Thursday, 19 October 2006
Trade Practices Legislation Amendment Bill (No. 1) 2005
Consideration of House of Representatives Message
Debate resumed from 18 October, on motion by Senator Abetz:
That the committee does not insist on its amendment no. 1 to which the House of Representatives has disagreed and agrees to the further amendments made by the House.
I understand that when the Senate suspended yesterday evening, Senator Fielding was in continuation in relation to general discussion, and I do not think Senator Joyce had formally moved his amendments. The government has certain views that it would like to put in relation to the debate thus far. If Senator Milne is ready to speak, it would be appropriate for her to do so, but on the understanding of all colleagues that Senator Fielding is part heard.
In the absence of a number of other senators, particularly one who was in the middle of a rare contribution, I will happily speak again on House of Representatives message No. 419. The Trade Practices Legislation Amendment Bill (No. 1) 2005 is a bill that the government continually champion because they want choice. They said, ‘We’re going to give independent contractors the choice of being collectively represented by farmer groups,’ and Labor says that that is a fair and reasonable thing. They are going to allow business groups to represent independent contractors, also a fair and reasonable thing—choice. But in this legislation is a nasty little surprise, if you truly believe in choice, because this legislation makes it clear that independent contractors cannot be represented by their union. My union, the Transport Workers Union—and I know a number of other senators who are also proud members of the same union—is not allowed to represent its 10,000 members. What happened to choice? Choice hits the fence pretty quickly when it comes to the ideological binges of this government. John Howard talks about choice, but John Howard has really changed since he won control of the Senate.
Thank you, Senator Murray. You do not just need to be here in this chamber to realise how arrogant and out of touch this government has become, with the ramming through of legislation, ridiculously tight deadlines for legislation, changing the sitting pattern all the time and using the guillotine. It is turning this chamber, which for 30 or 40 years has been a chamber of accountability and scrutiny, into a farce.
In fact just yesterday we saw one of the government senators express complete disgust following the Scrutiny of Bills Committee’s examination of one piece of legislation. Senator Johnston stood up and said, ‘This environmental legislation has to go back to the drawing board,’ because it was so slipshod and such a damaging piece of legislation in terms of its poor quality, never mind its policy intent. It was tabled in one chamber and brought on for a vote within 24 hours, and it has hundreds and hundreds of pages of legislation. This is a government that will not accept scrutiny and that will not accept dissent.
To their credit, a number of senators have stood their ground on this. Senator Joyce understands the implications of this legislation. Senator Fielding understands the implications. Senator Fielding is not somebody who is antiunion. Senator Fielding has worked for many years in close association with some trade unions. But what Senator Fielding has to justify when he comes in here today and continues his remarks is exactly why the idea of choice has gone in this legislation. If it is okay for business groups and if it is okay for the National Farmers Federation and other farmers’ groups to represent their members collectively, what is wrong with the Transport Workers Union being able to represent its 10,000 members and their families in a collective bargain? This is just ideologically extreme behaviour by this government. This government is not interested in choice, and people should not be fooled by the rhetoric of choice.
I look forward to Senator Fielding giving an explanation of how he can support a piece of legislation that specifically mandates against freedom of choice by independent owner-driver contractors to have whom they want to represent them—and in this case the 10,000 members nationally of the Transport Workers Union. Senator Fielding may be feeling a little precious at the moment and that he is being criticised unfairly, but, as is made clear in a number of commentaries in today’s papers, Senator Fielding has an obligation to this chamber to explain the basis upon which he votes. It is an open and democratic process.
The tactics of Senator Fielding mimic those of former Senator Harradine, who famously played his cards close to his chest. But when it came to the vote, Senator Harradine would always give a comprehensive explanation of the basis upon which he voted. He played it close to his chest and he voted for us and he voted against us, but Senator Harradine had the capacity to come into this chamber and actually explain himself. He had a longstanding 50-year involvement in public policy debates and people understood the principles on which he made his decisions. When Senator Harradine made arrangements and had discussions, he would put them on the public record. He would say, ‘I’ve made this arrangement with the government’—much to the fury of many on our side occasionally and much to the fury of the government in other circumstances. But he had the courage to come into the chamber and articulate his position, and he was not bad at it at all. And you could certainly say that his state benefited at the expense of every other state from the cleverness and the tough negotiating style of Senator Harradine. Tasmania certainly was a beneficiary of Senator Harradine’s style.
All on merit. But he was always prepared to face up to it and to detail why it was that he was taking the position that he was. I have to say that, so far—to borrow an old phrase—Senator Fielding is no Senator Harradine. You cannot hide behind ‘I haven’t made a decision’; you cannot hide behind ‘Family First policy is’. You have to explain it. You have to be prepared to front up at press conferences and answer questions. If you have met with James Packer, just say you have. Do not spend five minutes trying to avoid the question. There is nothing wrong with meeting media moguls; there is nothing wrong with meeting James Packer; there is nothing wrong with being genuinely involved in the discussion on this issue. But always be prepared to articulate your position. Labor has a position on this bill and on the cross-media bill. Labor has always been prepared to argue its case. Sometimes that case does not have the support of this chamber; sometimes it has. But we will always have our spokespeople stand up and argue our case.
I am not sure whether Senator Fielding is going to come back and finish his contribution. I am disappointed he is not here. I know we are all very busy in this chamber. He could be at a committee hearing; he could be involved in serious discussions on other policy matters. But when he is changing his vote he has an obligation to the chamber to explain why. He particularly has an obligation to explain to the 10,000 Transport Workers Union independent contractor members and their families why it is that he is going to vote to take away their right to choose who represents them in certain legal forums.
In his absence I think I should mount a defence of Senator Fielding. But, before I do so, with respect to the bill that we have before us and the clause that Senator Conroy was just referring to, which is the anti union choice clause, I make this point: that was already passed by the Senate. We should remind the Senate that the only schedule that did not pass the Senate was the mergers and acquisitions schedule, which is schedule 1. If the House of Representatives had chosen to accept the bill as amended, the antichoice legislation would already be in, as of course would the collective bargaining provision for small business. We should be alert to that and, by sending it back to us, it means we are able to consider the matter wholly.
In defence of Senator Fielding, I think there is an absolute logic—and I am not at all surprised—in him supporting this bill. It is quite plain that if you support the media ownership bills as he did, which allow for fewer, larger competitors, then the obvious and logical thing to do is to support this bill, which will allow mergers and acquisitions to occur on an easier basis and will facilitate the very media concentrations which he has already voted for. I think it is a perfectly logical decision, and I am surprised that anyone would think that he has switched tack.
Last night Senator Joyce made the point very clearly that these bills are effectively linked in policy terms. The media ownerships bills allow for a greater concentration of large media, and schedule 1 of this bill will do the same. In defence of Senator Fielding, I think it is perfectly logical that, if you support big business being able to be even bigger, you have to support this bill.
I have heard, both in the corridors and I think in here, Senator Fielding being accused of being naive or doing a deal. I would like to defend him there too, because I know being called naive made him very angry. That would indicate, of course, that he believes he knew exactly what he was doing and that he was not being naive. If he knew exactly what he was doing, the only other thing you have to look at is whether he struck a deal. If he had struck a deal, the only person he could have struck it with would be the Prime Minister with respect to parliamentary affairs. Whatever people may say in this place about Mr Howard—and they say the most amazing things, from all points of view—he would be absolutely daft to ever strike a backroom deal on legislation or policy which was not made public. It would bring his reputation and Senator Fielding’s down, so I do not accept that there has been a deal on legislation or background policy issues.
The second area where a deal might have been struck is with respect to preferences, but Senator Fielding would never be so foolish as not to know that he is going to get the preferences of the Liberal and National parties. Why would you do a deal for preferences? You are going to get them anyway, so there cannot be a deal there. The other possibility is that he is going to get money from big business somewhere, but of course that has to be declared. If, as a result of this legislation, very substantial sums of money from media companies, for instance, landed in Family First coffers, Senator Fielding’s reputation would be ruined, and he would not be daft enough to do that. So I dismiss the idea of money.
So is it mateship? I have heard Senator Fielding talk about things. As far as I know he is not friends, pals or mates with Mr James Packer, and since he is an avowed Christian I cannot imagine he is very fond of Mr Packer’s mogul activities in gambling. I do not know all that much about it, but I do not remember gambling being particularly popular with Christians and so on. So I do not think it is mateship.
The last area would be publicity. Is anyone naive enough to think that Senator Fielding would be naive enough to believe that by doing this deal he would get favourable publicity through the media? Frankly, they do not care. Whatever laws we pass, they will take advantage of them. Of course, if we get these new private equity owners—the Russians, the South Americans, the Middle East backers of private equity funds and all those sorts of people—buying up our media, they will be new into the game; they are not going to be giving him publicity. So I can’t see, from a cursory examination, that any of the grounds on which Senator Fielding would be accused of doing a deal stand up.
You then have to come back to the policy matter. The fact is that he, through his vote—and he is perfectly entitled to do so; and in doing so he shares the votes of Liberals and Nationals—has voted for more concentrated, larger businesses in media and in other areas. He is entitled to do that. That is a policy he can support. I don’t support it. I also think the idea that he is not a very disciplined politician is wrong. The other night I heard him speak in an adjournment debate. He spoke very briefly—560 words, in fact. He spoke about the Millennium Development Goals. When you read the speech, you see that it was beautifully crafted as a political statement, closing and ending with the affirmation of the party name. Senator Fielding often talks in the third person; he always says ‘Family First this’ and ‘Family First that’. It is a bit like priests—they say ‘God this’ and ‘God that’ when what they really mean is ‘Father this’ and ‘Father that’. But he started the speech very well. ‘Family First’ is referred to twice in the first paragraph and twice in the closing paragraph, and ‘Family First’ also appears slap-bang in the middle of the speech—in other words, repeating the message, reinforcing it. That is the sign of a disciplined political message.
This was a message about the Millennium Development Goals, which I think are very admirable, and what he has been doing is pretty admirable. He said he has been sponsoring a young man named Abdurahman for 11 years. He also said:
As far as Family First is concerned, Abdurahman is a human face of the Millennium Development Goals ...
Of course, he was sponsoring Abdurahman long before Family First was ever created, and I presume he would be sponsoring him through one of the agencies, although that is not mentioned. But there it was—the carefully crafted political message about what you should support, that he supports it, and reinforcing the Family First name. These are the words of a disciplined political person with a particular political objective.
The question, of course, is whether his own determination to support the concentration of big media business and fewer competitors at that level is his policy or Family First’s policy. As far as I am aware, it is not on their website in that form, which of course is why I want to hear back, as Senator Conroy outlined, as to his precise motives. If you dismiss the ‘naive’ argument and if you dismiss the ‘deal’ argument, which I have just done, and you see the evidence of a carefully crafted campaign of a political operator who, like every other political party and political person, wants to increase his number of seats and his political power, you have to see this in both political and policy goals. So I look forward to him explaining things on that basis.
Returning to the government’s motion regarding the House of Representatives message, it has two parts to it. The first is that it wants the Senate to pass the bill as a whole; therefore it is saying exactly that to us. I have had mixed messages, frankly. I have heard messages that it does not matter that much in the scheme of government policy. However, I have heard other people say that the Treasurer wants this so badly that you can taste it. I do not know what the answer is to that. What I do know is that I am subject to lobbying, as others are, by both big business and small business, and I can tell you that big business organisations badly want schedule 1. They are perfectly entitled to lobby for their needs, and I will freely admit that any time any big business man or any small business man wants to see me on an issue, I will see them, if I can fit them in and if it is the right thing to do. I do not have a problem with big business pursuing their agenda, but none of us should be in the dark and think that big business does not, very badly, want schedule 1, which means they expect it to result in faster, quicker, more easily resolved mergers and acquisitions, more fluidity in the market and more concentration for big players. That is a legitimate objective of theirs. It is not one that I support but it is legitimate.
I think the end result of schedule 1 is that it is likely to damage a highly effective, well-established, extremely professionally evaluated, flexible discretionary regulatory environment which has quite properly rejected a minor percentage of mergers and acquisitions and has allowed the rest through on basically commercial grounds. I am not persuaded as to schedule 1’s policy advantages. However, I am not going to tear my hair out any more about this; numbers are numbers, and I accept that.
What does bother me, because this is in line and is consistent with government policy over a long time—government does, by and large, try and facilitate big business needs where it can—is that the choice issue with respect to the unions is entirely against government philosophy. It is entirely against everything I ever hear it say that it stands for. And that does disturb me. I respect consistency in people, even where I disagree with their views—whether they are people from the Right, the Left or the Centre, consistency appeals to me. But this is an inconsistent policy. It did not arrive from the Dawson evaluation; it came out of left field. It seems designed just to hurt unions. I do not think it reflects well on the government for introducing it in this legislation. However, it does have the numbers and it will happen. It will not advance the cause of mankind at all.
Senator Brandis and probably others have said that section 46 and strengthening the ACCC issues have nothing to do with the Dawson bill. I agree with that. The Dawson bill is a discrete area of consideration. Why I have argued for a section 46 amending bill to be debated cognately and passed cognately with this is that I think if you loosen up the mergers and acquisitions side, you need to strengthen the anticompetitive provisions—it is just a simple argument—simultaneously. I have argued consistently that, whilst the government does not want to go as far as I and others do, it has accepted that argument. It accepted through its positive response to a number of the recommendations of the March 2004 Senate Economics References Committee inquiry into the Trade Practices Act, as long as 2½ years ago, that the act needed to be strengthened.
So my argument is not that those things need to be in this bill but that that section 46 bill needs to be debated cognately because on the one hand you are weakening the Trade Practices Act with the Dawson bill and I believe you need to simultaneously strengthen the Trade Practices Act anticompetitive and abuse of market power provisions. That is why I have argued that case. I hope that in the absence of Senator Fielding I have done a respectable job of defending him, and maybe my speaking for him means he does not need to come down here.
I wish also to speak in committee on this bill and express some of my concerns about the procedures that have occurred in the progress and passage of it. As I recall, and I am sure others will have the opportunity to correct me if I am wrong, we delayed the bill in this place on a number of grounds. One of the grounds was that articulated by Senator Murray at the end, which was in relation to the choice issue. It went back to the House of Reps and they chose not to adopt our position. So we are being consistent in our views on this matter. I do wish to express that I am disturbed, like a number of my colleagues, about what we are about to see occur in relation to this bill today.
Why will a union be prevented from negotiating collectively on behalf of small business if that union is chosen by those small business men and women to represent them? Why are they going to be precluded? It is clearly because of the ideological bent of the government. In my own experience, and I know Senator Sterle will follow me in this, in my previous occupation I dealt with a number of large and small companies on behalf of small businesses and I negotiated on their behalf with their major employers the rates and conditions under which they worked. I saw on many occasions in the 18 years that I did that job that accountants—and no offence to accountants; I am not having a go at the accountant who may follow me at some stage in this debate—had very little experience in how to set and negotiate rates in road transport.
I had 18 years of experience, and the organisation I worked for and represented has had decades of experience and information available on how to represent those small business men and women. But under this legislation the experience that that organisation, the TWU, and its officers—who, as I say, have four or five decades of experience in dealing with, knowing the ins and outs of and how to cost the operations of a heavy or light vehicle—will be precluded. That is not fair. It is just unfair that the people who have experience and can do the best job for those men and women, if they choose to have the TWU represent them, are going to be precluded.
Under this legislation the national farmers, chemists, newsagents, probably milk vendors and customs brokers can all seek leave to collectively negotiate with another group. Only in the last year the customs brokers got permission to negotiate collectively with the stevedores. Both those groups are in powerful positions, but the customs brokers sought to do that collectively. That was their choice; they were given that opportunity. Those customs brokers and stevedores have lorry owner-drivers that work for them. If they choose to have the TWU represent them with the stevedores or the customs brokers, under this legislation they will be prevented. However, their bosses can deal with each other collectively under this bill that is before us. I am pretty angry about why we have gotten to this stage.
I thought Senator Conroy was a bit gentle on Senator Fielding. I object to the fact and I find it obscene that Senator Fielding sits in Senator Harradine’s seat. Senator Harradine, in all his years as a member of this Senate from 1975, always operated morally and ethically. He always operated in any area which he pursued—from industrial relations to communications, health and social security matters—with that beacon that guided him, and that was his faith. I have always felt that somehow or other Senator Fielding should be prevented from sitting in that spot on that basis. I do not believe he has—
Madam Temporary Chairman, I rise on a point of order. There is, in my respectful submission to you, no doubt that that is a reflection on Senator Fielding and on his motives. I would suggest to Senator Hutchins that if he wants to make a political point he do so in another manner.
Thank you, Minister. Senator, I draw your attention to the standing orders. We are listening very closely to your comments, and I would ask you to be very careful about comments that you make. We are listening.
I do not know what Senator Fielding’s motives are. It has been commented on that we seldom find out in this chamber why he has decided to do what he has done. If we go and stand out the front of the Senate in the mornings between 7.30 and, say, quarter to nine, we can probably find out more there when he does his doorstops for the press. But we do not have the opportunity to hear exactly why there has been this backflip on this piece of legislation.
I am reminded of a novel by an American winner of the Nobel Prize in Literature, Sinclair Lewis. He wrote a number of famous books; one called Elmer Gantry, which is about the hypocritical religious revivalism that was occurring in America. The one that I recall reading years ago was called Babbitt, and the central theme of Babbitt is that Babbitt, in a little town in Middle America called Zenith, is surrounded by conformity. At some point Babbitt tries to escape from this conformity and is crushed by the forces that are in control of the town. The book says about Babbitt:
But Babbitt was virtuous. He advocated, though he did not practise, the prohibition of alcohol; he praised, though he did not obey, the laws against motor-speeding; he paid his debts; he contributed to the church, the Red Cross, and the Y. M. C. A.; he followed the custom of his clan and cheated only as it was sanctified by precedent; and he never descended to trickery--though, as he explained to Paul Riesling—
“Course I don’t mean to say that every ad I write is literally true or that I always believe everything I say when I give some buyer a good strong selling-spiel. You see--you see it’s like this: In the first place, maybe the owner of the property exaggerated when he put it into my hands, and it certainly isn’t my place to go proving my principal a liar!...”
I quote Babbitt because one of the themes in the book is a growing industrial unrest in the 1920s in America, and the local chamber of commerce—which all businesses in the town had to be members of—sought to crush the rise of the trade unions because they saw it as against their interests. So on the one hand he had to be a member of the chamber of commerce to progress through and get that conformity, but on the other hand they sought out and viciously crushed any collective actions by the men and women in that town.
This is only fictional, of course, but it reminds me of exactly the position we are in now, and that is that this dedicated antiunion stance by the government is going to unravel them because people will seek the opportunity to be represented by the people they think are in their best interests. And, if that is a trade union, well, they should be allowed to do it.
I rise today to comment on this quickly. I am aware of the time and I am concerned that the government will move the gag. I first of all want to remind the Senate that last year Senator Fielding moved to split this bill to take out the section relating to mergers, because he said at the time that the changes effectively sideline the ACCC and significantly boost the powers of the tribunal, which is a quasi-judicial body staffed by judges and business executives. Small business and consumers will need legal representation to appear before the tribunal, and my concern is that the tribunal will not be exposed to the wide range of views and concerns on mergers that are currently put to the ACCC and that form a key part of the ACCC’s decision-making process.
So I think the Senate deserves a detailed explanation as to why last year Family First said it was concerned about small business and this year is doing everything in its power to facilitate big business getting bigger. That is exactly what has happened in the last few days: big business getting bigger. It happened with the media laws and now it is happening here, because what Family First is about to do is to support a move that will allow companies to take their merger plans straight to the Australian Competition Tribunal rather than to the competition watchdog. The competition watchdog will no longer have the decision-making powers it currently has; it will merely have a consultative and advisory role. That is the difference, and big business know it. That is why they are rubbing their hands together. That is why they are really keen to see this pass.
And let us not have any pretence into the future that Family First has anything to do with small business. It has got everything to do with facilitating the big end of town and rushing the big end of town to the tribunal, where, as it currently stands, there is an insufficient period of time for the tribunal to look at the huge complexity. That is why I will be supporting the amendment from Senator Joyce to extend the time, at least, in which the tribunal is able to consider these matters. We all know these are commercially complex matters and the way it is being structured is to avoid the ACCC, take away the ACCC’s decision-making role and give them an advisory role. It is unconscionable that someone who said last year that was something we could not tolerate this year suddenly finds it not only tolerable but desirable.
I want to say that, unlike Senator Murray, I believe that a deal has been done in relation to this legislation and I am looking forward to hearing Family First tell us what it is. I am not at all surprised that the government wants to move the gag on this. It wants to protect Senator Fielding and Family First from the scrutiny of the Senate, because it is much easier to just do a doorstop saying that families matter rather than coming in here and explaining to small business families why they do not matter and why, in fact, the Packer family matters much, much more than the corner stores.
And let us have a video blog on that, Senator Abetz. Let us go out and do a video blog on that.
I remind the Senate that in the lead-up to the 2004 election it was Peter Harris from Family First who met with Prime Minister Howard and a deal was done that Family First would run an advertising campaign attacking the Greens and in exchange would get preferences from the Liberal Party. That was on the front page of the Australian. The amount of money that the advertising campaign constituted was not listed, but it was estimated to be a $1 million campaign. Certainly, there was television advertising throughout rural and regional Australia doing just that. That kind of deal has already gone down.
We also remember the family impact statement. Where is the family impact statement on small businesses as a result of these merger arrangements? It is not there. I totally support what the Labor Party is saying in relation to the collective bargaining issue here today.
I support collective bargaining as a principle and I do not understand how, if you support a principle, you can support that principle in one set of circumstances but not in another. I have never understood the ability of Family First to say on the one hand that they support the principle of collective bargaining for small business but they do not support the principle of collective bargaining when it comes to unions. I would like an explanation on how you split principle in this matter. I would like to know where the family impact statement is; it got lost in the proceedings. We would actually like to know the nature of the deal such that the ability of the ACCC to prevent anticompetitive mergers is now reduced. That is what is happening in relation to this.
I do not want to confuse the matter by talking particularly about collective bargaining or the other measures in relation to section 46. I want to concentrate solely on schedule 1, the mergers, because that is the issue on which this was voted down last year, quite rightly. It is the issue that big business has been rubbing its hands together waiting for, it is the issue that the Treasurer is so excited about and it is the issue about which the Australian community deserves to know what it is that Family First negotiated to facilitate this change of position. That is precisely what we have got now—a complete change of position. Was it a deal on tax? What was the deal that led to this change of position? Nobody is going to convince anybody that Family First, which began its involvement in politics with a deal on preferences in exchange for attacking another political party, would not be engaged in deals right now.
We also had Family First telling people in Victoria that the Greens are anti business. That in fact is bearing false witness against the Greens because in this Senate you will find no group of people who have been stronger advocates for small business than the Greens. And we will stand here today for small business against big business in supporting the ACCC’s decision-making role and not supporting the kind of merger that will occur quickly as a result of this legislation—as has occurred with the cross-media ownership. Hopefully, the Australian community is going to start waking up and asking some questions about the role that people play.
We are coming into next year’s federal election and the community will want to rescue the Senate from a Howard government majority. Who gets the balance of power in this Senate matters. That is why deals of this kind need to be exposed. Who gets the balance of power matters, and if the government loses its majority it would love to make sure that Family First gets the balance of power in here because then deals of this kind can be facilitated without explanation to the Senate and without any explanation of principle.
I want to know the principle. I am waiting for the principle. I am waiting for an explanation as to why the principle of collective bargaining matters in one case and not in another and why last year strengthening the powers of the ACCC was so important and this year taking the decision-making role of the ACCC and making it an advisory role becomes acceptable. I want it written up in lights: Family First equals Packer equals big business. That is what people are voting for.
At the end of my contribution I will move further amendments to the bill in the terms circulated by me on sheet 5108. I think it is very important that we try to mitigate the effects of what is currently happening out there in the marketplace, that we at least instil some time frame back into the watchdog, the ACCC, and that this amendment actually allows, on complex mergers when required, the ACCC to say: ‘This is a bit difficult; there is a lot of information that we have to go through. The Australian people have a right for us to know exactly the ramifications of this merger. So we need a bit more time.’ I have suggested 80 days, so 40 and 80 is 120 days. That is four months. Let us think of some of the mergers you might have to deal with—PBL and News Ltd or Coles and Woolworths. It is going to take more than 40 days to get through those.
You might know that KKR is going to break up Coles, Senator McGauran, if you had been reading the papers. We have these issues before us and this is an extremely important step. It is the emergency parachute on the current media laws. There is a big concern amongst the Australian people about what is going on with the fourth estate. To say anything else is to not be sincere and fair dinkum about exactly what is going on. The media laws have passed and we cannot, unfortunately, change that. We have a chance here, though. I see that Senator Fielding has moved an amendment very similar to my own, except he has given them only 20 days. Obviously, Senator Fielding now has a concern as well about the powers of the ACCC being circumvented. If this is truly his concern, he cannot possibly vote for not having any extension. That would not make sense. That would mean that you had two completely different positions in the chamber at the same time.
The amendment I am moving gives an extension for 80 days. I really think that is a minor ask. With all that has gone through the parliament, this is an extremely minor ask by the Australian Senate to try and give the Australian people some confidence that we are still watching and that we are very mindful of exactly what is going on in our nation. I believe sincerely that right up to the Prime Minister there are concerns about exactly how things are panning out at the moment. I do believe that. And that being the case, I believe that we have to think of what we can do to keep this on some form of leash.
A private equity firm is going to become one of the major owners of PBL. It is based overseas and you do not have a general interest in its shareholding; you have no idea who owns that. But they are commercial people; they are investing money. Of course they have an interest, and that interest allows them to try and direct activities—and at times to manipulate or cajole.
Do I think that is going to happen tomorrow? No. It is like wearing a seatbelt. Putting on a seatbelt does not mean that you are intending to have an accident. Having media control does not mean that you think that tomorrow everybody who is involved with the fourth estate becomes inherently bad. But that is not our job; our job is to protect ourselves from the contention that that might happen at some time in the future and to make sure that we have those protection mechanisms in place.
I hope that this amendment gets support. If it were to get passage, I would vote for the bill. I think that is being about as reasonable as you can possibly be. But if it does not get support, obviously I cannot vote for the bill. I move:
At the end of the motion, add “and agrees to the following further amendments to the bill:”
(1) Schedule 1, page 4 (after line 2), after item 6, insert:
6A After subsection 30(2)
(2A) Where the Tribunal is exercising its powers to consider merger clearances and authorisations in accordance with Division 3 of Part VII, the Tribunal shall include such other members as are appointed in accordance with this section as follows:
(a) one member with sufficient experience and expertise to represent small business interests; and
(b) one member with sufficient experience and expertise to represent consumers and consumer protection interests.
(2) Schedule 1, item 27, page 10 (line 23), after “agrees”, insert “or the ACCC so requests”.
(3) Schedule 1, item 27, page 16 (line 22), after “is”, insert “subject to subsection (3),”.
(4) Schedule 1, item 27, page 16 (after line 30), at the end of section 95AO, add:
(3) The ACCC may seek an extension of time of 80 business days to consider the application before the Commission makes a determination. If the ACCC does, the time of 120 business days is taken to be substituted for the period of time referred to in subsection (1).
(5) Schedule 1, item 27, page 19 (line 14), after “is”, insert “subject to subsection (8A),”.
(6) Schedule 1, item 27, page 19 (after line 21), after subsection 95AR(8), insert:
(8A) The ACCC may seek an extension of time of 80 business days to consider the application before the Commission makes a determination. If the ACCC does, the time of 120 business days is taken to be substituted for the period of time referred to in subsection (7).
(7) Schedule 1, item 27, page 22 (line 14), after “is”, insert “subject to subsection (11A),”.
(8) Schedule 1, item 27, page 22 (after line 22), after subsection 95AS(11), insert:
(11A) The ACCC may seek an extension of time of 80 days to consider the application before the Commission makes a determination. If the ACCC does, the time of 120 days is taken to be substituted for the period of time referred to in subsection (10).”.
I would like to comment on the Trade Practices Legislation Amendment Bill (No. 1) 2005. The collective bargaining aspects of the bill have been touted as a win-win for small businesses in their dealings with big business.
Not guilty. If that were the case, let me tell honourable senators opposite that we would be screaming from the rooftops in support of this bill. I want to make a contribution before honourable senators jump up and down about my activities as a union official for 14 years. I want to go back to 16 years before that, when I actually was a small business contractor.
Mate, I tell you, I hold up pretty well, especially on a Thursday. I would like to share my thoughts with honourable members opposite, especially Senator Fielding. As Senator Conroy said, there are some 10,000 transport workers who are owner-drivers. They are in small business—they are a cross between a small businessman and an employee—but they have very expensive tools of trade. What usually happens is that contractors go out there and hock their family home. They have the first payment for the truck and all of a sudden they are given anywhere between $50,000 and $350,000 or $400,000 to buy a vehicle.
While these vehicles are being kept busy running up and down the highway, owner-drivers and their partners and the women in transport do not have the ability to go one on one and negotiate with big business. There is a misconception that small business operators in the transport industry have the luxury of knocking on the boss’s door and saying: ‘Hey, boss, fuel’s gone up and tyres have gone up. I need a pay rise.’ ‘No worries; sure, you’ve got it. Go away.’ It does not happen like that.
Very clearly, a lot of truck drivers and small business contractors rely on the Transport Workers Union to negotiate for and on behalf of them in every state of Australia. Senator Conroy was being generous in his speech when he said there were 10,000. I dispute that. I say there are a heck of a lot more. But there are also a heck of a lot more small business owner-drivers in the transport industry who rely on unions to negotiate their conditions and remuneration and who are not members of the Transport Workers Union. They do not have a baseball bat put to their head to say that they have to be a member of the Transport Workers Union. It does not work that way. But those that are represented by the Transport Workers Union have to rely on these guys to do the dealings for them. They are too damn busy to do it themselves. They are up and down the highway trying to pay off an investment they are not getting a proper return for.
Big business will exploit them. Make no doubt about that. Through you, Mr Temporary Chairman, I would like to say to Senator Fielding that I would like to see the family impact statement. And if you ever visit Western Australia, Senator Fielding, I would love to take you out to Kewdale and Welshpool, the trucking centres of that great state of Western Australia, and have you explain to the subcontractors out there that because of your vote this bill has gone through and they can no longer have the union negotiate for and on their behalf while they are up the road working day and night trying to pay off an investment to keep the wolves away from the doors. Senator Fielding, I know that you are still on the phone but I urge you to read the Hansard so you do not miss anything. It is your vote that will do this. It is your vote. You changed your mind. I would love to hear your input to this debate. I would love you to tell us why you changed. Then I would love to see you front up to the small business people of Australia.
Thousands of small businesses—and not only in the transport industry—have the ability to engage unions to negotiate for them on their behalf. Schedule 1, on page 17 of the bill, talks about unions and says that a union, or any official of a union, cannot under any circumstance represent or make application to negotiate. I pose the question to honourable senators opposite: what if a group of small business men were to engage the Hell’s Angels? Would they be able to come in and negotiate for them, on their behalf? Is that what would happen?
I strongly urge all senators opposite to be very aware of what they will be voting on today. They should not take their right-wing ideological view of the world—‘we can stamp out the unions’—but think about the small business people who rely on unions to negotiate for and on their behalf. Senator Fielding will take away that right today. After he walks out of this chamber I am sure he will be reminded on many occasions by many small business people what he has done to them.
This bill is absolutely no win for small business people. This bill will help the big end of town. In the trucking industry, God help us when Toll start pulling out this bill and whacking their subcontractors—and not only Toll. I use Toll as an example because they are the largest employer of subcontractors in this country. A multitude of transport companies who have subcontractors will rip up their subcontractors’ conditions and the contractual arrangements they have had with them and whack them around the head with the bill: ‘This is the law now. You can’t use a union. You have a $350,000 investment to pay off, so we will tell you what you will work for. If you don’t like it, tough, because the law—with the help of Senator Fielding and others—says that we can do this to you.’ I strongly urge Senator Fielding to put his case, through you, Mr Temporary Chairman. I am dying to hear Senator Fielding’s reasons as to why he has done this spectacular backflip and why he is happy to side with the government to put through this obnoxious bill. And, supporting comments made by Senator Milne, I am dying to see the family impact statement.
I am glad that so many people want to hear Family First’s position. Let me make it clear. Family First is pro small business. It is unbelievable to hear the Labor Party and the Greens and the Democrats opposing changes to the Trade Practices Act that will help small business. What is the issue at hand? You can talk about all the other issues all over the place and bring in lots of arguments, but the key issue is: will this help small business? The answer is yes. Why does every small business organisation want this legislation to pass? It is because it is good for small business. That is why Family First has changed its position from last year.
Changes have been made that give more of a role to the ACCC—new powers that it currently does not have. The changes not only improve the ACCC’s position from what was being proposed last year but improve its current position. It is common sense. I do not understand why common-sense arguments are not listened to. Small businesses right across this country will benefit from this trade practices legislation. That is the reason why Family First will support it. The legislation streamlines collective bargaining for small businesses. It gives more of a role to the ACCC, which had none when the tribunal were looking at authorisations.
Honourable senators interjecting—
Before the interruptions, which were frivolous, I was explaining that the issue here is as follows. Let us just look at one area—say, the authorisation process we had before. The ACCC would look at something, and then if there was an appeal to the tribunal the ACCC had almost no role in the tribunal process. This bill cuts it in, and allows it to call witnesses to put forward their case strongly. Clearly, the ACCC has more powers, not fewer, and that is the reason why Family First supports this legislation.
That was an embarrassing contribution. Senator Fielding said that small business are better off because of a bunch of organisations that have been nobbled. Let us be clear about what happened to NARGA. Let us not pretend that NARGA are the organisation that they were 12 months ago. Senator Fielding, you may not be aware of the fact— you may have missed it—but when NARGA come into your office now there are a couple of new people. You should understand the background of what happened.
I accept your advice, as always. NARGA have been gutted. The big business community have got together and monstered these small business organisations and NARGA, in particular, have been gutted. They are not the organisation they were. The personnel have been changed, not by accident, not by willingness and not by design. NARGA in particular, who were the chief opponents of this bill 12 months ago, have been dudded by the big business community. Senator Fielding may be unaware of this. If anyone in the chamber is unaware of this, they should be made aware. Senator Joyce is absolutely aware of this. So let us make no pretence that small business have had some road-to-Damascus conversion on this bill—they have been monstered. This is a result of big business’s absolute determination to achieve their aim to bypass the ACCC.
Has the proposal to suddenly allow the ACCC to have representation achieved some sort of increase in their powers? You are deluding yourself. This is a fig leaf that achieves absolutely nothing in terms of more powers, as Senator Fielding has just articulated. There are no more powers by being able to present your case; they are simply not locked out. The purpose of this is to undermine the ACCC’s position on behalf of small business. There are no more powers here.
Senator Fielding, if you have done a deal to deliver more powers under section 46, stand up and explain what it is. Stand up and explain the extra powers that will be delivered in some future piece of legislation. That is the challenge, Senator Fielding—not to stand up and say, ‘The ACCC have been given more powers.’ They have not been in this bill. If you have done a deal, tell us what it us. Explain what those extra powers under section 46 will be. Are they perhaps drawn from the reports written by Senator Brandis, the Labor Party, the Greens or Senator Murray, which we all did—for those of us who have worked on this bill for years. Are those the powers you are referring to?
I think Senator Brandis wants to claim ownership of them. Senator Brandis does make a contribution; I do not always agree with him, but he does make a genuine contribution. So are you supporting Senator Brandis’s proposed changes in a future bill? If you are, just say so. But do not come in here and pretend that the ACCC have been given more powers in this bill. They categorically have not. The purpose of this bill as declared by the Business Council, who have pursued this for years, is to undermine the position of the ACCC. So if you have achieved something in this bill for a future bill, you have done a deal. So just come clean and admit it. Do not stand up and parrot the same sentence over and over again.
There are no extra powers in this bill for the ACCC. This bill guts the ACCC. The entire purpose of this bill was a desire born when the ACCC had Professor Fels as its articulate champion on behalf of small business and competition policy.
This weakens it. This is the Business Council’s dream from four years ago, prior to Graeme Samuel becoming its chairman. They set out to undermine and weaken the ACCC. Senator Joyce understands that. Senator Joyce has understood it and worked with genuine representatives of the small business community. That is why we successfully defeated it last year. But do not come in here and pretend that this bill delivers. Stand up and tell us what extra powers the government is intending to put into section 46 or whatever else it is on predatory pricing. At least articulate them, Senator Fielding. Because you are in here championing small business at the moment let’s hear you, not Senator Brandis, explain the benefits to small business of future promises from this government.
As I said yesterday in the chamber, but you may not have been watching—because I am sure you are very busy on many things, and I am quite genuine when I say that—the Labor Party to this day still has a letter signed by Treasurer Peter Costello, saying that the government would introduce legislation about the alienation of personal income as part of a package on the Ralph business tax reforms. I know that Senator Murray knows about this, because he signed up on the same basis. Peter Costello and the Howard government ratted on a written commitment. I could give you chapter and verse on the ratting on the promises made to the Democrats when they did their deal with the government on the GST.
Fully explained—and they had a spokesman who could explain it. I did not agree with it. You have paid the price for it, Senator Murray, but that is a different argument for a different day. I do not think we will ever actually reach a meeting of minds on that one, Senator Murray. I accept that you did it in good faith, and you were able to articulate it.
I can point to chapter and verse on broken commitments, public agreements ratted on and written statements ratted on. But, Senator Fielding, if you are able to articulate what these new powers for the ACCC will be, please inform the chamber. Senator Joyce, I know, will be interested. Your amendments are an embarrassing fig leaf, frankly, to try to counter the fact that Senator Joyce has actually put up an attempt to try and make this at least reasonably workable. Twenty days! Fair dinkum! As Senator Joyce said, can you imagine trying to deal with a merger between PBL and Fairfax, or Channel 7 and the West Australian, or News Ltd and Channel 10—any of the proposed changes—in 20 days? What a joke!
If you want to represent small business, stand up and proudly explain that to us. To give Senator Murray and the Democrats their due, they proudly defended their deal, publicly, all over the country—even to their own members, who hated it. They proudly defended it. So let’s hear you proudly defend what extra powers you have gained, Senator Fielding, but do not try to pretend that this bill contains them and do not try to pretend that there are extra powers for the ACCC here. There are not. This is a bill the sole purpose of which is to undermine the role of the ACCC in the process.
What we have just heard was, unfortunately, what we heard from the vast majority of contributors in this debate—that is, a spray of invective and personal vilification against a particular senator whom certain senators in this chamber happen to disagree with on a policy position. All that I would say to the people of Australia is they should just imagine how the Australian Labor Party and the Australian Greens, if they were to get the majority in this place in government, would treat anybody that would oppose them. It has been, I must say from the opposite side, a rather shameful contribution. The substance of the matters was not really dealt with.
Senator Conroy suggested in his contribution just then that there would be only 20 days to deal with a merger between various media organisations. It is, as I understand it, an extension of a further 20 days. There is only one reason for the honourable senator across the chamber to so misrepresent the Family First amendment—that is, he wants the invective to flow and he wants people to misunderstand what has actually been proposed.
We have had here a debate on issues that were canvassed in this place some 12 months ago, and these issues are relatively fresh. I know the Democrats have commented about process in relation to this, but, from listening to their contributions, I am not sure that they would have said anything else or more if we had given them an extra month to consider the message from the House of Representatives. Whilst you might be able to throw mud at Family First and ask: ‘Why have they changed their mind? Has a nasty deal been done?’ if you want that to stick, you then have to ask why the National Farmers Federation is in support; why the Fair Trading Committee is in support; why the National Association of Retail Grocers is in support and why COSBOA is in support. What you then have is a conspiracy theory that is quite out of control, quite unsustainable and in fact quite stupid.
The suggestion that all those organisations are somehow part of a conspiracy is simply unsustainable. The embarrassing thing for those opposite in particular is that all these small business organisations, having considered the legislation in the past 12 months, are saying: ‘It’s time to get on with business. It’s time to move things ahead.’ They are now agreed on the positions that have been put by the government. I now commend the message from the House of Representatives. I indicate the government’s disagreement with the propositions put by Senator Joyce, and the government’s agreement with the propositions put by Senator Fielding. I move:
That the motion be now put.
Question agreed to.
That the amendment (Senator Joyce’s) be agreed to.
At the end of the motion, add “and makes the following further amendment to the bill:
(1) Schedule 1, item 27, page 10 (line 23), after “agrees”, insert “or the Commission so decides”.
(2) Schedule 1, item 27, page 16 (line 22), after “is”, insert “, subject to subsection (3),”.
(3) Schedule 1, item 27, page 16 (after line 30), at the end of section 95AO, add:
(3) However, if before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of subsection (2)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (1) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (2)).
(4) Schedule 1, item 27, page 19 (line 14), after “is”, insert “, subject to subsection (8A),”.
(5) Schedule 1, item 27, page 19 (after line 21), after subsection 95AR(8), insert:
(8A) However, if before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of subsection (8)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (7) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (8)).
(6) Schedule 1, item 27, page 22 (line 14), after “is”, insert “, subject to subsection (11A),”.
(7) Schedule 1, item 27, page 22 (after line 22), after subsection 95AS(11), insert:
(11A) However, if before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of subsection (11)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (10) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (11)).”.
This amendment is about extending the number of days by which the ACCC, under formal clearances, can extend the process to allow them extra time to review anything that comes before them as far as mergers are concerned in a formal sense. It is reasonable. I think 20 days or more makes sense. I ask that all senators consider this amendment to support an extra 20 days for the ACCC to have that discretion to examine those cases that are more complex and that would need some extra time to allow them to do their job.
I notice the minister is so keen that he is gagging everything before checking whether anyone wants to speak. That demonstrates how far things have deteriorated in our 14 or 16 months since this government got control of the Senate. It is an instantaneous, knee-jerk reaction House of Representatives style to move gags to every amendment.
Senator Fielding has explained the amendment he has moved. As people would have seen, Senator Fielding voted for the previous amendment moved by Senator Joyce. He can now say, ‘I tried my best, I voted for it; the vote was tied and the amendment went down.’ He can still ensure it goes through because his vote determines whether or not the motion before this chamber is successful.
The other point I want to emphasise has been made a number of times but, as I have been listening to the debate through the morning, certainly my position and the Democrats position more broadly has continually been misrepresented. I do not think anyone in this chamber opposes the small business changes and the Dawson changes. The Senate passed those changes over a year ago. They were already passed by the Senate. They have not come into operation because of the Treasurer. He is the person who has held up those changes that would help small business. The price he has insisted be paid is to assist in mergers happening more easily. That is the matter before the chamber and that is the concern the Democrats have.
As I said yesterday, we have a separate concern about the broader legislation where, despite the government’s rhetoric of choice and support for collective bargaining, it bans collective bargaining if it involves trade unions in any way, shape or form. This is not only discriminatory but against the government’s own so-called principles of supporting freedom of choice. It is totally offensive. The provision has nothing to do with the Dawson report and is a wider reason for our thinking that it is not only another problematic component of the legislation but also—as Senator Sterle indicated in his contribution earlier on today—an anti-small-business measure. So it is not just an anti-union measure; its consequences are anti-small business as well.
We need to ensure that statements made here are accurate. The Senate supported the Dawson changes relating to small business reform. It did that over 12 months ago. That is not the specific matter before us at the moment. The specific matter before us at the moment relates to mergers.
I noted that Senator Fielding had the opportunity in speaking to his own amendment to outline, as he had previously described, the extra powers of the ACCC, and he chose not to. I am disappointed about that. You still have an opportunity. They cannot gag you for another 10 minutes. If you could outline where those extra powers for the ACCC are in the bill, that would be helpful to the chamber and to the broader community.
When I have to explain to the 10,000-plus members of the union or, as Senator Sterle said, 10,000 families of those independent contractors who want to be represented by the Transport Workers Union, I would like to be able to tell them how they are better off because of Senator Fielding—I really would. Senator Fielding, you have the opportunity again to stand up and explain your statement that there are more powers in this amendment or, if you have done a deal, that there are more powers coming in another bill to be introduced some time in the future. Just stand up and tell us. Senator Brandis is claiming this. Others are claiming this. Perhaps you can tell us what the situation is. I do not necessarily believe everything I hear from the other side, but I would believe it if you told me that there was a deal—exactly what it was, the form of the amendments and how important those amendments were. I again invite you in the small amount of remaining time to explain where in this bill there are extra powers or, if you have done a deal, that a future bill will deliver extra powers. Please tell us.
I am happy that this amendment has come forward. I am happy that obviously there has been an acceptance that the ACCC does need more time. Unfortunately, the acceptance that it does need more time has come at midnight. What I fail to understand is the Family First position that the ACCC has more powers and everything is going to be better under this and then, within five minutes of that, Family First moving an amendment acknowledging that the ACCC does not have enough powers. In five minutes we have had a change, from a speech which said that the ACCC had enough powers, to an amendment, which is accepted, which acknowledges that the ACCC does not. Mind you, five minutes is a long time in politics, and it is an eternity here today. But we are heading in the right direction. We went from an unlimited time frame for the ACCC back to 40 days—which is obviously just a kick in the backside to get you to the Australian Competition Tribunal so that the merger can go through—and the position that the ACCC does not have enough powers and needs more time, which the government is agreeing to. I will certainly be voting for this amendment because it acknowledges the issue that we have been bringing up—that the ACCC is restricted and needs more time.
To be frank, I commend Senator Fielding for being able to negotiate this. You have been very successful in being able to do something that quite a few people have wanted to do—that is, to get more time. You are obviously a key player and people acknowledge that. I hope that you realise that an extra 20 days, at the end of the day, is not going to do it. If you have PBL and News Ltd merging, the ACCC will need more than 60 business days to deal with it. There are some pretty big issues there that need to be discussed. When KKR break up Coles, and Woolies comes in and buys it all up, you will have the small business people knocking down your door. They will come and visit you then, because their life will have gone down the toilet, and they will probably suggest that, had you given them a bit more time, it would have been helpful.
We are talking about an amendment, not the Dawson provisions. We are talking about an amendment on mergers and acquisitions law—schedule 1. When you talk about anything else, you are not telling the facts. If we were talking about collective bargaining, the legislation would be here; we would be voting on it. But we are not voting on it, because it has already passed. It has gone through. So any reference to a piece of legislation that has passed is blatantly ridiculous, unless someone is holding you under duress.
There are no more chambers that collective bargaining can go through. It has been through the lower house; it has been through this house. Unless we open up Old Parliament House and chuck it through a couple more chambers, it has been through every chamber it can possibly go through in this country—that is it. What we are dealing with is an amendment on mergers and acquisitions law. Family First has acknowledged that the ACCC needs more time because of the complexity of the legislation and protecting Australian democracy. This amendment does not give us enough time—but I will be supporting it.
I think a lot of congratulations are due, firstly to the chamber for shaming the good senator into going back to the government and saying, ‘By the way, the arrangement I announced yesterday that I am supporting this legislation needs some adjustment because of the pressure that I am under.’ Congratulations, Senator Joyce, because, without your amendment and the embarrassment you have produced, it would not have happened. Congratulations to the government because it already had the vote in the hand, yet it has given an additional gift. I think that is really generous on its part. All told, the slight improvement that we have before us—the face-saver or fig leaf or however you want to describe it—is a result of Senate pressure on the senator to produce something in return for his vote, and I am pleased about it.
The one thing I want to emphasise again and again is that last year this chamber passed the legislation dealing with collective bargaining for small business. Schedule 1 has nothing to do with small business. All the support that the minister has read out from all those small business people is not wholehearted support for schedule 1. It is support for the bill; I accept that. But the main interest is in collective bargaining for small business, which this Senate unanimously—every single senator—passed over a year ago. That is all I can say on that subject.
That the question be now put.
Question agreed to.
The question now is that Senator Fielding’s amendments be agreed to.
Question agreed to.
Original question, as amended, agreed to.
The question now is that the resolution be reported.
Question agreed to.
The committee has considered message No. 419 from the House of Representatives in relation to the Trade Practices Legislation Amendment Bill (No. 1) 2005 and has agreed not to insist on its amendment (1), to which the House of Representatives has disagreed, and has agreed to the further amendments made by the House of Representatives and the Senate.