Emerson names expert panel for franchising and unconscionable conduct inquiry

The seemingly never-ending stream of inquires in the franchising sector is set to continue, with Small Business Minister Craig Emerson naming an expert panel to examine whether unconscionable conduct provisions should be specially included in the Franchising Code.

Emerson announced the establishment of the panel as part of his response to a parliamentary inquiry into the franchise sector which took place in late 2008.

While that inquiry had recommended the Franchise Code be amended to include unconscionable conduct provisions, Emerson decided to refer this complex issue to another body.

The panel will be made up of:

• Professor Bryan Horrigan, associate dean (Research) at Monash University’s Faculty of Law in Melbourne;
• David Lieberman, mediation panellist with the Franchise Code of Conduct and the Services Providers Action Network;
• Ray Steinwall, general Counsel for the Novartis Group and member of the Australian Competition Tribunal and the Commonwealth Consumer Affairs Advisory Council.

“The panel members have a well acknowledged expertise in various aspects of trade practices law,” Emerson said in statement.

“Their backgrounds and experiences make them ideally placed to consider the issues before them.”

The panel will specifically address the question of whether a list of specific examples of unconscionable conduct should be included in the franchise code.

Critics, including University of New South Wales associate professor Frank Zumbo, claim this proposal is unworkable, as lawmakers would need to continually change or adjust the list of unconscionable conduct examples as new examples emerge.

A second proposal is to include a statement of principles or guidance clauses that would outlaw certain situations, such as one party having a significantly greater level of power in a bargaining situation, or contract terms that unduly favour one party over another.

Emerson has released an issue paper for public comment. Submissions are due by 18 December.