Despite the frequent wind changes it seems that common sense is
likely to prevail in Western Australia, with the persistent
attempts by backbencher Mr Peter Abetz to introduce State
franchising legislation unlikely to receive sufficient support to
see it enacted.
The Franchising Bill 2010 will require the WA
Labor Opposition to allocate time in their Private Member's
Bill sessions, as Mr Abetz's own Liberal Party has indicated it
does not support the Bill. This seems increasingly unlikely,
as the past efforts to do so were the subject of successful fili
busting by the Government. Further, even if introduced, there
seems considerable doubt that Mr Abetz or anyone else will cross
the floor to vote with the Opposition even if the Opposition were
to support the Bill.
In South Australia the process has been less transparent.
Although the previous Private Members Bill proposing specific
State based franchising legislation lapsed and has not been
resurrected, the proposed Small Business Commissioner
Bill contains provisions that go beyond similar legislation in
Victoria and enable the enactment of State franchising legislation
via the back door.
The Franchise Council of Australia has drawn attention to this
fact, and the fact that the initial draft of the Bill upon which
the Minister sought public comment was materially different to the
Bill actually introduced. However the legislation has been
introduced by Small Business Minister Koutsantonis, who has been
active in promoting it, and has the support of the Labor
Government, which controls the Lower House of the SA
Ultimately much seems likely to depend on the voting intentions
of the Independents in the SA Upper House unless the FCA and others
can raise sufficient substantive concerns to prevent or delay the
introduction of the Bill. The Bill has been passed by the Lower
House, where the Government has a majority, and is under
consideration by the Upper House, where several independents and
the Greens hold sway. The defects in the Bill and the
legislative process have been drawn to the attention of all
parliamentarians, and the common sense decision would be to reject
the Bill or refer the matter to an Upper House Committee for
consideration. However it is very difficult to predict what
will occur, with the situation changing almost daily.
It is difficult to comprehend the logic of introducing State
based regulation of franchising given the existence of an existing
and comprehensive Federal regulatory regime overseen by the ACCC.
It is even more difficult to predict the political
machinations that will ultimately determine the matter.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On 12th November 2016, new laws will commence to protect small businesses from unfair terms in standard form contracts.
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