Jamie Briggs (Mayo, Liberal Party) Share this | Hansard source

I rise to support my colleagues on this side of the House in supporting the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. Obviously we believe that cartel behaviour can damage consumers throughout our country. During our time in government—and we can go back in history on this if we like—we strengthened and increased the powers of the ACCC to deal with this type of behaviour. Again, I am thankful, as are many other members, particularly those on the back benches, for the work that the Parliamentary Library do and the notes that they prepare for bills such as this. I will read from the background notes in relation to the Trade Practices Amendment Bill 2008:

The Organisation for Economic Co-operation and Development (OECD) defines ‘hard-core’ cartel conduct more narrowly as:

‘… an anticompetitive agreement, anticompetitive concerted practice, or anticompetitive arrangement by competitors to fix prices, make rigged bids  (collusive tenders), establish output restrictions or quotas, or share or divide markets by allocating customers, suppliers, territories, or lines of commerce.’

We currently have provisions in the Trade Practices Act which of course have quite significant civil penalties for this type of behaviour. In recent years, we have seen these used quite publicly. They were highlighted in the Visy case in Victoria, which related to alleged price-fixing behaviour and of which it was found guilty in 2007, I think. There has also been much press interest and interest from people in the community about major organisations in the consumer area, such as supermarkets and petrol outlets, and claims in relation to whether they have engaged in behaviour which would lead to suggestions of price-fixing or cartel behaviour.

This of course gets to the nub of the issue: when does it become price-fixing, when does it become cartel behaviour and how can the intent behind it be differentiated? It is that issue that makes it very difficult for policy makers and for courts to implement. And while we support this bill and the measures—I note that the former Treasurer went a long way in moving down this track for criminal prohibitions—I have concerns about increasing the emphasis on criminal prohibitions. What we are really talking about here is the old Theodore Roosevelt maxim, which is: speak softly and carry a big stick. That is what this is really about; it is about giving the ACCC the power to threaten criminal prosecution.

I suspect in the next 10 years we will not see any criminal prosecutions under this act. I might be wrong. The member for Makin will probably disagree with me, and I am sure there is an Adelaide radio talkback host who would disagree with me very quickly—and senators as well. I suspect what we will see is the ability to use it as part of the negotiations to push for a settlement, as the ATO does. This is a tactic some would argue has been successfully used in certain cases to get an outcome which otherwise would have taken the courts years to decide. But I guess my concern is that that power is there.

The member for Makin talked about small business. What I am concerned about is that a government agency with this sort of power can act vexatiously with discretion. I do have genuine concerns about that. What we are talking about here are different shades of grey. If we have clear examples of cartel behaviour, that is different. But I think even in the most recent example of alleged price-fixing cartel behaviour in Melbourne, the most high-profile example, there are some of us on this side of this House—I know there are some on the government benches as well—who share a concern about the level of ferocity with which the agency has pursued a certain individual in that case. The concern I have with this bill—again, I indicate the opposition is supporting this and I support this bill—is that creating that additional stick or extra length on the stick means you encourage this type of vexatious pursuit of individuals at times. That concerns me for a couple of reasons relating to small business. I think there is a concern for the ability of small business to defend itself against government. The case we are talking about is not a small business. It is a very big business with a very rich, powerful player, who is able to defend himself, I might add, and has done so very thoroughly. But I have concerns about giving the government far too much ability to pursue people to the point of putting them out of business.

The other aspect of this that concerns me—this is where I will disagree with the other side of the House; I am sure they will disagree with me—is industrial manslaughter type legislation, where you are holding people criminally responsible for actions potentially outside of their control. We do this through civil provisions, but to take that next step to criminal law has a whole set of implications which changes people’s lives. That is where we, as policy makers, need to be very cautious. It is all very well to spout the rhetoric that we need to crack down on people who rip Australians off and take advantage of their privileged positions in the marketplace and so forth. I accept all of that. However, criminal proceedings are a step above. They change people’s lives whether they are found guilty or not guilty.

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