Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move the amendment that's been circulated in my name on sheet 3735:

(1) Page 6 (after line 9), at the end of the Bill, add:

Schedule 2 — Price gouging

Competition and Consumer Act 2010

1 Subsection 4(1)

Insert:

competitive price has the meaning given by subsection 46(2B).

2 Before subsection 46(1)

Insert:

Substantially lessening competition

3 After subsection 46(1)

Insert:

Price gouging

(2) A corporation that has a substantial degree of power in a market must not engage in conduct that results, or is likely to result, in:

(a) a good or service being acquired by another person, or supplied to another person, at a price that is excessive; or

(b) an offer being made to another person for the other person to acquire a good or service, or for the other person to be supplied a good or service, at a price that is excessive; or

(c) an agreement being entered into by another person for the other person to acquire a good or service, or for the other person to be supplied a good or service, at a price that is excessive.

(2A) For the purposes of subsection (2), in determining whether a price for the acquisition or supply of a good or service is excessive, regard must be had to the competitive price for the good or service.

(2B) The competitive price, for a good or service, is the price at which the good or service would have been acquired by, or supplied to, the other person if the corporation did not have a substantial degree of power in that market.

(2C) Subsection (2) does not apply in relation to a price for the acquisition or supply of a good or service if a law of the Commonwealth, or of a State or Territory, requires or allows the good or service to be acquired or supplied at that price.

(2D) Subsection (2) does not apply to a corporation if the sum of the following amounts is less than $10,000,000:

(a) the corporation's turnover;

(b) the turnover of all bodies corporate that are related to the corporation;

where the turnover is worked out under subsection (9) for the corporation's last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the conduct is engaged in.

General provisions

4 At the end of section 46

Add:

Provisions relating to turnover

(9) For the purposes of subsection (2D), the turnover of a corporation, or of a body corporate, for a period is the sum of the values of all supplies the corporation, or body corporate, made during the period, other than the following:

(a) supplies that are input taxed;

(b) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999);

(c) supplies that are not made in connection with an enterprise that the corporation, or body corporate, carries on;

(d) supplies that are not connected with the indirect tax zone.

(10) Expressions used in subsection (9) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

5 Application

The amendments of section 46 of the Competition and Consumer Act 2010 made by this Schedule apply in relation to conduct engaged in on or after the commencement of this item.

Minister, I just want to see whether you're prepared to put your credibility on the line and join with the Treasurer, Mr Chalmers; the Leader of the Government in the Senate, Senator Wong; and Minister Ayres by suggesting that this bill addresses price gouging in the fuel sector. The reason I'm interested in that is that we in the Greens have a very strong view that both Minister Ayres and Minister Wong have misled the Senate by claiming that this bill addresses price gouging, and I want to lay out precisely why that is.

This bill doubles penalties for existing provisions in Australia's competition and consumer law. Those existing provisions are things that make misleading or deceptive conduct, cartel behaviour and other things unlawful but which actually don't make price gouging unlawful. Anyone who's an expert in this area—including, I might add, Professor Allan Fels—will tell you that there is no provision in Australian law that makes price gouging unlawful except for the provision that you introduced last year that makes price gouging unlawful in the supermarket sector.

My question to you, Minister, is: if the existing body of consumer law in Australia is so deficient that you needed to introduce something to make supermarket sector price gouging illegal, how is it that you can claim that existing laws actually address price gouging across the rest of the economy? The short answer is that you can't. You can't suggest that price gouging is unlawful on an economy-wide basis or anywhere else other than the supermarket sector. So, when Minister Wong, Minister Ayres and Treasurer Chalmers claim, as they all have this week, that this bill will address price gouging in the petrol sector, isn't it a fact that they are wrong?

The reason that's so important is this, and this is the last thing I'll say in this contribution. Wherever you go in this country right now, the barbecue-stopper issue is petrol prices, diesel prices, fuel prices and fuel availability. That is all anyone is talking about. When you have a crisis of this nature that is putting pressure right across the economy and right across household budgets, people expect a couple of things of their government. One is that the government will do what it reasonably can to address the issue. In that context, what you reasonably could do is actually act to make price gouging unlawful in the petrol sector. The second thing that people expect from a government is that they will front up, be honest with the Australian people about what they're doing and explain why they're doing it. You have failed both of those tests. You're not being honest with the Australian people, because you're claiming that this bill addresses price gouging when it obviously does not. Secondly, you're not doing everything you reasonably can, because if you were you'd introduce legislation that actually does ban price gouging across the economy, including in the fuel sector.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I'll probably take that as a comment. I'm not sure there was a question in there. In the interest of time, I will just repeat what was said in the second reading speech. It said:

These laws help tackle price gouging at its source, outlawing:

That is what this bill will do by significantly increasing—doubling—the fines, the penalties, for breaches of the Australian consumer law and the Competition and Consumer Act. The government are being upfront and transparent about what we are doing here. We are bringing legislation to the chamber for senators to vote on. It doesn't get much cleaner and more transparent than that. I am hoping that the Senate will agree to pass these laws today. They are an important response to some of the effects that we've seen flow through to our economy, including on prices on fuel, since the outbreak of the conflict in the Middle East, and I look forward to the Senate's support.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

If all of those things that you just mentioned—deceptive and misleading conduct, cartel behaviour, misuse of market power—either individually or collectively constituting price gouging, why did your government need to introduce specific legislation to ban price gouging in the supermarket sector?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

As Senator McKim knows, the decision around the legislation in response to supermarkets was done in response to the work that the ACCC had conducted in an inquiry, including advice to the government, and specifically found the supermarket sector to be dominated by two players. We take advice from the ACCC seriously. They have been consulted on the laws that we are debating right now, and we will continue to work with the ACCC as we work through some of these issues that we're seeing. We expect—and I know that the Chair of the ACCC and all of her staff are working around the clock to respond to some of what we're seeing and some of the concerns that people have raised around fuel and fuel pricing and distribution across the economy. We support the work of the ACCC and the advice that they provide government.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

At the risk of mixing my culinary metaphors, that was a blancmange as well as a word salad, Minister. I chaired the Senate Select Committee on Supermarket Prices. Please don't give me a lecture about the competition status in the supermarket sector. I'll going to back it in that the evidence that we heard through a long and comprehensive inquiry—we exposed to the Australian people the perfidy of Coles and Woolworths and the fact that, together, they have about two-thirds of the share of the supermarket sector in Australia. I'm going to back it in that that evidence says quite enough to the Australian people about the lack of competition in the supermarket sector and the resultant opportunities that Coles and Woolies have, which they are availing themselves of to price gouge Australian shoppers. We know all that. Let me tell you another thing, the fuel wholesale sector is not all that much more competitive than the supermarket sector in Australia. But that is actually not relevant to the question that I asked you. Minister, do you claim this bill addresses price gouging in the fuel sector or not?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I have answered the question.