Peter Costello (Higgins, Liberal Party, Treasurer) Share this | Link to this | Hansard source

I indicate to the House that the government proposes that amendment (1) be disagreed to, but that amendments be made in place thereof, that amendments (2) to (6) be agreed to and that a further nine relevant amendments be made. May I suggest, therefore, that it may suit the convenience of the House to first consider amendment (1), then amendments (2) to (6) and, when those amendments have been disposed of, to consider the further amendments. I move:

That Senate amendment No. 1 be disagreed to but in place thereof government amendments Nos 1 to 49 be made:

(1)    Schedule 1, item 6, page 4 (lines 1 and 2), omit the definition of proceedings in section 29P, substitute:

proceedings includes:

             (a)    applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and

             (b)    applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances).

(2)    Schedule 1, items 7 and 8, page 4 (lines 3 to 13), omit the items, substitute:

7  Section 39

Before “The”, insert “(1)”.

proceedings includes:

Note:                The heading to section 39 is replaced by the heading “President may give directions”.

Note:   Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.

Commission must make a determination on the application

Determination varying clearance may also vary clearance conditions

Powers of Commission

Commission must make a determination

Powers of Commission

Substituted clearances

Note 2:  Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal.

Note:   The Commission may be represented by a lawyer: see paragraph 110(d).

Tribunal must make a determination on the application

Determination varying authorisation may also vary authorisation conditions

Tribunal must make a determination

Substituted authorisations

proceedings includes:

Note:   Division 2 contains provisions about procedure and evidence that relate to proceedings before the Tribunal.

merger clearance register means the register kept under section 95AH.

The Trade Practices Legislation Amendment Bill (No. 1) 2005 implements the recommendations of the 2000 review of competition provisions of the Trade Practices Act chaired by Sir Daryl Dawson.

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

Mr Deputy Speaker, I rise on a point of order. I draw your attention to standing order 160, which relates to the need for amendments to a Senate message to be within the scope of the amendments as put in place by the Senate. I put it to you, Mr Deputy Speaker, that many of the amendments now being moved by the Treasurer sit outside the scope of the amendments as relayed from the Senate.

The Senate made some very specific amendments to this bill. They went only to some changes in the authorisation regime and the Trade Practices Act. There were no amendments made under the section 50 regime of the Trade Practices Act. I also put it to you, Mr Deputy Speaker, that many more amendments may be outside the scope of the Senate amendments, but those amendments moved by the Treasurer which relate to section 50 of the Trade Practices Act—which was not amended by the Senate—are outside the scope of this debate and on that basis should be ruled out of order.

Kim Wilkie (Swan, Australian Labor Party) Share this | Link to this | Hansard source

I thank the honourable member. Having considered the point of order, I believe that the amendments are within the scope of the Senate amendments, and I call the Treasurer.

Peter Costello (Higgins, Liberal Party, Treasurer) Share this | Link to this | Hansard source

The Dawson review recommended that the Trade Practices Act be amended to improve its operations, specifically in relation to the competition and authorisation provisions in the administration of the act. The bill improves existing ACCC and ART processes by providing for greater accountability, transparency and timeliness in decision making and reducing the regulatory burden on business.

The bill was debated in the Senate on 10 and 11 October 2005. The Senate amended the bill to remove schedule 1, to make a procedural amendment to schedule 3 and to omit the provisions in schedule 7. The government does not agree with the removal by the Senate of schedule 1. To address concerns that have been raised in relation to the bill, the government is now moving amendments to further enhance and clarify the processes to be undertaken by the ACCC and the tribunal in relation to mergers, clearances and authorisations.

Some of these amendments would have been moved in the Senate, in any event. Given the fact that the Senate omitted the schedule, they were never actually moved and placed in the schedule. But there are some new amendments that we have put to the House today to go into the schedule. These have been drawn after extensive consultation with small business organisations. They have been drawn in order to address matters that were raised in the Senate debate. As a result of these amendments, organisations such as COSBOA, the Fair Trading Coalition, NARGA and the National Farmers Federation have all said that they support the bill and they have urged the Senate to pass this bill with these amendments.

These amendments provide that the Australian Competition Tribunal must require the ACCC to provide it with a report on every application for merger authorisation. Further amendments specifically provide that the ACCC may call witnesses to appear before the tribunal, examine and cross-examine witnesses, report on statements of fact put before the tribunal and make submissions to the tribunal as determined by the ACCC.

The other matters, which would have been moved in the Senate had the Senate got around to it, apply to the general procedure of the tribunal to apply to merger authorisation applications, timely information to enable timely decision making, clarifying the process for the review of merger clearances, clarifying the default decision on merger clearances if a decision is not made within time and ensuring consistency of process and powers for all merger clearance processes.

This bill will significantly enhance the operation of the act, improve the rights of small business and improve transparency. It has the support of small business organisations. Not only should the House pass it but also I urge the Senate to pass this bill with these enhancements, particularly in relation to schedule 1.

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

I will begin my contribution to the House’s consideration of the Senate amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 by clarifying my earlier point of order. It was not necessarily to suggest that the opposition was not supporting those amendments that the Treasurer claims are improvements to his original regime. Some of them may be but some of them may not be. The point is that we do not know. Only moments ago we were handed pages and pages—12 pages in all—of amendments to the Trade Practices Act, and we do not even know what they are. While I respect your ruling, Mr Deputy Speaker Wilkie, I suggest to you that the clerks were in no position to give you advice. Of course they will proceed with caution and of course they have no choice but to provide you with the advice that suits the government’s agenda, but the clerks, with respect, would have no idea whether these amendments were within the scope of the amendments imposed by the Senate because the clerks, like me, simply have not had an opportunity to read them. This is symbolic of this government’s contempt for this chamber, the people’s place. They think they can just ride in here any time they like and do whatever they like, and it is unacceptable to us.

Those who have business interests riding on the outcome of this bill should be very concerned about that, in the same way that business should be concerned about the Treasurer’s approach to taxation bills in this place, where time and time again we see the government coming back in with its own amendments because it did not get the bill right in the first place. The government is of course changing things midstream without any consultation with the opposition, but it does not care about the opposition because, at this particular point in our history, it does not need us. It is, however, setting some very dangerous precedents. The Treasurer might think it is 30 years away, but it might just be two years away that the government members find themselves standing on the other side of the table. It is simply a disgrace that the government is treating this parliament with such contempt.

I am going to put the onus back on the Treasurer to give an ironclad guarantee to this House that these amendments are within the scope of the Senate’s message—in other words, within the scope of the amendments put forward by the Senate. I have not quite reached the dizzy heights of legal study that the Treasurer has, but I would be interested to know whether these amendments  will have any impact on future court challenges to this legislation if and when it is passed by the Senate. If this House has not followed proper procedure in the passage of the bill, can we be sure that this does not leave the final legislation vulnerable to legal challenge? I know the Treasurer is not allowed to give a legal opinion, but if he cares to he might like to reflect on that as well. That is the guarantee I am asking for: that these amendments are within the scope of the Senate’s message.

In moving to the substantive issues I will start with a bit of history. The Dawson inquiry made some very solid and eminently supportable recommendations to this place. The opposition has done all in its power to support, wherever possible, those very strong recommendations. I challenge one thing the Treasurer said, and that is that he is implementing all the Dawson recommendations. I do not believe that is true. I think he has cherry-picked the Dawson recommendations—that is, he has chosen just those that suit his own political agenda. That notwithstanding, the opposition agrees that most of what is contained within the original bill is a good thing for the Australian economy, a good thing for Australian business and a good thing for the Australian consumer.

We do, however, have one very real concern, and that is the way in which the government has chosen to carve out of the process a very real role for the ACCC when dealing with authorisation issues. What the Treasurer is telling us today, amongst other things, is that some of these amendments are designed to deal the ACCC back into the game. It is pretty hard for the opposition to be certain about that. (Extension of time granted) It is pretty hard for the opposition to be sure about that because all that we know about these amendments is based on what we have read in the newspapers, but we do maintain the absolute determination that the ACCC should be the main gatekeeper on authorisation decisions. It is my understanding that the amendments we are considering this afternoon do not restore the ACCC as the main gatekeeper.

Let us take a moment to think about what we are talking about here. If companies are seeking to consolidate—and it could be that in the next little while News Ltd take over Fairfax—they go to the ACCC seeking informal clearance. If this bill is passed, it will be a formal clearance. The consideration of that application is based on a competition test—that is, whether the merger would be likely to lead to a substantial lessening of competition in a given market. If they are unsuccessful there, whether it be under the formal or informal arrangements—and if I have time I will talk a little about the difference between those two mechanisms—under current law they go to the ACCC seeking authorisation or, to put it another way, seeking approval to proceed with the merger or the takeover, notwithstanding that it will lead, on the determination of the ACCC, to a substantial lessening of competition, as it is in the public interest that the merger, consolidation or takeover proceed.

I would have thought that all of us would be unanimous in our view that the ACCC, as it has always been, is the best body, the most expert body, the most credentialled body and the body with all the experts—rooms full of them—to determine whether or not that consolidation is in the public interest, notwithstanding the fact that the ACCC has already decided that it will lead to a lessening of competition. What the Treasurer wants to do is sideline the ACCC and allow applicants for authorisations to go straight to the Australian Competition Tribunal. That is an august body that I have a great deal of respect for, but I make the point that the Treasurer, having enjoyed more than 10 years in his position, has had the opportunity to either appoint or reappoint every member of that body. It is a bit like the way in which the maker of appointments to the US Supreme Court has been able to make that body one which is largely in keeping with his own thoughts on matters. I am sure the public would have much more confidence in a system that allowed or forced the applicant to go to the ACCC to determine that very important issue as well.

Whether a matter is in the public interest is very much a subjective test, and one we should not allow to go straight to the tribunal. The Treasurer will return to the dispatch box and say: ‘The member for Hunter is wrong. These amendments deal the ACCC back into the game by allowing the ACCC to be a full party to the proceedings before the Australian Competition Tribunal.’ There is some truth in that, but the procedures of tribunals such as the ACT are pretty clear-cut, and the Treasurer knows that the ACCC, notwithstanding being a full party to the proceedings, may and probably will be constrained in its ability to put its case and rebut argument by the mood of the tribunal on any given day and whether it believes the matters that the ACCC is attempting to raise are necessarily relevant to the argument before the bench. Therefore, if these laws are passed, there will be a restraint on an ongoing basis on the ACCC in its role in considering the public interest test.

I have to say that it is better than the Treasurer’s original proposal, which allowed the ACCC to be seconded, in a sense, by the ACT if it decided it had something to offer. He is now saying, ‘They will have to put a submission in,’ as if they would not anyway. For goodness sake, who believes that the ACCC would not put a submission in on the question of public interest? The Treasurer is saying that the ACCC will now be a full party to the proceedings. We are not convinced, and the Treasurer needs to clarify these points. I also ask him to clarify whether the states have been appropriately consulted on these issues and whether the states have— (Time expired)

Fran Bailey (McEwen, Liberal Party, Minister for Small Business and Tourism) Share this | Link to this | Hansard source

The first point I want to make to the member for Hunter is that these amendments were circulated at 5.30 last night. So there should be no excuse whatsoever for the member for Hunter to complain that he was not made fully aware of what these amendments were, because they were circulated.

This is a great day for small business; it really is. We have 1.2 million small businesses, which make up 95 per cent of all businesses in this country. They employ 3.3 million Australians, and they have been waiting for this day. They think that this is a great outcome. While the member for Hunter has been focusing on that section of the amendments dealing with mergers and acquisitions, as the Treasurer has already said, the role of the ACCC is a very central one in this process. Certainly, all of the small business associations—as the Treasurer has already indicated—are fully behind this amendment and they support it.

I reiterate who these groups are that represent the 1.2 million small businesses in Australia. We have the National Association of Retail Grocers of Australia, COSBOA and the Fair Trading Coalition, including such groups as the MTAA and the National Farmers Federation. These are groups which really believe in investigating issues and assessing what is being put before them because they have to go back and report to their members on exactly how they find a situation. They have closely examined these amendments and they are of the view that they support the government’s position. That is why I say it is a very important day for small businesses.

In particular, in respect of the collective bargaining amendment for small business, as every small business person in this country is well aware, the formal process of authorisation was a very lengthy and very expensive process for small business. Now that is being changed to the notification process. This is going to give clarity and transparency. All of the amendments give great certainty to small business, and that is why small business is so very strongly in favour of what the government is doing.

Let us look at a little of the detail of the changes to the amendment affecting collective bargaining. As I have said, this makes it cheaper and quicker for small business. Under the Trade Practices Legislation Amendment Bill (No. 1) 2005 the notification process will normally be 14 days. The ACCC does not have to approve this; it considers it and then, if it objects, it has the right and responsibility to do so. I said it is much cheaper for small business. Let us have a look at that. Under the previous notification process, it would cost a small business, on average, $7½ thousand. That is a lot of money for a small business to find. Now that fee will come down to around $1,000. Importantly, individual threshold levels will be covered by regulation, and these regulations will be introduced no later than six months after the passage of this bill. Consultation has characterised this whole process by the government and, importantly, ongoing consultation will occur.

Mr Deputy Speaker, let me give you some examples of what some organisations believe the benefits to be. Bill Healey, the national affairs director of the AHA, representing thousands of small business people, said that the reforms to collective bargaining will provide a quicker and cheaper way for small businesses to deal with big business, adding great confidence and security in negotiating transactions.

The thing that sets the government apart from the opposition is that we have consulted with small business and we have listened to them. We have their support on this and every other matter because it is this government that is providing the strong operating environment for them. It is providing a competitive, fair environment. (Time expired)

Kim Wilkie (Swan, Australian Labor Party) Share this | Link to this | Hansard source

I call the member for Moncrieff, in recognition of the fact that I gave the opposition the call twice previously.

Steven Ciobo (Moncrieff, Liberal Party) Share this | Link to this | Hansard source

I am pleased to also be in support of government moves with respect to these changes to the Trade Practices Act, which incorporate and build on the recommendations from the Dawson review. The point I would like to stress most effectively—and this point is especially pronounced for me as a representative from the Gold Coast, which is Australia’s small business capital—is that these changes enhance the Trade Practices Act for the benefit, predominantly, of small businesses. There can be no doubt that small businesses around Australia are welcoming very loudly these changes and are very grateful that we have been able to bring forward the Trade Practices Legislation Amendment Bill (No. 1) 2005 and these changes.

Do not just take my word on it, Mr Deputy Speaker. A number of small business groups, such as the National Farmers Federation, the Council of Small Business Organisations of Australia, the National Association of Retail Grocers of Australia and the Fair Trading Coalition, have put out press releases and highlighted their gratitude that the government is listening to small business, is acting on the recommendations of small business and is consulting with small business to introduce these changes.

In particular I highlight the comments from the National Farmers Federation, who said:

We certainly hope now that the small business community has given the tick to the Bill, that Senators will reconsider their previous opposition and allow it to pass …

NFF has taken an active interest in the reform to the Trade Practices Act because farmers have so much to gain, particularly through the collective bargaining provisions, which will make it easier, quicker and cheaper for farmers to collectively negotiate with large businesses.

…     …         …

NFF has carefully considered claims that the merger and acquisition component of the reforms may be ‘anti-small business’. NFF sees no danger that the proposed changes will weaken the existing test to determine whether a merger will adversely impact on competition and is therefore comfortable on this matter.

We also note that the recent modifications to the Bill will further strengthen the role of the ACCC within the mergers and acquisitions authorisation process, giving it full powers to assist the Australian Competition Tribunal.

I wanted to specifically read into the Hansard those comments from the National Farmers Federation because they are totemic comments that underscore the reason why the government can be immensely proud of the hard work that the Treasurer and the Minister for Small Business and Tourism have put into bringing this bill forward, a bill which appropriately balances the demands of small business and the demands of parallel businesses, principally farmers.

This bill provides great benefits to small business in particular, and not only small business will benefit from an efficient and effective economy. Our competition policy going forward ensures that the years of responsible and careful economic management of the Howard government and the Treasurer, Peter Costello, will be able to continue. It ensures that a competitive marketplace for small businesses will continue.

I am immensely proud of the collective bargaining amendments which arose out of the Dawson review and are incorporated into this bill. These collective bargaining arrangements will make a very meaningful and significant difference to small businesses when it comes to using the collective market power that they will have in any negotiations and bargaining that they undertake.

The final point I would like to touch upon is the mergers and acquisitions process. I have heard it said in other places that there should be some concern because the amendments that the Treasurer has put forward provide a finite time line on dealings when it comes to mergers and acquisitions. From my perspective, I believe such a finite time frame is a very significant step forward. There can be no doubt that one of the worst situations that can be allowed to occur is for regulatory uncertainty to paralyse, in some respects, actions that businesses would like to take. Finite time lines introduced through these amendments and through this bill will mean that, going forward, businesses can have the certainty that they require to undertake commercially expedient and commercially sensible decisions when it comes to mergers and acquisitions. I have considered the comments that have come forward, particularly from rural representatives such as the NFF, and I commend this bill to the House. (Time expired)

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

I accept that there are elements in this Trade Practices Legislation Amendment Bill (No. 1) 2005 that strengthen the position of small business. We have consistently supported those measures, particularly the collective bargaining regime. I should point out that we on this side of the House are consistent supporters of a collective bargaining regime, not selective supporters of a collective bargaining regime. That will be the basis of debate in another forum. This opportunity for collective bargaining for small business is terribly important, particularly for industries in regional Australia.

The problem we have with the schedule that has been proposed to be amended by the Treasurer is that we believe the amendments that the Treasurer has proposed will undermine the role of the ACCC in enforcing, on behalf of small business, certain protections. That is our point of opposition. We believe that the amendments proposed effectively sideline the role of the ACCC in the merger and acquisition process. Of course, we are pleased to note that in these amendments, on the face of it, there have been some real efforts made to put the ACCC back into play. We want to put it back in the game, not just on the sidelines of play and not just as an organisation that can make submissions or call witnesses. We want circumstances in which the ACCC retains the authority to make the decisions when people seek mergers and acquisitions inimical to small business. You can go back and look at the creeping acquisitions in the supermarket chains et cetera. We want to make sure that the opportunity is there for the ACCC to deal with this because it is the appropriate body. There should not be an opportunity to forum shop. We believe that not only should this amendment be opposed but also there has to be a means by which the ACCC is put back into the game.

A further point that we have difficulty with goes to the link that the authorisation process has with the public interest test. Under the current arrangements, if authorisations are made by the ACCC it is required to apply the public interest test. That has tended, as the act stands, to be a subjective test. As I understand it, these amendments seek to move the test to the Competition Tribunal, to make it a more objective test. I have not had a chance to look at the detail of the amendments proposed because, like the member for Hunter, we received them—pages of detailed amendments—literally minutes before we entered the chamber. This is not the way to run a parliament, but it is the way the government choose to run the parliament. We will go back and analyse this process. The concern we have is that, in moving away from a subjective public interest test, we could be narrowing objective measures which the new tribunal can take account of. This becomes particularly important in the context of the media laws that have just passed through the parliament, where we are arguing for a wider public interest test when it comes to retaining media diversity. It is going beyond the economic test to tests that preserve the principles of democracy and the principles of our culture.

We are opposed to the measures. We protest very strongly at the way in which they have been brought into the chamber—with such haste and with little time for consideration. I warn the small business community: whilst we are on your side in terms of ensuring that you do get better deals out of this arrangement, don’t underestimate the extent to which the weakening of the ACCC’s powers could undermine your very protections against mergers and acquisitions. (Time expired)

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

I foreshadow my remarks by saying that I am going to try very hard to take up my five minutes in this contribution because I can see the Treasurer squirming over there. It is very inconvenient for him to have to give his time by coming in and being accountable to this place. I know he does not have to do it very often and I know he does not like it, but these are critical issues to the small business community, to the economy and to consumers. We will pursue them as we see necessary. As I said earlier, we want to put the ACCC back into the game. The opposition put forward some very reasonable and eminently supportable amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 that would have put the ACCC back in the game without, to a large extent, following what the Treasurer was attempting to do. That amendment was very simple: we wanted the ACCC to stay in the game for 30 days and, if they had not made a decision in that time, the applicant would take a deemed denial and go to the Australian Competition Tribunal. Of course, that was not the Treasurer’s idea, so he did not like that amendment very much.

I said I would return to section 50. Again trying to be reasonable, the opposition supported, here and in the other place, the move to a formal arrangement for clearance. As I said, under the current arrangements you get informal clearance, which gives only limited scope to appeal. It does not set any precedent for the business community. The business community wanted a formal process, which is what this bill seeks to put in place. We supported it on the last occasion and we intend, unless some new information comes to hand, to support it again; but the Treasurer must, when it comes to the other place, think about the time limit placed upon the ACCC for the new formal clearance measures—40 business days. In future, if Murdoch is making a raid on Fairfax—something which will be quite open to that organisation, given the passage of the government’s new media laws—News Ltd will go off to Mr Graeme Samuel and his colleagues at the ACCC and ask them to give immunity under the new formal clearance processes to that consolidation or takeover. Mr Samuel and his colleagues will have 40 business days in which to consider that application on a competition basis. I think the Toll Holdings application took up to two years, if my memory serves me correctly. How is the ACCC going to assess on a competition basis the appropriateness of such a consolidation? This is absolutely unreasonable and is clearly designed, again, to cut the ACCC out of the process and allow applicants to go straight on to the Australian Competition Tribunal.

I note that the Treasurer began by saying that these changes have come forward because the government has entered into a timely and deep consultation with the small business community. As the member for Hotham suggested, we support all the good changes in here for the small business community, including of course collective bargaining. But there has been no such agreement with the small business community. The truth is that the small business community has had a gun held to its head by the Treasurer. The Treasurer says to the small business community, ‘I acknowledge that section 46 of the Trade Practices Act has become ineffective because of a number of court decisions—Boral, Rural Press, Metway and many others. I acknowledge that you, as a small business community, have a problem, and the ACCC has very little hope of successfully securing a prosecution for, say, predatory pricing under the Trade Practices Act.’ But, having acknowledged that, and having put forward his own form of solution, he now says to the small business community, ‘You can’t have that solution until the Senate passes the Dawson bill, even though there is no direct connection between the two.’ The Treasurer could have just as easily brought those section 46 amendments in here first, but he refused to do so because he is saying to the small business community, ‘You can only have collective bargaining if the big end of town gets exactly what it wants on mergers.’ Treasurer, isn’t that the truth?

Question put:

That Senate amendment No. 1 be disagreed to but in place thereof government amendments Nos 1 to 49 be made.

by leave—I move opposition amendments (1) to (3) together as circulated in my name:

(1)    Schedule 1, page 6 (line 8), after item 18, insert.’

18A  After section 81

Insert:

81AA  Divestiture for abuses of market power

(1)             The Court may, on the application of the Commission or any other person, if it finds that a corporation has contravened section 46, by order, give directions for the purpose of securing:

             (a)    the reorganisation or division of the corporation into separate and distinct entities including directions for the disposal or divestiture of all or any of the shares in or assets of the corporation to facilitate the reorganisation or division of the corporation.

(2)    Schedule 1, item 27, page 22 (line 27) to page 23 (line 16) omit proposed sections 95AT and 95AU

(3)    Schedule 2, page 45 (after line 14) after item 4, insert

4A  At the end of paragraph 90(11)(b)

Add “except that where 30 days have expired, the applicant may apply to the Tribunal for authorisation and upon such application, the Commission shall be deemed to have not granted the authorisation applied for”.

What an arrogant Treasurer; what a government! Surely, in the history of this nation no government has treated this parliament with such contempt. The government launched on us 58 amendments to a bill five minutes before they were to be moved in the parliament. I then proceeded to ask the Treasurer for some guarantees—indeed, I asked the Treasurer what the amendments meant, which he did not even attempt to explain when he moved all 58 of them. Not only did he fail to do that; when I asked him to assure the House that the amendments were in the scope of the Senate message, he failed to do so. I asked him to give that guarantee, but he made no attempt to respond to the opposition’s concerns whatsoever. It does not get any more arrogant than that.

The amendments I am moving do three things, in effect. Firstly, they deal the ACCC back into the game. As I said earlier, the opposition believes the ACCC should be the main approval gateway on the merger authorisation test. Secondly, they do a very responsible thing. We know the business community was concerned that, while there was a time limit on the ACCC on authorisation—what we know as stop-the-clock provisions; that is, events triggered by the ACCC, for example, in requiring more information—it meant that, on some occasions, that process was able to be blown out by months, if not years. We have asked that the ACCC be left in the game and that we have a 30-day rule—that is, if the ACCC has not made a decision within 30 days, under the no stop-the-clock provisions the applicant will be able to take a deemed refusal and go to the Australian Competition Tribunal, which is what the Trade Practices Legislation Amendment Bill (No. 1) 2005 attempts to do.

Thirdly, these amendments to section 46 of the Trade Practices Act will give the power to the ACCC to force divestiture in the event of blatant misuse of market power—in other words, if a big retailer like Coles or Woolworths were involved in predatory pricing, and the issue went to their market power and the ACCC believed that the market power issue needed to be dealt with, particularly in light of the fact that that market power had been substantially abused, the ACCC would have the power to force divestiture. These are very important amendments.

After I have dealt with these amendments, I will be moving further amendments to section 46 of the Trade Practices Act, which go to further giving protection to the small business community. I am dealing with divestiture separately in this package simply because of an administrative challenge we had in trying to get these amendments into the House in the time frame given to us by the government. Ideally, the divestiture issue would have been in the second lot of amendments I will be moving, but that is just a housekeeping measure.

I remind the House that all the Trade Practices Act amendments I have moved are sensible and reasonable ones and they are supported by the small business community. They are not always supported by the big business community in this country, but they are certainly supported by the small businesses in this country. As I said earlier, the Treasurer has acknowledged the problems. He says he wants to fix them but he is holding the small business community to ransom by saying he will not make these changes until the Dawson bill is through.

It is perfectly reasonable, going back to the ACCC as the gatekeeper, for us to be seeking to put the ACCC back into the game. Mergers law in this country has never been more important since the passage of the changes to the media law regime in this country. The very heart of our democracy is under threat because of what the government has done on media law, but it is timely for us to remember that any proposed mergers will still need to run the gauntlet of the ACCC, either under section 50 or under the authorisation provisions of the Trade Practices Act. With weaker media laws, we must have a stronger Trade Practices Act and what the government is proposing is a weaker Trade Practices Act. That is why these amendments should be supported.

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

I second the amendments moved by the member for Hunter. The effect of these amendments is to do two things. First of all they deal the ACCC back in as the decision maker in the authorisation process. By the government’s proposal to reject this message from the Senate, we are being asked to effectively bypass the ACCC when it comes to the authorisation process and to give that power to the Australian Competition Tribunal.

Fran Bailey (McEwen, Liberal Party, Minister for Small Business and Tourism) Share this | Link to this | Hansard source

You know that is not right.

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

That is effectively what it does. You have recognised the weakness in your argument by the very fact that you have tried to placate the concerns by giving the ACCC the power to intervene in the proceedings and to call witnesses in the proceedings, but you have taken away the power to make the authorisation. It is not just us who say that is bad.

I am pleased that the Minister for Small Business and Tourism has interjected, because she has carriage of this for small business and I would have hoped that she would have properly understood it. But to go back to what the previous Chairman of the ACCC, Professor Fels, had to say, he strongly opposed the merger authorisation process being taken away from the authority of the ACCC and being put in the hands of the Competition Tribunal. Why is that opposition soundly based? It is because the tribunal is not an investigative one; it is a judicial one. That is what happens when it goes to the tribunal as distinct from the ACCC, the Competition and Consumer Commission.

The Competition and Consumer Commission has the power to investigate, call witnesses, make judgments and take into account the public interest. It is not a judicially based body. That is the flaw in what you have done. All you have done in recognising the problem is to give the power to the ACCC to be an advocate, if you like, in the judicial process but not the mechanism by which it can deal properly with the interests of small business, the public interest test and whether the merger itself results in a substantial lessening of competition. That is the flaw in what the government is doing and that is why not only do we oppose what it is doing but we are moving these amendments to get the ACCC back as the body, the decision maker, in the authorisation process.

The second point I want to go to in terms of these amendments—and it is interesting the way we have to deal with these things, but our divestiture amendment, according to advice we got, is appropriately moved here; we would have liked to have dealt with it in the raft of all the other amendments that we believe are necessary post Dawson—is that it is true that the government, in introducing this legislation, has had regard to Dawson; the trouble is that it has not had enough regard to Dawson. There were a lot of deficiencies found by the Dawson review and we have moved, on other occasions in this parliament, amendments to strengthen competition policy in this country. It is essential as a driver of economic growth that we do have strong competition policy. The Dawson review recommended a number of changes.

We are arguing in the amendment a specific capacity for there to be an order for divestiture under section 46 proceedings, abuse of market power. It is true, at the time of the finding of Dawson, that he did not recommend that there needed to be changes to section 46. But post Dawson there were some very important Trade Practices Act cases that were considered that now raise the need to strengthen powers under section 46. There was the Boral case, for example. That is why Labor, in analysing this process and in making the commitment to strong competition, believe there needs to be a strengthening of section 46 powers. That is what this amendment also seeks to do. I urge that the amendments moved by the member for Hunter be supported in this House in the interests of strengthening competition and looking after the interests of small business, not selling out to them and not bypassing the commission that could really look after their interests. (Time expired)

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

We will be gone from this place in 10 or 20 years time. There will not be one of us left. But people write history books—and I spent a lot of time writing a history book when I was sick—and it is very interesting to see that there are people that go down as heroes and there are people that go down as blackguards. As for the people who are leading the government, there is no doubt in my mind after this fortnight where their place in the history books is going to lie. The way history looks at it is to ask: ‘Who was on the side of the people of Australia here? Who delivered real competition in the marketplace here? Or who changed all the rules so that the big boys could control everything?’ We have seen a concentration of market power unprecedented in Australian history. I am in the middle of writing a history book, so I know a fair bit about it.

I am one of the few people—in fact, I think I am the only person—in this parliament who actually participated in the marketplace in floating companies during the mining boom. I was very young at the time, and the mining crash came and cut a lot of us off at the pass, but I am very familiar with this. You move swiftly with a king hit before anybody knows what has happened, and if anyone slows you down then your ability to take over the company is very seriously impaired. It all depends on the swiftness of the king hit. And, of course, the most powerful person will always win in the marketplace. I have said on many occasions in this place that the deficiency on the other side of the House is that when they were little boys or little girls they never played Monopoly. If you have played Monopoly, you know that the whole idea is to get as much market power in your hand as possible and, if you do, you can wipe the other people off the board completely and win the game.

The opposition is quite right. I seldom agree with them, but in this area I must praise them. We are talking about two entirely different functions here: an investigative watchdog role and a judicial role. We are removing the investigative and watchdog role completely. If you want to protect your home with a good watchdog that barks loudly at night, then the first thing the burglar must do is poison the watchdog. Today we are poisoning the watchdog, and the burglars are all waiting to get into our house.

The government are great advocates of competition policy, but the great architects do not lie on that side of the House: the great architect of competition policy was Paul Keating. So they are the acolytes, not of Mr Menzies, who said that we must preserve competition and that a government must be proactive to keep in place competition; they are the acolytes of Mr Keating, who said that if we remove regulation and allow the free interplay of market forces we will all be looked after. Mr Keating is another one that obviously did not play Monopoly when he was a little boy.

As for the media laws, everyone has read the newspapers today and knows what is going to happen there. One of the leading contenders in Australia said, ‘If you liberalise the media laws as the government wants to, then 72 per cent of everything you watch and read will be owned by two people.’ I am not at liberty to divulge that person’s name, but I think eyebrows would be raised here if I did. Would anyone believe that there is a free flow of market forces in the media in Australia? Would anyone believe it?

I think I have travelled outside of Qantas, on other airlines, four times. You travel on Qantas or you do not travel—at least where I come from that is the case. In food, Coles and Woolworths have gone from 50.5 per cent of the market in 1991 to 82 per cent now. That is something to be proud of having presided over, and Mr Keating can claim a lot of credit for this as well—I do not want the government to claim all the credit here. They moved from 50.5 per cent of the market to 82 per cent of the market. We are advised by people from the Motor Trades Association that Woolworths and Coles already have 62 per cent of the fuel market in Australia—very grim days for ethanol indeed—and on present trends they will be moving up to 75 per cent. They think they will plateau out at 75 per cent. I strongly endorse the opposition with their divestiture amendment to the Trade Practices Legislation Amendment Bill (No. 1) 2005.

There are only four people with their faces up on Mount Rushmore in the United States, and two of them are founding fathers of the republic. One of them is Teddy Roosevelt— (Time expired)

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

I did indicate to the Treasurer that I would not continue to debate this particular set of amendments, but I do have a very grave feeling—

Peter Costello (Higgins, Liberal Party, Treasurer) Share this | Link to this | Hansard source

Excuse me, Mr Deputy Speaker. Can I have the call, please?

Phillip Barresi (Deakin, Liberal Party) Share this | Link to this | Hansard source

The Treasurer on a point of order? The member for Hunter has the call.

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

I have this terrible feeling that the Treasurer is going to do what I rightly attempted to do with his own amendments, and that is to challenge them on scope. I hope he does not do that. I hope the Treasurer does not deny this place a proper debate about section 46 of the Trade Practices Act simply because he is embarrassed about the fact that he has held a gun to the head of the collective small business community so that he can get exactly what he wants on Dawson. So I need to make a very short contribution now in case he has the audacity to take that act and again deny a proper debate about these issues in this place.

Let’s be clear about this. There is one difference between the government and the opposition here: the opposition wants to embrace everything that is in Dawson without qualification other than the authorisation procedures within the ACCC. Guess what: that is a positive small business measure. We are saying, ‘Let’s have collective bargaining and all the things in this bill which are good for small business and let’s strengthen it for small business by making sure the ACCC is the gatekeeper.’ That is a positive, win-win situation for the ACCC. What the Treasurer is proposing is to embrace all those things that are good for small business—and at the front of them, of course, sits collective bargaining—but there is a trade-off. What the Treasurer says to the small business community is, ‘I’ll give you some section 46 changes only if you support what I’m trying to do on mergers.’ In other words, small business gets what it wants, but only if the big end of town gets exactly—not close to: exactly—what it wants. That is the difference between the government and the opposition. We want to give a win-win situation to the small business sector; the Treasurer wants to give them half a win. They take a positive, but they have to cop the negative.

Let’s make no mistake about it: if merger laws become too liberal in this country, there are two losers—small business and consumers. Well, there are three losers really—small business, consumers and the Australian economy, including every person in this country who relies upon a healthy and strong Australian economy. So let us be clear about the differences.

Now, let me just quickly go through why divestiture in section 46 is necessary and why these other changes are necessary. Cases like Boral, Rural Press and Metway have severely undermined the effectiveness of section 46. It is quite clear that the legislature has not had its intentions secured as a result of those court cases.

So we need to strengthen the act. We need to renew that section of the act. We need to put a threshold in so that the courts can be clear about what constitutes market power when considering whether a company has abused that market power. We need a clear and concise idea for the courts and the ACCC of what constitutes taking advantage of market power.

These are the things the courts have decided they cannot deliver for the ACCC. The way the law now stands it would be hard to show that Telstra, no less, has the degree of market power necessary for the ACCC to successfully secure a prosecution in the courts in this country. And these things need to be changed. The Treasurer acknowledges they need to be changed but he says to the small business community, ‘Only if you help me out first on mergers.’ They do not need to come in that order.

If the Treasurer was serious he would have dealt with these things concurrently. He would have had a bill containing all the good things in Dawson and fixed section 46 at the same time, but he could not do that because he wants to hold small business to ransom.

Now he has these amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 hoping to buy off Senator Joyce and Senator Fielding. Well, I wish him luck, because from what I have read in the papers neither of them seem convinced that it is going to make much difference. Treasurer, you should have done the right thing by small business instead of holding a gun at their collective head.

Peter Costello (Higgins, Liberal Party, Treasurer) Share this | Link to this | Hansard source

Can I indicate at the outset of this debate on Senate amendments to the Trade Practices Legislation Amendment Bill (No. 1) 2005 that, when we had discussions at the office of the honourable member about how long these amendments would take, he indicated they would take half an hour, which was agreed as three speakers at five minutes on each side of the chamber. He has just finished his fifth speech in this debate, and not only has he has moved this lot of amendments but he has, as he conceded, prepared a second and third lot of amendments, which he is seeking to move after this. So it is very hard to come to agreements with the office of the honourable member for Hunter if, after half an hour, he is on his fifth speech.

The second point I want to make is that he said that the amendments on schedule 1 had been something of a surprise to the opposition. Can I indicate that the overwhelming majority of them were moved in the Senate a year ago, in October 2005. So he has had 12 months to come to grips with those amendments.

As I indicated, the only new amendment that was moved in this House was the amendment which gave the ACCC the right, on an application before the tribunal, to call witnesses, cross-examine and examine witnesses, and report on statements of fact. That was circulated in the amendments at 5.30 last night, as the clerk pointed out to me. So, again, what he said was wrong. And, in relation to that one amendment: he has had it all night, and I cannot see on what basis anyone would possibly oppose that amendment.

The next point I want to make is that the member for Hunter came in here and, you will recall, took some of my speaking time to make a point of order that our amendments were outside the scope of the act. Our amendments to reinsert a schedule which the Senate took out are plainly within the scope of the act. And now he is moving an amendment on divestiture under section 46. In other words, he started off saying it was outside the scope of the act to reinsert a schedule which was there and taken out by the Senate, and now, in order to try and delay the proceedings, he has come along with a divestiture amendment—plainly outside the scope of the act, as he conceded.

The member for Hunter said, ‘Well, now, the Treasurer might say that I am doing precisely what I complained of.’ Well, it would be a terrible thing, wouldn’t it, for the Treasurer to point out that this was precisely what you were erroneously claiming in relation to the government amendments but that you have gone on to try to do that in an effort to try and delay these proceedings!

It will come as no surprise that the government will not be agreeing to these amendments. I also point out that this matter has been through the House. The amendment you now wish to move was not an amendment that you moved when this was last in the House. This was last in the House a year ago. This amendment was not moved then. It has not been moved at any time in the interim. It has been thought up today to try and delay proceedings. Now we are told the member for Hunter has another two sets of amendments.

Let me also say that I hear this repeated refrain from the opposition that they support the Dawson bill and they want the Dawson bill to be enacted—the whole of it. It was the recommendations of the Dawson committee that led to this proposed change in relation to authorisations. That is where it came from. It did not come from the government; it came from Justice Daryl Dawson. It was Daryl Dawson who recommended you should have the right to go to the tribunal direct for an authorisation. That is what you on the opposition are opposing. Whatever you are doing, you are not claiming to implement to Dawson bill; you are here in this parliament trying to stop the Dawson bill and the recommendations that were made.

In relation to the member for Kennedy, I hear what he had to say. This is not a bill that relates to media ownership. That was a separate bill that was passed earlier this morning. This bill predated the media ownership and broadcasting amendments. It stands independently and separately from them. The changes that are put in place in relation to this will not change those matters. For all of those reasons the government will not be voting for these amendments.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

The Trade Practices Legislation Amendment Bill (No. 1) 2005, as it is being presented now—and it is being opposed, insofar as the amendments go, by the opposition—provides for collective bargaining. This is supposed to have brought small business on side. I am most certainly an expert in the field of collective bargaining for small businesses and farmers, but the pharmacists, the newsagents and the other very small groups that are left in owner-operated businesses in Australia appreciate the government allowing for some collective bargaining—but it is really not a concession.

In fact, the ACCC have authorised the collective bargaining to go forward. Any time that they have been approached, they have approved the request for collective bargaining. I specifically use newsagents and dairy farmers as examples of that. But, whether you are a collective or an individual, if you are bargaining with the enormous power of the media barons then the newsagents have very little. The only reason they exist is because it suits the interests of the media barons to keep them there. Regarding the collective bargaining of the dairy industry, I praise the people who have attempted to use it, and I thank the government and the ACCC people who authorised it, but it has really been worth absolutely nothing to us, or very little indeed. What we are being given here is fairly useless.

I have a word of advice for the government—and I was in government in Queensland: if you listen to the peak bodies, you will get yourself in a hell of a lot of trouble. You would want to know about the issues yourself and deal with them yourself. Where I come from there is a saying: they call it the ‘peak body disease’. You saw that with the person who now heads Telstra: he became the head of the NFF and ratted on the farmers, then he became the head of the Reserve Bank and he ratted on the NFF, and then the government appointed him to Telstra and now he has ratted on the government. Right at the start, we could have decided that he was a rat. I could have told you that right at the very start. If you listen to these people, you will get a very jaundiced view because they come here and want to be agreeable. So, yes, there are collective bargaining provisions and, yes, they are of help. To quote the great Doug Anthony, about the size of a pea in a 44-gallon drum would be the value that we are getting out of this. The loss of the oversight of the ACCC and their watchdog brief is very serious indeed.

I have to cut it short. Obviously there is Abraham Lincoln and two founders of America up on Mount Rushmore, but, with regard to the fourth one, Teddy Roosevelt, they asked, ‘How did he get up there?’ I will tell you how he got up there: he was the bloke who enforced the antitrust legislation in the United States that broke up Rockefeller’s companies into, I think, 36 companies. He was the driving force behind it. This government will be recognised because they are the people who facilitated the Rockefellers to take control of our petrol industry, our transport industry and our food industry. I must say that the groundwork was magnificently laid for them by Mr Keating and his cohorts previously.

We are very pleased with the proposition on divestiture being put forward by the opposition today. It is going down the same pathway—and a more tight pathway, I think—as the American antitrust laws, and I think that is the direction in which we should be travelling. I very strongly endorse the proposals being put forward by the opposition in these amendments. I have also moved amendments which are in line with the existing legislation but which preserve the rights of the ACCC and their watchdog role on the economy. You need to look no further than the front pages of all of our newspapers today to see the absolute necessity for some watchdog to be out there defending the people of Australia.

Question put:

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

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

by leave—I move further opposition amendments (1) to (6) together, as circulated in my name:

(1)    Schedule 1 page 4 after item 8 insert the following item

8A  Subsection 46(1)

After “taking advantage”, insert “in that or any other market,”

(2)    Schedule 1, page 4 after item 8 insert the following item

8B After subsection 46(1A)

Insert:

      (1B)    In determining whether a corporation has a substantial degree of market power the court will take into account the following principles;

             (a)    the threshold of ‘a substantial degree of power in a market’ is             lower than the former threshold of substantial control; and

             (b)    the substantial market power threshold does not require a corporation to have an absolute freedom from constraint – it is sufficient if the corporation is not constrained to a significant extent by competitors or suppliers; and

             (c)    more than one corporation can have a substantial degree of

power in a market; and

(d) evidence of a corporation’s behaviour in the market relevant

to a determination of substantial market power.

(3)    Schedule 1, page 4 after item 8 insert the following item

8C  After subsection 46(2)

Insert

          (2A)    In determining for the purpose of this section whether a corporation has a substantial degree of power in a market, the Court may consider the corporation’s degree of power in a market to include any market power arising from any contracts, arrangements, understandings or covenants, whether formal or informal, which the corporation has entered into with other entities.

(4)    Schedule 1, page 4 after item 8 insert the following item

8D  After subsection 46(3)

Insert

          (3A)    In determining for the purposes of this section whether a corporation (a) has a substantial degree of power in a market; or (b) has taken advantage of that power for a purpose described in paragraph (1)(a),(b) or (c); the court may have regard to the capacity of the corporation, relative to other corporations in that or any other market, to sell in that or any other market a good or service at a price below the cost to the corporation of producing or acquiring the good or supplying the service.

(5)    Schedule 1, page 4 after item 8 insert the following item

8E  Before paragraph 51AC(3)(a)

Insert

           (aa)    whether the supplier imposed or utilised contract terms allowing the unilateral variation of any contracts between the supplier and business consumer; and

(6)    Schedule 1, page 4 after item 8 insert the following item

8F  Before paragraph 51AC(4)(a)

Insert:

           (aa)    whether the acquirer imposed or utilised contract terms allowing the unilateral variation or any contract between the acquirer and small business supplier; and

These are the amendments that should have been contained in the Trade Practices Legislation Amendment Bill (No. 1) 2005 currently before the House and indeed in the other place. They consist of the recommendations of the Senate Economics Committee inquiry into the effectiveness of the Trade Practices Act to adequately protect small business—or, to put it another way, to enhance opportunities for small business. What that Senate report found, as we all already knew, is that the Trade Practices Act is not effectively providing small business with appropriation protection, is not giving small business in this country the best opportunity to strive and become profitable, and is not enabling those small business owners to put food on the table for their families.

These amendments are quite straightforward. I want to just go to the key points again. They would clarify for the benefit of the courts what the parliament means when it talks about market power, what the court means when it talks about taking advantage of that market power and many other issues that go to the heart of section 46 of the Trade Practices Act and its effectiveness in protecting small business.

Again, why isn’t the government proposing changes to section 46? As I pointed out earlier, it is because the government has decided that it will use these very important small business issues as leverage to get through the Senate what the opposition still believe are inappropriate changes to Australia’s mergers laws, in particular carving the ACCC out of the process. In addition, we are concerned that, under the proposed formal arrangements, 40 business days is insufficient time for the ACCC to consider matters under the clearance provisions, although I should point out that we are not voting against that particular proposal. We are trying to be very reasonable, or as reasonable as we can be, on Dawson bill matters. But it is not unreasonable for the opposition to say to the government: don’t hold a gun to the head of small business. If you really believe that the opposition is correct, and that the Senate committee is correct and section 46 of the Trade Practices Act has effectively been gutted by the courts, fix it. Fix it concurrently with the Dawson bill. Don’t say to the small business community, ‘You will only get improvements to section 46 if you back what you don’t want to back,’ and that is changes to merger provisions.

Apparently, we are doing a bit of the Dawson bill again today because the Treasurer has made some commitments not only on amendments to the Dawson bill which we considered earlier but also, as I understand it, on section 46. Apparently, the Treasurer has told Senator Fielding and Senator Joyce that, if they let the Dawson bill through the Senate, he will in the not-too-distant future do something about section 46. Indeed, I read in the paper that the Prime Minister has made a personal commitment to the small business sector that the government will deal with section 46 in the not-too-distant future. We will just have to wait and see, after the Dawson bill has passed the other place—if it passes the other place; that is, if the two senators accept the government’s commitments—how long that will take.

There are also some questions about the nature of those section 46 amendments. We want effective changes, not just window-dressing; we want all of the Senate committee recommendations, not just some of them; and we want proper consultation with the states, which is not always done by this government.

I want to make a point very quickly about recoupment. Obviously, the ACCC trying to prove that a bigger player has abused its power by holding prices down just for the purposes of driving a smaller competitor out of business goes to the heart of section 46. I am very concerned that it is the government’s intention to almost insist that the court needs to find that recoupment was likely and indeed possible on the part of the bigger player abusing its market power. My great fear is that, if recoupment is written into the act, the courts will have an obligation to find recoupment was possible. The courts have always taken recoupment into account when trying to assess whether a bigger player has abused its power. We do not need it written into the act. (Time expired)

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

I understand that there has been a discussion in respect of standing order 160. After considering the amendments that have just been proposed by the honourable member for Hunter, it would appear that those amendments are beyond the scope of that standing order and I indicate that they are out of order.

Peter Costello (Higgins, Liberal Party, Treasurer) Share this | Link to this | Hansard source

I move:

That Senate amendments (2) to (6) be agreed to.

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

Mr Deputy Speaker, I indicate that the opposition will be supporting these amendments, but we will take a closer look at them and, when we have had a chance to look at them properly, we reserve our right to make our decision in the other place.

Question agreed to.

I move:

That amendments (50) to (58) be made:

(50)  Schedule 3, item 1, page 47 (lines 5 and 6), omit the item, substitute:

1  Subsection 8A(6)

After “or (3A)”, insert “or 93AC(1) or (2)”.

(51)  Schedule 3, item 11, page 56 (lines 23 and 24), omit the item, substitute:

11  Subsection 93A(1)

After “or (3A)”, insert “or 93AC(1) or (2)”.

(52)  Schedule 3, item 12, page 56 (lines 26 and 27), omit the item, substitute:

12  Subsections 93A(3), (4) and (10A)

After “or (3A)”, insert “or 93AC(1) or (2)”.

(53)  Schedule 3, item 19, page 57 (lines 13 to 16), omit the item and the note, substitute:

19  Section 101A

After “or (3A)”, insert “or 93AC(1) or (2)”.

Note:                The heading to section 101A is altered by inserting “or 93AC(1) or (2)” after “or (3A)”.

Mr Deputy Speaker, on a point of order: for the purposes of consistency and for the record of the House, I ask you to consider whether under standing order 160 these amendments are within the scope of the message.

Mr Melham interjecting

The member for Banks does not have the call and he knows that interjections are out of order. The question is that the further amendments be agreed to.

Mr Deputy Speaker, I would ask you to rule on whether or not—

That is a fair indication of where I am going!

All right, you have ruled that the amendments are within the scope of the bill?

The question is that the further amendments be agreed to.

Mr Deputy Speaker, on the point of order: I will still argue that these amendments are outside the scope of the bill. I do not want to show any disrespect for the clerks. I note of course that our own amendments have been ruled out of order. There is one rule for one side and another rule for the other side. That is nothing unusual, Mr Deputy Speaker. The Treasurer was trying to make a big point about which amendments he was moving at any given particular time. How is the opposition supposed to know which amendments are potentially outside the scope of the bill and which are not when they throw 58 amendments at us two minutes before the bill is debated? I note what is effectively your ruling on this matter but I think that it is still important for the opposition to make these points. As I suggested earlier, it could have consequences for the law once enacted by the parliament.