From the Reid Committee to the appointment of the expert panel: an assessment of the efficacy of section 51AC Trade Practices Act 1974 (CTH) in Australian retail leasing

[Truncated abstract] Few people who enter their local suburban or larger regional shopping centre for retail, business or social purposes would pause to consider the relationship between the owners of the shopping centre and the retail tenants. Indeed, such persons may be surprised to know that disputes between Australian shopping centre landlords and their tenants have festered almost since the inception of the shopping centre model and, since 1997, have been the subject of 15 State and Territory government reviews, 6 Commonwealth inquiries, copious amounts of new and amended legislation and a long and depressing trail of litigation. Despite all this, in 2009 serious allegations of unfair and opportunistic business conduct in retail leasing transactions continue to arise. This thesis analyses legislative and judicial responses to these business conduct issues in Australian retail leasing from the seminal 1997 report, ‘Finding a Balance: Towards Fair Trading in Australia’ to the release of an issues paper in November 2009, ‘The Nature and Application of Unconscionable Conduct Regulation: Can Statutory Unconscionable Conduct be Further Clarified in Practice?’ and the appointment of an expert panel by the Commonwealth government to consider options for clarifying the scope of the unconscionable conduct provisions of the TPA. In particular, the thesis assesses the efficacy of section 51AC, the prohibition of unconscionable conduct in certain business transactions6 which was inserted into Part IVA of the Trade Practices Act 1974 (Cth) (TPA) by the Commonwealth Government in response to the Reid Committee’s deliberations.