Member Services Update

Post-convention legal wrap up

What do a Columbian drug smuggler, doctor’s records and a snake all have in common? Our legal sessions at Convention lifted the lid on legal and provided the answers.

UNLAWFUL CARTEL CONDUCT?

First “Out of the Box” on day one of the convention, Darryl King of Jackson Russell Lawyers New Zealand dispelled the myth that cartel laws in new Zealand only apply to Columbian drug smugglers.

So what exactly is unlawful cartel conduct? Most people think of Cartels as only affecting “big, bad” business (and Columbian drug smugglers!) but this is wrong! Cartel laws do not discriminate between large, well-resourced corporate entities and small “mum and dad” businesses. Cartel laws affect any company that enters into an agreement or arrangement with a competitor. Which potentially includes suppliers of goods and services, resellers, joint venture parties and franchises – and of course self storage facilities.

The question is, do you have a cartel provision? Cartel laws prohibit arrangements with competitors that the purpose, effect or likely effect of is:

Price fixing: controlling the price (or any related element of price) at which one or both parties buy or sell goods/ services from or to others. (i.e. – How much you are selling/buying for).

Market allocating: allocating or restricting the customers, channels, geographic areas etc. each party can sell to or buy from. (i.e. who you are selling to/buying from)

Output restrictions: preventing, restricting or limiting production, supply, and the capacity to supply or the purchase of goods/services.

Some Cartel risk areas for self storage facilities are shown in the table below.

What do you need to think about as members of the SSAA?

During association meetings (formal or otherwise), be aware that you cannot discuss with competitors: l pricing or fees; l customers or territories; and l services and goods you provide. Take care of gathering or sharing information. Be careful sharing information about your business plans.

Seek legal advice in NZ if potential competition issues arise.

DOCTOR, DOCTOR, WHY AM I STILL HOLDING YOUR RECORDS?

The next Convention presentation was from SSAA Australian lawyers, Mr Tony Raunic and Mr Graeme Armstead of Hunt & Hunt addressed a common issue for Australian members of what happens when you are left holding sensitive medical, legal or accounting records. The following steps were recommended: 1. Notify the relevant governing body in your state or territory, preferably by letter as it puts the body more on notice and reduces the likelihood of a dismissive response; 2. Request that the governing body either collect the records, accept delivery of the records or meet the facility’s cost of secure destruction through a contractor service.

If a governing body is initially unhelpful, it may well be useful in engaging a lawyer to make direct contact. Even by telephone to the CEO, raising the prospect of negative publicity for the

ACTIVITY/AREA LIKELY TO BREACH CARTEL LAWS POTENTIAL ISSUE

Agreeing with competing facilities standard pricing for storage Price fixing Staff (or owners) discussing pricing, promotions, market allocation or output etc. with competitors Price fixing / Market allocation / Output restriction Joint marketing with competing facilities Price fixing / Market allocation / Output restriction Allocating areas/suppliers/customers/channels/potential customers between competing businesses Market allocation Two competing facilities collectively negotiate with a supplier to purchase a container full of goods to Price fixing (buy side) save on international shipping costs of sending two partly empty containers Be alert to restrictive deals with suppliers who are also competitors – some corporate groups have Price fixing/market allocation / many parts output restriction Agreeing with competing facilities promotions and/or when they are being run by you/them Price fixing / Market allocation / Output restriction Agreeing with other facilities restrictions on the goods and services available from you or their business Output restriction Supply agreements you enter into that may have a cartel clause. Price fixing / Market allocation / Suppliers should not (generally) be seeking to fix: Output restriction • Your resale prices • Where or who you can sell goods or services • Limiting your ability to sell competing goods

governing body should knowledge of their unhelpfulness reach the public domain.

Before any sensitive records are destroyed, it is highly recommended that a final letter is sent outlining the next steps. Which would be; your intention to shred these records on-site and to send them to landfill should alternative arrangements not be reached within a defined period, eg. 30 days.

If you require any guidance in the management of this process, please make contact with the SSAA paralegal in the first instance at legalsupport@selfstorage.com.au

OUR LEGAL LEARNINGS CONTINUED WITH A JOINT PRESENTATION BY BORDER WATCH (AUS) AND COAST WATCH (NZ).

Do you want to be up close and personal with snakes? Border Watch (Aus) and Coast Watch (NZ) have both reported on increases in illegal wildlife trading. Do you want a whole unit of snakes at your facility?

The SSAA proudly displays in the office a sign that states “The Australian Border Force acknowledges Self Storage Association of Australasia as a partner in the Border Watch programme. Working together to help protect Australia’s borders by identifying and reporting suspicious activities.”

Border Watch envisages a coordinated approach for SSAA members to become members of the Border Watch program.

The process would be for a Border Watch representative to visit the industry member and conduct a short awareness session to the business and all of the staff and present the certificate after that presentation.

The certificate can be used to deter criminals from utilising a storage facility for illegal purposes.

What are the indicators of suspicious behaviour?

One suspicion on its own is not necessarily a cause for concern, but a few coupled together may indicate you have criminals operating at your facility. The key is to rely on your gut feeling.

Indicators of suspicious behaviour can include any of the following or a combination of the following: l Cash payments. l A storer accompanied by other persons who seem to be in charge, i.e. a cover person. l Asking questions about security, cameras etc. l Enquiries about company forklift and use of company forklift. l Requests to use the facility to bring a container for a short term for unloading into trucks. l Tobacco – organic smell emanating from a storage unit. l Plant material in and around the storage unit. l Foreign packaged cigarettes left lying around. l Attending the facility at odd hours. l Concealing activities by strategically placing vehicles in front of the storage unit. It is worth noting that Border Watch and New Zealand Customs Service have both experienced an increase in the use of self storage sheds to facilitate illegal drug and tobacco imports.

Other items of interest to Border Watch include: l Border Patrolled drugs; l illegal pornography; l Weapons and firearms; l tablet presses; l tobacco including leaf form; l chemical glassware; and l wildlife trafficking, including birds, lizards, snakes, crocodiles, fish and eggs. Trust your instincts, your knowledge and your experience. l

Report suspicious activity:

Border Watch: 1800 06 1800 or australia.gov.au/borderwatch New Zealand Custom Services Coastwatch: - 0800 428 786