The Australian Competition and Consumer Commission has issued a draft determination proposing to grant authorisation* to the Shopping Centre Council of Australia for its Casual Mall Licensing Code of Practice.
The SCCA is a representative body for shopping centres throughout Australia. The code aims to provide balanced guidelines for casual mall licensing, where traders, generally for a short period, occupy part of the common area of shopping centres.
"Casual mall licensing has become an increasingly common feature of shopping centres in Australia. Uses include product launches and demonstrations and brand awareness campaigns," ACCC Chairman, Mr Graeme Samuel, said today.
"The code restricts the circumstances where a shopping centre proprietor can grant a casual mall license to a competitor of an existing tenant. However, the ACCC considers the public detriment generated by the restrictions to be minimal.
"The restrictions apply only in respect of granting a casual mall license that introduces a competitor directly adjacent to or in front of an existing tenant, and only in limited circumstances. In the limited circumstances where the restrictions do apply, casual mall licensees potentially affected by the arrangements have a range of alternatives, including locating in a different area of the shopping centre.
"The ACCC considers that the provisions contained in the code are likely to provide a public benefit by balancing the reasonable and consistent treatment of permanent retail tenants with the introduction of casual mall licensees within a shopping centre. This in turns allows them to make better informed business decisions and provides certainty over the life of leases entered into.
"The code also contains general disclosure obligations that are in line with those that apply to landlords more generally under state and territory retail tenancy legislation. In effect, the code extends these general disclosure requirements to also apply in respect of casual mall licensing, which the ACCC also considers to be a public benefit."
The code is modelled on an existing casual mall licensing code enacted by the South Australian Government as a schedule to the South Australian Retail and Commercial Leases Act, which has been operating successfully since 2002.
The code is voluntary and ultimately individual shopping centres retain the discretion about whether to adopt it.
The ACCC will now seek interested party submissions and provide interested parties with an opportunity to request a conference prior to it making a final decision.
More information regarding the applications for authorisation and a copy of the draft determination will be available on the ACCC's website by following the links to Public registers, Authorisations and notifications registers and Authorisations register.