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

My interest in the Trade Practices Act started last century when I was on the inquiry of the House of Representatives Standing Committee on Industry, Science and Technology, the Reid inquiry, into retail tenancy and then on the Joint Select Committee, the Baird committee, which brought down the report Fair market or market failure? I have either the advantage or the disadvantage of not having a legal background. What interested me in the discussion on the Trade Practices Act was that it became apparent that the way in which the courts were interpreting the Trade Practices Act—by developing case law outcomes based on the act—could be considered to be different to the intent of the legislators in the way in which they had put the act together. I believe that the Minister for Small Business and Tourism should reconsider the opposition amendment. If she is in agreement, as she says, that the court may look at a case where there is no chance of recoupment, then we should put that as our intent in the legislation. The Boral case that is referred to is a very interesting one, because where it was apparent that there were arrangements put in place to squeeze competitors—and these competitors were probably not what you would consider your small business type competitors—there was a problem.

Since this legislation has been put forward there has been comment made by Associate Professor Frank Zumbo. He followed intently both the retail tenancy inquiry and the joint select committee inquiry and he has developed a great expertise in trade practices matters. He has worked in conjunction with the ACCC from time to time—he may have been an associate—and he has stated on this point that, for small or medium business, the High Court’s decision appears to mean that they will ordinarily have little if any recourse under section 46 for allegations of predatory pricing and, whilst being large and economically powerful, are unable to set prices unilaterally. These are the problems that we confront. There is this disjunct with the developing case law and the way in which the parliament has tried to indicate its intent that there should be protection for small business. I think that this is again a classic case of putting in the legislation what we absolutely mean.

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