Monday, 27 March 2017
Competition and Consumer Amendment (Misuse of Market Power) Bill 2016; Second Reading
The Greens went to the last election calling for an effects test to be put into our competition law. We have been taking on the Coles and Woolies of politics and we have also been taking on Coles and Woolies. We have heard story after story from small businesses and from individuals who have been put under undue pressure by big corporations with ties to the old political parties in this country. We know, as every customer and consumer knows, that in Australia at the moment the big companies, especially in areas like groceries with the actual Coles and Woolies, have too much power. They are able to wield that power down the line to make their producers produce in a certain way, at certain prices and at certain times in a way that makes life pretty difficult for the farmer or the producer at the end and in a way that makes it very difficult for small businesses to intervene and compete. They have also been able to use that market power to get others out from under them so that they cannot come in and compete with them. That hurts the people who want to set up in competition to Coles and Woolies or who might want to set up a small business with the aim of one day turning their small business into a big business or perhaps just keeping their small business as a small business.
We know that the law at the moment places far too high a hurdle in front of any small business that wants to complain about the way that these big companies are using their market power. What they have to do under the current law is to say, 'Big companies, you are using your power to squeeze us out of the market and make our life unviable, not just as part of the cut and thrust of normal competition. You are misusing your market power in a way that is designed to eliminate us, but you are using it for the purpose of eliminating us. You are not using it for the purpose of increasing competition or keeping prices low or bringing new products on line, but you are doing it for the purpose of putting us out of business or of lessening competition in some other way.' That is a pretty high hurdle for any small business to jump over, because it asks them to read the minds of the people sitting around the boardrooms of Coles and Woolies and to get them to prove that they had a particular intent in their minds and then come to court and litigate it and win that litigation. That is something that is very difficult, if not impossible, to do for most small businesses in this country.
The reason we have been calling for an effects test is that what has to be demonstrated is not the purpose or the reading of the minds of board directors or the sales managers or the marketing managers of Coles and Woolies, but actually looking at the effect of their actions in practice. If it has had the effect of substantially lessening competition and forcing them out, they should be held to account for it. That is why, for quite some time, we have campaigned for an effects test. But it is interesting to come into this chamber now and hear this debate, because hearing the Labor opposition talking about it, they are conducting this debate like Liberals. The Labor Party is sounding like the Liberals, because they are getting up and talking about the importance of pure, unfettered competition that cannot be intervened in at all by legislation. They are saying that by and large things work fine as they are at the moment—there is no problem with what Coles and Woolies are doing. Maybe that is tied to the donations they make; maybe it is tied to other arrangements that Coles and Woolies have with other parties that make donations. I do not know. But it is odd listening to the Labor Party come in one after another and say that we have to preserve pure competition and economic rationalism, especially when it has delivered such a raw deal for consumers, small businesses and small producers around this country.
Labor is acting like the Liberals, but the Liberals have gone missing in action on this a bit. There has been a high proportion of National Party MPs on the speaking list and a smaller proportion of Liberals. This is something that the National Party was able to secure from the current Prime Minister. To that extent, good on them for getting a reform that is not about doing farmers over by having more coal seam gas extraction on their land and giving farmers fewer rights than they currently have. Good on them for getting a reform out of the government that might actually do something for small producers that want to take on Coles and Woolies or their equivalent in other areas.
But—there is a but—I say this to the National Party members of this House who have been able to secure this arrangement: have a close look at the bill, because one of the concerns that we have is that the government is so intent on being seen to pass it but not actually passing it that they have buried a couple of traps in there. One of those has been something that the members of the opposition have drawn attention to, which is the effect that this is going to have on telecommunications. On our quick, first reading, this will take out some provisions of legislation that provide ways of dealing with competition issues in the telecommunications sector. It is not immediately apparent why this bill needs to do that. It would have been interesting if the opposition had come along and moved an amendment to take that part of the bill out. They have not done that, so maybe they do not feel that passionate about it. They feel about it from the perspective of speaking about it, but they have not moved an amendment to take that part out of the bill. But it is an issue. We are going to need to give this a bit of scrutiny as it progresses through this parliament. If what is being done is bundling up in what could be a very good piece of legislation about introducing an effects test some other matters that might, either by design or intent, by purpose or effect, slow things down in the Senate, that would be of concern.
I would urge those National Party MPs, who seem to have some sway over what this Prime Minister and government do, to listen to the concerns that have been raised so that this bill, or a version of this bill, can get through the Senate in a way that puts a proper effects test into law. In relation to this bill here and now, I will be supporting the passage of the bill in this place because it represents a chance to reform the law properly and introduce an effects tests; but some of these issues that have been raised—not the ones where Labor has gone back to the old Kevin Rudd days of being economic conservatives—it is odd that we go from rightly saying that we do not want to have a tax cut for big corporations to all of a sudden walking in here the same day and saying, 'We are now economic conservatives who want to defend pure neoliberal competition policy.' Let's put that to one side. The issues about the telecommunications industry are important issues, and they deserve to be addressed and looked at. There are potentially others as well about when this bill will come into operation. Is it going to be contingent on future pieces of legislation being passed, which it probably does not necessarily need to be? Or is this going to come into effect if the Senate reaches agreement on it?
I support the passage of this bill through this place so that we can get a closer look in the Senate. I would hope that there might be some amendments moved by various parties at that stage to try to deal with some of these things, and I would hope that National Party MPs, in particular, take a very close look at this bill and make sure that a good effects test comes into law when this is passed through the Senate. If we have to strip away other bits of the bill to make sure that happens, that is what should happen. Hopefully there will not be other things buried in this bill that are designed just to slow the progress of it down.