ACCC to authorise new code for casual mall licensing

The competition watchdog is likely to authorise a new voluntary code of practice for casual mall licensing, compiled by the Shopping Centre Council of Australia, which could affect start-ups.

The Australian Competition and Consumer Commission is proposing to grant authorisation to the SCCA for its Casual Mall Licensing Code of Practice.

A similar code of conduct was brought into effect in 2007, but is due to expire on December 31. As with the original code, authorisation for the new code is proposed for a period of five years.

The code relates to casual mall licensing, which involves the granting of a right to occupy part of the common area of a shopping centre for a short period of time.

This can be up to 80 days, but is normally less than one month. The area is usually used for product launches and demonstrations, stock clearance sales and brand awareness campaigns.

The code is based on a casual mall licensing code enacted by the South Australian Government in 2002.

According to ACCC deputy chair Michael Schaper, the code provides certainty for permanent lessees as to the circumstances and terms on which casual mall licences are granted to businesses that set up in competition with them.

“This allows lessees to make better informed business decisions and provides assurance over the life of agreements entered into,” Schaper said in a statement.

The ACCC has granted interim authorisation of the code until it releases a final determination.

Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.

In a letter to the ACCC, SCCA executive director Milton Cockburn highlighted the popularity of the code.

“The code began operation on 1 January 2008. By the time the code commenced, the National Retail Association had also endorsed the code,” he said.

“On behalf of retailers, the code is now endorsed by the Australian Retailers Association, the National Retail Association and the Retail Traders Association of Western Australia.

“These are the most representative retailer associations in Australia and… cover the vast majority of shopping centre retailers.

“The only major retailer association which is not a party to the code is the Australian National Retailers Association, whose members are generally not covered by retail tenancy legislation.”

Cockburn said the code results in a public benefit that “far outweighs” any detriment to the public.

“We respectfully seek the ACCC to grant the request to revoke the original authorisation and to substitute a new authorisation to expire on 31 December 2017,” he said.