Jill Hall (Shortland, Australian Labor Party) Share this | Hansard source

I rise to support the legislation that we have before us, the Trade Practices Legislation Amendment Bill 2008. In doing so, I would like to acknowledge the role that small business plays. Small business is the largest employer in our communities. Small businesses are also the lifeblood of our nation and a very important part of our economy. The government acknowledge their contribution to our economy and our society. We have the fundamental belief that competition policy is at the core of a government’s economic agenda. The legislation that we have before us today looks at that very issue.

The government believe that being pro-business and pro-competition delivers the best results for consumers. Those opposite do not have the same concern for consumers. We on this side of the parliament know that those opposite are the slaves of those who put them in this place and we know that, when it comes to weighing up the issue of whether or not they are concerned about protecting consumers, always they come out on the side of their bosses.

The member for Robertson raised a very important issue—the anticompetitive behaviour that exists with shopping centres and those people who are tenants within them. This issue has been of great concern to me for a very long time. It is an issue that I deal with on a regular if not daily basis within my electorate. Wherever there is a redevelopment in a shopping centre or any change within a shopping centre, it is always the tenants who come off second best. These are tenants who have invested their life savings in their businesses and they stand to lose everything.

Currently, there is a redevelopment of a shopping centre within my electorate and an added burden has been placed on small business owners of being caught between a franchisor and the business. The franchisor obviously wants to have a good relationship with the shopping centre management because they are reliant on them to be able to get good positions not only in one shopping centre but in shopping centres throughout the nation, so they need to negotiate and stay in favour there. On the other hand you have the franchisee, who needs to have a relationship with both but is often the victim in the power relationship that exists; they are the least powerful. And I hope that, as a government, over time we revisit this. At the moment I am advocating very strongly for a number of businesses within my community and I will not rest until they get a fair deal. It is very hard to sit back and see people who have invested their last cent in a business lose everything. It is something that government needs to address and I, along with the member for Robertson, will be advocating for that in this parliament.

Schedules 1 and 2 of the Trade Practices Amendment Bill 2008 promote competition in Australian markets by enhancing the prohibitions against anticompetitive unilateral conduct in the Trade Practices Act 1974 and the competition code. Schedule 3 makes additional amendments to the TPA and the Australian Securities and Investments Commission Act 2001.

Schedule 1 of the bill amends section 46, which relates to the misuse of market power—and I once again relate that back to the issue I have just raised—to address predatory pricing, to clarify the role of recoupment in predatory pricing cases, to clarify the meaning of the term ‘take advantage’ and to confer jurisdiction on the Federal Magistrates Court for section 46 matters.

Schedule 3 of the bill amends the TPA and the ASIC Act to require that one of the Australian Competition and Consumer Commission’s deputy chairpersons have a knowledge of or experience in small business matters. I think this is a very important change and one that I would have hoped members on the other side would support, because I do not think that small business has the voice that it deserves. The voice of business is disproportionately vested in larger businesses. As small business plays such a vital role in our economy as an employer, it is absolutely imperative that this change is made. Schedule 3 also repeals the threshold for unconscionable conduct cases under section 51AC of the TPA and section 12CC of the ASIC Act, and it clarifies the ACCC’s information-gathering power under section 155. The government intends to further defend small business from predatory pricing and give it a permanent voice in the competition watchdog, the Australian Competition and Consumer Commission.

I have heard members on the other side of this parliament speak very disparagingly of the ACCC and Graeme Samuel. Under the previous government, the ACCC was made, in effect, a toothless tiger. The government of the day did not support the ACCC in any shape or form. The government recognise that the ACCC is a very important body; we are about giving power to it, not making it a toothless tiger. If members on the other side of the parliament had been prepared to stand up when they were in government to try and turn that around in order to give the ACCC the powers it needed to be effective then the criticisms they are now directing at it would not have any veracity whatsoever. There have been many times that I have referred cases to the ACCC and they have been outside of its jurisdiction purely because of what the Howard government did to it.

This legislation will be cracking down on anticompetitive behaviour by powerful businesses. The new rules make it easier to prosecute businesses engaging in anticompetitive behaviour. They ensure that victims of predatory pricing will not need to prove that the predator has the ability to recoup losses after participating in an anticompetitive, below-cost pricing strategy. The previous rules made it very, very hard. The legal issues that were involved were quite complex. This legislation will clarify the meaning of the term ‘take advantage’ and remove the unnecessary uncertainty that has arisen following the two-track process for predatory pricing that developed under the previous government. As I have said, the reforms will also strengthen the role of the ACCC by enhancing its information-gathering powers, enabling it to fully investigate suspected breaches of the law—something that the Howard government sought to ensure it did not have.

The government will also extend the reach of the ACCC by removing arbitrary monitoring thresholds currently applicable to allegations of unconscionable conduct and by enhancing the protection of small businesses regarding transactions involving such things as undue influence. These amendments will deal with predatory pricing while allowing business to engage in genuine competition and discounting for the benefits of consumers. That is for the mums and dads, the families and the pensioners in our communities; that is what it is about. Those on the other side of parliament should realise that.

As I have mentioned, the fact that small business will have a much greater voice on the ACCC is very, very beneficial. One of the things that I find quite interesting is that the legislation that the previous government introduced—in particular, the Birdsville amendment—created significant uncertainty. Birdsville is a great place to visit: it has the Birdsville races, a great little pub and a strong community. But I do not know whether it is really appropriate for the Prime Minister of the day to sit down in the Birdsville pub and—over a couple of beers with a senator who might not support him in everything he needs support for—say, ‘Okay, that sounds like great policy.’ This is the way the previous government did business and, unfortunately, the Birdsville amendment appears to have been quite flawed.

We have Graeme Samuel stating that there was enormous uncertainty around the Birdsville amendment. We have Peter Armitage, the practice head of Blake Dawson Waldron’s competition and consumer protection team in Sydney, supporting what I have said. He says that many fine ideas have been conserved in the Birdsville pub, but the predatory pricing amendment to the Trade Practices Act that was accepted by the government of the day—the Howard government—was a mistake. He goes on to show just why it was such a mistake and how it will work against competition.

One example he uses is of a pharmacist whose company operates one of the two pharmacies that exist in a remote country town; that pharmacist will be at risk of breaching the Birdsville amendment. Another example I read of, which was even more damning of the Birdsville amendment, is where a newsagent in a small country town sells biros and a service station in that same town also decides to sell biros. If the newsagent then decides to reduce the price of their biros, they breach the current Birdsville amendment. So not all things that happen in the Birdsville pub should be embraced by the parliament.

Martin Collins in the Australian points out that the predatory pricing change was made without consultation with the business community. That would suggest that, if the previous government, led by Prime Minister Howard and Treasurer Peter Costello, had really been serious about making changes to support business, it would have consulted with the community and also with consumers.

It is the same with every piece of media that I have looked at. The Australian Financial Review states ‘abandon all hope of discount’. Once again, the Australian Financial Review talks of ‘competition changes rile big business’. The Australian Financial Review, which I would see as the Bible of business, reports that ‘suppliers will feel the squeeze’. Finally, we see, again in the Australian Financial Review, ‘pricing reforms go too far with Fels’. The previous government let down business and consumers; but this government, through this legislation, will deliver amendments that will make for a more competitive environment and will make it work for all Australian people.

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