, after the Minister gave those personal undertakings—I take them
as personal, though they are ministerial—he would now renege. I wiU not mention the name
of the company involved because there is nothing to be gained by doing so, but I know of
an agreement dated 26 January 1984 in which the rent was increased by 30.27 per cent
from $40,008 to $52,113.04. yet the CPI during the same period increased by 9.7 per cent.
That was an increase of $1,009 per calendar month from $3,334 to $4,343. The lessee
believed that he would be protected in some way, but there is no protection in this
legislation. These business people depended on some type of protection when it came
to their rent being calculated on what they believed was a false basis. However, the
legislation provides no protection. If they want to challenge the area on which the rent
is calculated, that is, 47.38 square metres instead of 46.08 an increase of some 2 per cent,
the landlord has told them that the shop will have to be surveyed by a registered surveyor
at the tenant's expense. That is not protectiort; it is typical of the sort of agreement that
people have been forced into.
I will now deal with another lease that has been prepared for 1984. Again, unless
I am forced to, I will not mention the name of the company. The lease was drawn up in
1984, after the introduction of this legislation. One part of it provides that if an application
for the lease is unsuccessful the application fee is not refundable. All solicitors' costs for
preparation of the lease have to be paid by the tenant. Also, no refund is payable
in the event of failure to execute the lease. In that case the sum has to be forfeited by
the tenant. Another clause provides that the lessee has to pay all outgoings, including
rates, land tax, maintenance, electricity and insurance costs, telephone charges and
management costs. Mr Speaker, you no doubt are conscious of the problems that small
business in Toowoomba has suffered through such leases. I went to Toowoomba and I
know that many people had contacted you, Mr Speaker. Their concern was that the
conditions were iniquitous and that they were locked irtto conditions that were simply
unfair. I can present the draft copy of this lease to any honourable member who wants to see
it so that he will know that the lessee has to pay the maintertartce costs and the management
costs. Because that lease was agreed to prior to when the Bill will be assented to, these
people are no longer protected, but had the legislation been retrospective to 21 December,
they would have at least been entitled to some redress. They are finished; they are on the
scrap-heap!
1626
28 February 1984
The responsibility lies very squarely with the Minister. Clause 18 of the Contract
provides—
"The Lessee shall be required to obtain the Lessors Architects approval of
any proposed shop front and interior shop fittings, fixtures and furniture with the
intent that the Lessor requires the standard of the shopping centre to be maintained
for the benefit of all tenants."
I do not argue with that. The clause continues—
"The costs charged by the Lessors Architects shall be paid by the Lessee."
So .the lessor is saying that he will set the standards and wiU require the tenants to engage
architects to draw up the standards for the shop fronts, and the tenants will pay. Surely that
is not what we want to see. Surely there should be protectiort for those tenants who are
prepared to invest $50,000 or $150,000. They should not be caught up in iniquitous provisions
such as this clause 19 which people have to sign. It states—
"We acknowledge your right to amend the lease terms or withdraw your
acceptance of this appUcation in the event of the Shopping Centre not being
constructed or any change in appropriate Government Legislation not satisfactory
to you in your discretion whereup)on our application fee will be refunded to us."
That means that if, because of any proposed legislation or for any other resaon, the
lessor is not prepared to accept the application or if he wants to amend the lease, he
can do so.
Over the past four years Opposition members and others have pursued the case. We
have suggested that there has to be clear justice here. The rights and responsibiUties of
both parties must be set down. I put it to the Minister that that js not happening here,
and it will not happen because, in the first instance, this legislation is not retrospective.
I wonder how many other tenants have entered into contractual arrangements which are
binding upon them, with possSbly hundreds of thousands of dollars at stake, believing,
regardless of the terms and conditions, that they would be protected because of an undertaking given by Mike Ahern, the Minister, that is not worth the paper it was written on
or the words that were used.
I do not believe that the Opposition members can accept this approach. We certainly
cannot oppose the legislation in principle because we fought for it. We know that, if it
does not go through, tenants wUl be in an even worse plight. We will again find a vacuum
when it comes to legal control and protection. I suggest that instead of proceeding wUh
this legislation tonight—we tried to stop it and we were willing to vote with the Liberal
Party, although we thank the Minister for at least briefing us—the Government have
another hard look at it. We have waited four years for it and I cannot see why it should
not be put back for another couple of weeks. The Minister has admitted the need for
change. He introduced this legislation barely six weeks ago, yet he has made dozens of
amendments. There was a need for change, and I suggest again that there is a. need for
further change. I refer specifically to the legislation being no longer retrospective. I refer
also to the schedule not including service stations. That was also mentioned by other
members of the Opposition, particularly the member for Bundaberg.
I also point out that the legislation contams discriminatory clauses. I can understand
that Woolworths, Coles and other proprietary groups do not want to get locked into some
type of an arrangement that is usual between a tenant and a landlord, but it has to be
realised that reference to a shop that is 1 000 square metres or more in size could include
Cut Price Stores, hardwares and draperies.
Mr Ahern: Are they pubUc companies?
Mr WRIGHT: I am not aware of that. I know that they have to meet the conditions.
I have not taken out a Ust, but it could well be the case. It may not be the case, and
they will be caught up anyway.
There are other points. One needs to question very carefully the requirement that
shall be on the tenant. I know that provisions exempt them from having to give certain
information on turnover, but if the Minister was able to consider this again, possibly with
an all-party working committee, it may well be that the word "turnover" could be
deleted and replaced by the words "profit and loss statement" I do not believe that a
landlord should have the right to obtain information on turnover at any time. There
should be controls, some type of further protection.
28 Febmary 1984
1627
I asked that other provisions be included, but none have come about. We almost
begged for a model lease. We wanted something set down as a base, something like the
law that appUes under the Residential Tenancies Act to the ordinary domestic tenant.
The Govemment has said that it is the very basis of any agreement and that the protections
of the Act should be embodied in any agreement between a landlord and a tenant. But the
Government is not really doing that in this case. In this instance, because it involves far
more money, the Minister should have asked for a model lease, but he did not. I would
also have thought that ithe Minister would note that people are getting caught up in having
to pay ongoing costs that should be met by the landlord.
I see no protection against the exorbitant charges made by lawyers. The Minister knows
of the problems that have arisen. Lawyers use word processors to draw up leases. The only
variation in leases for a shopping centre would be in the name of the company or the tenant
and in the size of the shop being rented. However, the lawyers charge $1,000. No change is
made in the Bill so that that can be arbitrated or debated.
I also find that no right of refusal is included in the BiU. A first right of refusal should
be given on the expiry of a lease. I know of instances—and I am sure that they will
continue—in which landlords, perhaps because they have something against the tenants, want
the tenants out. When a lease expires the tenant is put out. Many smaU business groups
have said that, at the expiration of a lease, a tenant should have a basic right of first
refusal.
Obviously, the landlord must have the right to say, "I want to increase the rent. I want
to set new conditions." That should be his basic right in law, because it is a new agreement.
When a small business person is prepared to invest—in this instance U will be five years, but
previously it was three years, with a further three years—up to six years of his life and his
money, it is not right that he should be turned away. In case after case, people have built up
businesses only to be told by the landlord, "You are out." Without discussion, dialogue or
debate, they have been put out and then found that two weeks later, a firm selling similar
products has taken over the premises. In certain instances, it has been found that the
manager's cousin, or his best friend, has taken over a very profitable business under a
different name, selling the same type of product on the same site, and the earlier lessee has
no right of redress.
The Opposition accepts the Bill in principle. The measure has been well canvassed by
the Opposition spokesman (Mr Fouras). His speech was exceptional. Members of the
Government and other speakers have raised further points that need consideration.
I ask the Government to cast politics aside. Although such a suggestion usually meets
wUh hoo-ha's from everyone, I remind the House that this legislation governs the lives of
many Queenslanders. Honourable members have waited four years—a long time. Legislation
was introduced on 21 December last, only to be amended again and again. I ask the Minister
to consider not proceeding with the measure tonight. I ask him to adjourn the debate so
that we may again look at some of these matters, otherwise the Opposition will have to call
a number of divisions. It would be a pity to do that, because in some instances it will be a
waste of the Parliament's time and the Opposition will not have included in the Bill the
amendments that it believes are necessary. When I say that, I do not mean necessary for the
ALP, which will not gain anything from them. I mean that they are necessary for the small
business community in Queensland.
Hon. M. J. AHERN (Landsborough—Minister for Industry, Small Business and Technology) (8.3 p.m.), in reply: I thank all honourable members for their contribution to the
debate.
Some criticism has been levelled at me for proceeding with the legislation in this way.
I have been a member of this Assembly for 16 years and I have not heard for many years
such a well-informed, coherent debate. Obviously honourable members have had an
opportunity to study this matter in detail; obviously, they have had an opportunity to study
reports and recommendations that have been coming forward. Today, Parliament has heard
a well-informed and useful debate.
I sought to give honourable members an opportunity to be informed. That is why I
arranged yesterday for Opposition members to be briefed on the proposals. I sought also to
put the Government's amendments into a consolidated Bill so that members of the
Opposition could look at the legislation and draft their own amendments if they wished to
do so. The whole exercise has been a very good one. Certainly U is always desirable to take
1628
28 February 1984
more time in dealing whh legislation, but the Bill must be proceeded with because of the
great deal of indefiniteness in negotiations. The legislation has been held up for a long time.
Since December, lease negotiations have been suspended. I have been advised generally by
members of organisations that they hoped the Government would soon make up its mind
and proceed one way or the other so that they might know what procedures are required.
When the Government had consolidated its view, I thought that it should proceed with the
legislation, and the debate today has vindicated my action. We have had a very informed
debate. The introduction of the broadsheet proposal and the consolidated BUl was a good
way to proceed. That procedure might be followed in the future when a difficult piece of
legislation such as this is perceived.
It might be argued, as it has been on the floor of the Chamber today, that the
Government should take more time and have another look at the legislation. As the
person who, for some weeks now, has had the responsibiUty of considering all the representations that have been made, I can assure honourable members that it would be possible
to continue the negotiations for another six years and still not establish a consensus in the
matter.
When a difficult question such as this one arises, it seems to me that a Minister
has a responsibility to collect the views together, make recommendations to the members
of his Government party, and to Cabinet, and introduce legislation. The Mmister makes
recommendations in certain sensitive areas and proceeds to have the legislation passed by
the Parliament. It would be possible to delay the matter for years, as is being done in
the other States. This Government is proceeding with the legislation. As I say, we have
had a good informed debate today and I am looking forward to the debate on the clauses
when I will be able to cover some of the matters that have been raised by Opposition
members.
Government members are not prepared to dertigrate landlords gerterally. They are
citizens and have rights under the law, certainly urtder common law. Neither the Government nor I can accept the argument that landlords have no rights. What we were trying
to do was balance the reasonable rights of landlords with the reasonable rights of tenants,
taking into consideration the criterion of fair practice. We were trying to achieve a
balance and, at the same time, reflect Govemment policy. That is what we have done.
I hope the outcome is that we will achieve that balance between the rights of the two
parties and that, as a result of the leadership given by the Government in this legislation
the unfair practices that have occurred in the past will not ensue to anywhere near the
same extent that they have in the past. I am not prepared to endorse a general denigration
of all landlords in this State. Certainly there have been unfair practices, but by far and
away the great majority of landlords have not indulged in them. The vilification that has
been generally directed at landlords today has not been deserved,
I ask our critics, who are arguing about whether we have proceeded well enough on
this occasion, to point to what has happened in other States where Labor has the numbers
and has had an opportunity to make recommendations and to proceed with legislation.
What has happened in those States? Nothing! We are the pioneers. Certainly other States
are looking at the matter and probably will proceed down the same path; but, as I say,
we are the first. It is not easy to develop a set of definitions that will improve the situation
and establish a set of procedures that have not operated previously. My officers have done
a very fine job. It has not been easy.
I wish to clarify some comments made by honourable members. Firstly, the member for
South Brisbane accused the Government of grandstanding and of causing confusion within
the retail industry. I do not understand how the Opposition could accuse the Govemment
of grandstanding when it has actually gone to all sectors of industry to seeks a common
goal—a consensus from all parties in the community. The Government has succeeded in
gaining a meeting of the minds of the three basic participants in retail leasing practices—
the landlords, the tenants and their legal advisers.
The undying efforts of the National Party Government and, in particular, of my
parliamentary committee, the officers of my department and representatives of the Small
Business Development Corporation have successfuUy put together legislation that I am
confident will resolve many of the problems that arise with these retail shop leases.
The honourable member for South Brisbane has commented that the Retail Shop Leases
Bill makes no provision for disclaimer clauses that have been writtert into leases. I refer him
to clause 16 (2) and he may wish to discuss that at the committee stage.
28 Febmary 1984
1629
The member for South Brisbane also commented that the Government has backed down
on its promise to ensure that the tenant is provided with a method of rental calculation other
than as a percentage of turnover. In fact, the Bill goes further than offering the tenant an
aUernative method of rental calculation. Clause 6 prohibits the calculation of rent as a
percentage of turnover unless the tenant specifically requests that method in writing to the
landlord. The tenant may well do so and is entitled to do it if it is his preferred option.
Many tenants do prefer it, and they have told me so. It is important that the member for
South Brisbane understand that some small tenants have spoken to me or my departmental
officers and have openly declared that they want to continue paying rental as a percentage of
turnover. It would therefore be unfair and impractical to prohibit in its entirety this method
of paying rent.
The member for South Brisbane indicated that it is the Opposition's intention to grant
aU tenartts the first right of refusal irt taking up the renewal of a tenancy over the premises
over which they hold a lease. The member is suggesting that the landlord should be given
no rights in determining how he runs his business and who may occupy a tenancy in his
building. If the member for South Brisbane was a landlord and had invested a very considerable sum of money in a building I wonder whether he would be happy to provide a tenant,
whether good or bad, with the first right of refusal. He has suggested that the Government
should intmde into the right of the landlord to determine how he may mn his business.
That is a socialist approach.
The member for South Brisbane criticised the use of schedules and suggested that there
may be something underhanded in their use. I invite any member to provide me with details
of any type of business that he feels should be incorporated into the schedules to the Bill.
The member for South Brisbane sought clarification of clauses 24 and 25 which provide
for appearances of representatives before the mediator and the tribunal. Simply put, these
sections provide that a party to a reference before these bodies may be represented at the
discretion of the mediator and the tribunal respectively. This applies irrespective of whether
a representative has a legal qualification or is a professional advocate. It is at the sole
discretion of the mediator or the tribunal, as the case may be, whether the party may be
represented by an agent. Members of the Liberal Party have raised this question during
the second-reading debate and will raise it at the Committee stage.
What must be understood is that an effort has been made on behalf of the small business
community to contain legal costs. The effort has been made to establish a tribunal that small
business people see as a method of getting round the enormous legal costs generally incurred
to obtain remedies that are available to people under the law as it stands. I think that the
small business community is right. It is perfectly right for it to try to overcome the enormous
expenses which often militate against a person's right of appeal. Because it is so expensive, the
remedy may not exist for a small-businessman. The mechanism that provides for a mediator
and a tribunal and restricts the people who may appear before them is simply an endeavour
to restrict the dollar cost. If the dollar cost is too high, the remedy does not Ue; it is not
avaUable. It is as simple as that. The entire legal fraternity must ask why legislators are
consistently under pressure to establish this type of tribunal when there are other tribunals
that could deal with the problems in the usual way. The answer is simply that it costs so much
today.
Recently I had a personal experience in which, on the advice of a solicitor, I sought
to take action against a party who had clearly defamed me. $500 down the track I
concluded that I should not proceed because we had not trodden down the track at aU.
I do not think that I had any rights in that situation. I suppose I received cheap advice,
but I decided that $500 was too much. I realise now that, as a person of smaU means,
I have no recourse in that regard without putting my family's assets in jeopardy. When
one goes into such a situation, one must be prepared to lose.
Mr Shaw: What you are saying is that it is only for the wealthy.
Mr AHERN: What I am saying to the honourable member for Wynnum is that the
mechanism is there. The reason why the mechanism is there is no mystery. It is simply a
question of keeping down the cost of the operation to the appellant.
Mr Shaw: Why not give the ordinary tenant a choice?
Mr AHERN: That is how it wiU operate. Surely the honourable member realises that
that is why the mechanism is there. It is there for the mediator or the tribunal to make a
1630
28 February 1984
decision as to whether the need for representation is indicated or not. Cases will vary
from time to time. Every effort wiU be made to contain costs. The honourable member for
South Brisbane knows that that is what it is all about.
The member for South Brisbane further asked for clarification on whether the tribunal
will have jurisdiction to hear disputes for which remedies are provided in other statutes.
I refer the honourable member to clause 36 of the BUl, which quite clearly indicates that
the jurisdiction of the tribunal will extend only to disputes relating to provisions of Parts
II and III of the BUl. Under the Real Property Act and other Acts, there are opportunities
to resolve those problems. This BiU ought to stay clear of the jurisdiction of those Acts,
and that is what will happen.
I thank the member for Surfers Paradise for his contribution to the debate. For many
years he has shown a keen interest in this matter and has shown a sound grasp of the
concepts in the Bill and the problems confronting the industry. Indeed, he has helped me
tremendously in the preparation of this legislation.
The member for Sherwood complained that the House had not had the opportunity to
consider the Bill in detaU. As I indicated earlier. I would have liked to leave it for another
couple of weeks. With the present legislative program, that was not possible. We had a good,
informed debate today. Right now, every member in the House is ready to make up his
or her mind on this matter.
The member for Sherwood raised objection to the omission of paragraph (a) of
clause 12. He considers that operating expenses should be listed in the Act. However,
that is impracticable in commercial reality. If the original paragraph (a) remained in place,
there would be tenants in a shopping centre with leases with a long time to run that were
unaffected by the legislation and tenants with new leases that would have to comply with
the legislation. As a consequence, considerable difficulties would arise for those required
to administer differing methods of charging operating expenses and net rentals.
The proposed amendment to that paragraph would overcome the problem by simply
requiring that the lease shall specify those elements that constitute operating expenses and
how they may be determined and recovered from the tenants. That is probably one of the
major amendments to the legislation in the principal Bill that was introduced in December.
Tremendous input was received from all sectors of the community in relation to the
problems that would lie in respect to this matter if it were carried through into commercial
reality. How would it, in fact, operate? One would have old leases and new leases, and the
balance of obligation to carry operating expenses would shift dramatically from one group
to the other. It would become incredibly complex as options were exercised on leases that
exist in the present system, and it was found that it was just not practicable to require
all leases to be renegotiated from a certain date. What a tremendous headache that would
have been.
In the final analysis, having in mind the goals of the original party recommendation, in
practice it simply could not be done; it would not work. The best approach—and it will
be monitored—was to require that all matters be clearly detailed in the new leases drafted.
I cannot see any problem with naming this part of the BUl, "Sharing of operating
expenses" We are saying in the legislation that the sharing formulae must be detailed
in the leases. I honestly cannot see any other practical way of doing it. When we asked
the industry organisations, the representatives of some of which are here tonight, they
could not see how it could be done practically either.
I do not think that the honourable member for Sherwood, in his dissertation to the
House today, followed this through sufficiently. I have no doubt that he will call this clause
at the Committee stage. I wiU be interested to hear him tell me how that might work in
practice; how John Doe, a manager of a shopping centre, when confronted with this
piece of legislation, could physically manage his centre if he had to comply with that
provision, I will defer that discussion till that clause is debated.
The amended clause 12 will still fulfil the basic objective of providing the tenants with
more certainty of future expense commitments without unduly disrupting the normal
comme cial practices in the industry, as would have occurred had the clause remained in its
original form. Further amendments have been made to cover the instance of a landlord not
passing all operating expenses on to the tenartts and to require annual estimates and
28 Febmary 1984
1631
statements to refer specifically to each expense item. In his stance, I do not think that
the member for Sherwood has taken into consideration all of those additional checks
that are in the legislation.
I thank the member for Toowong for his valuable support in bringing the Bill before
the House and for his contribution to the debate. He is a member of my pariiamentary
committee and has been of considerable assistance in the preparation of this complex piece of
legislation.
The member for Ipswich, try as he might, could find only a few minor criticisms of
the BiU. Although he might want a fair rents court, the Government is totally opposed
to it. The Bill specifically states that neither the mediation panel nor the tribunal wiU
consider rents. We have had experience of fair rents courts in the past. They might
be noble in character and intention, but in practice they produce all manner of problems.
The reality is that they produce a whole range of problems far outweighing the advantages
that appear to lie in them.
I sympathise, as the honourable member for Redcliffe said, with the problem of service
station lessees. However, their industry is regulated by the Federal Government as well as
by the State Government. In my opinion, the inclusion of service station leases in the
Bill would not be appropriate. The honourable member for Nundah was critical that they
have not been included. He was Minister responsible for these matters when he was in
Cabinet before the election. He was grappling with the problem on that occasion and
realised the complexities. Frankly, I do not think the solution of that problem rests in
this type of legislation. I would like to see
Sir William Knox: I agree with you. I just wondered why it was not in.
Mr AHERN: That is the reason why it is not in. It requires a set of remedies that
are different. As that is the Government policy, we want to say so and make sure that
people are not trying to use this Bill for a purpose for which it was not intended.
I thank the honourable member for Greenslopes for her support of the BiU. She
also is a member of my parliamentary committee. I thank her for her contribution in the
long job of crunching all of the recommendations together into the resulting legislation.
The honourable member for Everton spoke at length about the Cooper report and the
problems of shopping centre leases. Although he said a lot about what ought to be done,
unfortunately he did not say how it could be done. Consideration was given to legislation
encompassing tenant associations. However, the Government's policy is that the legislation
should not interfere with tenant or merchant associations. I thank the member for
Burdekin, also a member of my committee, for his strong support of the BUl.
I note that the member for Port Curtis went over the same ground as other members.
It is not an entirely new Bill; the amendments strengthen the old. Bill. The problems have
been round. for a long time and the Government is prepared to deal with them. I
reiterate that landlords have been only one of the groups speaking to me and I have not
given in to them.
I thank the member for Redcliffe for his supportive comments. He commented again
on the lack of detail in operating expenses. I repeat that the BUl requires the landlord to
specify the items of expense in the Bill and how those expenses are determined and
apportioned. Annual estimates must be provided to the tenant before the commencement
of the period to which the estimate relates. These procedures will overcome many of
the problems that are presently arising with operating expenses.
I thank the member for Fassifern for his contribution to the debate. He correctly
pointed out that town-planning provisions tend to give shopping centres a monopoly
character and some legislation is needed to correct that. I thank him for his support.
The honourable member for Bundaberg alleged that there was some conflict in the
Cabinet and that, as a result, my department had received 15 per cent less money than
the previous year. The honourable member has not done any in-depth research into the
matter. His allegations are untrue. In last year's Budget there were some special items
that are not part of the normal establishment of my department. If the honourable member
goes into detail, he will realise that. There was an item in respect to the White truck issue,
which I am sure the honourable member would agree was a special case and not something
1632
28 February 1984
that irt the rtormal course of events could be considered as part of the general effort of
expenditure of my department. It is not tme to say that the department has received
15 per cent less than it received the previous year.
The Leader of the Opposition thanked the Government, as many honourable members
did, for the general thrust of the legislation. I thank him for his equanimity and for his
general approach. He expressed great disappointment that retrospectivity has been removed.
What has to be done is to argue the reason for putting that in the Bill in the first place. It
was there simply because it was argued that if some provision like that was not included
in the Bill, it would precipitate a rash of renegotiation of leases while the legislation was
left to lie on the table of the House for public comment. My intention was to allow a
reasonable period for people generally to look at the Bill. If the BiU had not contained
some provision to stop a rash of renegotiations, that is exactly what would have happened.
Retrospectivity created serious and real problems in practice. They were brought to
my attention by the Queenslartd Law Society, the Minister for Justice and Attorney-General
and the Building Owners & Managers Association. About one-third of the quantum of paper
that came to my offices related to difficulties that arose from having the retrospective provision
in the legislation. I concluded that if it was left in the legislation it would create too much
of a problem. After all, in terms of a fair approach, is it reasonable for this ParUament,
sitting at this time in 1984, to amend a Bill, as the Government cleariy intended, and make
those amendments retrospective to last year. That is not reasonable. In terms of fairness, how
could that be done? What effect would that have on leases negotiated at that time but not
signed?
All of those problems were very forcibly brought to our attention. Leases were not
signed, leases with options were not exercised and people queued in solicitors' offices. A
large number of problems arose in respect of retrospectivity, as generally happens, and that
is why in the past we have opposed retrospectivity. So the provision relating to retrospectivity,
having fulfilled its purpose, was removed.
Mr Lee: It shouldn't have been there in the first place.
Mr AHERN: I think it should have been. It was agreed to by the joint Government
parties and Cabinet at the time. I did not alter the Bill in any way. The Bill that was presented
to this Parliament was exactly as determined by Cabinet. That was why the retrospectivity
provision was in the Bill, but it simply had to go. I do not see any further problems arising.
I am advised that when the legislation was introduced negotiations went into limbo; they
were suspended pending the Government's decision on these questions. Very few leases
proceeded to finality. So the problem is probably best resolved in this way.
The question of a model lease wiU be pursued, but it is not an easy matter. It is all
very weU for members to rise in this place and announce noble principles, to suggest that
there should be a model lease to fit every situation. But it is another thing to provide such
a lease and get a reasonable response to it. Some models have been produced, and they are
a very good start.
I thank all honourable members for their very genuine contributions to this debate.
It has been a very informed and quite a fair debate, and I thank honourable members for
their consideration.
Motion (Mr Ahern) agreed to.
Committee
The Chairman of Committees (Mr Row, Hinchinbrook) in the chair; Hon. M. J. Ahern
(Landsborough—Minister for Industry, Small Business and Technology) in charge of the
BiU.
Clause 1, as read, agreed to.
Clause 2—Commencement—
Mr FOURAS (8.33 p.m.): I move the following amendment—
"At page 2, omit all words comprising lines 7 to 11 and substitute the words—
*2. Commencement. (1) Except as provided in subsection (2), this Act shaU be
deemed to have commenced on the date on which the Bill for the Act was introduced
into the Legislative Assembly and shaU have retrospective effect accordingly.'"
28 Febmary 1984
1633
I would like to comment on the two arguments put forward by the Minister to justify his
revamping of the original Bill. All that we in the Opposition are trying to do is put the
retrospectivity provision back into the consolidated Bill. The Minister argued, firstly, that
the insertiort of the retrospectivity provision was really a clever political ploy which kept
all the bad people at bay while the Government took the time to decide what it should do.
The Minister more or less said that it had served that purpose.
If that is so, how could there be any problem? If people played the game knowing
that a big stick could be used on them, why would they now be concemed? If this
amendment is carried the people who will be caught knew that a retrospective clause would
operate from 21 December 1983 and went out of their way to demand key money or put
into a lease arrangement a percentage of goodwill on the assignment of a lease or,
in other cases, did not grant adequate tenure terms. The Minister's argument is nonsense.
Another argument used by the Minister related to the number of amendments to
the Bill in its original form and its being unreasonable for them to apply from the date
on which that Bill was introduced. That, again, is a nonsense argument. The Govemment
is virtually saying that, because these amendments are new, they should not be applied
retrospectively. Because the amendments are positive, there can be no justification for
suggesting that they should not apply from 21 December.
Opposition members feel very strongly about this matter. I have given advice to people
who have had key money demanded from them. I am also aware of people who have
entered into leases with a 40 per cent assignment of goodwill.
As to the argument that it was a clever ploy—the people who played the game will
not be caught. Only those who did rtot do so wiU be caught by a retrospective clause.
Similarly, the argument that there are many amendments is very weak. I am not impressed
by the Minister's argument about the rationale and justificatiort for removing the retrospective
clause. The Government made a commitment on 21 December and that commitment should
be kept. If it is not, the Government will lose face and favour with people. It is absolute
nonsense for the Minister to say that it was a clever political ploy or a clever bluff to force
people to play the game. I urge fair-minded honourable members who can look at the
arguments dispassionately to accept the amendment.
Mr INNES: I oppose the amendment. Retrospectivity is bad in prirtciple. It was bad
whert the legislation was discussed late last year. It was bad in the view of the Opposition
at that time. The Liberal Party is not inconsistent in its approach. Retrospectivity is bad in
principle. Certainly, on occasions, people have attempted to get leases arranged or
entered into before legislation has been passed because they wanted some other arrangement.
At the same time, complaints have been made to me by people who wished to assign
their leases but were unable to do so because the landlords would not take the necessary
action until they knew the way that this legislation would finally be passed.
Retrospectivity would create concern in the mind of a prudent person and his advisers.
In some situations it could be said that attempts were made by one side or the other to
gain some advantage because of a belief that the law may have been changed to a position
of disadvantage. Both tenants and landlords were affected. People are entitled to arrange
their affairs according to the law in place at the time. Knowing the intentions of Parliament,
they are entitled to wait for a short period before the law is changed. Other than in cases
affecting revenue, taxation or exchange matters, from which people could gain massive
windfalls if things were not done very quickly, the rights of people should never be frozen.
Legislation should not introduce any element of retrospectivity. The Liberal Party has
always been consistent on that matter.
One can refer to cases in which there is a disadvantage; one can refer also to an equal
number of cases in which there is an advantage. Everybody was entitled to await the outcome
of the legislation. Nobody was actually forced into signing a lease. We stand on our
record and on the principle.
Sir WILLIAM KNOX: I wish to add to the remarks of the member for Sherwood. I
thought that the Minister's explanation of why in this case retrospectivity was unacceptable
would have been accepted by the Opposition. In fact, retrospectivity in this sort of legislation
actually denies people's rights. The people whose rights would be most denied are the
tenants who could not make their agreements because they were uncertain of what the law
was going to be.
1634
28 February 1984
Even if this legislation is, passed tonight in an amended form, regulations still have to be
promulgated before the Act is proclaimed, and that could take a considerable time. I do not
know how many regulations there wUl be, but clause 61 outlines the headings of the
regulations. A considerable time; could elapse before the Act is proclaimed. In all that time,
aU the transactions that are vitally important to tenants would be frozen.
The Opposition is doing the very opposite of what it seeks to achieve. It is talking about
giving rights to people. It is not; it is taking away rights. The Opposition should think about
this matter again, Transactions are taking place every day. The Opposition wants to suddenly
mtXQduce,^ provision such, as this legislation that is not yet finalised and which cannot be
finalised until the fegulations are proclaimed, "that could take weeks or, from my experience,
months.
There is also hidden retrospectivity in this proposal, because it refers to leases that
already exist. Some of them go back 20 years. That is how far back people are going when
they talk about retrospectivity. I hope that the amendment is rejected.
Mr AHERN: I reinforce the statements made by the honourable members for Nundah
and Sherwood. I have received all the correspondence on this matter. As I said earlier, about
one-third of all the correspondence that we received related to some very real problems that
arose by virtue of retrospectivity. Surely it is not reasonable to make all these changes to
which we are agreeing tonight retrospective to December last year. I do not think that
that can be done.
Sir William Knox: And even back further.
Mr AHERN: Yes. It is just not on in terms of reality. It would be totally unworkable.
Mr FOURAS: It is rather shallow for the Liberals to argue emotionally about the evils
of retrospectivity when it is proposed that the legislation shall operate from the date on which
it was introduced into the Parliament. Many changes, particularly those in Budgets, apply
from the date of the presentation of the Budget. Increased charges are imposed immediately
on people and then legislation is introduced to provide for the increased charges. The
Liberals suggest that our seeking to have these provisions applied from December is acting
against the rights of tenants.
It is also ridiculous to argue that the legislation will take some time to finalise. That
wiU allow people to continue to demand, for example, a percentage pf goodwill on assignment,
because it is in the lease, and not to grant even the paltry five-year term.
The Liberal Party members are asking people to go heUer-skelter and put the gun
at the heads of prospective tenants. I cannot understand the arguments being put forward
by them. They are gettting lost in their own ideology. I am finding their arguments
incomprehensible and I cannot support them. Liberal Party members really should be at
home. They are now just a paUry group sitting on the back benches. It was
unfortunate that last year they were decimated through their own incompetence. It is
time that they woke up to where they stand.
Question—That the words proposed to be omitted from clause 2 (Mr Fouras's
amendment) stand part of the clause—^put; and the Committee divided—
Ayes, 45
Harper
Ahern
Muntz
Harvey
Alison
Newton
Henderson
Austin
Powell
Hinze
Bailey
RandeU
Innes
Bjelke-Petersert
Simpson
Jennings
Booth
Stephan
Katter
Borbidge
Stoneman
Knox
CahiU
Tenni
Lane
Chapmart
Turner
Lee
Cooper
Wharton
Lickiss
Elliott
White
Lingard
FitzGerald
Littleproud
Gibbs, I. J.
Tellers:
McKechnie
Glassort
Menzel
Goleby
McPhie
Miller
Gunn
Neal
28 Febmary 1984
CampbeU
Casey
Comben
D'Arcy
Davis
De Lacy
Eaton
Fouras
Gibbs, R. J.
Goss
Hamill
Qause 2. as read. agreed to.
Clause 3, as read. agreed to.
Clause 4--Interpretation—
Noes, 31
Hooper
Kruger
Mackenroth
McElligott
McLean
Prest
Price
Scott
Shaw
SmUh
Underwood
1635
Vaughan
Veivers
Warburton
Warner, A. M.
Wilson
Wright
Yewdale
Tellers:
Burns
Milliner
Mr HAMILL (8.55 p.m.): I move the following amendment—
"At page 2, after the expression 'section 28' at line 24 and before the word
' "goodwUl"' on line 25. insert the following words—
' "common areas" means all stairways, escalators, elevators, malls, walkways,
trafficways, parking areas, toilets, rest-rooms, gardens, fountains and other areas within
or adjacent to a building and intended for use by the public or for use in common
by the tenants of premises within the building in connection with the conduct of
business in premises within the building;'."
I foreshadowed this amendment at the second-reading stage. The term "common areas" needs
to be defined. Contrary to the Minister's assertion in his second-reading speech, the term
"common areas" stiU exists in the Bill. When the Minister introduced his original Bill in
December last year, he deemed that the term "common areas" was not readily understood
and required definition. The term was defined in that Bill. However, the definition was
restrictive. In the amendment that I have moved, the term is fleshed out to cover areas that
are deemed desirable in the circumstances. It recognises that the original term as defined
in the Bill introduced last December, which referred to walkways, trafficways and so on,
confined itself to pedestrian or vehicular traffic. However, in clause 12 of the original BUl,
the Minister himself recognised the need to flesh out that definition when he referred to
the need to keep toilets and rest-rooms clean. My amendment includes not only toilets and
rest-rooms, which the Minister himself recognised as necessary for inclusion, but also gardens
and fountains. If the Minister and other Government members who tried to howl me down
this afternoon visited shopping centres, they would find many that provide facilities for
shoppers and lessees and their staff to rest.
Unfortunately, such an omission is the result of pushing through such heavily amended
legislation too rapidly this afternoon. I propose the amendment as a constmctive measure
which shows that the Opposition is trying to help the Government to produce a better piece
of legislation. It is a commonsense amendment that will overcome future difficulties. I trust
that it will be acceptable to the Minister and to the Government.
Mr INNES: Mr Row, my comments relate to another matter—^the definitions of "retail
shop lease" and "retail shopping centre" It might be more convenient to the Committee
if the Minister dealt with one matter at a time.
The CHAIRMAN: Order! I wiU deal with one matter at a time.
Mr AHERN: Thank you, Mr Row. In the process of consolidating the legislation, an
oversight was made in removing the definition of "common areas". I thank the honourable
member for bringing the matter to my attention. I accept his amendment.
Amendment (Mr HamiU) agreed to.
Mr BORBIDGE: I propose an amendment to the definition of "retail shop lease" As
the definition stands, it takes out of the protection of the Bill public companies and their
subsidiaries. The reason is that the Government considers that such lessees are well able
and competent to look after themselves. Because of the definition of "company" in the
1636
28 February 1984
Retail Shop Leases BUl
Companies (Queensland) Code, the definition as written refers only to companies incorporated
or deemed to be incorporated in Queensland. I want to extend the scope of that definitiort
to foreign corporations that are not registered in the State of Queensland—in other words,
to extend the definition as it presently stands in the BiU beyond Queensland companies.
I therefore move—
"At page 3, omit aU words comprising lines 11 to 17, and substitute the words—
' "retail shop lease" means a lease that provides for the tenancy of a retail shop
other than a tenancy—
(a) that is of a retail shop with a floor area that exceeds 1 000 square metres;
and
(b) that is held by a corporation within the meaning of the Companies
(Queensland) Code, which would not be eligible to be incorporated in Queensland
as a proprietary company, or that is held by a subsidiary of such a corporatiou;'."
I believe that that amendment would be in accord with the intent of the legislation, and I
urge the Minister to accept that slight clarification.
Mr AHERN: In recommending this clause, the intention of the Government was to
cover pubUc companies. If the interpretation that has been given to this clause is that its
operation would be restricted to only those pubUc companies registered in Queensland,
that is inadequate for the spirit of the legislation. So the amendment proposed by the
honourable member is a good one, and I will accept it, too.
Mr INNES: I rise to a point of order. Perhaps this amendment could be put, Mr
Row, and then I will speak to a later part of the definitions.
Amendment (Mr Borbidge) agreed to.
Mr INNES: In a moment I propose to highlight another mistake, if I may use that
term. At least, I assume that it is a mistake. Already in one clause there have been three
oversights or mistakes.
Mr Wright: All the more reason to put it off for a couple of days.
Mr INNES: Precisely! That is exactly the point I made earlier today and the reason
why the Liberal Party opposed that part of the motion which provided that the legislation
would be dealt with forthwith.
It is aU very well for the Minister to say that there has been a good debate. Certainly
there has been. There is a depth of knowledge of this issue. It is easy to taUe in general
principles, but it is much more difficult to get down to the precise words that make the
law and express the principles. That is precisely the point the Liberal Party made a little
earlier.
Firstly I wish to say a couple of words on the definition of "retail shop lease". I am
not proposing any amendment. I point out that the major tenants are now out. That will
be relevant when I make some comments about operating expenses and particularly about
the words "sharing operatirtg expenses" because, of course, in dealing with shopping centres
we can have no real concept of equitable sharing if the major occupiers of space are not
part of any arrangements which relate to Other people. So if the major tenants are removed
one wonders what the words "sharing operating expenses" might refer to when the situation
of smaller tenants is looked at. Some major tenartts might operate under special circumstances; they might operate their own air-conditioning.
I turn now to the definition of retail shopping centres and suggest to the Minister
that there could be located on a floor a mixed business, a Paint 'n' Paper shop, a
pharmacy and a seafood shop; four businesses from the first schedule. In addition there
could be a number of businesses from the second schedule, such as a hair-dresser, a
dry-cleaner, a real estate agent, a restaurant or cafeteria, a doctor and a radiologist, and they
would not have the protection of the proposed clause 15. If it were the second floor of a
shopping centre, although they were in business, they would not have the protection of
the impHed provisions concerrting compensation. Why? The Bill provides—
" 'retail shopping centre' means a cluster of premises in respect of which—
(a) five or more are used wholly or predominantly for the carrying on of one
or more of the businesses specified in the First Schedule..."
28 Febmary 1984
1637
So although there are five businesses listed in the first schedule which are carried on,
they have to be under the same head lessor. But that does not include a multilevel buUding,
except in relation to each floor of the building on which is situated a cluster of premises in
respect of which provisions (a) and (b) apply, that is, the provision relating to five
businesses listed in the first schedule, all in the one ownership. I know that the Minister
has explained that it is not intended to include high-rise buildings, with which I totally
agree. I support the intention of the legislation, but in seeking to overcome one problem
the Minister has landed himself with another, because that same definition will in fact
exclude the second or third level of what is a pure shopping centre, as we know it in
common terms, on which there are only four businesses from the first schedule, but there
might be a dozen businesses from the second schedule. It seems to me that an oversight
has occurred. Because of the haste with which the legislation was introduced I have not
had time to propose an amendment, but I suggest that the Minister has a problem. I amt
sure that there would have been an intention on the part of the Government and of this
legislature to allow hair-dressers, real estate agents, restaurants and cafeterias on the
second level of a shopping centre to gain the benefit and the protection of these provisions.
Mr FOURAS: I want to add to what the member for Sherwood has said. The definition
of "retail shop" is inadequate and introduces some complications about which I am
concerned. In one instance for a retail shop to be covered by the Bill it must be included
in one of the two schedules. I am not concerned about exclusions. Shops providing services
are in an anomalous position compared with shops providing goods. The BUl provides that
service shops must be situated within a retail shopping centre. That is defined as a cluster
of premises where five or more shops are covered by the first schedule of the Bill. Shops
listed in that category sell goods to the public.
An example is useful to show how easily an anomalous case may arise. Where five
first schedule shops and a doctor's surgery are located in a shopping centre, or a cluster
as defined in the Bill, the five first schedule shops and the doctor's surgery will be covered
by the Bill. However, if there are only four first schedule shops and the surgery, only
the first schedule shops will be covered. Another anomaly would occur if there were four
service shops associated with one goods shop. Only the single first schedule shop would
be covered despite the four other shops being listed in the second schedule.
As I said in my earlier speech I am also concerned about wholesale and other shops
being covered and solicitors being in and barristers being out. The difficulty arises in the
definitions.
I add my concern to that expressed by the member for Sherwood. It may be that this
is a good time to suggest to the Minister that the debate be adjourned and brought on
at a later date. I realise that this is not the appropriate time to do that but, because of
the anomalies we visualise, we should be given more time to study the measure.
I give the Minister credit for allowing me and the member for Sherwood access to a
copy of the Bill yesterday aftemoon, but the time was inadequate to go through the list.
1 fully agree with the honourable member for Sherwood about the problem associated with
that definition. Without any member losing face the Minister could adjourn the debate
so that we could examine these things and debate them at a later date.
Mr INNES: The honourable member for South Brisbane has a valid point. I may
be mistaken, but it seems to me that the Minister may have sought advice. Later on we
will be proposing an amendment on a fairly simple issue but, because of the shortage of
time, we face a problem in that some of the things we think need tidying up have a consequential flow-on and we have not been able to evaluate the effect on each clause. We
do not want bad legislation. It may be said that it can be tidied up in the future but, from
now until it is tidied up it will affect the rights of people. The legislation should be drafted
as well as we can draft it. The member for South Brisbane made a valid point.
It may have been an oversight or a mistake, but it should be rectified. I ask
the Minister to bear both pleas in mind. I am sure I speak on behalf of my colleagues
when I say that we should get it as right as we can the first time. If it means leaving
it until tomorrow morning, that should be done.
Mr WRIGHT: I add my comments to those of the honourable members for South
Brisbane and Sherwood. I add to my statement in the second-reading debate that the
Minister has brought forward many amendments that he thought necessary. As the
1638
28 February 1984
member for Sherwood said, we are now on page 3 of the Bill and already two amendments
have been accepted by the Minister and a problem is now being raised. The course open
to the Opposition is to wait until all the clauses have been agreed to and then move,
"That the BUI be read a third time three days hence." That would achieve nothing because
we would not be able to go back and amend the Bill. We can only try to fight the
legislation tonight. If the Liberal Party is prepared to join with us, or if Opposition
members join with the Liberal Party, the vote could be 38 to 38.
The Minister has shown that he is prepared to pioneer legislation. He said that he
wants it to be good legislation. No-one should lose face. I am sure that Opposition
members would be prepared to support him if he were to adjourn this debate until Thursday.
That would allow my committees to operate, it would aUow the Liberal Party to look at
the Bill more carefully, and it would allow the Minister's advisers to do likewise. I appeal
*to the Minister to consider this approach. He will lose nothing by waiting two more
days, but (Queensland and the general community will gain.
Mr AHERN: I have sat in this Chamber for many years and listened to members on
both sides of the Chamber say that, because a perfectly valid amendment had been proposed
by a member of the Opposition, the Minister rejected it automatically and instinctively.
I did not have to accept the amendment moved by the honourable member for Ipswich.
On the legal advice I had during the dinner recess it was not absolutely necessary for that
definition to be included but, because it was reasonable, I accepted it.
The honourable member for Surfers Paradise made a reasonable suggestion that improved
the legislation, and I accepted it. Now I am being accused of not preparing the legislation
thoroughly and of trying to rush it through the Chamber. A tremendous amount of preparation
was given to this legislation by a great number of people throughout the State. I have been
asked by the Leader of the House to proceed with the debate on the Bill, and that is my
intention.
As regards the definition of a retaU shop—there will always be problems at the margin.
This problem was foreseen when the legislation was drafted and when discussions were held
with the Retail Traders and Shopkeepers Association. What should we do with a situation in
which there are four shops in the first schedule and one shop in the second schedule?
Mr Innes: Or 10 in the second schedule.
Mr AHERN: It then does not come within the ambit of the legislation. That problem
was foreseen, but it was not able to be overcome. We do not know how to overcome it. I am
advised that there will always be problems with definitions such as this. Whatever the
margin, there wUl be a problem. As I said, the problem was foreseen, and this is the
recommendation. We are aware that, from time to time, there will be problems at the margin.
I indicate, as I have done in the past, that if there are suggestions to improve the
legislation, they can be considered at a later date when other amendments will inevitably be
forthcoming. I intend to proceed with the legislation.
Clause 4, as amended, agreed to.
Clause 6—Determination of rent as a fraction of turnover—
Mr CAMPBELL (9.17 p.m.): I do not wish to move an amendment to this clause but,
in the spirit of the whole Bill, I ask the Minister to request the State Government Insurance
Office to remove the "either/or" aspect of the rent determination in the present agreements
for shopping centres. If the turnover is above the basic rent value, tenants are charged a
higher rent. That provision should be removed immediately from the agreements of all
tenants in shopping centres. They are charged so much per square metre of area. If the
increase in turnover is, say, 6 per cent, tenants are charged a higher rent. A business might
not actually be making a profit; U might be in a loss sUuation; yet U could be charged a
higher rent.
I ask the Minister to give an undertaking that he will approach the SGIO and ask
it to remove that provision in the present agreements. There is no reason why the SGIO
should remove the provision, but I believe that it would be desirable for it to do so.
28 Febmary 1984
1639
Mr AHERN: When the leases come up for renegotiation, they wiU be negotiated in the
terms of the legislation that we pass. That will be the time for the two parties to renegotiate
the contracts.
Clauses 7 to 10, as read, agreed to.
Clause 11—Requests for assignment of lease—
Mr FOURAS (9.19 p.m.): I move the following amenamem—
"At page 7, line 25, omit the expression—
'42'
and substitute the expression—
•14'."
As I said in my speech during the second-reading debate, the Cooper committee, in its
report, expressed concern about the length of the delays in landlords replying to requests
by tenants for the assignment of leases and recommended a period of 14 days. The Government
has seen fit to provide 42 days. This is another example of the way in which the Government
has, at every opportunity when it has had a choice, favoured the landlords rather than the
tenants. If I could bargain with the Minister, I would suggest that 21 days might be
acceptable to the Government but 42 days is not acceptable to the Opposition. The clause
gives a landlord six weeks in which to reply to an assignee. I am concerned also that the
Government has not removed from the landlords, at their request, the right to be responsible for assignments, but that it is another matter. A period of 42 days is far too long.
If the Minister would accept an amendment to make the period 21 days, I would support
it. However, the Opposition has moved an amendment to make the period 14 days. That
period was recommended by the expert committee set up by the Government. The Minister
will have to convince me that there were pertinent reasons why the recommendation from
the expert committee was expanded from 14 daiys to 42 days.
Mr INNES: A period of 14 days is too short in practical terms; it makes it oppressive
for the landlords. Let me give a simple illustration. A person retires from service in New
Guinea and is thinking of starting a business in Brisbane. The landlord has an entitlement
or a right to check out who his proposed tenant will be and to make inquiries and ask
questions about his standing or experience. The landlord does not have to accept whoever
the existing tenant wishes to impose upon him. It is a new relationship between landlord
and tenant and the landlord is entitled to some consideration. A period of 14 days might
be all very well if he knows the tenant and knows that the tenant has been a trader in
another centre.
Mr Fouras: What do you suggest?
Mr INNES: A period of 42 days is pretty generous. I would think that 28 days
is reasonable—that is, four to five weeks. Four weeks is a reasonable length of time, but
14 days is just too short. That is making it oppressive on the landlord, and the Liberal
Party cannot support the amendment.
Mr AHERN: I thank both honourable members for their advice. However, another
matter must be taken into consideration. Apart from the right of the landlord to investigate
the assignee, the management board must have an opportunity to meet and that might
happen only once a month. That can be a real problem. A very big decision might have
to be made. When meetings are taking place only once a month, how can it be done? It
is a nice idea to make the period shorter, but it is not practical. Having considered all
aspects, the Government has decided on a 42-day period, which is much more reasonable
than some periods that were brought to its attention. It could be much worse, and in some
cases it has been much worse. In a number of cases, the situation will improve.
Mr FOURAS: Because the member for Sherwood, when speaking on behalf of the
Liberal Party, suggested that 14 days was inadequate and that 28 days is more reasonable,
I seek leave to withdraw the amendment that I have moved.
Amendment (Mr Fouras), by leave, wUhdrawn.
1640
28 Febmary 1984
Mr FOURAS: I therefore move the following amendment—
"At page 7, line 25, omit the expression—
'42'
and substitute the expression—
'28'."
Question—^That the expression proposed to be omUted from clause 11 (Mr Fouras's
amendment) stand part of the clause—put; and the CommUtee dividedAyes, 46
Miller
Ahern
Harper
Muntz
Alison
Harvey
Newton
Austin
Henderson
Powell
Bailey
Hinze
Randell
Bjelke-Petersen
Innes
Simpson
Booth
Jennings
Stephan
Borbidge
Katter
Stoneman
CahiU
Knox
Tenni
Chapman
Lane
Turner
Cooper
Lee
Wharton
Elliott
Lester
WhUe
FitzGerald
Lickiss
Gibbs, I. J.
Lingard
Tellers:
Glasson
Littleproud
McPhie
Goleby
McKechnie
Neal
Gunn
Menzel
CampbeU
Casey
Comben
Davis
D'Arcy
De Lacy
Eaton
Fouras
Gibbs, R. J.
Goss
Hamill
Hooper
Noes, ;
Kmger
Mackenroth
McElligott
McLean
Prest
Price
Scott
Shaw
Smith
Underwood
Vaughan
Veivers
Warburton
Warner, A. M.
Wilson
Wright
Yewdale
Tellers:
Bums
MUliner
Clause 12—Sharing of operating expenses—
Mr FOURAS (9.30 p.m.): Our amendmertt is rather lengthy, but what we are intending
is that the original clause 12 be reinstituted. The Opposition is concerned that the Government, for what I believe to be rather spurious reasons, has decided that it would be
difficult to estimate the amount of charges that could be levied outside the normal rent
payable and that it ought to revert to the former practice of includirtg a number of expenses
relating to operating, repairing and maintaining the buildings of which the retaU shop
forms a part. Such a change is a major sell-out by the Government. I therefore seek the
support of the Parliament for the following amendment—
"Omit all words comprising lines 39 to 46 on page 7 and lines 1 to 12 on page 8
and substitute as clause 12 the following clause—
'12. Sharing of operating expenses. If a retail shop lease provides for payment
by the tenant, in addition to the payment of the rent payable under the lease,
of the expenses of the landlord in operating the building of which the retail shop in
question forms a part—
(a) those expenses may include—
(i) increases in lartd taxes referable to the lartd on which the building stands;
28 Febmary 1984
1641
(ii) increases in rates and charges levied by the Local Authority whose Area
includes the land on which the buUding stands;
(iii) charges excluding the capital cost of providing such utiUties levied for
the consumption and the provision of water, gas and oil for heating, electricity,
sewerage and garbage;
(iv) charges for cleaning common areas (including toilets and rest rooms)
of the building or areas provided for use in association with the building; and
(v) costs of providing an adequate security service for the buUding;
and no other expenses;
(b) anrtual estimates of those expeuses shall be furnished by the landlord to
the tenant at least one month before the commencement of the period to which the
estimate relates; and
(c) annual statements of expenditure incurred on those expenses audited by a
public accountant shall be furnished by the landlord to each tenant within three
months after the termination of the annual period to which the expenditure
is referable.'"
As originally presented, the Bill clearly stated in clause 12 that the only expenses that might
be imposed in addition to the rent charged were increases in land tax, increases in rates,
charges for cleaning common areas and the cost of providing adequate security, and no other
expenses. The Minister suggested that the reason for the change was that it would be
very difficult to implement. In fact, he asked us to suggest how a manager could work
out the levels of payment if he had one set of tenants under the new legislation and
one set under the old. It is an unjustifiable sell-out based on a fallacious rationalisation. It
would not be impossible for people now signing new leases to have levied on them only the
charges expressed in the amendment rather than whatever charges may be imposed on them
under the terms of the lease.
I am aware that many landlords are fair dinkum and do not set out to be unscrupulous
or to rip off their tenants. However, these provisions were never intended for that type of
landlord. They were intended for landlords who do not play the game. I hope that the
Minister considers going back to the original provision, which provided that only specified
costs could be included as additions to the payment of rent.
Mr INNES: The Liberal Party is not happy with what is proposed in the Bill, nor is it
happy with the amendment. Neither provides a satisfactory solution to the problem in hand.
The Minister said earlier that there are complications in relation to the original proposal,
which the Labor Party has taken up. Of course there are difficulties; there are dUficulties
throughout the legislation. Most of them can be accommodated by the simple device of the
market in rental, because what a landlord does not get on the outgoings he wiU get back
on the rental. The market will find that if that rental is placed too high for any new tenancies
in an existing building, there simply will not be tenants. The old rent loaded all the outgoings
into the rental. What is being dealt with now is a new system under which certain portions
of what was traditionally included in rental are excepted and dealt with separately.
I wUl give the Committee a simple illustration of one area that has no complications.
All new shopping centres could have been on the basis of overhead sharing with no
complications. One of the major reservations the Liberal Party has—I point this out to
the Labor Party—îs that it is impossible to talk about sharing if the major tenants have
been excluded. Who does the sharing when the biggest users of common space, power,
air-conditioning and facilities have been taken out? In fact, the word "sharing" is
misleading. It is caUed sharing but this clause in fact does not really mean sharing. It
speaks only about a direct relationship between the landlord and the tenant.
The biggest problems in relation to sharing of expenses occur in shopping centres, that
is, the multiple tenancies in what the layman knows as shopping centres. As honourable
members know, those practices are extending to the small arcades and other areas. However,
the biggest problems are definUely in the big shopping centres. The legislation is an ' ' n p t to
come to grips with a problem that is multifaceted, but it is not about sharing. No suggestion is
made of a formula that would provide an equitable base for sharing. The proposal that the
Labor Party has taken up can be attacked on the items it includes. As I said earlier in the
debate, the Liberal Party believes that addUional items such as insurance could have been
1642
28 February 1984
RetaU Shop Leases-BUl
fairly included. However, once the major tenants, who are the major users of common
facilities, are taken out, it is not really sharing and a proper formula cannot be arrived at,
anyhow.
What the Minister rtow proposes is nothing more than the present law. Outgoings cannot
be charged unless they are in the lease. All the clause states is that they will be in the lease.
The clause is window-dressing. It makes no change to the present law, except in the obligation
to provide a budget and audit of expenses, and at least one of them is customarily in leases.
So the Govemment has gone through an elaborate exercise that has come right back to the
practice of the law at present and has avoided tackling a difficult problem that could have
been overcome for all new shopping centres by providing that all shall participate on an
established basis of operating costs and according to a formula. With regard to existing
premises it can rightly be said that some will be on one basis and some will be on another
basis, but the bottom line is whatever rental is proposed to be charged to the new tenancies.
If it is too high, and too high a proportion of something else, people simply will not sign a
lease.
One of the proposals that we made that might have assisted was to adopt an approach
contained in the Hire-purchase Act. Some members will recall that in that Act there is a
first schedule, a document that has to be in a single sheet, specifying the essential financial
obligations in relation to hire-purchase transactions. The problem of the outgoings is that
they are hidden in what might be 90 pages of lease. They are not understood by people
before they go in, and they are surprised by the size of the bill when they get it. They do
not quite understand the basis on which the apportionment is made between themselves and
other tenants, whose leases they do not know and the details of whose relationship with
the landlord they do not know. They suspect that they are subsidising other tenants and the
major tenants.
If there was an obligation to make an extraction in a single sheet showing the person
what his rental will be and the specific nature of the outgoings, the operating expenses, the
basis on which he is apportioned as opposed to other tenants, and the frequency of
trartsactions, there would be a capacity for a person to go in knowing exactly what he is
facing. If he goes in with his eyes open, as I said before, we do not mind. But the
proposal that the Minister has come up with is not a satisfactory solution to what we
know is a major problem. The proposal by the ALP, having taken out the major tenants,
is meaningless, apart from the argument about the details of whether there are a couple
more items that might be in the list. So we do not find either proposal satisfactory. The
Liberal Party, not approving either proposal, will abstain on both the amendment and the
clause.
Mr AHERN: Firstly, the honourable member for South Brisbane made an extraordinary
statement that he cannot seriously mean. He said that these clauses relate only to landlords
who are not playing the game. They surely must have universal application. It is simply
not on to say that these landlords are not playing the game
Mr Fouras: The concern is expressed only by those who do not play the game.
Mr AHERN: They have to apply in every shopping centre throughout the State.
Therefore, we have to provide a mechanism that is reasonable for the shopping centre
manager to pick up and adhere to in his day-to-day work, along with his other duties.
Therein lies the problem. When we begin to define all the expenses that are legitimate, it
becomes quite a long list and it varies from place to place. What might be defined as
reasonable in one situation is not reasonable in another. There is a very serious practical
problem. If we do it as was originally envisaged, we will have a very difficult problem with
leases issued prior to the legislation that are still current and may go on for many years
and new leases. There are two formulae, one much higher than the other, and so there
would be favoured tenants and tenants who would be shouldering a larger portion of the
burden. That would make for another can of worms and another set of problems that we
will have to confront at some time.
When we were looking at this question, we sought to do something more than mere
window-dressing. It is not, as the honourable member for Sherwood asserts, what prevails
at present. We say that all these things wiU be very clearly known in the lease at the time
it is negotiated, and it shall specify those items of expense that are to be included as
operating expenses, how those operating expenses will be determined and apportioned to
28 Febmary 1984
1643
the tenant and how those operating expenses may be recovered by the landlord from the
tenant. Annual estimates of each of those expenses shall be furnished by the landlord to
the tenant at least one month before the commencement of the period to which the
estimate relates, and annual statements of expenditure incurred on each of those expenses,
audited by a public accountant, shall be furnished by the landlord to each tenant within
three months after the termination of the annual period to which the expenditure is
referable.
At the point of negotiation of the lease, all these things are known, declared and
understood before the contract is made. Surely that is the best way to approach the problem.
It will be monitored in practice. I think that the provision represents the best solution to the
problem. The amendment, therefore, is unacceptable.
Mr FOURAS: On the last point made by the Minister, that is, that the situation will be
different in that all these conditions will be known, I should have been much more convinced
of the Government's intention if it had made available to each tenant a document that was
easily understood, in layman's language. If the Government had moved on one of its
recommendations it would have made it mandatory that, prior to entering into a shopping
complex, tenants would be given such a document indicating in layman's terms their
commitments and costs. The Government faUed to do that. It is trying to justify its inaction
by dangerous extras, and stating that what they will be and how they will be charged will be
included in the lease agreement.
We were told by the member for Sherwood that the lease documents extend over 90 to
100 pages and are rather complex. I am more in favour of the argument advanced by the
member for Sherwood. He believes that because the new BiU has deleted from it premises
in excess of 100 metres that are incorporated—which means that Woolworths and Coles are
no longer included—somehow it will be mandatory for only the small tenants to pay these
amounts, which should be definable and should be justifiable on the basis of increases in
land tax or some other increases that were never contemplated when the rent assessment
was made.
To get back to my point of disagreement with the honourable member for Sherwood—
it is highly possible to have this provision for new tenants, or for small tenants, and, by
agreement, to have a proportion of the cost borne by the large tenants. It does not have to be
provided in legislation that they will pay. Because Woolworths and Coles are not covered by
the legislation, that does not mean that they will not pay the extras that are sought elsewhere.
The amendment moved by the Opposition is nowhere near ideal but it is much preferable
to what is contained in the legislation.
Mr LICKISS: In clause 4, we dispensed with the prime tenant under the shopping
leases. We now have what might be called, in broad terms, the novelty shops and how the
leases wUl be arranged with them. In clause 12, we appear to be deaUng purely with the
landlord/tenant situation, with the one lease between the landlord and the tenant. Clause 12
is headed, "Sharing of operatirtg expenses." To begin with, there is no comparison of the
sharing basis of the prime lease because it is excluded from this legislation. Therefore, the
lessees of the novelty shops are now faced with a lease as between themselves and the landlord.
There, again, no obligation rests on the landlord to show how even the residual expenses,
which wUl be shared by the novelty shop lessees, will be shared.
All sorts of things could creep into those lease instruments. The clause does not say
that the lease instruments will be consistent. It does not say that the apportionment of the
expenses will be equitable; nor is there any way in which the lessee can prove that he
is paying an equitable share of the expenses under the heading "Sharing of operating
expenses". That leaves the clause quite clouded not only in its intent but also in the way
in which it can be interpreted.
I wonder whether any thought has been given to the innovation of hypermarkets and
to how many prime lessees in hypermarkets will be excluded from the legislation. Will
there be novelty shops in hypermarkets? What jjercentage of the total cost of operating
those shops will be incorpjorated in leases that are not covered by this Act? How wiU the
smaller lessees who come under this legislation fare, then, in determining, first of all,
whether collectively they are paying a fair share of the expenses and, individually, how
they fare in relation to other small lessees? This clause is clouded with doubt. It ought to
be withdrawn and re-examined in the light of practicality.
1644
28 February 1984
Mr INNES: The member for South Brisbane addressed some comments in my
direction, and I shaU respond. The clause heading begins with the word "Sharing", which
would lead one to believe that the clause is dealing with a shopping centre and a distribution
as between the tenants within the shopping centre. That, I imagine, is what most people
would think the clause is about. But in fact it is not about sharing between the tenants; it is
about deciding between the landlord and a tenant—not between all the tenants and the
landlord—what the basis of distribution of operating expenses between those two will
be.
The whole thrust of the exercise has been to try to get an equitable basis on which
all users of a shopping centre bear a reasonable proportion of the operating cost, having
regard to the extent of their operation. It is not that all the smalls shall pay for all the
bigs or that all the bigs shall pay for all the smalls. It is a fair sharing. Although the
clause begins by mentioning sharing, it deals only with the relationhsip of one tenant with
a landlord and the basis on which the landlord can take what are called operating expenses
from the tenant. The clause does not say that there is an obligation to tell the tenant
whatever else he is paying.
We know the sorts of evUs that this clause was intended to overcome. People were
charging management fees. Sk>me sharks were including the costs of racehorses and yachts
in the overheads, and those costs were going back to the tenants. It was that sort of evil
and rort which was behind an attempt to define what was a genuine operating cost and to
provide a genuine basis of sharing between all tenants. It is not a matter of loading up
one tenant, who knows only what he pays and does not know what anybody else pays.
That is really what this argument is all about.
Mr AHERN: I must answer the honourable member for Mt Coot-tha. Surely he is
not trying to suggest that the Bill excuses the larger operators in shopping centres from
contributing towards the operating costs of the centres. Surely that is not a reasonable
proposition. What is stated in this legislation is that the bigger operators are perfectly
capable of engaging in direct negotiations or collective bargaining. They are in a very strong
position to negotiate their leases now. They do not need to be under these provisions.
They did not want to be under them.
The clause does not mean that tenants wiU not be required by the landlords to share
in the general operating costs of the shopping centre. The Government's attitude is clear.
The honourable member for Sherwood said that the clause was dravm up initially to
stop racehorses and yachts being included. Under the amended clause, if they are to be
included their inclusion must be in the lease. It might be appropriate that the cost ol
a racehorse be shared. I am sure that my colleague the Minister for Local Government,
Main Roads and Racing would be delighted with such a provision. But an agreement would
have to be reached when the lease was negotiated.
The question of sharing was raised, and I wonder whether there really can be a
formula, because it is a difficult thing to arrive at. Indeed, the original clause 12, which
has now been amended, did not attempt to address the question of sharing. It attempted
only to estabUsh some categories of expenses which would be allowed, and no others. It
was incomplete, anyway. I am unconvinced that the members of the Liberal Party have
any proposition at all, apart from saying that, right at the outset of negotiation, these
things will be known, understood and included in the lease. The basis of apportionment and
the other checks and balances that are provided in the clause will be a better system.
Mr LIC3CISS: I would like to reply to the Minister because I think he has got the
wrong idea and has put the wrong construction on what I said. What it boils down to is
a simple question: When is a retail shopping lease not a lease in terms of this legislation?
All prime leases are not retail property leases under this legislation and, therefore, they
are a lease apart when dealing with shopping centres, because shopping centres are
covered by this legislation.
The Minister suggested that I might be implying that the prime lessees in a shopping
centre would not be paying their fair share of the total expenses for the shopping centre.
I am not saying that at all. What I am saying is that small shop-keepers cannot determine
whether they are paying an equitable share or whether they are being loaded because of an
exemption or some concessions that might be given to the prime lessees. All honourable
members know of the bargaining power of big lessees. That is the point I am making. No
28 February 1984
1645
equity can be proved unless a lessee holding a retail shop lease has access to the general
figures for the whole of the shopping centre. By the very nature of the BiU, the largest
lessee is exempt. The small shop-keeper has no access except by an act of grace on the
part of the landlord.
Mr Ahern: There wasn't under clause 12 before.
Mr LICKISS: It was not there then.
This Assembly is trying to pass legislation which is going to be equitable. For that
reason the legislation must be supported, but we in the Liberal Party do not think it does
anything to iron out one of the major problems faced by shop-keepers in shopping centres.
We do not go along with the efforts made by members of the Opposition. I must
admit that in the time permitted for consideration of this Bill their efforts have been very fair.
Many clauses use the word "may", which also means "may not". Therefore, much is
left in limbo, and more consideration should be given to this clause before it is passed
by the Committee.
Question—^That the words proposed to be omitted from clause 12 (Mr Fouras's
amendmertt) stand part of the clause—put; and the Committee divided—
Ayes, 40
Powell
Ahern
Gunn
Randell
Alison
Harper
Simpson
Austin
Harvey
Stephan
Bailey
Henderson
Stoneman
Bjelke-Petersert
Hinze
Tenni
Jennings
Booth
Turner
Katter
Borbidge
Wharton
Lane
Cahill
Lester
Chapman
Lingard
Cooper
Littleproud
Elliott
Tellers:
FitzGerald
McKechnie
Menzel
Gibbs, I. J.
McPhie
Glasson
Muntz
Neal
Goleby
Newton
Noes, 31
Hartwig
Hooper
Kruger
Mackenroth
McElligott
McLean
Prest
Price
Scott
Shaw
SmUh
Campbell
Casey
Comben
D'Arcy
Davis
De Lacy
Eaton
Fouras
Gibbs, R. J.
Goss
Hamill
Clause 12, as read. agreed to.
Qause 19—^Removal of mediator—
Underwood
Vaughan
Veivers
Warburton
Wilson
Wright
Yewdale
Tellers:
Burns
MilUner
Mr CAMPBELL (10.5 p.m.): I make a general comment to the Minister and to other
members of Cabinet in relation to legislation generally, which should be conveyed by them
to the Parliamentary Counsel. I refer to the possibility of using in our legislation terms
of neuter gender in referring to people. The present trend in English is to use terms of neuter
gender. Terms such as "he" in legislation could be replaced by "person". That would be a
worthwhile exercise because the time may come when a person feels sufficiently strongly
about the principle to move amendments to every clause to remove such expressions and to
replace them with terms of neuter gender.
1646
28 February 1984
Clause 45—Appearances before Tribunal—
Mr INNES (10.6 p.m.): I move the following amendment which has been circulated to
the Chamber—
"At page 18, omit all words from and including 'have' in line 23 to and includirtg
•public' in line 36, and substitute the words—
'be entitled to appear by an agent or legally quaUfied representative—
(3) No order for costs shall be made in respect of any reference to a Tribunal.
(4) The hearing of a reference to a Tribunal shall be open to the public'"
I have already outlined our attitude on this amendment. We support the principles contained
in the provisions relating to the mediator and, for that reason, we proposed no amendments
to those clauses. We wholeheartedly support that concept. It is, one hopes, the friendly
third party to whom both parties to a dispute can go to facilitate an amicable, non-legal
settling of a dispute. However, that is very different from people standing on their legal
rights under the contract and the law as modified by this Bill. It has gone beyond the
complaint that the manager is being unreasonable and the complaints about the day-to-day
adminstration of the centre—"He is wandering in here and telling me to rearrange my
things or repaint my walls." The tribunal is getting down to the bottom line—to the nittygrUty.
All matters under a lease covered by this legislation—that certainly covers all small
businesses and some of them will be fairly big—will be capable of being adjudicated by the
tribunal in a final way. For a very good reason, a judge is chairman of the tribunal.
In many instances, the tribunal will be presented with arguments relying on the law and
legal interpretations of the lease. As we said before, there might well be tens of thousands,
hundreds of thousands or even millions of dollars at stake.
I would be very surprised if any tribunal presided over by a judge would appreciate,
approve or endorse in any wholehearted way a procedure that did not provide the assistance
of professional people. That is of benefit to judges because they do not presume to know
everything; they presume to be able to make a good judgment provided they have before
them arguments fairly and honestly presented, including reference to legal precedents. The
tribunal will have to deal with the interpretation of leases and will have to give a final
judgment which, in many cases, will involve enormous amounts of money. For such a forum
not to give people the right of being represented by whomever they want to represent
them is absolutely wrong.
If a person feels that he can do it himself, that is fine. Another person might wish
to be represented by his trade association, such as the Retail Traders & Shopkeepers
Association of Queensland or BOMA. Landlords are entitled to their rights in front of the
tribunal as well. A small trader might be an untrained person who is very good at
selling, is very good at presenting his wares and is hard-working but he might be inarticulate
and unable to express himself under pressure. It might be that he is a new Australian
who is a perfectly successful retailer but cannot express himself clearly and certainly
cannot argue the finer points of a lease. Because the litigants before the tribunal will be
relying on their rights under the lease, or under this Act as it affects leases, they will be
talking about the finer points of leases.
To exclude lawyers from legal matters simply displays an obsession on the part of the
Government. It is ridiculous! The Government does not exclude farmers from farming
tribunals so I suggest that it should not exclude lawyers from tribunals that administer laws.
Nobody is saying that people have to have lawyers, but if somebody wants one he should be
allowed to engage one. If the Government is worried about costs, it should follow the example
of local government appeals in the city of Brisbane. That takes away the fear that a Utigant
might have to pay somebody else's high-powered QC's costs. In that court no order is made
as to costs. The rate-payer does not have to pay the fees of the counsel engaged by the
rich and powerful Brisbane City Council.
I strongly suggest that the Minister is flying in the face of tradition and principle and
he is flying in the face of the right of the little person to equal the score and equal the
odds against a bigger person by hiring somebody who can put forward an argument in a
RetaU Shop Leases BUl
28 Febmary 1984
1647
better, trained way and more powerfuUy than himself. The Liberal Party says there
should be a right of representation, not necessarily by lawyers but by any agent. If the
Government has a fear about costs, there should be no order as to costs.
Lastly, the tribunal should be open. The reason for having a public gallery in this
Chamber is that laws are not made in secret. The reason members of the pubUc are allowed
to go to the courts is that laws are not judged in secret. AU honourable members have heard
complaints about the Small Qauns Tribunal, which deals with matters involving only a few
hundred dollars. When the Family Law Act was introduced, members of the Labor Party
and some others claimed that matrimonial matters were private and therefore should be
dealt with behind closed doors. That has proved to be unsuccessful and a Labor Government
has proposed to reopen the doors to give the public the right of entry. Most people do
not stickybeak; they wiU not go down there, but the right is there for the press and the
public to see how the law is administered. The law wiU be administered in this tribunal
and it wiU involve very important property rights. If the Government wants to keep
everything open and above board, it should keep the doors of courts and tribunals open.
That is all the Liberal Party proposes in this simple amendment.
Mr FOURAS: The OpposUion will support the amendment.
In some ways we are reluctant to do so, because I believe that there have been many
occasions on which members of the Liberal Party have agreed with amendments moved by
the Opposition but have been unwUUng, for somewhat perverse reasons, to support them.
I cannot see why the right of a tenant to have an agent or a legally qualified person
appear for him before the tribunal should be left to the decision of the tribunal. If the
tenant feels that because he is dealing wUh very technical matters such as leases, he can
afford to pay the cost of having an expert to represent him, it is important that he have the
right to do so.
The other parts of the amendment relating to no costs being granted and hearings
being open to the public are also supported by the Opposition. To be consistent, we
reluctantly support the Liberals on this occasion.
Mr AHERN: I do not accept the amertdment. The reason is simply that the representatives of small business say to us quite clearly and definitely, "No" If these remedies
are to become so expensive——
Mr Fouras: That is not why they say, "No".
Mr AHERN: They say that to do what the honourable member for Sherwood wants will
make the remedy so expensive that it will militate against the small-businessman appearing.
An Honourable Member: Rubbish!
Mr AHERN: The honourable member can say what he likes, but the plain facts
that it is very expensive to hire senior and junior counsel, who have to be briefed
appear. I know that in certain tribunals in this State before which senior counsel
allowed to appear, tens of thousands of dollars are spent in legal fees. For instance, in
Milk Appeals Tribunal
are
to
are
the
An Honourable Member interjected.
Mr AHERN: That was under my administration until recently. I know of one occasion
when $50,000 was spent on a dispute between two factories. If that is the sort of thing
that is to be pitched against small-businessmen in relation to their remedies, the remedies
will not be there. Because of the expense, they wUl not be able to be used. I know that the
honourable mem'ber argues on behalf of the citizen. I am worried that he just might be
arguing on behalf of his own profession.
The plain facts are that the small-businessmen have told us that they want the costs to
be contained and have made very strong recommendations to us to pitch the Bill the way
it is. Indeed, they have already told us that we have taken it further than they would
have liked. They would have liked no lawyers on the scene at all.
1648
28 February 1984
Since the honourable member for Sherwood pointed out to me earlier that I made a
mistake, which I deny, I point out that he has made a mistake in his amendment in respect
of—
"No order for costs shall be made in respect of any reference to a Tribunal."
That is already covered in clause 46.
Mr INNES: The reality is that what is proposed in this legislation wiU take away the
right of the smaU person to have a voice equal to that of a bigger person, or to have a voice
that he does not now have. The number of cases that fail because a person cannot present
his case or does not have the training, ability or self-confidence to put his own case, are
legion. This amendmertt does not oblige a person to have a lawyer. It talks about his
agent. If he wants to hire Mr Curtis or Mr Black because he does not belong to an
association, that is covered. If he wants to hire somebody who is professionally trained, that
is covered. But what will happen? First of aU, we in this Assembly should preside over the
interests of everybody, and the centuries have told us that certain things should be done
in certain ways.
The Minister might have heard of one case in which the vanity of two miUc
organisations meant that the relevant legislation was taken through to the nth degree and
then on appeal. At least, in the end result, a legal decision is made on a legal matter,
and apparently the two organisations can afford it. If a person does not have the mortey,
he does not hire Queen's counsel. The expense of hiring Queen's counsel is crazy. People
of far more junior rank and junior fees can handle these matters. A person cuts his
coat according to his cloth. If a person does not have to pay the other side, he does not face
the terror of the other side outgunning him and having to pay their fees.
However, the major landlords will have staff with considerable intelligence, trained in
commerce or business, with more than a smattering of commercial law. They wiU have
enough capabUity to cope with the legal complexities of cases. These men will appear regularly
before the tribunals. They wUl acquire skUls in presentation that no little man wiU have, and
he wiU not have the right—and it has to be a right—^to bring in someone else to equalise
the score-book for him.
This is ill conceived pandering to a few people who have not understood the situation
and who have not tmly thought out the potential importance of what is involved or the
potential limitations of some of the people involved. I have spoken to some small-businessmen
who have told me that they want the right to get the best, depending on the amount of
money in dispute. If a large sum of money is involved, they want to present their case as
well as possible and hire professional assistance if necessary. I suggest that the honourable
member may have been talking to people with a particular interest in coralUng the market
themselves by excluding lawyers and letting other people in. That is creating a brand new
profession, which happens in the industrial jurisdiction.
Mr AHERN: The Queensland Retail Traders and Shopkeepers Association was very
firm in its objection to the proposal.
Question—^That the words proposed to be omitted from clause 45 (Mr Innes's
amendment) stand part of the clause—put; and the Committee divided—
Ahern
Alison
Austin
Bailey
Bjelke-Petersert
Booth
Borbidge
Chapman
Cboper
Elliott
FitzGerald
Gibbs, I. J.
Glasson
Goleby
Ayes, 39
Gunn
Harper
Harvey
Henderson
Hirtze
Jennings
Katter
Lane
Lester
Lingard
LUtleproud
McKechnie
Menzel
Muutz
Newton
Powell
Randell
Simpson
Stephan
Stoneman
Tenni
Turner
Wharton
Tellers:
McPhie
Neal
Twelfth Night Theatre and Commonwealth Games Acts, &c.. Bill 28 February 1984
Campbell
Casey
Comben
D'Arcy
Davis
De Lacy
Eat<Hi
Noes, 36
Innes
Knox
Kmgeir
Lee
Lickiss
Mackenroth
McEUigott
McLean
Miller
Prest
Price
Scott
Shaw
Fouras
Gibbs, R. J.
Goss
HamUl
Hartwig
Hooper
Clauses 46 to 61, and schedules, as read, agreed to.
Bill reported, with amendmertts.
1649
Underwood
Vaughan
Veivers
Warburton
White
Wilson
Wright
Yewdale
Tellers:
Burns
MiUiner
Third Readmg
Bill, on motion of Mr Ahern, read a third time.
TWELFTH NIGHT THEATRE AND COMMONWEALTH GAMES ACTS REPEAL
BILL
Hon. P. R. McKECHNIE (Carnarvon—Minister for Tourism, National Parks, Sport
and The Arts), by leave, without notice: I move—
"That leave be given to bring in a Bill to repeal the TweUth Night Theatre
BuUding Trust Act 1977 and the Commonwealth Games (Modification of Laws) Act
1982 and for other purposes."
Motion agreed to.
First Reading
Bill presented and, on motion of Mr McKechnie, read a first time.
Second Reading
Hon. P. R. McKECHNIE (Carnarvon—Minister for Tourism, National Parks, Sport
and The Arts) (10.31 p.m.): I move—
"That the Bill be now read a second time."
Even after the passage of some 17 months, honourable members no doubt will recall
with pleasure and satisfaction the staging of the XII Commonwealth Games in Brisbane.
The most importartt sporting events in Australia since the 1956 Olympics, the Brisbane
Commonwealth Games Uved up to their motto of being the friendly Games and, as weU,
gained praise for first-class organisation and smooth efficiertcy.
Now that the tumult and excitement of the actual events have faded, it can be
appreciated in retrospect just what a marvellous task was performed by the Commonwealth
Games Foundation as the main organising body of the event. The fourtdation deserves the
credit accorded to it artd it should uot be forgottert that, as well as performing its
organising role superbly, it made a healthy profit.
Supporting the foundation were the three tiers of government—Commonwealth, State
and local—^without whose assistance in financial and physical resources the Games simply
could not have been staged. The Brisbane Games were a salutary example of what can be
achieved in the field of intergoverrtmental co-operation.
A less obvious part of the State Govemment's contribution was the passing of two
Acts, namely the Commonwealth Games (Modification of Laws) Acts 1982 Nos. 19 and 35.
These Acts provided for the waiving of certain State laws for liquor-Ucensing, town-
1650
28 February 1984
Adjournment
planning requirements, use of State faciUties and health matters. It was specificaUy provided
that a sunset effect would be achieved in respect of Parts II, III, IV and TVA of the Act
by having specific commencement and termination dates for these parts.
However, Part V, which contained measures to prevent indiscriminate use of the
title "XII Commonwealth Games Brisbane 1982" or any derivatives, was allowed to remain
in operation for a longer period in case prosecutions arose either during or after the
Commonwealth Games. Happily, no prosecutions were launched under the legislation, and
it is now considered that the time is ripe to repeal the Commonwealth Games (Modification
of Laws) Act 1982 and the Commonwealth Games (Modification of Laws) Act Amendment
Act 1982 in their entirety.
The Bill also seeks to repeal the Twelfth Night Theatre Building Tmst Act 1977, a
statute which has been overtaken by events and which now serves no practical purpose.
Honourable members who were in this House in 1977 wUl no doubt recaU that in that
year this Act was passed as part of a rescue bid to save the Twelfth Night Theatre Company,
which was then in very serious financial difficulty. Briefly it involved purchasing the
Twelfth Night Theatre building from the company and setting up a Government-appointed
trust to act as landlord and hiring agent for the buUding. From the outset this arrangement
was beset with difficulties, the principal one being the poor physical condition of the
theatre building, which subsequently required continual repair and modification to meet
the nunimum standards required of a theatre. Events proved that the tmst could not raise
sufficient revenue by way of rent and other charges to repair or refurbish the building to
those standards and, in fact, the Goverhment was, on occasions, forced to carry out repairs
in order to keep the building viable.
This sUuation was finally resolved early in 1983 by the sale of the Twelfth Night
Theatre buildmg to private interests. Subsequently the trust took action to wind up
its affairs with the result that when the term of office of its members expired on 13 July
1983 it had closed its bank accounts and taken all necessary action to terminate its
activities.
Virtually all that remained were two book debts, which the purchasers of the theatre
naturally did not wish to take over. At present, the amounts owing under these debts are—
Journalists Club
$900
Valley Creative Arts Association
$2,242
The advice of the Solicitor-General was sought in respect of these matters as to the
best means of retaining an ongoing entity which could take over the debts owed to the
trust. The advice received was that this could best be done by vesting in the Crown in
right of the State all property (including book debts), rights and UabUities to which
the trust was entitled or subject.
In relation to the debts mentioned, the JournaUsts Club is making progressive payments
and is expected to repay the arrears this calendar year. Insofar as the other debt is concerned,
the trust obtained legal advice from its soUcitors and took certain action to recover these
moneys prior to winding up its affairs.
I am informed that, before it went out of existence, the trust received a defence
against the claim. Should the House pass the Bill, I would be seeking advice from the
Solicitor-General in the matter of the Crown's interests in this regard.
The Bill also provides that the trust shall cease ito exist, and such a step is a necessary
legal formality even though there are at present no members appointed to the trust.
I commend the Bill to the House.
Debate, on motion of Mr Underwood, adjoumed.
ADJOURNMENT
Hon. C. A. WHARTON (Burnett—Leader of the House): I move—
"That the House do now adjourn."
Gladstone-Brisbane Air Services
Mr PREST (Port Curtis) (10.37 p.m.): I am concerned that, with the renewal of
certain licences in the very near future, a company operating air travel on the Gladstone
to Brisbane route could have a monopoly. It was reported in the press that Ansett Airlines
Adjournment
28 February 1984
1651
organised a deal with the State Government to secure subsidised western services throughout
Queenslartd in return for total control of Brisbane to Gladstone flights. It was claimed
that Ansett had proposed a plan to the Government and would sponsor the service through
Air Queensland. It was argued that the decision to be made by the Government in the
following weeks on the airUne that would operate western Queensland services could
determine whether a monopoly service applied to coastal flights to Gladstone.
If there was a monopoly of
people of Gladstone could be faced
told that the deal with the State
in return for total control of the
the air service between Brisbane and Gladstone, the
with increased air fares and fewer flights. I have been
Government was to secure subsidised western services
Brisbane to Gladstone flights.
There are strong political overtones to this matter. Five companies have appUed for
the western routes. Over the years. Air Queensland has looked after the outback areas.
In return, it wants the Brisbane to Gladstone route to itself. If anyone is to be pushed out
of the Brisbane to Gladstone route, it will not be Air Queensland, because it has a foot in the
door of the Queensland Govemment.
One of the main reasons passenger numbers on the Brisbane to Gladstone route have
decreased to such a low level is that the fares charged during the past seven years
have dramatically increased. Air fares have increased at a rate far greater than inflation
over the past seven years, soaring from $37 in 1976 to $110 last year.
A recent article in "The Courier-Mail" quoted Air Queensland manager, Brian Williams,
as saying that there was an urgent need to sort out the State's air routes within six months.
Mr WiUiams said that the Brisbane to Gladstone route could not support both his airline
and Sunstate because of the fall in passenger levels. I have been told by Brian WUliams that
in the past two years there has been a decrease in passenger levels of approximately 23
per cent. If Air Queensland won the westem services and gained a monopoly over the
Brisbane to Gladstone route, passengers on the coastal service would suffer.
The service would have to subsidise the unprofitable western routes, resulting in higher
fares for coastal passengers. Without competition from another airline, the airline that
gained sole control of the route would have no pressure to provide a high standard of service.
If air fares continue to rise, airlines could eventually price themselves out of the market.
It is now cheaper for Gladstone people to drive to Rockhampton and take a 40-minute
jet flight to Brisbane than to travel by air for two hours from Gladstone to Brisbane.
The
company
that Air
including
said—
managing director of Sunstate AirUnes, Bevan Whitaker, has claimed that his
does not need a monopoly over the coastal route and accepts competition. He said
Queensland had withdrawn from a number of ports at which it had a monopoly,
Kingaroy, Gayndah, Monto, St George, Dalby, Clermont, Dysart and others. He
"If Air Queensland needs a monopoly, we do not. We will not be forced out
because of their problems.
Air Queensland has not shown regard for passengers previously with the
reduction of F27 services to Bundaberg and a withdrawal from Maryborough. A sole
operator is no guarantee of service and could well result in the down-grading of
frequency and increasing of fares."
Mr Whitaker went further, saying that Sunstate would get by on its own merits and was
an independent, viable operation even in the current economic climate.
I am concerned that an adequate service be maintained at reasonable cost. However, it is
obvious that one airline is more concerned with maintaining its profits. I agree with its
concern up to a point. As representatives of the people, we must ensure that the service is
maintained. I firmly believe that there are more ways of maintaining profits than gaining
monopolies, increasing fares, reducing services or pruning in-flight services.
Let us look at the matter at managerial level. It is unreal that two airlines leave and
arrive at the same time. The flights ought to be rescheduled. It is not just the cut-back in
services and the increase in fares that I am concerned about. The Gladstone-Calliope
Aerodrome Board must also be concerned about the problems confronting the industry.
After all, if the number of people using aircraft is reduced, the receipts of that board will
be reduced, and it will only be a matter of time before it finds Uself in dire financial straits.
1652
28 February 1984
Adjournment
Horticultural Industry
Mr STEPHAN (Gympie) (10.42 p.m.): Many people in the community take much for
granted, particularly at holiday times. In the southern hemisphere the Christmas-New Year
period is synonomous with summer holidays—^with sun, sand and surf. However, some
sections of the communUy are not able to take advantage of such pleasures. I refer
particularly to those involved in farming. They are at a disadvantage. We would do well to
take note that they lose much when compared with the rest of the community. Crops have
to be mown, baUed and safely shedded. Grain must be harvested and summer crops tended.
Away from the grain and fodder industries and closer to the coastal environment, we
have the horticultural industry. Because of the extensive periods of rain in the coastal areas
this summer, the quality and the quantity of crops harvested have been detrimentally
affected. In fact, even if labour had been available, it would have been difficult to get that
labour onto the land.
The vagaries of the weather are such that they can tremendously affect the quality
of a horticultural crop and, as well, make working conditions very difficult, particularly
when the weather is wet or hot. Of course, much has been achieved in the development
of varieties that can, to a certain extent, stand up to extreme conditions and the rigours
of transport after harvesting.
When one understartds the labour-intensive nature of the industry and the expertise
of that labour, one realises the important role the horticultural industry plays in the
community. Of course, during hoUday periods much of that labour is not available for
work and the labour that is avaUable must be paid penalty rates. That additional cost must
be added to the final product when it hits the market.
Far too often people take for granted that they have fresh fmit and vegetables
available at this time of the year. Because of the avaUabUity of refrigerated transport
much of the product comes from farther afield than it did beforehand. People must also
realise that the coastal stretch of Queensland relies to a large extent on the production of
fresh fruit and vegetables, and they should not forget or underestimate the role played
by horticultural producers to provide a product of a good quality and standard, which
helps to maintairt the life-style of the community.
The producers have played their role with great expertise and skUl, but they face
very difficult problems. I suppose it is heartening to realise that people are still prepared
to put their money where their mouth is and endeavour to make a living—sometimes
successfully and at other times with great difficulty—on rather small areas of land. They are
doing that without a great drain on the community and are not relying on social service
hand-outs. They are playing their part in the commurtity irt a way that gives them a great deal
of pleasure. I commeud them for their efforts artd for the expertise that they have developed
over a long period of time.
(Time expired.)
Misuse of Police Manpower
Mr D'ARCY (Woodridge) (10.47 p.m.): Recently an article appeared in "The
Courier-MaU" about a lady who had been charged with steaUng her own dog. That
might not appear much to members of this House, but in real terms it is very important
to the people of Queensland because it shows up the incompetence of the Government and
in particular the incompetertce of the Minister for Lands, Forestry and Police (Mr Glasson).
On three occasions I approached him about this case.
This mature lady took back her own dog from the pound and was arrested by the police
at her front door some time later. She ended up in the watch-house at Woodridge and later in
the watch-house at Brisbane for the night.. She was charged with a criminal offence. AU those
things are tremendously important.
Quite often the media state that irt Woodridge the criminals are wirtning and that
Woodridge has had a 47 per cent increase in crime. However, here were the police doing
the job of the council. Under normal circumstances a summons would have been issued
and proceeded with if it was thought that a criminal charge could be laid. On the three
occasions I approached the Minister for Police I told him that the case would be thrown
out of court because of the circumstances. However, he was prepared to allow the police
in the area to waste almost 100 man-hours. Two policemen arrested this woman and were
Adjournment
28 February 1984
1653
required to appear in court on three occasions. The wastage of manpower occurred at a
time when Woodridge had serious problems. Only last night an armed robbery was committed at a service station in the area. This is a case of bunglmg bureaucrats and incompetent Govemment by both the Logan Shire Coimcil, which administered the pound, and
the Minister for Police, One of the officers involved is a Mr Green who, according to
Alderman Brinkman, spends more time running after his trotters than doing his job.
An Opposition Member interjected.
Mr D'ARCY: I would not say that; he probably operates on a lesser scale than the
Minister for Local Government. Main Roads and Racing.
That bureaucrat and the council pushed the case. The poUce inspector at Beenleigh
might be a reasonably competent poUceman. but he is a desk jockey who has never been
out among the people. When I approached him about the problem he said, "What if
it was a speeding fine?" If it had been a speeding fine or a shop-lifting charge I would not
have made an approach. But surely the woman would not steal her dog back from the
pound regularly under very suspicious circumstances. The circumstances were such that the
pound probably should not have had the dog and should have told the lady the dog was there.
I will not go into the circumstances any further. My concern is that, although
there is a tremendous crime rate in the Woodridge area and an extreme lack of police,
an inspector Uke Tom Wightman is prepared to go all out on a case that he knew he could not
win in court. He spent a hundred hours of police time promoting this quarrel against
the wife of a union secretary. One wonders whether it was victimisation.
The council adopted exactly the same approach. I approached the mayor of the Logan
City Council, Alderman ShaUer, and the inspector at the same time. I asked them whose
responsibility it was to press the charge and, in the end, the inspector said that it was his.
But he had the backing of the council. When I spoke to the Minister he said that the
council was proceeding with the charge.
As I said, I will not go into great detaU, but the House should know that the police
could not win the case and yet they proceeded. They spent a tremendous number of manhours preparing the case although I am crying out for more poUce for the Woodridge
area. It boils down to complete incompetence on the part of the Minister and the council
and a waste of time by the police. The council should have been sacked by the Minister
for Local Government when he had the opportunity. The council does not carry out
its responsibility to the rate-payers. It raises rates and yet treats the people like dirt.
I think it is a gross miscarriage of justice that a woman should be charged with theft
under the circumstances I have described. I thought it sufficiently important to bring to
the Minister's attention, but he failed to take any action. The result was that the poUce
in the Woodridge area raced round in an inefficient manner working on a minor charge
such as this although far more serious crimes in the area go unattended.
Surf Life Saving Association
Mr JENNINGS (Southport) (10.52 p.m.): I rise to talk about the participants in a
great Australian sport who perform a magnificent service to the Australian pubUc. I
refer of course to the members of the Surf Life Saving Association. Australia has a
wonderful, sunny climate all along its exciting coastline, and nowhere else in the world
can beaches be found like our magnificent surf beaches. Of course, in the colder cUmates
in the south, wet-suits have to be worn in the surf in winter.
The Surf Life Saving Association has now been operating for 75 years and over
that period has performed more than 300 000 rescues. There are 236 clubs around AustraUa,
aU manned by volunteers. Australians are very lucky to have such a world-renowned
organisation manned by volunteers who give up their week-ends and hoUdays and work
so hard to achieve the fantastic results they do for the people of AustraUa. They work
very hard on patrol although they do compete in many surf carnivals. They regard it as a
duty to keep our beaches safe and they deserve great credit.
Today the movement is backed by 10 surf rescue services using helicopters, more than
200 inflatable inshore rescue craft and 22 high-powered craft.
62181—58
1654
28 February 1984
Adjournment
The Surf Life Saving Association is unique to AustraUa. It is the world's best organisation
of its type. I should add that last year Southport was the world champion club and, as
honourable members know, most champions come from Southport.
Mr Borbidge: Are you connected with the club?
Mr JENNINGS: In a broad sense.
The surf life saving movement has had an incredible 75-year history. It is wonderful that,
about three and a half years ago, someone set out to put the history of the surf life saving
movement in black and white. Every compliment should be paid to Barry Galton who wrote
a book entitled, "Gladiators of the Surf", which was published recently. I strongly commend
the book to all honourable members.
It deals with the 75-year history of surf life saving in Australia. It mentions over 5 000
men who have played a part in the surf life saving movement. It is certainly a great national
history book for Australia, written to commemorate 75 years of surf life saving in Australia.
This year, on 30 and 31 March and 1 April, to commemorate the 75-year history, the
Australian Surf Life Saving Championships wUl be held at Kurrawa on the Gold Coast.
Over 5 000 competitors will take part. It will be one of the biggest sporting events held on
the Gold Coast, and one of the biggest events held in Queensland since the Commonwealth
Games. All connected with the championships have done a wonderful organising job.
Queensland has been a pioneer in staging the Australian championships, particularly at
Southport and Greenmount in 1947, at Burleigh Heads in 1973 and Maroochydore in 1980.
It was acknowledged by all in the surf life saving movement that the latter championships
were the best ever. The chief organiser at the tUne was Stan Wilcox, the Director of Sport.
All honourable members know how helpful he has been to members of Parliament.
Queenslanders have won several hundred Australian titles. Gold Coast competitors alone
have won over 185 gold medals. This year, Queensland has its best chance of winning the
titles. New South Wales has won them for the last eight years. We are certainly looking
forward to big things at the end of March.
The State Government supports the surf life saving movement to a greater extent than
any other State Government in AustraUa. This year it has contributed $1.3m by way of
subsidy. As the member for Surfers Paradise knows, the surf life saving movement does a
wonderful job. Not one loss of life has occurred on the Gold Coast in the flagged areas.
That is a marvellous record.
Australia is the world leader in surf life saving. I commend all the wonderful, hardworking volunteers who organise and take part in the national championships, particularly
those who will participate this year at Kurrawa. The championships wUl be a major spectacle.
I commend them to everyone. Australia has a proud, honoured record over 75 years in surf
life saving.
Once again, I commend Barry Galton for writing his magnificent history book,
"Gladiators of the Surf"
Mackay Prestressed Concrete Sleeper Plant
Mr CASEY (Mackay) (10.57 p.m.): Fifteen months ago, on 26 November 1982, the
Premier of Queensland and Leader of the National Party Government launched a brand-new
industry for Queensland in Mackay. The industry was concerned with the manufacture
of prestressed, reinforced concrete sleepers for the Queensland Railway Department's
3 ft 6i in guage. The sleepers were of a radical, exceUent design. Prior to the Mackay
venture, they had been manufactured only in Westem Australia, for the iron ore lines, and
in Victoria. A small number were manufactured, using a different technique, in north
Queensland for the tram-lines.
At the official opening, the Premier delivered his usual diatribe on how great his
Government was in bringing new techniques and technology to Queensland. He spoke of
the wonderful job the Government had done in encouraging business aud people to come
to Queertsland from New South Wales, Victoria, South Australia and elsewhere to boost the
State and its economy. He spoke at length at the function and mentioned all the railway
lines that had to be built in Queensland for the coal mines. He spoke of the electrification
of Queensland railways in the future. He referred to the coastal line having first priority and
the coal lines in Queensland being developed at the same time. He said that years and years
of work lay irt frortt of the comparty.
Adjournment
28 February 1984
1655
That company, Humes, is a great Australian company. It has done a tremendous job
in manufacturing a quaUty product. It developed a highly skilled and efficient work-force
and a high rate of productivity. At the same time, it really looked after its employees, and
it has had excellent industrial relations.
Within one month of the opening of the plant, this very same State Govemment
turned roimd and gave a contract to another company, Austrack, again for the manufacture
of reinforced, prestressed concrete sleepers. Even though the sleepers had to meet a certain
specification, they had to be slightly different because Humes had a patented design.
The other company, Austrack, began operations. It was a joint venture. The main
participants were a Swedish company, Abetong, and Roberts Constmctions, which has
its main office on the Gold Coast but which, in fact, is a South African based company.
That company provided poor working conditions for its employees. It had troubles from
day one. There was a huge stockpile of rejects in its yard, artd its machinery was
constantly breaking dowrt. But, because it was an overseas company, it received special
consideration from the Railway Department.
In fact, Humes, which is a great Australian company, had to come to the rescue
and provide 32 000 sleepers under the Austrack contract so that the Blair Athol railway
line could be completed in time to allow coal trains to travel from Blair Athol to Dahymple
Bay and to allow grain trains to travel to the port of Mackay. Humes helped Austrack out
by providing better quality sleepers. But the contract has been completed, and Humes is due
to close next Friday.
Over a fortnight ago I drew to the attention of the Minister for Transport the need
for Humes to continue its operations so that 50 men could continue to be employed, but
no action has been taken by him. Today in this Parliament, instead of answering my
question on this matter, he tried to excuse his trips to Europe and Asia. He talked on and
on about new locomotives. No matter where rolling-stock is manufactured, it must run
on railway lines, and those railway lines must be constmcted on sleepers.
The Minister finally admitted that the boom in laying railway lines is over in Queensland.
He said that Queensland Railways cannot order any more sleepers from Humes, and that
it can do no more. The Government did not tell Humes last year that that would happen;
nor did the Premier when he opened the plant. What an admission after 15 months of
operation!
The Queensland Government cannot blame the Federal Government in this instance.
It cannot try to twist it against the Labor Party, as it so often tries to do. It cannot
criticise the unions for what has happened. The blame lies solely at the feet of the
Queensland Government and its policy of giving preference to overseas companies. Because
of a lack of decency, foresight and efficiency by the Queensland Government and the
Railway Department, 50 good Australians will hit the dole queue in Mackay next week-end.
Lockyer Valley Water Supply
Mr FITZGERALD (Lockyer) (11.2 p.m.): I wish to raise a matter that I have raised
on a number of occasions, and I shall continue to raise it untU the Lockyer Valley receives
its fair share of the money aUocated for water resources.
I speak with a reasonable amount of authority on this matter because ever since I
was a young lad I have taken an interest in the recharge weirs and the Lockyer aquifer.
I have seen the effects that these weirs have on the aquifer. Last year I was pleased to
hear the announcement that weirs would be constructed in the Lockyer VaUey. The first
of those weirs has been constructed. On 23 February last the Minister for Water Resurces
and Maritime Services inspected the progress of the work on the TenthUl weir, which is
beside the TenthUl Hotel. That work is almost complete.
Many people think that weir is very smaU and very insignificant. In fact, it consists of
three rows of sheet piling driven into the bed of TenthiU Creek. There is a layer of concrete
between each two layers of sheet pUing so that the water that flows over the highest layer
of sheet piling is graduaUy dissipated. There are some rocks, and some matting is woven
on the side of the banks of the stream. As I say. it looks very insignificant and not very
spectacular.
I understand that the tender price for the weir was about $125,0(X). To the people
in the Lockyer Valley the construction of the weir is a very effective way of recharging
the aquifer. The weir holds very Uttle water. In fact, it holds only a few acre^feet. I know
1656
29 February 1984
Personal Explanation
that some engineers who have looked at the scheihe have said. "It is not very spectacular.
How many of these weirs do you get for a $lm?" A person does not have to be too
bright to work out how many weirs at $125,000 can be built wUh $lm.
Mr Simpson: I think you need to explain to the Opposition what an aquifer is.
Mr FITZGERALD: The member for Cooroora has made a vaUd point, but most
members of the Opposition understand what a recharge weir is and what an aquifer is.
More money must be spent at regular intervals on the weirs in the Lockyer Valley.
The valley has many streams, and many people in the electorate want a recharge weir
in their area. People living near Flagstone Creek have one, and they need more. The
Ma Ma Creek area has one and needs at least another one immediately. TenthiU Creek
has a good site for another weir and there are several sites in the Lockyer Creek that
are suitable. One of the first places to build a weir on Lockyer Creek is about 90 km from
the mouth of the creek, which is at a point just below the confluence of Flagstone Creek
and Lockyer Creek.
The Lockyer Valley has very few on-farm sites for dams. Because the valley has
contributed millions of dollars to the Australian economy over the years, its farmers should
receive something back from the taxation dollar that goes off to Canberra. The Federal
Government has been very long on rhetoric about allocations of money for water but has'
been very short on delivering the goods. The Lockyer Valley is an area of need and has
played a very important part in the economy of the State and the nation. The attitude of the
State and Federal Governments is like kiUing the goose that laid the golden egg. They
do not reaUse the importance an area such as the Lockyer Valley has on the economy of
Queenslartd and on the weU-being of the towns of Grantham, Helidon and Gatton and the
city of Toowoomba. It is a very short-sighted attitude.
More research should be undertaken into water usage so that certain crops can be
grown wUh a minimum amount of water. Very little money has been spent on this research
as it relates to vegetable crops. Some research has been carried out into sorghum crops and
some dryland crops. A need exists also for more accurate stream flow data in the Lockyer
Valley.
(Time expired.)
Motion (Mr Wharton) agreed to.
The House adjourned at 11.7 p.m.

Full transcript - Final

Transcription

Similar documents

remanage - PropertyView Solutions, Inc.

Buy to let-Tips for investors

for sale or lease : 527 ocean avenue, unit 1

16 MONTH LEASE SPECIAL

Would you like to provide tenants with easy and

community - DailyNews Archives

Bergen County Office Building For Sale

Property Management - HarperPropertyManagement.com

440 West Market Street • Greensboro, NC 27401 • (336) 379

5145 BUEHLERS DRIVE ∙ MEDINA, OH THE SHOPPES AT RIVER