Paul Scarr (Queensland, Liberal Party) | Hansard source

Senator Whitten should take his own advice with respect to unfair trading practices and stop spewing this rubbish that there's actually a uniparty in this place. I can remember actually standing in this place and calling for greater powers to deregister the trade unions engaging in corrupt practices. Senator Whitten wasn't here but comes from the building industry, and One Nation voted against that enhanced control, that ability to deregister trade unions engaging in corrupt practices repeatedly. One Nation stood with the government. They stood with the government when that legislation was introduced under the Morrison government. So, whilst we're talking about unfair trading practices, maybe we should talk about unfair political representations like the one you just made, Senator Whitten. Having said that, I did agree with much of what you said in relation to delegation of executives, but I reject this rubbish about there being a uniparty. I've consistently voted against legislation put up by the Labor government in accordance with Liberal values. Whilst I've been in this place for the last seven years, I've consistently voted for Liberal values. So I reject this rubbish, this propaganda, this misleading political rhetoric about there being a uniparty. It's nonsense. It's rubbish.

Now I'd like to move to the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026. First, Senator Darmanin, we must catch up. You must tell me about who this subscription service is. I promise to give you the benefit of my 25 years in the legal industry at no cost to come up with strategies in which we can hold them to account. But I would say to you that perhaps we do need to make public the names of these businesses that are engaging in this sort of unfair practice in relation to subscriptions. So I do sympathise with you, and I noted how prudent you are when you enter into these arrangements. I'm at the opposite end of the spectrum. My beautiful wife Louise would say I'm a 'rusher-innerer'. I suspect my credit card statement is full of subscriptions I don't even know I have and which I need to purge. But thank you for that contribution.

Senator McKim, I wasn't aware, I must say, of the nuances in relation to—well, it's more than a nuance. You referred to it as the elephant in the room in terms of these laws not applying to financial services products. I think you made a number of very relevant points, and I know that you've got a longstanding commitment in relation to prosecuting these issues. Due to changes in terms of my responsibilities over the last six months, I've now rejoined the Parliamentary Joint Committee on Corporations and Financial Services, and it's certainly something I'll be looking into further, including the comments you referred to that were made by Commissioner Kirkland, who I've got a great deal of respect for. So thank you for that contribution.

I would also like to acknowledge the work of the economics committee in terms of the preparation of the report. Looking into this from somewhat of a standing start, I thought it was an excellent report. I thought that both positions of all stakeholders were weighed appropriately and reflected in the content of the report. So, as a former chair of the Economics Legislation Committee, good job.

I want to make three points in relation to this legislation. The first is that one of this Senate's main roles is to act as a house of review. What does that mean? That means, when a piece of legislation comes to the Senate, we should all try and work collaboratively to improve the legislation, to make sure that the legislation doesn't have unintended consequences, and to make sure that the legislation is reasonable and proportionate and doesn't place disproportionate burdens on individuals or on small businesses, as Senator Canavan referred to. In that process, we must always remember that it's easy for us to pass laws in this place that other people have to actually abide by and implement in their day-to-day lives. We heard from Senator Liddle that the regulatory impact of this law is estimated at about $123 million for one year. That's $123 million that business in particular, including small business at over $100 million, will have to find to comply with this legislation. So, if there is a way we can reduce that regulatory burden, I would argue that we should try and identify that way and work together to pursue that course.

In that respect, the coalition has put forward a number of what I believe are sensible amendments, and I want to speak to those amendments. Whenever we're imposing additional legal obligations on anyone in this country, we need to ask ourselves the question as to whether or not the obligations which we're imposing are clear and easily understood. In this case, I think the obligations around subscriptions and with respect to drip pricing, which are specifically defined in the legislation, meet that requirement—I have absolutely no problem with those at all and I fully support them. I do have some concerns with respect to clause 28B of the bill, which refers to unfair trading practices towards consumers and introduces a more general obligation. When you have general obligations, you've got to ask yourself the question: what does that mean in practice? In this case, in paragraphs (a) and (b), the text of the bill refers to 'conduct that':

(a) does or is likely to do either or both of the following:

(i) manipulate the consumer—

just hold onto that phrase—

(ii) unreasonably distort the environment in which the consumer makes, or is likely to make, a decision; and

(b) causes or is likely to cause detriment (whether financial or otherwise) to the consumer.

Going through each of those clauses, the first is 'manipulate the consumer'. What does that mean? I did what, presumably, many people would do when trying to interpret a bill, and that's look at the Oxford dictionary for the definition of 'manipulate'. That definition includes conduct which is unfair, but it also includes conduct which isn't necessarily unfair but tries to influence someone. Obviously, a marketing campaign which is engaged in by a business is seeking to influence people to buy a product or service, so the question is: when does that manipulation cross that line from influence into unfairness? In order to make that clear, given that the Oxford dictionary definition of manipulate includes both 'influence' and 'unfair actions', the coalition is suggesting—and Senator Canavan has put forward an amendment—that the word 'unfairly' be inserted into the bill before the word 'manipulate'. That makes sense to me. In circumstances where the general, plain, clear English meaning of the word 'manipulate' covers both unfair conduct and conduct which is not unfair, I think we should include 'unfairly' as an adverb in relation to 'manipulate'.

The second amendment proposed by the coalition is in relation to this concept of 'causes or is likely to cause detriment, whether financial or otherwise, to the consumer'. Again, I think there's good argument that there needs to be some sort of materiality test inserted in that regard. In this case, adding the words 'material detriment', again, as is generally proposed in the amendment, is a way to address that issue so that we're only talking about detriment that reaches a certain materiality standard with respect to the conduct. Those are two sensible amendments, and they would actually assuage the general concern that the general provision is a bit too general and needs to be tightened. I genuinely think that would improve the law.

The second point I want to make is in relation to small business. Senator Whitten referred to the regulatory impost on small business, and I agree with him with respect to those comments. All of us need to be alive to the fact, especially in today's environment, that small businesses are struggling out there. Small businesses are struggling. They're just holding on in many circumstances, and the last thing they need is an additional regulatory impost of over $100 million to try and address these issues, because they don't have a back office who can give them legal advice in relation to how they should abide by the laws. They don't have that back office to give them advice.

We heard examples of conduct engaged in by Amazon. Amazon's at one end of the spectrum. They're big enough to look after themselves, and they should be held accountable. But the other end of the spectrum is the small business just trying to survive, and I have a lot of sympathy for those small businesses. As I said before, it's easy for this place to impose additional obligations on those small businesses because we don't have to pay the cost. Senator Canavan's amendment with respect to delaying the imposition of these obligations on small business until a date in the future has a lot of merit. One of the reasons it has a lot of merit is it will give time for there to be certainty with respect to what this provision means.

People have referred to lawyers' picnics. I've been to a few picnics myself. I love a good picnic, and I've attended some picnics in all sorts of capacities, including as a lawyer. I agree that there will be a lot of litigation in relation to this. I've got no doubt about it. There will be millions of dollars spent on litigation in relation to this provision and what it actually means. To the extent that it's possible, it is sensible to try and protect small business from being dragged into that litigation as our legal system tries to work out what 'manipulate' means and to delay the imposition of these provisions onto small business. That makes a lot of sense. I commend Senator Canavan in relation to putting forward that amendment.

The last point I want to make through you, Acting Deputy President, is—and I don't think it's been touched upon by any of the speakers—one of the issues that I was glad that Senator Darmanin and her committee raised: recommendation 3. Hopefully, some members of the ACCC are listening to this, and I commend the work they've done in this regard. That recommendation relates to the provision of guidance by the ACCC to businesses as to what these new provisions mean in practice, and that is really important for small business in particular. Actually define, through the use of examples, what these provisions are intended to capture.

I know there are some examples listed in the legislation, but I think it would be very, very useful for the ACCC to provide some detailed guidance, especially for the benefit of small business, as to what falls within the domain of acceptable conduct under 28B and what crosses that threshold and becomes an unfair trading practice. I request that the ACCC have a look at that, consider that and provide that guidance. I'll put on notice that I'll certainly be pursuing that through Senate estimates to ensure that appropriate action is taken by the ACCC to communicate with all those stakeholders who will be required to comply with the provisions in this legislation.

In closing, again I'd like to commend all members of the department who were involved in this process. There has been extensive consultation, which gives considerable comfort. The opposition has proposed some reasonable amendments which I think should be considered and which are logical and coherent. I'm happy to say, subject to a few reservations, I'm happy to support the bill.