Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Assistant Treasurer and Revenue) Share this | Hansard source

I will begin my contribution to the House’s consideration of the Senate amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 by clarifying my earlier point of order. It was not necessarily to suggest that the opposition was not supporting those amendments that the Treasurer claims are improvements to his original regime. Some of them may be but some of them may not be. The point is that we do not know. Only moments ago we were handed pages and pages—12 pages in all—of amendments to the Trade Practices Act, and we do not even know what they are. While I respect your ruling, Mr Deputy Speaker Wilkie, I suggest to you that the clerks were in no position to give you advice. Of course they will proceed with caution and of course they have no choice but to provide you with the advice that suits the government’s agenda, but the clerks, with respect, would have no idea whether these amendments were within the scope of the amendments imposed by the Senate because the clerks, like me, simply have not had an opportunity to read them. This is symbolic of this government’s contempt for this chamber, the people’s place. They think they can just ride in here any time they like and do whatever they like, and it is unacceptable to us.

Those who have business interests riding on the outcome of this bill should be very concerned about that, in the same way that business should be concerned about the Treasurer’s approach to taxation bills in this place, where time and time again we see the government coming back in with its own amendments because it did not get the bill right in the first place. The government is of course changing things midstream without any consultation with the opposition, but it does not care about the opposition because, at this particular point in our history, it does not need us. It is, however, setting some very dangerous precedents. The Treasurer might think it is 30 years away, but it might just be two years away that the government members find themselves standing on the other side of the table. It is simply a disgrace that the government is treating this parliament with such contempt.

I am going to put the onus back on the Treasurer to give an ironclad guarantee to this House that these amendments are within the scope of the Senate’s message—in other words, within the scope of the amendments put forward by the Senate. I have not quite reached the dizzy heights of legal study that the Treasurer has, but I would be interested to know whether these amendments  will have any impact on future court challenges to this legislation if and when it is passed by the Senate. If this House has not followed proper procedure in the passage of the bill, can we be sure that this does not leave the final legislation vulnerable to legal challenge? I know the Treasurer is not allowed to give a legal opinion, but if he cares to he might like to reflect on that as well. That is the guarantee I am asking for: that these amendments are within the scope of the Senate’s message.

In moving to the substantive issues I will start with a bit of history. The Dawson inquiry made some very solid and eminently supportable recommendations to this place. The opposition has done all in its power to support, wherever possible, those very strong recommendations. I challenge one thing the Treasurer said, and that is that he is implementing all the Dawson recommendations. I do not believe that is true. I think he has cherry-picked the Dawson recommendations—that is, he has chosen just those that suit his own political agenda. That notwithstanding, the opposition agrees that most of what is contained within the original bill is a good thing for the Australian economy, a good thing for Australian business and a good thing for the Australian consumer.

We do, however, have one very real concern, and that is the way in which the government has chosen to carve out of the process a very real role for the ACCC when dealing with authorisation issues. What the Treasurer is telling us today, amongst other things, is that some of these amendments are designed to deal the ACCC back into the game. It is pretty hard for the opposition to be certain about that. (Extension of time granted) It is pretty hard for the opposition to be sure about that because all that we know about these amendments is based on what we have read in the newspapers, but we do maintain the absolute determination that the ACCC should be the main gatekeeper on authorisation decisions. It is my understanding that the amendments we are considering this afternoon do not restore the ACCC as the main gatekeeper.

Let us take a moment to think about what we are talking about here. If companies are seeking to consolidate—and it could be that in the next little while News Ltd take over Fairfax—they go to the ACCC seeking informal clearance. If this bill is passed, it will be a formal clearance. The consideration of that application is based on a competition test—that is, whether the merger would be likely to lead to a substantial lessening of competition in a given market. If they are unsuccessful there, whether it be under the formal or informal arrangements—and if I have time I will talk a little about the difference between those two mechanisms—under current law they go to the ACCC seeking authorisation or, to put it another way, seeking approval to proceed with the merger or the takeover, notwithstanding that it will lead, on the determination of the ACCC, to a substantial lessening of competition, as it is in the public interest that the merger, consolidation or takeover proceed.

I would have thought that all of us would be unanimous in our view that the ACCC, as it has always been, is the best body, the most expert body, the most credentialled body and the body with all the experts—rooms full of them—to determine whether or not that consolidation is in the public interest, notwithstanding the fact that the ACCC has already decided that it will lead to a lessening of competition. What the Treasurer wants to do is sideline the ACCC and allow applicants for authorisations to go straight to the Australian Competition Tribunal. That is an august body that I have a great deal of respect for, but I make the point that the Treasurer, having enjoyed more than 10 years in his position, has had the opportunity to either appoint or reappoint every member of that body. It is a bit like the way in which the maker of appointments to the US Supreme Court has been able to make that body one which is largely in keeping with his own thoughts on matters. I am sure the public would have much more confidence in a system that allowed or forced the applicant to go to the ACCC to determine that very important issue as well.

Whether a matter is in the public interest is very much a subjective test, and one we should not allow to go straight to the tribunal. The Treasurer will return to the dispatch box and say: ‘The member for Hunter is wrong. These amendments deal the ACCC back into the game by allowing the ACCC to be a full party to the proceedings before the Australian Competition Tribunal.’ There is some truth in that, but the procedures of tribunals such as the ACT are pretty clear-cut, and the Treasurer knows that the ACCC, notwithstanding being a full party to the proceedings, may and probably will be constrained in its ability to put its case and rebut argument by the mood of the tribunal on any given day and whether it believes the matters that the ACCC is attempting to raise are necessarily relevant to the argument before the bench. Therefore, if these laws are passed, there will be a restraint on an ongoing basis on the ACCC in its role in considering the public interest test.

I have to say that it is better than the Treasurer’s original proposal, which allowed the ACCC to be seconded, in a sense, by the ACT if it decided it had something to offer. He is now saying, ‘They will have to put a submission in,’ as if they would not anyway. For goodness sake, who believes that the ACCC would not put a submission in on the question of public interest? The Treasurer is saying that the ACCC will now be a full party to the proceedings. We are not convinced, and the Treasurer needs to clarify these points. I also ask him to clarify whether the states have been appropriately consulted on these issues and whether the states have— (Time expired)

See this speech in context