Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

The 2007 amendments ignored the detailed submissions and recommendations of the ACCC. I can hear from the member for Kennedy’s interjections that he has completely failed to understand the role that the ACCC plays in regulating anticompetitive conduct in this country. What needs to be borne in mind is that the 2007 amendments were resoundingly criticised after their passage through this parliament. I will start with the comment made by Peter Armitage, a very senior solicitor from Blake Dawson Waldron in Sydney. He was the practice head for competition and consumer protection last year when he made these comments. In respect of the Costello-Joyce amendment that those opposite seem keen to defend still, Mr Armitage said:

Make no mistake; this law is bad for consumers and bad for competition. This warning will be dismissed no doubt as special pleading by a lawyer who acts routinely for the big end of town. Unfortunately for Australia’s consumers, shooting the messenger will not alter the truth of the message. It is a fundamental requirement of good law that it can be understood by those who must comply with it. This is not the case with the Birdsville amendment. Under this amendment, no company will be able to safely know whether it has a ‘substantial share of the market’, what the ‘relevant cost’ will be for assessing its price-cutting and how long is a ‘sustained period’.

Mr Armitage went on:

Not only will consumers suffer but a great many businesses across the country, including mini businesses that may think of themselves as small, will be at risk. For example, a pharmacist whose company operates one pharmacy in a remote country town that has only other pharmacy will be at risk of breaching the Birdsville amendment if it engages in repeated loss leading as part of a vigorous attempt to attract customers and get the better of its competitor.

To complete Mr Armitage’s comments, he said:

These amendments are a fundamental attack on the process of the competition and the benefits it delivers.

There were others who commented. Professor Bob Baxt, a former chair of the Trade Practices Commission, had this to say about the Costello-Joyce amendment:

Far from protecting small businesses, this amendment is likely to prove unwelcome to them as well as to others, as increased complexity will lead to litigation and lengthy appeals. Not only will the small business sector not enjoy any real success as a result of these amendments but, most importantly, consumers will suffer significantly as companies abandon any attempt to discount in situations where they have any degree of market share.

The former chair of the ACCC, Professor Allan Fels, was also very critical of the Costello-Joyce amendment, saying that it may drive up consumer prices. The Law Council of Australia was intensely critical of the Costello-Joyce amendment. Indeed, I can say that, looking at the Costello-Joyce amendment, it is apparent on its face that its language is unclear. Most importantly, it uses different concepts to the terms and concepts already used elsewhere in the Trade Practices Act and particularly in section 46. As such, it is wording which is guaranteed to produce extensive legal argument and almost guaranteed to produce judicial disagreement. Certainly the amendments that were produced by the former government did nothing to add any clarity and were—

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