Andrew Murray (WA, Australian Democrats) Share this | Hansard source

I recall three decades ago having a very close look at the fair trading provisions in law in California and New York state. In both of those sets of legislation, and it may have been the case elsewhere—there was considerable academic and expert commentary surrounding them—I recall that they were very much focused on two fundamental and longstanding principles in competition law. The first is that you should have like terms for like customers. In other words, if you are of a certain volume, size, ability or credit worthiness you are entitled, as a matter of law and as a matter of principle, to have the same terms as someone of equivalent status. It is equivalent, if you like, to talking about antidiscrimination law. What antidiscrimination law says is that you should not discriminate against somebody—for instance, with respect to work—by age, by gender, by religion, by ethnicity; you should evaluate them on their merits. Essentially, the like terms for like customers approach says that you evaluate each customer on their merits; you do not discriminate on unreasonable, immoral or biased grounds.

The second principle which is attached to that is that you should publish your terms and conditions, and your lists of terms of conditions should be freely available. That is a principle that is well established in Australian law, except in a few industries. One of the very worst—and I am absolutely appalled to this day, and I have written and spoken extensively about it for a couple of decades now—is the fact that shopping centre rents are a secret matter. Secret pricing is undertaken and is not publicly available. I have long been concerned about this matter.

There is a publication of mine in the Parliamentary Library, if anybody wants to go and have a look at it, about an issue that was raised in March 2004 during the Senate references committee inquiry into the Trade Practices Act. Just to express the principle: if you walk into a shoe shop as a customer, all the prices of the shoes and the various brands are available and are known to you. This amendment seeks to identify, for the buyers of petroleum products, the terms and conditions to which they are entitled with respect to their particular character—in other words, their volume, or their geographical location. Obviously, if an oil refinery has to deliver fuel for 300 kilometres, it costs them more to get that fuel to that customer than it does to get the fuel to a customer five kilometres away, and they are entitled to add a premium for that distance.

The Americans discovered years ago, in that instance I was outlining, that sellers were biased in terms of how they treated buyers. For instance, some buyers would get a facings allowance, which should have been available to others and was not; some buyers might get 45 days terms of credit, whereas the standard was 30 days, and that was not available to others; and so on and so forth. The Americans required that these principles should be clearly laid out by the seller on a non-discriminatory basis so that people had an appropriate way to be able to determine how to get the best price, whether by volume or by the terms that they were able to make attractive to the seller.

I think that this amendment encapsulates an absolutely critical, vital and—if I might describe it as such—universal principle with respect to the sale of goods under an advanced, fair competition regime. Certainly, you might quarrel with the wording here or there, but it does not alter the real impact of this amendment. For instance, it says, ‘the wholesale supplier will make available to the public each day’. I am not sure the public would need to refer to it each day, because it is more important for the retail buyers to be able to refer to it, but nevertheless it still must be available to the public. It must be a public list of the terms and conditions under which you supply product.

The amendment says ‘on an Internet website’. Not every buyer will have access to a website. Some of the sorts of small businesses that Senator Joyce was talking about earlier might not have website access, they might not have broadband way out in Woop Woop, so you could argue that an internet website is too limiting and the information should simply be available to the public. Nevertheless, as with the other amendment, the saving grace—if there are any inadequacies in this amendment—is that it says ‘the Oilcode must specify’. Of course, the Oilcode is capable of being expansive and descriptive and able to cover off areas which the amendment might not cover off.

The most important aspect of this amendment is that it seeks to address the issue of fundamental public concern—I accept, because I have heard the arguments contrary to this, that it might not always be true—which is the common public and media perception that the market is manipulated by the oil majors and their various organisations. It may not be true but the only way to cure that perception, which is very widespread indeed, is for there to be a published list of terms and conditions in which the regulator, and indeed everybody concerned with these matters, can have confidence.

I have had a close look at and a think about this proposed amendment and I agree with the Labor Party. I believe that not only is the intent correct and not only are the precedents there in terms of long-established competition principles in modern market economies but the wording is sufficiently tight to enable it to pass into law without too many unforeseen consequences. With those remarks, and with a long history of my own and the Democrats’ concern and support for similar approaches in other bills at other times, it is consistent for us to support this amendment.