Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

I rise to make some comments on the Trade Practices Legislation Amendment Bill 2008. I note that essentially we are talking about section 46, which is an important part of the Trade Practices Act and does concern the prohibition on the misuse of market power, as has been said by all and sundry here this evening. We know that section 46 has not been working effectively, and we know that High Court decisions have narrowly interpreted the provisions of section 46, making it very difficult to prove anticompetitive behaviour. So we have wrestled in this parliament with how to provide the competition that is necessary and how to guarantee that competition and a competitive market. How do you ensure that you have a market which is fair to small business? How do you oversee section 46 in such a way that the consumer is also protected?

Last year the previous government introduced some changes to improve section 46 and that was when Senator Joyce, as we know, introduced what has become known as the Birdsville amendment, which was a specific offence of predatory pricing. He did the parliament and the people of Australia a service in introducing that as a specific offence. At that time we supported that legislation, including the Birdsville amendment, as did several parties in this place, and we recognised that it was a genuine attempt to address some of the problems that had existed with section 46. In observing the reaction to the passage of the Birdsville amendment we recognised that it was welcome in some quarters, particularly small business, and criticised in others. We also note, as Senator Brandis and Senator Joyce have pointed out, that it has yet to be tested in court and therefore we remain in ignorance about whether it would work effectively if it were tested through the courts.

Today we are presented with the current government’s attempt to address the ongoing problems of section 46. The bill before us makes several amendments, as Senator Hurley indicated earlier, as a package, and part of that package amends the Birdsville amendment, or changes it as Senator Brandis would suggest, and introduces a series of other amendments with the aim of making section 46 more effective in preventing—