Matthew Canavan (Queensland, Liberal National Party) | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 3912 together:

(1) Schedule 1, item 7, page 4 (line 17), before "manipulate", insert "unfairly".

(2) Schedule 1, item 7, page 4 (line 20), after "to cause", insert "material".

These amendments, as I discussed in my second reading speech, would just clarify the definition of unfair conduct in this bill. In particular, it would add the word 'unfairly' before the word 'manipulate' to make it clear that this is targeted at malicious or devious, if you like, types of manipulation. Obviously we don't want to capture usual practices within a competitive marketplace.

The other amendment here would be to add the word 'material' ahead of the word 'detriment'. Again, as I stressed in my second reading speech, it is typical in competition laws that penalties only apply in the event of a certain threshold being reached. So we only trigger section 46 misuse of market power provisions when competition is substantially lessened, not just when competition is lessened in any case. The way this particular term has been drafted at the moment would potentially give rise to a penalty in the event of any detriment, minuscule as it might be. I don't think that's probably the government's intention. I think we should be clear with our language. So we've suggested adding the word 'material' so it would only apply when there's material detriment to a consumer. We should focus our regulation on those issues that create the greatest harm.

Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) | Link to this | Hansard source

The government will be opposing the amendments on sheet 3912. The inquiry heard evidence that adding a qualifier before 'manipulate' risks narrowing the prohibition in ways that would reduce consumer protection. The ACCC supported removing 'unreasonably' as a qualifier in front of 'manipulate' for that very reason. 'Manipulate' already has a clear negative meaning and goes beyond legitimate persuasion or ordinary marketing activity. There are no ways where it is appropriate or reasonable to manipulate a consumer. Adding a qualifier does imply that some consumer manipulation is acceptable.

The government also opposes inserting a limitation before 'detriment' for very similar reasons. The bill is intended to address real consumer harm, including harm such as wasted time, frustration and a loss of confidence. Introducing these qualifiers weakens the very purpose of the reform, leaving conduct that is harmful to consumers outside the scope of the prohibition.

Paul Scarr (Queensland, Liberal Party) | Link to this | Hansard source

Could I just ask the minister another question. The Oxford English definition of 'manipulate' itself refers to unfair conduct and other conduct which is not unfair conduct. Doesn't it make sense, Minister, to actually insert the qualifier 'unfairly', when the Oxford English definition of manipulation includes both unfair conduct and conduct which is not unfair?

Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) | Link to this | Hansard source

Beyond what I've already said—or, maybe, to go back to that: 'manipulate' already has a very clear, negative meaning. It is not possible, in the government's view, to fairly manipulate an Australian. That proposal would narrow the prescription in ways that would allow additional harmful activity to occur, other than what is already clearly in scope of the legislation.

Matthew Canavan (Queensland, Liberal National Party) | Link to this | Hansard source

Just on the other leg of this amendment, the minister said the government didn't want to restrain the types of detriment or the definition of detriment. The minister mentioned that this is aimed at costs on consumers, including waste of time. I'm just trying to get clarity. Is the government's position that any waste of time amounts to, or could meet the test for, unfair conduct? It just seems strange to me. In the normal practice of business, people are confused or people need time to evaluate a proposal, an online form, terms and conditions, an end-user licence agreement—all these things. Is the government's position that any potential waste of time amounts to unfair conduct? I'm just a little perplexed by that. Surely, there must be some bar or threshold before we send something off to the ACCC, or before we get lawyers involved. That's why, as I mentioned earlier, everywhere else in this act there are these qualifiers that seek to restrict regulatory responses to stuff that is harmful—very harmful. It's not just any harm; it's substantial harm or material harm. This is very, very common in law.

Given that we haven't had these laws, ever—yes, we've got an issue here and we do support these changes; we've said that. But the country's not falling apart without them. I'm just worried that we've now got a sledgehammer cracking a nut. Why don't we just make it very clear what we mean? Maybe the minister could just make clear here, at least, in this debate, which has some weight, whether or not in fact all detriment and all waste of time is potentially covered by these proposed changes.

Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) | Link to this | Hansard source

There are two concepts here: 'manipulate' and 'detriment'. In order to excite the attention of the act and these provisions, first of all, the behaviour must manipulate and, secondly, it must do harm. It's not right to conflate those two propositions. It's 'gate 1, gate 2' in order to come under the scope of these provisions.

Paul Scarr (Queensland, Liberal Party) | Link to this | Hansard source

In the report of the Economics Legislation Committee, the Law Council of Australia—and these are the legal experts; I recognise, Minister, that you have many talents, but you're not a lawyer—says:

The Committee strongly submits that the prohibition needs to include a materiality threshold (for example, "significantly", "materially" or "substantially") to provide greater certainty for businesses and consumers.

Why are you right and the Law Council of Australia wrong?

Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) | Link to this | Hansard source

You're right, Senator Scarr, about my status here as—not even!—a bush lawyer. Removing 'unreasonably' from 'manipulate' ensures that the law captures the harmful conduct we intend while still allowing ordinary marketing. That's the clear advice that the government has—

Progress reported.