James Stevens (Sturt, Liberal Party) Share this | Hansard source

I rise to speak in support of the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022, which, as has been outlined, has two core elements: one is to do with increasing fines and the other is to expand the protections around unfair contract terms. My understanding is the OECD had undertaken a good body of work around the consequences of anticompetitive behaviour in different regimes within the OECD. The outcome of that was that, in this country, we have not been putting in place sufficient fines.

You would hope there was a disincentive, from a moral point of view, for people not to engage in uncompetitive behaviour in our economy. But, of course, we need safeguards in place, and the OECD—which probably reflects on the value of that organisation—to be able to give us this sort of comparative policy analysis and advise this jurisdiction that we are at the lower end of the sorts of penalties that are put in place within other similar OECD nations, particularly the United States and the United Kingdom. The first element of this really dramatically increases the penalties that can be put in place within our competition framework, and that's a really important thing. As a proud free market capitalist, I'm equally very conscious of the importance of having a very robust framework in place to ensure that we have free, fair and open markets and free and fair competition within our economy. The framework that we've got in place, and organisations like the ACCC, do an excellent job in making sure they're protecting consumers, but we're clearly always going to need to be vigilant in looking at opportunities to make sure the protections are in place at the appropriate level to ensure that we have free and fair competition.

In this country, we haven't had a really concerning history of major anticompetitive examples. Some jurisdictions—like the United States—talk about antitrust, which is the same sort of principle. In fact, if ever we have had anticompetitive issues, it has always been because of government enterprises that have had the ability to compete with the strength of government in what should be a free and fair market. It's a great commendation to people like Bob Hawke and Paul Keating, who recognised that maybe the private sector could run airlines in our economy, rather than government running one and stifling competition in a sensible market like that, which should be free and open for private sector to compete with each other in and, hopefully, achieve good outcomes for consumers in that market, through that competition, with the lowest possible price being achieved.

We welcome the upgrade to penalties, but I make the same point that other coalition speakers have made, which is that it's humiliating how the costings have ended up on this. When the Labor Party announced this in the campaign, they were expecting a dramatic revenue dividend from these measures, but the forecast, as part of the legislation and the budget indicate, is that that's going to be dramatically lower. It's probably a good lesson for people to learn about assumptions and applying multipliers et cetera to these kinds of policy initiatives that are, effectively, always going to be in the hands of the courts. Despite suggestions that you can predict and just provide some kind of multiplier to decisions that the courts are going to make, it seems, based on a more sober reflection, that nowhere near the expected revenue is going to be achieved from the measures. That doesn't change the importance of the measure, but I make that point on the record—as others have—because it's not insignificant when people try these sorts of things on in election campaigns and election costings into the future to have important examples like this to point to.

The second element within this legislation is the issue of unfair contract terms. This is really important, and I think everyone in this chamber would agree—I don't mind being very honest about this—that when you've got the choice of spending your money with a small business versus a big business, we'd all choose the small business. Everyone in here would have superannuation and investments in major corporations, and good luck to major corporations, but we all back our small businesses at every opportunity in our communities and anywhere in our economy. Small businesses are the absolute lifeblood and backbone of our economy and also our communities. They are the biggest employer. We've got so many people that own and operate small businesses in our electorates—all of us would have, on average, more than 10,000 small businesses. These unfair contracts are nothing short of absolute bullying. They are absolute bullying and deception from people that are wilfully seeking to take advantage of a particular party. So they're coming from a position of strength and they are attempting to effectively engage in what I will say is deceptive conduct—that is, trickery, tricking someone into entering into agreements when there's an imbalance between the two parties. One party has drafted the contract with extreme complexity and without feeling any obligation to bring to the attention of the other party the specifics that they should be aware of. Of course, the other party shouldn't be expected to apply the kinds of resources that would be necessary to fully understand what they might be committing to by entering into that contract. That is absolutely something that we need to provide protections over, and that's obviously what occurs in this element of the bill.

If you're a really big business, you probably have in-house counsel, an in-house legal team. When you're the author of contract, you draft a contract for another party. Even if you purport that it is a completely standard agreement that you have with a whole range of other suppliers or customers—or whatever you might be claiming—all contracts are complicated. When I get a mobile phone, I don't mind admitting that I don't sit there and read all seven pages of the eight-point font that comes after the bit that's helpfully got the 'sign here' tag. Frankly, I think a lot of us probably think, 'What exactly am I going to do to dispute this anyway?' These are standard contracts from Telstra, Optus or whoever. So all contracts are complicated. All contracts require legal capacity and training to fully understand what their full consequences might be.

There's no doubt and there's clear evidence—and we probably all have specific experience of this with constituents—that people are tricked and lulled into committing to things without fully understanding the consequences of doing that. When that is blatantly the objective and when that sort of trickery and bullying is engaged in, we should stand up for the people who are victims of it. They didn't wilfully sign a contract knowing what they were committing to then changed their mind later or tried to weasel out of something that was fair and reasonable and that they were fully aware of at the time. This is really talking about circumstances where people haven't been fully aware of the consequences of what they've committed to.

People have also quite consistently made the point that the barriers for a small business undertaking a civil contract dispute against a big business are enormous. If you are a small business taking on one of the big players, you know that their first objective in any of these disputes is just to bleed you dry of money through legal costs so that you'll never even get your day in court. You'll have so many costs before ever even seeing the inside of a courtroom; it's almost never going to be worth your while, depending on the scale of the contract. As members, we would also know of businesses that have had terrible experiences in taking on a party that's had significant financial capability to litigate against them. We all understand and know that the legal system provides opportunities for parties to drag these things out significantly, and that puts a lot of cost on the party that's seeking justice. There are undoubtedly cases where both individuals and businesses are in a circumstance where they probably feel very confident that they are an aggrieved party and that they deserve justice, but they can't afford it. Those people have got to make that appalling decision that they shouldn't have to, which is that, even though they could rectify that situation through the courts, the cost to them and the risk to them and the time that it would take to achieve that justice means that it's simply not worth their while. That's not fair.

What we're doing here is giving people that are in that circumstance a lot more support, giving people like the ACCC and our consumer laws the ability to stand up for those people, so those people don't have to do it all by themselves and the bigger, powerful, bullying party isn't in the position where they can simply say, 'I'm not frightened of any consequence of taking advantage of you here because I'll just bleed you out before you ever get the chance to seek the justice that you deserve.' I think, again, that element of this legislation is very meritorious, and on that basis I'm very pleased that we appear to have a consensus to support these reforms.

We thank the OECD and the other processes that put us in a position to become aware of the need to improve and update the way in which we protect consumers, small businesses and individuals in our economy. A strong free market, like the one we've got in this country, is always going to need those very important protections for consumers and for fair competition in our economy. On the basis of that, I commend the bill to the House.

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