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

I foreshadow my remarks by saying that I am going to try very hard to take up my five minutes in this contribution because I can see the Treasurer squirming over there. It is very inconvenient for him to have to give his time by coming in and being accountable to this place. I know he does not have to do it very often and I know he does not like it, but these are critical issues to the small business community, to the economy and to consumers. We will pursue them as we see necessary. As I said earlier, we want to put the ACCC back into the game. The opposition put forward some very reasonable and eminently supportable amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 that would have put the ACCC back in the game without, to a large extent, following what the Treasurer was attempting to do. That amendment was very simple: we wanted the ACCC to stay in the game for 30 days and, if they had not made a decision in that time, the applicant would take a deemed denial and go to the Australian Competition Tribunal. Of course, that was not the Treasurer’s idea, so he did not like that amendment very much.

I said I would return to section 50. Again trying to be reasonable, the opposition supported, here and in the other place, the move to a formal arrangement for clearance. As I said, under the current arrangements you get informal clearance, which gives only limited scope to appeal. It does not set any precedent for the business community. The business community wanted a formal process, which is what this bill seeks to put in place. We supported it on the last occasion and we intend, unless some new information comes to hand, to support it again; but the Treasurer must, when it comes to the other place, think about the time limit placed upon the ACCC for the new formal clearance measures—40 business days. In future, if Murdoch is making a raid on Fairfax—something which will be quite open to that organisation, given the passage of the government’s new media laws—News Ltd will go off to Mr Graeme Samuel and his colleagues at the ACCC and ask them to give immunity under the new formal clearance processes to that consolidation or takeover. Mr Samuel and his colleagues will have 40 business days in which to consider that application on a competition basis. I think the Toll Holdings application took up to two years, if my memory serves me correctly. How is the ACCC going to assess on a competition basis the appropriateness of such a consolidation? This is absolutely unreasonable and is clearly designed, again, to cut the ACCC out of the process and allow applicants to go straight on to the Australian Competition Tribunal.

I note that the Treasurer began by saying that these changes have come forward because the government has entered into a timely and deep consultation with the small business community. As the member for Hotham suggested, we support all the good changes in here for the small business community, including of course collective bargaining. But there has been no such agreement with the small business community. The truth is that the small business community has had a gun held to its head by the Treasurer. The Treasurer says to the small business community, ‘I acknowledge that section 46 of the Trade Practices Act has become ineffective because of a number of court decisions—Boral, Rural Press, Metway and many others. I acknowledge that you, as a small business community, have a problem, and the ACCC has very little hope of successfully securing a prosecution for, say, predatory pricing under the Trade Practices Act.’ But, having acknowledged that, and having put forward his own form of solution, he now says to the small business community, ‘You can’t have that solution until the Senate passes the Dawson bill, even though there is no direct connection between the two.’ The Treasurer could have just as easily brought those section 46 amendments in here first, but he refused to do so because he is saying to the small business community, ‘You can only have collective bargaining if the big end of town gets exactly what it wants on mergers.’ Treasurer, isn’t that the truth?

Question put:

That Senate amendment No. 1 be disagreed to but in place thereof government amendments Nos 1 to 49 be made.

by leave—I move opposition amendments (1) to (3) together as circulated in my name:

(1)    Schedule 1, page 6 (line 8), after item 18, insert.’

18A  After section 81

Insert:

81AA  Divestiture for abuses of market power

(1)             The Court may, on the application of the Commission or any other person, if it finds that a corporation has contravened section 46, by order, give directions for the purpose of securing:

             (a)    the reorganisation or division of the corporation into separate and distinct entities including directions for the disposal or divestiture of all or any of the shares in or assets of the corporation to facilitate the reorganisation or division of the corporation.

(2)    Schedule 1, item 27, page 22 (line 27) to page 23 (line 16) omit proposed sections 95AT and 95AU

(3)    Schedule 2, page 45 (after line 14) after item 4, insert

4A  At the end of paragraph 90(11)(b)

Add “except that where 30 days have expired, the applicant may apply to the Tribunal for authorisation and upon such application, the Commission shall be deemed to have not granted the authorisation applied for”.

What an arrogant Treasurer; what a government! Surely, in the history of this nation no government has treated this parliament with such contempt. The government launched on us 58 amendments to a bill five minutes before they were to be moved in the parliament. I then proceeded to ask the Treasurer for some guarantees—indeed, I asked the Treasurer what the amendments meant, which he did not even attempt to explain when he moved all 58 of them. Not only did he fail to do that; when I asked him to assure the House that the amendments were in the scope of the Senate message, he failed to do so. I asked him to give that guarantee, but he made no attempt to respond to the opposition’s concerns whatsoever. It does not get any more arrogant than that.

The amendments I am moving do three things, in effect. Firstly, they deal the ACCC back into the game. As I said earlier, the opposition believes the ACCC should be the main approval gateway on the merger authorisation test. Secondly, they do a very responsible thing. We know the business community was concerned that, while there was a time limit on the ACCC on authorisation—what we know as stop-the-clock provisions; that is, events triggered by the ACCC, for example, in requiring more information—it meant that, on some occasions, that process was able to be blown out by months, if not years. We have asked that the ACCC be left in the game and that we have a 30-day rule—that is, if the ACCC has not made a decision within 30 days, under the no stop-the-clock provisions the applicant will be able to take a deemed refusal and go to the Australian Competition Tribunal, which is what the Trade Practices Legislation Amendment Bill (No. 1) 2005 attempts to do.

Thirdly, these amendments to section 46 of the Trade Practices Act will give the power to the ACCC to force divestiture in the event of blatant misuse of market power—in other words, if a big retailer like Coles or Woolworths were involved in predatory pricing, and the issue went to their market power and the ACCC believed that the market power issue needed to be dealt with, particularly in light of the fact that that market power had been substantially abused, the ACCC would have the power to force divestiture. These are very important amendments.

After I have dealt with these amendments, I will be moving further amendments to section 46 of the Trade Practices Act, which go to further giving protection to the small business community. I am dealing with divestiture separately in this package simply because of an administrative challenge we had in trying to get these amendments into the House in the time frame given to us by the government. Ideally, the divestiture issue would have been in the second lot of amendments I will be moving, but that is just a housekeeping measure.

I remind the House that all the Trade Practices Act amendments I have moved are sensible and reasonable ones and they are supported by the small business community. They are not always supported by the big business community in this country, but they are certainly supported by the small businesses in this country. As I said earlier, the Treasurer has acknowledged the problems. He says he wants to fix them but he is holding the small business community to ransom by saying he will not make these changes until the Dawson bill is through.

It is perfectly reasonable, going back to the ACCC as the gatekeeper, for us to be seeking to put the ACCC back into the game. Mergers law in this country has never been more important since the passage of the changes to the media law regime in this country. The very heart of our democracy is under threat because of what the government has done on media law, but it is timely for us to remember that any proposed mergers will still need to run the gauntlet of the ACCC, either under section 50 or under the authorisation provisions of the Trade Practices Act. With weaker media laws, we must have a stronger Trade Practices Act and what the government is proposing is a weaker Trade Practices Act. That is why these amendments should be supported.

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