Monday, 18 February 2019
Treasury Laws Amendment (2018 Measures No. 5) Bill 2018; Consideration of Senate Message
This is a great day for small business, because Labor's access to justice amendment has passed the Senate and looks as though it may now pass the House. This is a great opportunity for the 45th Parliament to come together and address the market power imbalance between large business and small business.
For a bit of history, in 2017 the Senate passed Labor's private senator's bill to provide access to justice for small business. There was no crossbench opposition. It was a bill that united Centre Alliance, the Greens and Senators Bernardi, Leyonhjelm and Hinch. Even Senator Gichuhi supported the bill prior to her joining the Liberal Party. Yet, when it came to this place, the Liberals refused to debate it.
Last Thursday, the Senate passed the measure again, despite government opposition. Just to be clear about the government's position, the Journal of the Senate records: 'All government senators by leave recorded their votes for the noes.' So the government was against access to justice for small business last Thursday in the Senate. When they had the choice as to whether they would support millionaires, multinationals and monopolists, they chose the three Ms over Australia's small business. But over the weekend we began to hear what the National Party might do—never mind the crossbench, who in this place have been strong champions of small business. Over the weekend, we heard from the member for New England, the member for Mallee, the member for Wide Bay and the member for Hinkler about their support for Labor's access to justice for small business policy and their recognition of the value of backing the little guy.
Labor's small business access to justice policy allows a small business to request a no adverse cost order when bringing on a court action for a breach of competition law. If the judge decides the case is in the public interest, the small business won't risk paying the big business's costs if they lose. As the Harper competition review concluded, 'there are significant barriers to small business taking private action to enforce competition laws.' Many commentators have noted that small business isn't scared so much of their own legal costs, but of being bankrupted by the legal costs of the other side.
I'm pleased to see in the House the member for New England, who, when quizzed about the coalition's opposition to access to justice for small business in in the other place, said:
… the whole raison d'etre of the Nationals is to support small business.
Anything we can do to assist small business get a more just market we would support—I would support.
There is a lot of contradiction between 'I' and 'we', but it is pleasing that it looks as though the government will backflip, with the Treasurer having said today, 'We will let it through on the voices.' This is a reform supported by the family and small business ombudsman, a former Liberal chief minister of the ACT. She said, 'Access to justice is an issue regularly raised with us by small business. This amendment would be an important step towards levelling the playing field.' COSBOA says, 'Access to justice is a huge issue.'
This is the work of the Labor team. I mentioned before Senator Gallagher's private senators' bill in the other place. Small business access to justice was originally developed by the shadow minister for communications, Michelle Rowland, in 2016. I pay tribute to her for her work on this policy. We took it to the 2016 election, we introduced it as a private senators' bill in 2017 and we will take it, if it doesn't pass today, to the 2019 election. I should say too that today's reform not have occurred without Nick Green, one of the smartest and most persuasive staffers in the building, who is engaged with the crossbench in this place and in the other place. Labor's support for small business goes well beyond access to justice. We will make unfair contract terms illegal, we will allow peak consumer bodies to make super complaints, we will double the competition regulator's litigation budget and we will create an independent second commissioner of appeals at the tax office.
At the next election, small business will face the same tax rate regardless of who wins. But under a Shorten Labor government, they will also get the Australian Investment Guarantee. Labor will produce a better national broadband network, a critical issue for Australia's small business. And, thanks to Labor, under a Shorten government, or perhaps today, there will be access to justice for small business, a terrific Labor reform due hopefully to pass the House.
It's great to see so many messages coming back from the Senate as the government's legislative agenda continues to move forward steadfastly. I will make particular note of the reforms we have made in Protecting Your Super under the banner of Protecting Your Super, which has passed the House and the Senate. It will move to executive council next week. From that point, three million Australians' super accounts with over $6 billion currently inactive, not being used, tucked away in super funds across the country, most of them having insurance fees paid out of them, will be taken through to the ATO, and the ATO within a month will reunite it with active accounts.
This is all about standing up for Australians. Three million Australians have benefited because of the work we have done. In a week-and-a-half's time, once executive council has signed off, for those under 25 or accounts under $6,000, will have accounts capped at three per cent. For all those in superannuation funds, exit fees other than buy-sell spreads will be banned. This is one of the major reforms of superannuation in the last decade in terms of protecting vulnerable younger Australians, especially in preparing for their retirement. There is more work to be done.
The government made it very clear in the Senate when we excised the insurance and super component from the bill that we were not walking away from insurance and super. We were not walking away from that component of the bill. Any number of actuarial studies, including those by Michael Rice, have shown that, if insurance was managed appropriately and properly and on an opt-in basis, people would be saving hundreds of thousands of dollars for their retirement. We are not walking away from that component.
Furthermore, in messages from the Senate we have seen other areas of the government's legislative agenda being returned—in this case, the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018. This government will continue to produce and progress its agenda strongly in the House and in the Senate. If these four messages from the Senate say anything, they speak to the government getting on with the job of protecting Australians, of legislating in the best interests of Australians and of governing strongly.
I'm glad the Assistant Treasurer is here to tell us about the agenda. Perhaps he might turn his mind to the 18 days he has had the royal commission report, so he can think about how to legislate to protect Australian consumers from payday loan sharks. I'm also glad the member for Swan is here. I'm a bit sad he didn't speak about small business. It's an excellent opportunity to speak about small businesses in his electorate. I know there's the Labor candidate for Swan, Hannah Beazley, who built and maintained her very own small retail business. She would not miss an opportunity like this to talk about small businesses in Australia and the positive policies that Labor has put forward and that the coalition government is adopting to support them.
Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 is an excellent win for Australian small and medium businesses. Although we know that the coalition has fought tooth and nail against this reform for many years, they have now capitulated because of the agrarian socialists of the National Party threatening to cross the floor. What a backflip! But, really, it is a very welcome one; I don't deny that.
Labor's small business access to justice policy will help small businesses to bring cases of anticompetitive behaviour to court. Currently, small businesses are much less likely to take up private litigation against big companies with deep pockets and with many good connections in the legal business. These businesses have a lot of money to spend, and small business does not. The risk of small businesses being bankrupted by legal fees is a significant disincentive to taking action against anticompetitive conduct. Labor's access to justice policy, which the government has now adopted—and I thank them for it—will level the playing field by allowing a small business to request a no-adverse costs order early in a court case. If the judge decides the case is in public interest, the small business won't have to risk paying the other side's cost if they do not win in the end.
Labor has been pushing for this change for many years. It was announced before the last election, in 2016. The member for Greenway announced it. She's very close to the policy, and it's great to have her in the chamber today to see this legislation go through the parliament. Labor introduced through senator Katy Gallagher a private senator's bill in 2017. The coalition senators voted against it then. They failed to support the same legislation we have here today 730-odd days ago and, as the member for Fenner has pointed out, they failed to support small business last week in the Senate.
But, while I'm on good ideas for small business, we know access to justice is just one measure of a wealth of policies that the Labor Party is putting forward for small businesses in this country. Since the government is enthusiastic this week about bipartisanship, perhaps they might want to consider some other Labor policies to help small businesses—a second ATO commissioner, perhaps, for appeals, so small businesses have a fair appeals process when dealing with the tax office. Every small business is unique and there is no one size fits all to tax disputes. One small business matter will differ from another. Therefore, a separate appeals area in the tax office ensures small business disputes are given the care and attention they deserve. That's why Labor is committed to establishing a second ATO commissioner, and that's an idea for free for you over there.
How about tackling unfair contracts? Currently, if a particular term in a standard-form contract signed by a small business is found to be unfair by a court or tribunal, that clause will be void and the small business will no longer be required to comply with it. There is no prohibition, however, of unfair terms being included in a contract, and this is the problem. There are no penalties or deterrents for inserting unfair contract terms into those contracts, and seeking to have a term voided is cumbersome and costly, particularly for small business. That's why we would work to legislate against unfair contract terms. We will have penalties of $10 million, which should send a great message to big businesses that try to pressure small businesses into unfair contract terms in their dealings.
Another area we could look at—we are committed to helping small business in this regard, and it's another one for you on the other side in government—is the NBN. Every time I speak to small businesses—I know the member for Greenway, as the shadow minister for communications, is the same—they lament the awful rollout of the NBN and how it adversely affects their businesses. Small business is very reliant on digital platforms. The least we can do, and what Labor will do, is make sure there is an NBN service guarantee so that small businesses can be guaranteed a service, which they're not now under this government's ridiculous rollout of the NBN. So I'm glad this legislation will pass. To those opposite: you've come to the game too late, but congratulations on getting there.
I believe one of the core tenets of the National Party has always been that a person in this nation can start from the bottom and transcend through the economic and social stratification of life to their highest level, limited only by their innate abilities. The reason for that is that it gives people the highest level of freedom in life—to be their own boss. Some people—and it's quite understandable, of course; this is probably the generality—will not be their own boss; they will work for major organisations or for government. But the kernel of what this nation is about is that people have that right, and it must be fundamental to what this nation is about that they cannot have that right interfered with by big government, big business or big unions.
The amendment to the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 giving access to justice means that it is not the big chequebook that wins the argument; it is the just outcome that wins the argument. As such, the National Party—and, I must admit, I personally—have been fighting for so long to make sure it comes about. We did it with section 46(1AA) of the Trade Practices Act, the Birdsville amendment. We did it with our support and battle for the effects test, which the Labor Party—I have to remind them—fought against. That amendment was that an action be judged by its effect, not purely by the letter of the law. We did it with the National Party's support for divestiture powers. We get the absurd position from the Labor Party that they don't support divestiture powers. That is absolutely an article that says to a big company: 'If you don't listen to us'—like AGL did not listen to us when we were trying to make sure that people got fairer power prices—'we can, though we wish not to, break you into two.' By gosh, they listened to that! They listened to it so much that they had Photios, a senior operative of the Liberal Party, running around with Ms McNamara to make absolutely certain that it didn't get up. They did it by making sure it offended both the big unions, such as the Shop, Distributive And Allied Workers Association, and Coles and Woolworths, because one doesn't want their capacity to take union fees out of employees' wages questioned, and big business doesn't want its market power ever questioned. With small business there are a multitude, of course, in country towns in proportion to big businesses, because big businesses have centralised. So we are very aware of the high street of regional towns.
We are also very aware of the issues with farmers, and I might briefly tell you about one. One farmer, a big organisation, went into the specialty of providing one line of vegetable. It became so specialised that the large retailer came and said, 'This is the price we're going to pay you for it now.' It was completely unreasonable. They'd completely restructured their business, and the big retailer knew they had nowhere to go; they knew they had them over a barrel. At other places people have said: 'We want to explain our problems to you, but please don't tell anybody. We have been specifically warned that if you come onto our place they will not buy our produce.' These things are an offence to the Australian principle of being your own boss, of not being a serf in somebody else's kingdom.
I remember talking to a gentleman from IGA—no doubt it was the same one you were talking to—with regard to structuring this, and it made sense. I'd had it all the way through. I was never going to telegraph my punches but I was always going to vote for the side that supported this. It was vitally important. I do put it down to the pressure of the National Party that this is going to go through, without a shadow of the doubt; otherwise we'd be having the debate now. I believe this has to be part of a tranche of issues we need to address. This is one. Divestiture powers are the next. You cannot say you support every issue of the banking royal commission in principle but don't support the ultimate mechanism for making them respect the government, which is divestiture powers.
If we can get these things right, whether you're National Party, or Labor Party, or Independent, or Greens or Liberal Party, then we will still maintain that most precious gift that this great democracy gives us: the right of any individual, no matter what their education, no matter where they come from and no matter what town, to transcend the economic and social stratification of life to their highest level, limited only by their innate abilities.
I was considering making these points in a suspension of standing orders immediately after this debate on the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018, but I think it will suit the convenience of the House for me to make these comments now. I thought I'd take the opportunity after the Assistant Treasurer dealt with a number of the bills that have been passed in succession right now.
No-one should be in any doubt as to what's happening in the House this afternoon. After being defeated on the floor of the House of Representatives at the beginning of last week, the government has now decided that wherever there is a bill and wherever there is a vote where they know they will not command a majority in the House, they will miraculously change their position and vote for it. Today, we're having the royal commission vote, the access to justice vote and the penalties vote. Of course, the vote that we won't have at all is the 'big stick' legislation. But in each of these votes we're having today, no-one should see it as anything other than a strategy, because at no point has the government said what changed over the weekend. At no point has the government said what changed between their opposition last week on these issues and their sudden, miraculous and fulsome support for them today.
An incident having occurred in the chamber—
An honourable member: You're out of power!
Fantastic! Even that! And let's not forget the way the government argued each of these issues. Not only have they not said there is a policy reason as to why they have changed their mind but the arguments the government have come up with today are to say, 'But this was always our position.' This was something they always believed.
There is a novel that was written some years ago, where it said, 'This is now our view, therefore this has always been our view.' I never thought we would end up with that being the position of the government of Australia. And yet this government today, on issue after issue after issue, is misrepresenting not ancient history, not what happened in the Howard government and not what happened earlier in the term, but what happened last week! What happened four days ago!
We've learned something about the Prime Minister here. We already knew from the leadership challenge last year that if he says he supports you, you're gone. But now we find out that if he says he is opposed to something then you're in with a chance! If he says that he is passionately opposed to a bill, or to a motion or to something that he's willing to have the longest question time in history in order to avoid—any of those issues—you're in with a chance, because if he says it's something he wants to prevent, all you need to tell him is, 'Oh, you'll be defeated on the floor of the House of Representatives,' and all of a sudden he'll say: 'Oh, I've never been opposed to this. I've never had a view that was any different.'
That is what we're finding today in three votes in a row: the three votes we're having and the one they dare not have. We had the royal commission vote, the access to justice vote we're having now, the penalties vote we had not long ago, and the big stick legislation—
I just ask the Manager of Opposition Business to pause; please freeze the clock. I can assure the Manager of Opposition Business that I can see him on the television. I can probably hear him better than I can see him! But all the other aspects are working well, so until we get some further information, if people are happy, just keep going.
With each of the issues, we now see that the government is so willing to change stated beliefs, is so willing to change convictions that it held so strongly, that it would have the longest question time in the history of Federation. It is willing to get rid of legislation about which it spent months and months saying to Labor, 'Unless you support this, you support higher electricity prices,' and then all of a sudden they won't bring it to a vote. And in every case now we see a Prime Minister who is willing, for the purpose of strategy, to change what he has told people he believes to avoid a defeat on the floor. The next election can't come soon enough.
I can put a torch on if you like! I would bring in some candles, but we might be offending the gods of CO2 if we generate too much hot air in parliament! I rise to speak on this very significant piece of legislation, the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018, which I support. There is a problem with the cost of taking action in the courts. There is an unfair playing field. Just the very nature of legal costs will prohibit many people in commerce from bringing an action when there's anticompetitive behaviour. Whether it's the abuse of market power, unconscionable conduct, unfair contract terms, the arbitrary changing of contract terms in the middle of contracts, summarily, with one party to the contract having undue power—all of these need to be challenged in the court, but, time and time again, we hear that the costs or risks of taking legal action are prohibitive. So, getting the Small Business and Family Enterprise Ombudsman to give fair and reasonable advice or suggest remedies and to ask for an exception so there are no adverse cost orders is a really great initiative. But the effects test and other things in the small business space need the courts to bring them to effect, and this will make it much more likely that small or even medium-sized businesses, who are taking on the giants in industry and commerce that have much deeper pockets, will have a more level playing field.
The member for Watson just gave us a diatribe about everything on the coalition. I know they are using this to wedge us, but I'm very happy to be wedged. I'm here saying this is a good idea, but I suspect there is not a genuine concern from the member for Watson, because he's more interested in bringing the reputation of our fine Prime Minister into disrepute.
This bills is the start of many things we need to do with the Competition and Consumer Act. General divestment powers exist in Canada, the UK and America. They've existed for decades in some of these jurisdictions and almost a century in others, and commerce has flourished in all those jurisdictions. It's not the end of earth if we have divestment powers. As the member for New England mentioned, it is a longstanding National Party policy to bring in these divestment orders, but, unfortunately, the logistics mean that this is where we're starting.
Many of you have a legal background. You understand that there would be costs running into millions of dollars if you were to bring the sort of case that needs to be brought to establish some of the things that have been established about the effects test, reducing competition and restricting trade and unfair trade practices and acts. But the missing ingredient is making it available to those that are most aggrieved. Most of them are very successful small businesses—horticulture and agriculture businesses, dairy suppliers and all sorts of people in the small and family business space—who develop longstanding relationships, get bigger and more successful, expand and then have unfair practices occurring in their contracting or undue pressure to lower their prices below the cost of production. We could keep going all night about misbehaviour in the marketplace. When the market is broken, governments are meant to step up and fix it, and this is an initial salvo. We in the National Party will keep fighting for further improvements, particularly general divestment powers.
Question agreed to.