Harry Jenkins (Scullin, Australian Labor Party) Share this | Hansard source

The minister’s explanation comes to the core of the problem, because it is about what people might consider to be normal competition rather than the misuse of market power. The minister is right: the opposition’s amendment is to give guidance to the courts so we do not get into these arguments about cause and conduct or the intention of conduct. That is the important thing because, for small business, the degree of market power of some of their competitors and the way in which that market power is used leaves small business with no ability to survive. Some people would then argue that that is the way the market operates—and it is a fine line; we understand that it is about balance—but there has been a Senate inquiry and people have made submissions. The Trade Practices Act is a developing beast not only in the way the legislation is framed but in the way it is interpreted in the courts. The minister should not dismiss the fact that one of the real problems is that very few cases are being put before the courts. There is a limitation on the way the case law has developed, either on the basis of deficiencies in the law or on the basis that the ACCC has insufficient resources. Small business is looking to government—governments of any persuasion—for some further guidance. The parliament has indicated that market power should not be misused—and ‘misuse’ may be considered by big business as being about the way they play in the market—but that does not deliver outcomes for small business.

I heard the minister say that she felt that the way we had moved on retail tenancy matters sufficiently covered that, but there are still too many things that happen—for instance, when shopping centres are redeveloped, the market power that is used against tenants creates a great difficulty. We should be attempting to make sure that by amending the Trade Practices Act we are giving definite guidance to the courts in respect of interpreting our intentions of this act.

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