Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Assistant Treasurer and Revenue) Share this | Hansard source

I would like to ask the parliamentary secretary some questions about the Trade Practices Act, which of course comes under his direct area of responsibility. It is well known and well documented in this country that there is significant concern about the effectiveness of the Trade Practices Act and, of course, there are allocations in the budget to the ACCC for the administration of the Trade Practices Act. Those concerns are very well founded. They go to the impact of cases commonly known as Boral and Rural Press and Metway. In particular, many are concerned that it is very difficult these days for the ACCC to establish in a court of law that a company does have the degree of market power necessary to be in breach because of any action under the Trade Practices Act. There is concern also, of course, that the concept of ‘take advantage’ is now a very questionable concept in the eyes of the courts, and these things need clarification. There is also a need for clarification in the area of what we commonly know as predatory pricing, and that is, of course, the concept of larger firms holding down the price, possibly below cost, just sufficiently long enough to drive a competitor out of the market.

There has been a very big expectation for a number of years now amongst the smaller and independent sector that the government would address these changes. Certainly there have been two significant reports—the Dawson report and I think a unanimous report of the Senate Economics References Committee which recommended a number of changes to section 46. Indeed, the opposition has been stepping up the ante in recent times because we are very concerned that the repeal of the retail marketing sites act should not be undertaken in the absence of significant reforms to section 46. I was hoping the parliamentary secretary could provide advice on where the government is on section 46. Can we expect to see some proposals coming forward from the government in the not-too-distant future and, if so, how wide-ranging will they be and will they cover what I call the two-threshold test—that is, a clarification of the parliamentary intention on the definitions of market power and of the concept of ‘take advantage’?

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