Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Minister for Agriculture) Share this | Hansard source

A lawyers' picnic, my colleague suggests—and I think that is true. We know that the Assistant Treasurer and, indeed, the Treasurer are longstanding opponents of this change to section 46 of the Trade Practices Act, but, for some reason, it seems that the Prime Minister has decided to roll all of them and go with what he believes is the most popular thing to do out there in some rural and regional seats where the government is under substantial pressure a short time before an election.

Section 46 has been studied to death in this place. I have been here 20 years and I have been involved in a number of inquiries into section 46. Section 46 is there for the interests of consumers and it does that by promoting and protecting competition. At the moment a firm with a substantial degree of market power that misuses that market power to the detriment of a competitor—obviously, more often it is a smaller competitor—is guilty of a breach of section 46.

Under the current law someone needs to prove that the big firm intentionally set out to misuse that market power to the detriment of the smaller player. I acknowledge that that hurdle has been quite a high one in a number of court cases. But this sledgehammer approach will have a chilling impact on competition in the market. Larger firms will not be game to take a step to the left or to the right, or to take a step forward, for fear that someone might find that it had the effect of taking out a competitor. But what is good for a consumer is plenty of competition. We need competition in the market. It may be that, in some circumstances, the loss of someone from a market is a good thing, if they are not competitive. That is what competition in markets is all about. The fact that someone drops out of a market is not, in itself, proof that someone has misused market power. So, rightly, we have had to test it before the courts. This change is, if you like, a complete reversal of that onus, and one which will, in my view, have a chilling effect on the market.

Mr Taylor interjecting—

I can hear the assistant minister at the table groaning a little. I acknowledge that he knows a little bit about these things. But I would be very surprised if he agreed with every word that I am saying. I will pose a question to him in case he speaks next on this bill. Given the minister's rhetoric, how many plumbers, electricians and other tradesmen or farmers in his electorate will now be going to the ACCC seeking a victory in the courts under the new section 46 of the trade practices act?

Mr Taylor interjecting—

Where it will have a chilling effect is in medium-sized companies, with maybe 100 employees, that take action against a larger player who made a smart move in the market which had the effect of adversely impacting on the medium-sized firm. The court will have no choice, given that there was an adverse impact, but to find that the bigger firm had a deliberate intention of injuring that medium player in some way. That is not good law, Minister, and you know it is not good law. If you were very honest, you would jump to your feet at the first opportunity.

I can see the member for Hughes at the back of the chamber. He was challenged in an earlier speech to mention section 46, because the member for Hughes has been on the record more than once opposing these changes to section 46. Maybe he will have another opportunity to rise to his feet on this bill—we will give him leave, if he needs it—to explain his position on section 46. He joins the Assistant Treasurer, I think the Treasurer and many others on that front bench who have been railing against this change to section 46 all of their political lives, but who are now not even prepared to stand in this place and talk about it. It is a damning indictment on all of them. That is the truth of it.

Those opposite say they are standing up for rural and regional Australia and small business people, but we know it is not about that. It is about saving the Prime Minister's backside. That is what it is all about. They have done a strategic plan. They have said: 'We are going to look silly in the big end of town. The business community will come down on us, but at this point in the electoral cycle what matters is how this plays out in certain rural and regional seats.' That is all that matters: how this plays out in certain rural and regional seats. That is exactly what this is all about, and they will be found out eventually.

The minister was on television today saying, 'We fixed milk. People are only paying $1. We fixed that. We'—as if he did it—'exported milk to China and we got $11. So we fixed that.' In other words the minister thinks that Australians should be paying somewhere between $1 and $11. I am not sure which; he did not nominate the price. But there are two people at the table: the producers, who need a fair return, and the consumers, who expect a fair go. The real way to make sure that they are both winners is to have a productivity agenda, so that there is a win-win. But this government has no productivity agenda for agriculture.

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