Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Assistant Treasurer and Revenue) Share this | Link to this | Hansard source

I move the amendment as circulated in the name of the member for Gellibrand:

        Schedule 1, item 1, page 3 (line 7), after “Part VA”, insert “or section 46 or 46A of Division 8, Part IV”.

The Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill 2005 expands the jurisdiction of the Federal Magistrates Court, a court that is designed to allow simpler and less expensive access to justice in this country, largely on family law related matters. The bill expands the jurisdiction of the court to cover certain trade practices issues. The great concern for the opposition is that the bill expands the scope of the Magistrates Court to cover part IVA, an area of the act that covers unconscionable conduct, but it does not expand the jurisdiction to cover part IV of the act. Part IV of the act is about preventing abuse of market power. These provisions, particularly section 46 of the Trade Practices Act, are well known to members in this place. They have been much discussed. A Senate inquiry has delivered a report calling on the government to reform section 46 of the Trade Practices Act. As a result of a number of Federal Court and High Court decisions, including the Boral case and the Rural Press case, section 46 has been severely undermined and the capacity of the ACCC to take successful action under the act has been severely curtailed.

It is time for reform of the Trade Practices Act, particularly section 46. What the opposition cannot understand is the logic of extending the jurisdiction of the Federal Magistrates Court to part IVA of the act without extending it also to part IV of the act. One can only assume that the idea of this lies in the same area that motivates the government to refuse to reform section 46. That is, they do not want to extend to small business the additional protection they require to compete with their larger competitors.

I challenge the Attorney to give the House an explanation for why he has not extended the jurisdiction to part IV of the act. I suspect he will say, as he has said in the past, that part IV cases in the courts are quite complex—and I agree that they are—and on that basis are not matters which ideally fall within the jurisdiction of the Magistrates Court. But I say to the Attorney that, while I agree that matters under part IV are typically complex, all small business are looking for is an opportunity to rely on the facts as laid out in a Federal Court case under part IV so that those facts can be used in any action against the company which has been prosecuted by the ACCC in their own action in the Federal Magistrates Court. The complexity issue does not work. The complexity will have been dealt with in the Federal Court or the High Court, and the small business person taking their action against the company will be relying on the facts as determined by the higher jurisdiction. It is no excuse at all for not extending the jurisdiction of the Magistrates Court to part IV of the act.

Much has been said in this place, over the last week in particular, about small business, particularly in the context of unfair dismissals. I do not want to have that debate here again today, but it is fair to say that, despite what the government says, the unfair dismissal rules are going to offer little to small business. What small business really wants is some protection against larger competitors who are in the habit of abusing their market power. A number of parliamentary reports that have come to this place have highlighted some of the abominable actions of larger businesses and the impact on small businesses. It is apparent—given the government still has not, three years after the Senate committee report, introduced a bill into this place to pick up those Senate recommendations to strengthen section 46 of the Trade Practices Act—that the government takes decisions in favour of the larger competitors.

This government talks a lot about small business and small business issues, but when it comes to making a decision about the interests of the big end of town and the interests of the small business community the government will fall on the side of big business every time. That is apparent in its refusal or unpreparedness to introduce a bill in this place to tidy up section 46, and it is apparent here again today in its refusal to extend the jurisdiction of the Magistrates Court to part IV of the Trade Practices Act in addition to part IVA of the Trade Practices Act. That is the real truth here. The government, on another occasion, has decided, when looking at the interests of big business in this country and the interests of small business, that—typically—it will back the interests of big business again.

I invite the Attorney to give some sort of explanation. Please do not give us the complexity stuff again, because I think I have addressed adequately that issue. We are only looking for an opportunity for small business to rely upon the facts of the higher jurisdiction. (Time expired)

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank the honourable member for Hunter for outlining his reasons for considering that this additional jurisdiction should be conferred upon the Federal Magistrates Court. But let me just say that I do not accept the injunction that I should not argue properly and fully the position we have taken on this matter on the basis of the reasons we took it and should simply accept an argument that it can be dismissed by his saying, ‘Don’t give us the arguments again.’ The arguments are compelling and I will put them.

The government did, in dealing with the substantial issue—that is, of conferring new jurisdiction on the Federal Magistrates Court in important areas that are suitable for them—consider whether or not in each case there were issues that were likely to be complex and involve a great deal of time. Matters that would certainly not lead to delays arising in the Magistrates Court system were those matters that we progressed.

The fact is that, in the Senate Economics References Committee’s careful consideration of jurisdiction in matters involving sections 46 and 46A of the Trade Practices Act, the non-government members acknowledged that section 46 cases are likely to be very complex. So, even though this amendment has been moved by Mr Fitzgibbon, his colleagues in the other place acknowledged that section 46 cases are likely to be very complex. It is because they generally involve large amounts of evidence. The non-government members of the committee took the view that section 46 cases which relied on section 83 could be considered by the Federal Magistrates Court, but inexplicably the opposition in its amendment has not adopted the proposal by its Senate colleagues. It is conferring jurisdiction in relation to sections 46 and 46A cases, not just those reliant upon section 83.

The fact is that small business was very much our consideration. We do not want the Magistrates Court to become clogged with complex and lengthy cases. To give you some idea of what section 46 cases can involve, the first-instance hearings in the major case of the Australian Competition and Consumer Commission and Boral ran for 23 days. In the Northern Territory Power Generation Pty Ltd and Power and Water Authority case the first-instance hearings ran for 55 days. In the Australian Competition and Consumer Commission and Rural Press case the first-instance hearings ran for 17 days. In Australian Competition and Consumer Commission and Safeway stores case, the first-instance hearings ran for 102 days.

In the government’s view, these are cases that are not suitable for a Federal Magistrates Court. The government has not had the experience that the Federal Court has had in dealing with these matters. We think that that jurisdiction is more appropriate for the Federal Court but let me make this clear: if cases were to arise on section 46 in which a Federal Court judge thought—

Consideration interrupted; adjournment proposed and negatived.

Let me just conclude on this point. If a section 46 case were to arise which was suitable for the Magistrates Court, the Federal Court can use its discretion to transfer such matters to the Magistrates Court using the proposed amendments in schedule 2 of the bill. This is a matter where, in my view, the magistrates’ jurisdiction is being expanded. It is being expanded in areas which we do not think will impact upon its remit but the additional matters could do so very considerably. I do not think small business will be aided were the courts to be held up for the sorts of times we have seen in the cases that I referred to that have been dealt with already under section 46.

Question put:

That the amendment (Mr Fitzgibbon’s) be agreed to.