Nick McKim (Tasmania, Australian Greens) | Hansard source

Senator Scarr, you are, as you often are, right, because the Greens will talk about the elephant in the room, and that is that these reforms that do protect consumers do not cover the financial services sector. A little later on I will explain for everyone listening exactly why Labor has chosen not to cover the financial services sector in this legislation, but, before I get there, I want to be clear that this bill implements an important reform that consumer organisations, including the Consumer Policy Research Centre and the Consumer Action Law Centre, along with the Australian Competition and Consumer Commission and the Australian Securities and Investments Commission, have long advocated for—and that is to ban businesses from engaging in unfair trading practices. I congratulate and thank those organisations and many other folks in this country who have advocated tirelessly for these reforms over a long period of time.

I want to add to that the Greens have consistently pushed for this reform. In fact, when we established and chaired the Senate Select Committee on Supermarket Prices, which reported in May 2024, that report included the banning of unfair trading practices as one of the many recommendations that we made in order to bring a little bit of much-needed regulation to bear against the supermarket duopoly in this country made up of Coles and Woolworths. Currently Australian Consumer Law does prohibit misleading, deceptive and unconscionable conduct, but many people, including the organisations I mentioned earlier and our regulators, have been saying for years that the threshold is too high and fails to capture business behaviour that does harm people and exploit people and rip people off but doesn't meet the high test under our existing laws. That omission leaves people exposed to harm without recourse. While the Greens welcome this reform, as I said, we're very disappointed that it stops short of applying the new provisions to the financial services sector and, therefore, doesn't cover the entirety of the Australian economy.

The ACCC and ASIC and consumer organisations have consistently said over a long period of time that unfair trading practices must be banned in the financial services sector—and not just banned in the financial services sector but banned at the same time as they are banned under consumer law. This should not just be a provision that is inserted into consumer law. It should also be inserted into the Australian Securities and Investments Commission Act. But, instead of listening to the experts, and instead of listening to the regulators in this country, the Assistant Minister for Productivity, Competition, Charities and Treasury, the Hon. Dr Andrew Leigh, stated in his speech when he introduced this legislation that the government will 'consider' whether extending unfair trading provisions to the financial services sector is 'necessary'—so there is no commitment to actually do it. The government is thinking about it. That is not good enough. There is no commitment to do it and no timeframe.

Senator Darmanin's speech was absolutely spot-on about the traps that people find themselves in, and she referred to a subscription service trap that she herself is stuck in. I say to Senator Darmanin on behalf of the Greens, and I say to the Labor Party and, in fact, to all colleagues in this chamber: if it's good enough to help people get out of subscription traps, why is it not good enough to help people who are trapped in a particular financial arrangement with a financial services company? Why is it not good enough to help those people who can't get out and who are trapped in an arrangement with a financial services company? We are leaving them at the mercy of rapacious financial services companies because this government is in thrall to the big banking corporations and the big financial services companies in Australia.

I want to quote from the Deputy Chair of the ACCC, Ms Lowe, during the inquiry into this bill:

The lack of harmonisation between the Australian Consumer Law and the ASIC Act on unfair trading poses the risk that consumers and small businesses will be left exposed to harm and markets functioning suboptimally. Inconsistent protections … lead to regulatory gaps that unscrupulous providers can take advantage of or that businesses can simply fail to fall within … and thereby escape regulation.

I want to particularly remind my colleagues in the coalition on the opposition side of this chamber that many small businesses are stuck in traps where they can't get out of arrangements they've got with unscrupulous financial services sector providers. Ms Lowe also indicated it can be difficult to determine whether some products and services are indeed a financial product or whether they are not, or whether they are a combination of financial services product and non-financial services product. That confusion and that lack of clarity will likely impede effective regulatory action.

In a speech to the Australasian Consumer Law Roundtable in 2024, ASIC Commissioner Mr Kirkland advocated for a ban on unfair trading practices to apply to the financial sector at the same time it is applied to the rest of the economy. He argued that limiting the ban to consumer law creates regulatory gaps and leaves consumers exposed to harm. For example, the new laws will apply to businesses trapping consumers in an unwanted subscription, as we heard from Senator Darmanin, but not to businesses making it difficult for companies to either switch to a different financial product or withdraw from an arrangement with a financial services company. Importantly, Mr Kirkland argued:

… the harm that can be created by unfair trading practices in financial services is commonly far greater than in other areas of the economy.

So you've got both regulators in this country, the ACCC and ASIC, calling on the government not to allow a gaping hole in the consumer protection framework in this country that will expose people to harm. Wouldn't you think the government would listen to them? No. Entirely predictably, Labor is caving to its big corporate donors. Labor is caving to its corporate masters in the financial services sector, including the giant banking corporations who run so much of Labor's policy.

Who can forget the handshake I had with former assistant minister Jones to apply significant financial penalties for dodgy bank executives? Who can forget the head of the ABA, Ms Bligh, a former Labor Queensland premier, calling up Prime Minister Albanese overnight and giving him his riding orders to instruct Minister Jones to backflip on the agreement that he and I had made in his office only a matter of a day or two earlier? And who can forget Labor going to bat for the top end of town, for dodgy bank executives who fail to take appropriate action to ensure rigour and probity in these giant banking corporations that they run? Here we are again—