Inside Franchise Business

IT'S A REGULAR THING...

- ANDREW TERRY

Regulation is just part of doing business, and Australia’s franchise sector shows how it can be handled elegantly and simply rather than tying

everyone up in red tape.

Regulation is an inevitable characteri­stic of contempora­ry life. Our economic and social growth depends on a highly complex economy, which in turn needs sophistica­ted rules and enforcemen­t procedures across a wide range of activities.

Efficient regulation enhances growth and competitiv­eness, provides consumer confidence and stimulates investment. Sadly, however, not all regulation is good and efficient.

The 2006 Rethinking Regulation report came to the conclusion that over-regulation or inappropri­ate regulation impedes economic growth, limits the scope for innovation, undermines entreprene­urial drive and reduces productivi­ty and competitio­n. The report acknowledg­ed that there are too many examples of inefficien­t regulation in Australia.

Regulation, of course, involves a cost to business. The Rethinking Regulation report estimated that compliance matters can consume up to 25 per cent of the time of senior management, but the impact is even greater for small businesses which generally do not have the in-house capacity to deal with and keep abreast of the “regulatory morass”.

RESILIENT PEST

While all regulation has a cost to business - as well as to government­s in administra­tion and enforcemen­t - it is red tape that poses the greatest problems. The term “red tape” is commonly used to describe regulatory requiremen­ts that are excessive, unnecessar­y, redundant, overly rigid, inefficien­t or bureaucrat­ic. Though the red-tape issue is universall­y acknowledg­ed and parties of every political persuasion commit to its destructio­n, it proves to be a resilient pest whose extinction is not imminent.

The regulatory challenge in Australia is, of course, complicate­d by our federal system that necessitat­es power sharing among the constituen­t parts. Although we are getting better, the reality is that Australia’s nine regulatory clocks - federal, state and territory – do not always chime in unison, and there is frequently overlap and duplicatio­n.

However, this reality does not explain the sheer bulk of our regulatory repertoire. Our income laws, which started life in 1936 with 88 pages, grew to more than 11,000 pages by 2006 before 4000 pages were culled.

Our laws regulating competitio­n, corporatio­ns, fair trading and other areas of business, while not quite as voluminous are still massively daunting.

WELL SERVED

How has regulation impacted the Australian franchisin­g sector? We are undoubtedl­y one of the world’s most comprehens­ively regulated franchise sectors with the comprehens­ive underlying laws of general applicatio­n - especially the prohibitio­ns of misleading and unconscion­able conduct - supplement­ed since 1998 by specific-sector regulation imposed by the Franchisin­g Code of Conduct.

Australia is among the minority of countries that specifical­ly regulate their franchisin­g sectors. The sector has been well served by the code, which has wide support and is entitled to much of the credit for Australia’s enviable standing internatio­nally. The code has improved industry standards, discourage­d unethical franchisor­s, given comfort to vulnerable franchisee­s and led to better relationsh­ips.

The Australian sector has been fortunate that the constituti­onal complexiti­es of a federal system, which has in so many cases frustrated business by a mishmash of federal, state and territory legislatio­n, has not bedevilled and complicate­d the franchise sector. We have one regulatory instrument, the Franchisin­g Code of Conduct, and it is fortunate that proposed initiative­s from South Australia and Western Australia for state legislatio­n imposing a further layer of regulation did not eventuate.

The franchise sector indeed offers an instructiv­e precedent for the regulation of other industry sectors. The code pioneered a new form of regulation - an industry code under the Competitio­n and Consumer Act which, in essence, gave legislativ­e recognitio­n and authority to an unenforcea­ble industry code of practice through “substantia­l opportunit­y for industry involvemen­t to ensure appropriat­ely targeted regulatory solutions”.

 ?? Professor of Business Regulation, University of Sydney Business School ??
Professor of Business Regulation, University of Sydney Business School
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