Chris Bowen (Prospect, Australian Labor Party, Shadow Assistant Treasurer) Share this | Hansard source

Drafted at the Birdsville pub, and Senator Joyce’s press release refers to the amendments as the Birdsville amendments. They are the Birdsville amendments by Joyce QC, written at the Birdsville pub. What a way to run a country! No wonder the government is viewed cynically across the nation. At five minutes to midnight they move these cynical amendments after rejecting for years Labor’s calls to strengthen the Trade Practices Act. Now what do we have? We now have a different test for different breaches of the Trade Practices Act. We have a test for ‘substantial market power’ under section 46, but we also have a test for ‘a substantial share of a market’ under the proposed new section which deals with predatory pricing. So we now have a Trade Practices Act which is a dog’s breakfast. We have a Trade Practices Act which is confusing. We have a Trade Practices Act with two different tests, but not for other breaches.

It is worth bearing in mind that the Boral case, one of the big Trade Practices Act cases, was about predatory pricing. Other big Trade Practices Act cases have not been about predatory pricing. There is more than predatory pricing when it comes to the abuse of market power. The Queensland Wire case was not about predatory pricing. The Rural Press case was not about predatory pricing and the Melway case was not about predatory pricing. There have been no changes to those—no change to the recoupment test and no change to the ‘take advantage’ provision. Section 46 stands unamended by this government, ignoring the ACCC, which has been calling for amendment to section 46. Instead, we have the amendments written by Chief Justice Barnaby Joyce in the Birdsville pub. (Extension of time granted) ‘Market share’ has not been defined in the amendments. ‘Substantial market share’ might be 20 per cent, 25 per cent, 15 per cent or 50 per cent—we do not know until there is a court case. So there is a substantial amount of uncertainty. ‘Market’ has not been defined in these amendments, so Birdsville is probably a market all to itself. Certainly Jindabyne would be a market, and Sydney is probably a market, and then we have the national market. We do not know what ‘market’ is and we do not know what ‘substantial share’ of a market is.

We affirm that the way forward in this matter is to adopt Labor’s sensible and balanced amendments, and I reaffirm that, should we form a government shortly, we will proceed with our amendments. We will strengthen section 46 properly. We accept that these amendments have already been through the other place and we accept that they will go through here, but we reserve the right to monitor their operation closely. It is hard to say that there will be unintended consequences, because I do not think the government had any idea what the consequences would be when they did this last-minute backflip to accept the amendments moved by Senator Joyce. This is a last-minute, cynical attempt to get the small business vote at the coming election.

The government have done this before. We know about their attempts to get the small business vote. Recently I read a very good book—the biography of the Prime Minister. When I was reading it my attention was drawn to page 295, which is about small business issues. There is a quote from the Treasurer.

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