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simon young's picture

Tribunal or Franchising Commissioner

I consider that each represents a different function and there is room for both.

A Commissioner would be able to collect information, educate and broadly regulate the conduct of parties in (particularly) dispute resolution processes.

Ideally a Commissioner would be proactive in dealing with disputes to ensure that the most appropriate process is adopted by the parties, whether it be mediation etc.

A Tribunal however would formally determine disputes that could not be otherwise resolved and would be an alternative to the current Court systems, which are not working as well as they need to (primarily due to cost).

In order to maintain confidence in the independence of determinations, the Tribunal does need to be separate to the Commissioner in my view; also any prosecutions that a Commissioner might have power to bring could be heard by the Tribunal.

I understand the theory behind the SA Bill and it is superficially attractive but I am concerned that trying to wrap everything up into the one agency will create problems. I do not mind a 'determination' as such (as proposed by the Bill), but not by a Government department without check or balance.

Tribunals are not the only solution, but to my mind they are a proven and effective forum for dealing with disputes that are 'commercial/relational' - e.g. building or lease disputes.

Boudica Lawson's picture

Is the proposed SA bill appealing?

The devil is, as always, in the detail.

The idea of a franchising commisioner is quite appealing  but as with most things, a lot of thought and consideration needs to be put in to ensuring we don't create more or different problems to the ones we  want to solve.

I am never really keen on anything that does not have an appeals process, which apparently would be the case in SA according to Simon Young's criticsims of the Bill.

Also of concern to me is the  interplay between requiring parties to give information under oath, even when it may incriminate, but not allowing for legal representation.  I worry about the potential for a  franchisees' spouse being forced to give evidence that may incriminate their partner for example, or of the potential for franchisors to bring spurious cases before the commissioner in order to gather evidence against the franchisee or other franchisees.

I can see how the proposed system could enhance the mediation process, helping to ensure resolution where it has not been undertaken in good faith or when either party tries to stall proceedings, a situation that was highlighed by the senate Inquiry. But where the dispute is of a serious or technical nature, I am not so sure that the Commisioner system as proposed would neccessarily be of benefit, and, in certain cases could be harmful if not executed with due care and consideration.

Depending upon the appointed Commisioners experience of franchising and understanding of the TPA and Franchising code there is a potential for bad decisions to be made, which further higlights the problems presented by a lack of  an appeals process.

The lack of appeal also raises concerns about impartiality as menitoned in the article.

I know that Simon has touted a tribunal system as a possible method to overcome the issues raised by the Senate Inquiry into franchising, I wonder if Simon could elaborate a little more on the legal implications of the Commisioner System proposed and outline some of the differences between a tribunal and a commission?

What does He and what do others suggest are the main issues surrounding the SA bill and what alternatives or measures could be undertaken to address them?

What can other tribunal models offer that the SA commissioner strategy cannot?

Could there be scope in the bill to inadvertantly affect non frnahcise groups such as Biker groups as is suggested in the article or would it really be the case that the Bill only applies where the Franchising code of conduct applies?

Either way, I hope the SA bill will send a clear message to the federal govt that their inaction on franchising issues will not be tolerated.

 

What will give a better result

What does Simon offer for a better dispute resolution system if what Tony Piccolo has put up won't work. Why not make people give evidence. The code system only works for franchisors and the ACCC. Battler Bob