Ross Cadell (NSW, National Party, Shadow Minister for Water) Share this | Link to this | Hansard source

Before I was so rudely interrupted by a hard marker earlier today after a 46-second speech, I was getting to the point that, when we get down to it, there's a rush to put something through. Let's get down to it.

The Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 was not written overnight. We know the drafters take some time, so, even if this had been brought on yesterday, we would have had another day. The fact is we're still talking about it tonight, and all we wanted was to do a short inquiry. We could have had the inquiry tonight. We've done that before. But we won't vote until tomorrow now. So what is so absolutely urgent that we are hiding from an inquiry? It could have actually taken place and not slowed down this bill. That's what's really getting to us.

I came out this morning and said that it's in Labor's DNA, when in government, to push things through, run things through, guillotine, not have inquiries and not know. What I don't get on this specifically is the Greens support for this, because it is the Greens who normally like accountability and that sort of stuff, and this is about the ACCC, of all things. I said how I was on the supermarket inquiry with Senator McKim. He loved the ACCC having extra powers to prosecute, to go after them. He wants to talk about price gouging. He wants to talk about breaches with the ACCC. But on this single point the Greens are backing running this through without an inquiry, without knowing. That's why I said, to quote Ted 'Theodore' Logan from that great movie Bill & Ted's Excellent Adventure:

Strange things are afoot at the Circle K.

Strange things are afoot here, where the Greens are backing not going through with the ACCC stuff.

When we come to it, it was a great point today. This is being retrospectively added back to April Fool's Day, back to 1 April. So what would it matter if it went down another three weeks, another four weeks or another day to have the inquiry? It wouldn't matter because everything back to that day is covered anyway. Why do you rush when you have retrospectivity? When everything that has happened will be forgiven, you don't need to rush it through. That is why the amendment by Senator Canavan to have an inquiry is so important.

What are the motivating points such that this needs to be pushed through, that this needs to be rushed through, and why is it done? Are we aware of circumstances already where the ACCC are aware of actions that have been taken in a non-competitive manner that they don't want to disclose? Has this taken place? Has a nod and a wink been given to organisations—'Go and do this, and we'll clean it up'—that they don't want to be discovered? Something is crook in Tobruk when there was the capability of inquiry tonight without holding up the bill and when the Greens have been offered something so fabulous as part of a deal that they walk away from their key principles of transparency, of inquiries and of giving the ACCC powers. If you join the dots, something's a little bit rotten here. Why can't we have an inquiry?

Look at the bill on its merits. We understand that in a crisis there may be requirements to do this. But something's a bit on the nose when all these things line up and we don't understand why. There could be an inquiry. We'd only have to ask four or five questions—why, what and how?—and we'd get this through. But it's just a blanket no. That is not good government. That is not the way things should operate when it could absolutely be there. We could come back in a month if that took that long. We could come back for a separate hearing later on and pass this because everything will be given retrospectivity back to April Fool's Day, back to 1 April. The only fools here are the Australian people who think that this is the right way to run government.

We know we got through a little thing called COVID. It went for a couple of years. You might have heard of it. It wasn't a three-month, one-month or two-month war in the Middle East. This affected the entire world, and the ACCC and the previous government got through with the powers they had. But, no, this government cannot get through this Middle Eastern conflict without being able to change the rules to a level of no disallowance. If you want to, call this an emergency. I accept what's going on is extenuating circumstances in the Middle East. We wouldn't want to disallow that, necessarily. But the what ifs of a minister and the ACCC being able to tick off individual measures, allowing the ACCC to give permissions that they don't already have, is where it comes down. What is it? There is this mates' rates deal—I'm not saying it will happen, but it could happen—to tick the box where the parliament can do nothing because we've signed off on it now. There's no disallowance. There's no ability to review.

Let's go back to the seven-day disclosure basis. It's like the legislation. They wrote the legislation over a period of days, if not weeks, but they don't disclose that until the morning they want it through. They will do the same with the actions they take. When they declare an action or say they're going to do something, they are not going to do it on the spur of a moment and take seven days to have to disclose it. They could tell us straightaway that they are taking this action. They could tell us what they are trying to prevent, who they are giving the nod to and how it's going to act. But, no, they want seven days so that people could not possibly know the nod has been given and the fix is in for seven days.

That is everything that this parliament should not stand for. This parliament should be about getting out there, being open and saying: 'This is the problem—problem (a)—and this is the action we need to give. We need to allow, say, the fuel companies to say who's sending fuel where, and this is why.' In all reasonable circumstances, this parliament would also always say yes. That is another thing that triggers this. You go through. It is drafted over time without disclosure. It is brought in not following process. There is no inquiry. It is retrospective, so it doesn't really matter when it passes, because actions are there. There is no disclosure for seven days. All of these things spell potential trouble. When you look between conspiracy and circumstance, it's usually circumstance, but we want that clarity and the Australian public needs that clarity. That is why we are here. That is why we are opposing moving through this quickly. That is why we want a small committee hearing to answer some questions that are reasonable, that the public would expect us to ask. Nothing matters more in that process.

I urge the Senate to vote for the amendment, to have a deeper look at this. This could almost pass on the voices if our concerns were met. They aren't anything out of the box. They aren't 'we hate this idea'. I will tell you that I've had my experiences with the ACCC in my previous engagement. I was involved in three court actions with them. In two they took us on and lost. In one they went in on something on our behalf even though we weren't thrilled with it, and they lost that too. So I'm not really thrilled with the ACCC's ability to hold people to account, but in this we'll see. I hope they have more success in the Woolworths action they've got now. But let's have a quick inquiry. Let's get this done and get it through as soon as possible.

Dean Smith (WA, Liberal Party, Shadow Assistant Minister to the Shadow Treasurer) Share this | Link to this | Hansard source

This is indeed a very curious matter before the Senate. Perhaps quite inadvertently, what the government, with the support of the Greens, have done is draw attention to an issue that could have been very procedural, very matter-of-fact. We believe that a Senate economics committee inquiry could have been done very expeditiously given that the coalition understands at a first-principles level why a legislative course like this may be necessary. Much discussion has happened during the course of today about the merit of a Senate economics committee inquiry. That committee process, that level of scrutiny, has been denied to the Senate—not just to the coalition but to the whole Senate—but I want to draw attention to the second matter, and that is that a second inquiry, a standard feature of this Senate process, has also been denied on the bill and also denied to the Senate. That is the scrutiny of bills committee process.

For those that are unaware, every piece of legislation that comes before the parliament goes before the Senate Standing Committee for the Scrutiny of Bills. The Senate scrutiny of bills committee scrutinises—and I note that the Temporary Chair of Committees is actually a member of the Senate scrutiny of bills committee. Every bill goes before the committee, and each bill is assessed against some fundamental principles. The key point here is that every bill is assessed against those principles. The committee provides a report to the parliament on every bill in every sitting of the Senate. In more recent times, senators around the chamber have had cause to applaud the work of the Senate scrutiny of bills committee because it's done its scrutiny inquiries in a very expeditious manner, allowing the Senate the full disclosure of a whole range of various matters, some of them highly technical, that are drawn to the attention of senators so that they can improve their deliberation on a bill. If that Senate scrutiny of bills committee process were to have been allowed on this particular matter this particular week, I suspect a key issue that would have arisen in that scrutiny of bills committee inquiry process is the use by governments—plural; it's a feature of all governments—of disallowable instruments which are denied the ability to be disallowed by this Senate chamber.

This is a really fundamental issue in our system of government: we elect people to come to the Senate and to review legislation and to give very keen deliberation to whether this Senate chamber holds the ultimate authority around laws and regulations or whether, over time, that authority is given to regulators, to bureaucrats, and, over time, diminishes the ability of this Senate chamber and every one of its 76 senators to properly deliberate over a bill.

So I thought I would use the brief time that's available to me—others have canvassed the importance of the bill; others have canvassed other issues—to re-emphasise why I think it's the absence of the Senate's Scrutiny of Bills Committee process that is the more serious omission in regard to how the government has chosen to do this. I might make this observation also: when proper parliamentary scrutiny is observed, confidence is maintained—confidence in regulators, confidence in the decision-making of the Senate and confidence amongst stakeholders in the laws this chamber makes and passes. Transparency and scrutiny are always a good thing. It's very hard to recall instances when lack of transparency, lack of scrutiny, has been a public good.

Conversely, when scrutiny is diminished or transparency is denied, suspicion is born. And I might just say that in this particular case I'm someone who's a keen observer of the work of the Australian Competition and Consumer Commission. I'm quite an enthusiast of the work it does. I'm going to go to Senate estimates in a few weeks time and ask the chair: is this something she supported? Did she actively support the denial of the Senate to have proper scrutiny over this piece of legislation? What's happened is that we now think there is something being hidden from view. That's demonstrated by the fact that much of the Senate's time tonight has been taken up on this matter, and we will be back here tomorrow. And unlike Senate the estimates periods we've had in the last year, we have an extended Senate estimates period beginning in the next fortnight, so there will be plenty of time to ask the ACCC, to ask the Treasury and to ask ministers at the table why it was necessary to deny the Senate scrutiny.

In our political comings and goings, I have a saying. I say to people: 'That's okay. You don't have to tell Senator Smith now; you don't even have to tell Senator Smith next week. Nothing stays a secret forever.' And it's only a matter of time before the real truth in regard to the issues around this bill are revealed.

I want to share with the Senate what the Scrutiny of Bills Committee's position is in regard to the importance of allowing a disallowance. Regarding this bill, a key element of our criticism, a key element of our concern, a key element of what we would have explored more thoroughly, had an inquiry process been provided to us, is why the disallowance mechanism has been undermined. It's the published view of the Senate Scrutiny of Bills Committee that disallowance is important because it's the primary means by which the parliament exercises control over the legislative power it has delegated to the executive. Exempting instruments from disallowance therefore has significant implications for parliamentary scrutiny, and the exemption of disallowance is an element of this bill.

In June 2021 the Senate chamber itself acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be demonstrated which would justify an exemption. In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in the rarest of cases—not in Senator Smith's view, not in Senator Colbeck's view, not in Senator Grogan's view but in the view of this Senate chamber. Just this year, digest 5 of the scrutiny of bills committee said:

The committee reiterates its view that a stated need for immediate and ongoing certainty is not an exceptional circumstance that alone justifies the exemption of a delegated legislation from disallowance.

It goes on to say that the Senate scrutiny of bills committee also considers that the explanatory memorandum should always establish what would be the consequence of disallowance, so that the Senate can properly measure the appropriateness and proportionality of its decisions.

Disallowance is important for a very important reason. It changes the behaviour of regulators and it changes the behaviour of officials. It forces them to think more consciously about the nature of the regulation, the importance of the regulation and the extent to which parliament should be denied its constitutional right and obligations.

Let me just put disallowance in context. We know that the existence of disallowance is a positive thing because it changes behaviour, and it changes behaviour towards transparency and accountability. It's important to note that the number and proportion of instruments in respect of which a disallowance notice is made is in fact low, with instances of disallowance themselves being rare. Of the 562 notices of motion to disallow legislative instruments between 2010 and 2025, only 55 have been successful, representing 9.8 per cent. What that demonstrates is that the existence of disallowance works, and disallowance as a mechanism in this chamber is rarely used. When it is used, it is often not successful because, in that intervening period of 15 days, discussion happens between senators, between executive government, between the regulators and between departments to get a better outcome.

So, for someone like me, the way that this bill has chosen to deal with the disallowance matter raises very significant concerns. It may well be that, when the minister comes back to the chamber, he or she can provide a very reasonable explanation. But guess what? That's an explanation that gets provided tomorrow—an explanation that could have been made available to a Senate committee inquiry tonight. These matters could have been more easily and more efficiently resolved.

The impact of COVID on Australia was significant. It lingers for a variety of reasons. My personal view is that the greatest and most lingering impact of COVID on our country is the level of trust that citizens have in governments and in government decision-making, and the level of trust that people have in regulators and regulatory decision-making. If we are to rebuild community trust, then episodes like this in the Senate today, this afternoon, are going to take us a very long way from re-establishing that level of trust from the community.

To reiterate, it was our view and it will continue to be our view that public scrutiny—because a Senate committee process is public—allows stakeholders, not just parliamentarians, not just senators themselves, to make contributions. A Senate inquiry would have added to the confidence around this particular legislation, because the risk now is that the legislation may pass with a much-diminished level of public confidence and a heightened level of public suspicion in regard to what this bill seeks to do. Our view, quite simply, was that a Senate inquiry would have tested whether the existing powers of the ACCC are genuinely inadequate, whether the Treasurer's declaration power is too broad, whether the ACCC's exemptions should be disallowable, whether transparency requirements are strong enough, whether the retrospective start date is justified, whether the powers are properly limited in time and scope and, finally, whether there should be stronger sunset and review mechanisms. This is a very disappointing episode.

I feel sorry for the Australian Consumer and Competition Commission. I feel sorry for them. I'm disappointed for them because I don't think that this is their preferred operating environment. I've always found them to be highly cooperative at Senate economics committee hearings. They're highly informed and always very available when dealing with competition matters that come to my attention as a result of constituent work. At this particular point in this particular debate on this bill, I've got to say the ACCC's diminished itself. But all is not lost. At Senate estimates, the chairman and officials will have an opportunity to redeem themselves. And like I said, nothing stays a secret forever.

Richard Colbeck (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I rise to make my contribution on the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026. It's very pertinent to note the way that the government is conducting the debate on this piece of legislation, which provides an exceptional circumstances section within the Consumer and Competition Act. Having been in this place for a long time and having been engaged with my local farmers, food manufacturers, the supermarkets, a number of dairy inquiries and a number of beef inquiries, the importance of the Consumer and Competition Act and the fairness of that act is not lost on me.

I don't know how many debates, discussions or inquiries I've been involved in around the act. There have been plenty even within my own party about changes to the act. It's a complex piece of legislation, but it's a really important piece of legislation for protecting consumers but also ensuring fairness in supply chains. This government has made a lot of promises to farmers about the way that they will be protected in supply chains and how they'll make sure that consumers get a better deal, farmers get a better deal and the supermarkets will be managed properly. Any changes to this act are always scrutinised closely by anyone who has any engagement with them. I certainly know that's the case with growers that I work with at home in Tasmania.

The fact that this government isn't prepared to provide any level of scrutiny for these changes—which are important but also substantial in that they give the Treasurer significant powers to make a declaration and the ACCC significant powers to operate—is something that I'm keenly interested in and that I know that my constituents are keenly interested in. Pieces of legislation like this should be jealously guarded. I have to say the fact that no government senator has come to put a perspective on this piece of legislation is of great concern to me. They haven't even had somebody come in to trot out the talking points.

What is the story? Why won't the government let us understand what's going on, particularly in relation to the retrospectivity in this piece of legislation? What happened in April that means we have to go backwards and provide retrospectivity with respect to the management of the fuel crisis? Why do we have to do that? We know, in the early days of the fuel crisis, the government said: 'This is not a problem. There's plenty of fuel. There's nothing to see here. We don't have to worry about it.' They banged on and trotted out those talking points for a whole fortnight here in the chamber. The day after we left, the responsible minister, Mr Bowen, came out and acknowledged that there was a crisis and that there were significant issues in certain supply chains. I even asked in this chamber during question time, on one occasion, who was hoarding the fuel. If there was so much fuel around, where was it? Who was hoarding it? We still don't know the answer to that question. It took the government two or three weeks to get a handle on all of the supply chains and what was going on, so what happened in the interim? Why do we have to go back to 1 April in the context of retrospectivity?

It's becoming a genuine pattern of behaviour of this government, which promised to be open and transparent with the Australian people, that we have debate after debate in this place where, on some occasions, we don't even get the opportunity to speak. At least we're getting that opportunity on this piece of legislation. But it is the most secretive government that I've ever seen. They ignore notices for the production of documents. They redact heavily documents that they do provide. In this circumstance, where there's a significant change to an important piece of legislation, they're not even prepared to work with the opposition to have a quick inquiry, to ask the questions that we all want to ask and then get on with it.

It's not as if this parliament hasn't passed legislation quickly before. It has. There have been a lot of references to what occurred during COVID. But, during COVID, when the coalition was in government, we worked with the then opposition to establish an inquiry—the COVID inquiry. We gave the then opposition the chair of that inquiry. They could look at whatever they wanted and call hearings whenever they wanted to look into the elements of the work that we were doing in quite an extraordinary time. It was a time that I hope none of us has to see again. It's a difficult time right now, and there are global pressures on the supply of fuel and energy into this country, but there is no such cooperation from this government in terms of this piece of legislation.

We learnt last night that we can't trust what they say. We can't trust what they promise because last night they continued their record of breaking their word, their solemn word, to the Australian people. The point is that we're not talking about temporary changes to the Competition and Consumer Act with this piece of legislation. We're not talking about a temporary change. We're talking about inserting a whole new section into the act that will be permanent. It's not here for the term of the fuel crisis. It's a permanent addition to the act.

We're told that these powers are needed so that the government can make quick decisions, but we know that the ACCC can act quickly. Many of my colleagues have already put on the record how quickly the ACCC was able to act to make decisions within 24 hours under the existing provisions. So what is in this legislation or what sits behind the rationale for this legislation that we're not being told? I feel very justified in asking that question because my trust levels with this government are very low, particularly after last night, when they proved yet again that you can't believe anything that they tell you. This is important legislation. These permanent changes to the act are not just about the fuel crisis. They stay on.

A number of my colleagues have talked about their concerns with respect to the 'capacity to disallow' elements of the proposed legislation that stands before us. The declaration of an exceptional circumstance will be able to be disallowed, but, once that's done, the ACCC is free and clear. There's no capacity for scrutiny with respect to the ACCC's actions.

We know that there's a need to move quickly at times, but, as I said earlier in my presentation, the ACCC has proven before that it can act nimbly. It did so under the coalition when we were in government. A number of decisions were made within a day, within 24 hours, two, three or four days a week. Why do we need to be retrospective with this legislation? It's critical that we have some insights as to why that's going to be the case. When is the government going to come clean with respect to that not only with the chamber but the Australian people? As I said, there hasn't been one single government senator who's stepped into the chamber to make a contribution on this piece of legislation to explain to us what's going on, particularly with respect to retrospectivity. It's an important matter.

Competition laws in this country have been hugely contested over a long time from both sides, particularly by smaller operators who have wanted to make sure that the big end of town couldn't do them over. They are genuinely concerned about that. That was one of the things I was hearing in the early days of this fuel crisis, when independent supply chains, in particular, were clearly being starved of fuel by somebody. We were told there was plenty of fuel in the country, but there were hundreds of fuel stations in different jurisdictions that had no diesel or no petrol or nothing at all. What was going on and what were the drivers of that? We still haven't received any data on those elements.

I want to be assured so that I can assure my constituents, who are concerned about the way that this piece of legislation operates, that those protections that are important for consumers and particularly for small business aren't undermined by this process. It doesn't matter whether you're selling fuel or whether you're a farmer, a fisher, a vegetable grower or a small business operating a centre close to a big supermarket. We've all heard and we've all seen the complaints and the concerns about the way the supermarkets can operate to impact on the trade of a small business.

I think it's only reasonable that the government lets this place use the toolkit that is available to it so that we, as elected representatives in this place, can confirm for ourselves that we're comfortable with this piece of legislation. We are very comfortable to work with the government, but what's clear is that the government doesn't want to work with us. The government continues to undermine the democratic process in the way it attempts to ram legislation through this parliament. They'll do a deal with the Greens. They'll subvert a Senate inquiry process, like they did with the changes to the EPBC Act. They're all about the politics. They're all about the deal, and they don't care about the people who are being impacted by the legislation. They just want to have another tick on the sheet to say that they've achieved this outcome.

This legislation is too important for us to just roll over, have our tummies tickled and say, 'We'll give this a tick and flick.' We want to ensure that our constituencies are receiving the protections they deserve and that they demand from this important piece of legislation, from these permanent changes to the bill.

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Colbeck, the time for this debate is expired. You will be in continuation for 37 seconds when the debate resumes.