Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Hansard source

That is effectively what it does. You have recognised the weakness in your argument by the very fact that you have tried to placate the concerns by giving the ACCC the power to intervene in the proceedings and to call witnesses in the proceedings, but you have taken away the power to make the authorisation. It is not just us who say that is bad.

I am pleased that the Minister for Small Business and Tourism has interjected, because she has carriage of this for small business and I would have hoped that she would have properly understood it. But to go back to what the previous Chairman of the ACCC, Professor Fels, had to say, he strongly opposed the merger authorisation process being taken away from the authority of the ACCC and being put in the hands of the Competition Tribunal. Why is that opposition soundly based? It is because the tribunal is not an investigative one; it is a judicial one. That is what happens when it goes to the tribunal as distinct from the ACCC, the Competition and Consumer Commission.

The Competition and Consumer Commission has the power to investigate, call witnesses, make judgments and take into account the public interest. It is not a judicially based body. That is the flaw in what you have done. All you have done in recognising the problem is to give the power to the ACCC to be an advocate, if you like, in the judicial process but not the mechanism by which it can deal properly with the interests of small business, the public interest test and whether the merger itself results in a substantial lessening of competition. That is the flaw in what the government is doing and that is why not only do we oppose what it is doing but we are moving these amendments to get the ACCC back as the body, the decision maker, in the authorisation process.

The second point I want to go to in terms of these amendments—and it is interesting the way we have to deal with these things, but our divestiture amendment, according to advice we got, is appropriately moved here; we would have liked to have dealt with it in the raft of all the other amendments that we believe are necessary post Dawson—is that it is true that the government, in introducing this legislation, has had regard to Dawson; the trouble is that it has not had enough regard to Dawson. There were a lot of deficiencies found by the Dawson review and we have moved, on other occasions in this parliament, amendments to strengthen competition policy in this country. It is essential as a driver of economic growth that we do have strong competition policy. The Dawson review recommended a number of changes.

We are arguing in the amendment a specific capacity for there to be an order for divestiture under section 46 proceedings, abuse of market power. It is true, at the time of the finding of Dawson, that he did not recommend that there needed to be changes to section 46. But post Dawson there were some very important Trade Practices Act cases that were considered that now raise the need to strengthen powers under section 46. There was the Boral case, for example. That is why Labor, in analysing this process and in making the commitment to strong competition, believe there needs to be a strengthening of section 46 powers. That is what this amendment also seeks to do. I urge that the amendments moved by the member for Hunter be supported in this House in the interests of strengthening competition and looking after the interests of small business, not selling out to them and not bypassing the commission that could really look after their interests. (Time expired)

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