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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 631 ..

MR HUMPHRIES (continuing):

It follows from the wording of the amendment that a person would be entitled to compensation. I think that would be a foolish result. Ms Tucker's amendment is also anomalous in that a person in a centre would be able to claim compensation if a similar store moved into the other end of the centre but could not claim compensation in respect of somebody close to them across the road who was selling products that competed with their own. That highlights the anomalies of that provision. So I think it would be wise not to support the amendment.

MR QUINLAN (5.23): I want to speak very briefly on this point, which I know some of the lobbyists are quite concerned about. I have to say that the amendment would be taking the legislation just that one step too far. Certainly, if you are a tenant in a mall and you have a particular type of business, there is a high probability, if not a certainty, that the advent of a similar type of business is going to have some particular impact. But I do not know that that is really something that should be incorporated into legislation or, as the Chief Minister has just said, whether it is practicable in its application.

Any form of exclusivity that is given to tenants should be part of the initial lease. That would be a condition that a tenant and the tenant board would negotiate in the first instance and that provision would be part of the lease. But I do not think it would be practical to make it part of the legislation.

Certainly, if you are looking at this legislation strictly from the perspective of the tenant, you would say, "Yes, we would like to see that in." I am sure that a lot of tenants would like to see it in but I do not think it is practical. I would like to add that this would not happen with strip shopping. If you were in High Street, Preston, or in Leichhardt or Balmain in Sydney, you would have no control over the fact that someone was going to rent a shop, a premises, one or two doors down the road or across the road and open another bakery. That is just part of the vicissitudes of being in business.

Similarly, it would not happen with strata tile-one of the section 56 propositions, had it been adopted, effectively would have given strata title for retail outlets. Again, there is no the control that says that not only are you renting the space but you are given some particular insulation against competition. I firmly believe that if tenants are to be insulated against competition then that has to be part of their initial negotiations with the landlord-it has to be on hard copy with the provisions being laid down in black and white. We cannot go to the extent of providing this level of protection or insurance for business. If you tried to do so I think you would reach a ridiculous stage in terms of the level of protection that is provided in the so-called private sector market. I am sure that most of the people and most of the small businesses that occupy malls would extol the virtues of competition in the private sector market. In light of that, I do not think you could sustain this degree of protection if it is not part of the original agreement.

There is every argument for somebody who wants to set up a bakery to do a deal with the landlord and say, "Well, I am going to have a bakery. It is not a big complex but I will do it on the basis that you guarantee me that you will not set up in opposition next door or within arm's reach of my particular business because my market research tells me that there is only room for one bakery in this area." That is a decision that both

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