Senate debates

Thursday, 11 May 2017


Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017; Second Reading

10:50 am

Photo of Nick XenophonNick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

Mr Acting Deputy President, that is very unhelpful in relation to this. As much as I genuinely like Senator Macdonald, that is not helpful.

This Labor bill, the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill, is about access to justice. My colleagues and I wholeheartedly support this bill. The intent of this bill is to do something about the chronic lack of access to justice in this country when it comes to dealing with disputes, particularly commercial disputes. As I have done before, I disclose that I am the proprietor of a very, very small law firm with 2.6 lawyers working in it, where we do principally personal injuries work and a bit of commercial work. From my time as a practising lawyer—and I still have a practising certificate, so that I can do my pro bono work in gambling cases and the like—I know that the justice system in this country is broken when it comes to access to justice. There are so many people in this country who have a genuine dispute and who are told by their lawyers: 'You have a 70 or 80 per cent chance of winning.' But they still will not go ahead with that case because of the risk of adverse cost orders which could cause them to lose their home.

But it goes beyond that. There is an independent supermarket proprietor—I will not name that person—who is very successful; he has a significant turnover and employs many, many people in more than one state. He tells me that if Coles and Woolies do something, whether it is predatory pricing or some other conduct, which his lawyers say could lead to a successful action for abuse of market power—under our current laws—his lawyers tell him: 'You have a really good chance of winning. But, by the way, it is going to cost you $3 or $4 million to run it, and you could be up for adverse cost orders of millions of dollars more.' That is not a justice system.

We know what the Productivity Commission said back in September 2014 when they looked at access to justice arrangements. They said:

There are widespread concerns that Australia's civil justice system is too slow, too expensive and too adversarial.

That goes to the nub of the problem that this bill seeks to address. We know what has happened in other countries, including in the UK. My understanding is that this bill picks up on elements of best practice, so that we can have a system where there are filters and safeguards in place before an action is brought, to deal with frivolous and vexatious actions; a system where you need to show that you have a prima facie case where you have a matter that has got real merit in it but that is subject to dispute.

Getting rid of adverse cost orders will not mean that it is going to be a pushover to deal with these cases, but it will mean that at least parties will know what they are up for in terms of their own costs. It will mean that they will not be subject to being 'deep-pocketed' by a much larger corporation that can drive the litigant, the plaintiff, into the ground. This bill attempts to address that. The bill, in terms of the specific provisions, may need some fine-tuning, may need some extra work done to it, but the principle of the bill that has been introduced here by Senator Gallagher is a very good one. That is why we support it.

Can I also say, on behalf of my colleagues, that we also support, with some amendments, the 'effects test' that the government is putting up, in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016. It is something that the Nationals have been outspoken on and something that I have worked on for many years with people like former Senator Joyce, now the Deputy Prime Minister. We think that will make a real difference for those small and medium businesses in disputes involving large corporations which abuse their market power. But we think that that bill will be so much more effective, will do what it is meant to do, if it incorporates the elements of this bill.

To Senator Gallagher, I say, 'Imitation is the sincerest form of flattery.' We are going to flatter you by moving a whole range of amendments based on this bill to the government's effects test bill, because we think that is the right thing to do in order to make that piece of legislation work much more effectively. It is no good having a rolled-gold piece of legislation on an effects test. The effects test needs to be modified. It has been constrained in its current form in terms of the government's bill. If we have these amendments in substance, it will mean that the bill will have genuine teeth, because people will be able to have their day in court without the fear of being bankrupted by taking a meritorious claim to court.

That is why, as a team, we support this legislation. It is a worthy piece of legislation. It is long overdue. I congratulate Senator Gallagher for moving this legislation. This is the way forward. If you want to have effective competition and consumer laws in this country, you must have an effective system of access to justice, and this bill goes some considerable way to achieving it. That is why we so wholeheartedly support it.


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