ACCC seeks comment on voluntary code for pop-up shops

31 October 2017

The ACCC has today released a draft determination proposing to grant re-authorisation to the Shopping Centre Council of Australia Ltd (SCCA) for its Casual Mall Licensing Code of Practice.

The voluntary Code of Practice applies to shopping centre owners and manager who sign on to it. It regulates the terms on which participating shopping centres will grant casual licences to temporary retailers such as 'pop-up' shops.

"The ACCC's preliminary view is that the Code provides public benefits by giving a degree of certainty and transparency for permanent retail tenants about how casual mall leasing will operate near them," ACCC Deputy Chair Dr Michael Schaper said.

"In order to encourage all parties to engage productively, the ACCC's preliminary view is that it is appropriate to re-authorise the code for three years, rather than the five years sought by the applicant."

"However, we have heard strong concerns on behalf of some retailers that the Code isn't serving all retailers well in practice, and this is reducing the benefits from the code," Dr Schaper said.

The draft determination highlights concerns from a number of retailers that the code is not working as effectively as it could, and seeks comments on a number of possible improvements.

To address some of these concerns, the SCCA recently proposed to invite more retailer groups to join the code and sit on the Code Administration Committee.

"The ACCC strongly encourages the Shopping Centre Council to increase retailer representation. Further, we consider that the effectiveness of the Committee would be improved by appointing an independent chair," Dr Schaper said.

The Code of Practice is voluntary. Shopping centres who have not signed up to it may still offer casual mall licences on terms they consider appropriate. The Code of Practice itself does not create the right to grant casual mall licences.

The ACCC now seeks views from interested parties in relation to the measures proposed in the draft determination. After this further consultation, the ACCC will make a final decision whether to grant authorisation.

More information is available on the public register: Shopping Centre Council of Australia Limited - Revocation and Substitution - A91591 & A91592

Background

The Shopping Centre Council of Australia in an industry body which represents Australia's major owners, managers and developers of shopping centres.

The ACCC has previously authorized a similar code of conduct in 2007 and 2013.

Voluntary industry codes of conduct set out specific standards of conduct for an industry including how to deal with its members and customers. The ACCC can provide guidance to ensure that any voluntary code is well designed, effectively implemented, and properly enforced.

However, the ACCC's formal role is in granting authorisations to certain anti-competitive conduct on public benefit grounds. The ACCC does not have a role in regulating voluntary codes or the businesses involved.

Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under 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 the any public detriment.

Release number: 
MR 187/17
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