Fair Trading Bill 2010 - Acts Amendment (Fair Trading) Bill 2010 - second reading
Hon Ljiljanna Ravlich; Hon Alison Xamon; Hon Adele Farina; Hon Philip Gardiner; Hon Norman Moore
Cognate Debate
Leave granted for the Fair Trading Bill 2010 and the Acts Amendment (Fair Trading) Bill 2010 to be dealt with cognately.
Second Reading — Cognate Debate
Resumed from 20 October.
HON LJILJANNA RAVLICH (East Metropolitan) [7.30 pm]: I rise to support the bills. The Fair Trading Bill 2010 and the Acts Amendment (Fair Trading) Bill 2010 are two very interesting pieces of legislation. The legislation had its genesis a few years back and has been under some considerable consideration since that time.
HON ALISON XAMON (East Metropolitan) [7.55 pm]: The Greens (WA) will be supporting the Fair Trading Bill 2010 and the Acts Amendment (Fair Trading) Bill 2010. The primary purpose of the Fair Trading Bill is to introduce in Western Australia a single national consumer law known as the Australian Consumer Law. The Fair Trading Bill proposes to replace three current Western Australian acts with one new act. Those acts are the Consumer Affairs Act, the Door to Door Trading Act and the Fair Trading Act. The Commissioner for Consumer Protection will retain her important administration and enforcement powers, with investigation and enforcement powers to be standardised and drawn into just one act, and solely into the consumer protection portfolio.
The Greens are amenable to supporting moves towards uniform legislation, provided, of course, that such moves are not part of, or do not result in, a race to the bottom. We see industry certainty and lower compliance costs for businesses as important goals, but not ends in themselves. In this case, however, the push towards uniformity appears to be one that we can strongly support. However, I will talk more about the process in a moment.
In relation to general protections, a key reform in the Australian Consumer Law is the introduction of unfair contract terms. These provisions will void terms in standard form contracts if those terms are found to be unfair by reference to the criteria in the Fair Trading Bill. I understand such terms have been operating successfully in Victoria for some years. I must say that it is good to see that the development of uniform legislation is not always about the states considering reform proposals from the commonwealth; it may also involve looking across all jurisdictions to see who is using the best practice and then adopting that uniformly across the country.
I understand that the Australian Consumer Law that we are proposing to adopt this week includes a harmonised product safety regime for consumer goods and services. This approach will mean, among other things, that only the commonwealth minister can issue permanent safety bans, but state and territory ministers retain the right to issue interim safety bans. I have some questions about that. In particular, I would like to have it confirmed that the intent of allowing state ministers to issue interim bans is to ensure that we are not bogged down by time lines and will be able to ensure safety quickly at the state level without having to wait for the commonwealth to go down the path of imposing a ban. However, I am concerned that the process may potentially be unwieldy and that we may be making it too hard to deal with product safety concerns on a permanent basis. The reason for that concern is that if a particular state feels strongly that a product is unsafe and needs to be banned, it may take some time for that state’s temporary ban to be made national and permanent via the commonwealth minister.
I also have some questions about the new investigative power that will allow the Commissioner for Consumer Protection to access passwords or other information to enable access to computers. This is another issue that I do not recall seeing discussed in the committee report. The Greens do not necessarily have a problem with that. However, I am interested to hear from the minister what checks and balances, if any, will be put in place for that particular investigative power.
Hon Norman Moore: Did you get a briefing on this, just as a matter of interest?
Hon ALISON XAMON: In the short time frame that we have had, we have had a briefing around that.
Hon Norman Moore: I am just interested to know whether you have had a briefing.
Hon ALISON XAMON: The Greens have had a briefing, yes.
The primary purpose of the Acts Amendment (Fair Trading) Bill 2010 is to simplify occupational licensing and regulation of certain occupational industries in Western Australia. The bill will abolish the Land Valuers Licensing Board, the Motor Vehicle Industry Board, the Real Estate and Business Agents Supervisory Board and the Settlement Agents Supervisory Board. The licensing function of the repealed boards will be picked up by the Commissioner for Consumer Protection. The employing and financial controls in the boards will be vested in the Director General of the Department of Commerce, and the boards’ industry functions will be vested in two new advisory committees. The bill also creates a new Consumer Advisory Committee. I will speak about that in a moment.
The Greens are always looking closely at moves to get rid of occupational licensing and regulatory boards. I am not going to carry on about that, but obviously we opposed the removal of the Hairdressers Registration Board, and the reasons for that were explored at length in this place. I have of course heard tell of the Council of Australian Governments’ occupational licensing reforms, and we will be watching closely what comes out of that process as well.
As I have said, the third new advisory committee that will be created by the bill is the Consumer Advisory Committee. This has the potential to be a useful group. I would like some more information from the minister about which stakeholders are likely to be on this committee. The Greens are keen to see strong community and consumer non-government organisation involvement in such a group. However, if small non-government organisations or individual community advocates are going to serve on that group, it would be good to know whether they are likely to be reimbursed for their time.
I have no doubt that Hon Adele Farina will be speaking at length about the processes around this bill. I reiterate the concerns expressed by Hon Ljiljanna Ravlich on this matter, because no matter how we dress this up, this Parliament has been put under inappropriate pressure to agree to these uniform laws, notwithstanding the advantages they may have for consumers and for business in this state. It is really poor that the executive has so little regard for the function of the upper house, and of the Standing Committee on Uniform Legislation and Statutes Review in particular, and has given us so little time to consider these bills. I think it is absolutely extraordinary that the uniform legislation committee, under the obviously very capable chairing of Hon Adele Farina, has managed to generate this report in almost no time in response to legislation that is almost three inches thick. I do not intend to go over much of the committee report. But I do want to indicate to the house that I am particularly interested in recommendations 11 through to 14, and, of course, also in critical finding 19, which is worth quoting here. That reads —
The Committee finds that the deadline for implementation of the Australian Consumer Law legislative scheme, imposed by the ACL IGA and Seamless National Economy IGA, results in an unreasonably limited time for Parliamentary scrutiny of this “foundation consumer law” that amounts to a serious disregard for the institution of State Parliament.
Having said all that, I want to recognise that I am satisfied with the answers given to questions about the consultation process that led to the bills. I am particularly concerned to see that groups like the Consumer Credit Legal Service WA, the Financial Counsellors Association of WA and the Gosnells Community Legal Centre were appropriately engaged, as well as the Western Australian Council of Social Service, which is also a critical group in this area. When we received the bills, my office put out a message to advise when the Standing Committee on Uniform Legislation and Statutes Review would be taking public submissions, and it seemed that the sector was happy that these particular uniform laws were being advanced.
One issue that WACOSS raised with us, and I see the committee has also picked it up, is the question of why we are introducing a great new regime for standard form contracts but excluding insurance contracts. That does seem quite arbitrary, so I would be interested to hear more about why that approach was taken. WACOSS asked a related question: why are franchisees not also covered by the unfair contract provisions? Franchisees will often be in a heavily disadvantaged position of power compared with the franchisor. Some franchisees are quite small operators and it seems to me that they should be protected from unfair standard form contracts in the same way that consumers are. I would be interested to hear more about that.
With those few notes, and with the understanding that we will talk a bit more in the committee stage, the Greens support both these bills.
Hon NORMAN MOORE: ....................... Hon Alison Xamon indicated that she supports the bill and supports uniformity. She asked a question about state ministers and interim bans. I asked the member whether she had had a briefing and I gather that none of her members did have a briefing.
Hon Alison Xamon: One of our staff members did. It was because of the time frame.
Hon NORMAN MOORE: We do provide an opportunity for members who take an interest in these bills to be briefed as often as they need to be, and the bill has belonged to this house, if I could put it that way, for at least 30 days—probably longer. Whilst the member can ask all the questions she likes in the house—that is fine— sometimes it is a good idea to have a briefing on all the intricate details that she might want to know about, bearing in mind that the Fair Trading Bill 2010 is a very thick piece of legislation that is very complex and very detailed. The member would not expect me to be across it all at the second reading stage.
Hon Alison Xamon: Leader of the House, I agree, but that is usually why the uniform legislation committee reports are such a valuable guide in seeking that additional feedback from a briefing.
Questions put and passed.
Bills read a second time.