David Bradbury (Lindsay, Australian Labor Party) Share this | Hansard source

I am sorry; I was quoting from the article. The member for Moncrieff, the shadow minister for small business, is on the record in April as saying that the coalition supported the amendments ‘in principle’. We should not be surprised, because the coalition had a position back before the legislation was previously introduced—until Senator Joyce got his hands on it. A recurring theme that seems to be emerging in a number of the debates that I have been involved with in the last little while has been the increasing dominance of the National Party in driving economic policy from the opposition. I think that is a matter of grave concern and I will explore that a little bit further in a few moments.

In terms of what small business really thinks of this, I heard a number of people on the other side say, ‘We are standing up for small business on this,’ but there were not all that many comments by people who genuinely represent small business introduced into the debate. I saw a quote in the Australian on 28 April of this year:

Tony Steven, chief executive of the Council of Small Business Organisations of Australia, said the Rudd Government had gone further to protect small business than the previous government, with the changes sending a much clearer message to the courts.

I think Mr Steven is well placed to represent small business; certainly, his endorsement of this bill is one that is not lost on those of us on this side of the House, because we are committed to ensuring that the things that we do in this place are going to assist small business and at the very least not hamper their efforts to get on with doing what they do—that is, generating so many jobs throughout our economy.

I also noticed that the Australian Chamber of Commerce and Industry chief executive, Peter Anderson, said that the competition reforms were ‘a balanced package’. We see further endorsement of these measures by industry and representatives of business—in particular small business. It really does pose the question: if small business is at least largely supportive of these measures—and certainly, on the basis of those quotes, it is—and if defending small business is the argument that is being presented as the basis upon which those on the other side are opposed to the amendments, what is their reason for opposing them?

I turn to the predatory pricing provisions and in particular to the question that clearly emerges in the debate about this bill: whether or not we should retain the very new definition that came in as a result of the so-called Birdsville amendment, which favours this notion of a share of market, as opposed to market power, as being the formulation of words by which we can ascertain whether or not these predatory pricing provisions should apply. Clearly, if the definition is as restrictive as market share then there is a certain possibility, and it has been noted by speakers on all sides that these matters have not yet been tested before the courts. I have to say I find it rather peculiar that those in the opposition are suggesting that there is some benefit in us pursuing this through the courts, that somehow leaving these things to the courts is how really good law emerges.

I happen to think that one of the motivations for many of us to come into this place is to make the laws and to do it in a way that is going to provide some certainty to those citizens and businesses within our community, our society and our economy so that they can operate on the basis that they are either complying with those laws or they are not. It is an absolute absurdity to suggest that it is good law to come into this place, to acknowledge that something is unclear and uncertain and to abdicate our responsibility to the courts. If you listen to those on the other side, that is what they would have this place do.

On this side we are very much committed to meeting our responsibility as legislators, and that is why we would like to provide greater clarity in the market power definition. On the share of market versus market power debate, we have seen—at least from the example of the Safeway case—that market share, of itself, does not necessarily demonstrate market power or potentially taking advantage of market power. If we look at the Safeway case in 2006, the Federal Court imposed penalties totalling $8.9 million on Safeway with respect to four breaches of section 46(1) and other anticompetitive conduct. This was despite Safeway having only around a 16 to 20 per cent share of the relevant market.

Those on the other side have said that one of the great virtues of the market share test is that it is easily ascertainable to those who might be willing to meet their obligations because you can quantify someone’s market share. You can quantify someone’s market share, but what remains a mystery, to me and to all of those citizens out there wanting to meet their obligations under this legislation as it currently stands, is what level of market share gets you over the line. Is it 16 per cent? Is it 20 per cent? Is it 25 per cent? Is it 50 per cent? This is just one of the questions that remains unanswered as a result of the so-called Birdsville amendment.

I understand the Birdsville amendment was conceived in a hotel in Birdsville by Senator Joyce. On occasion I have certainly seen some good ideas, some inspired thoughts, emerge over a cleansing beer at the local hotel. But, thankfully, on most occasions those inspired thoughts wash away with a Berocca the next morning—they do not find their way into legislation. The unfortunate reality here is that this proposal, which was ill-conceived, made it through the Senate on the last occasion because the government of the day required the support of Senator Joyce.

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