Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2), on the sheet revised 20 November 2024, as circulated in my name, together:

(1) Schedule 1, item 35, page 26 (line 16), omit paragraph 51ABP(3)(c).

(2) Schedule 1, item 35, page 27 (line 21), omit "may consider any reports or", substitute "must seek and consider the".

Amendment (1) relates to an ability for the minister, preserved in the bill, to introduce market concentration based thresholds for compulsory notification. It can be hard to define a market, and competition lawyers can argue for days about what that market definition is. Market concentration based thresholds for compulsory notification add complexity and are opposed by many competition law experts because they add uncertainty, risk and compliance cost to the first step in the clearance process. Amendment (1) deletes section 51ABP(3)(c) to remove the ability for the minister to introduce market concentration based thresholds.

I'm putting this amendment forward because it needs to be really clear to companies as to when they need to notify. The government heard that during the consultation process and isn't putting it in the current threshold tests but is preserving the ability to do that in the future. I think, for the sake of simplicity and certainty for business, it would be better not to have that ability in there.

Amendment (2) is about the role of the ACCC when the Treasurer designates high-risk parts of the new economy so that the ACCC will be able to review all mergers, regardless of whether they meet the other key thresholds. This could be used for airlines, supermarkets or any industry where there are specific competition concerns, but the bill doesn't require the Treasurer to seek advice from the ACCC before making such a designation.

I think this is a problem. ACCC consultation should be a requirement not an option.

I'm proposing that section 51ABQ(4) be amended to require advice from the ACCC to be sought and considered before the Treasurer designates any high-risk part of the economy. I think this is necessary because I'm concerned that this could be used for political purposes where a particular industry could be kicked with greater scrutiny in an effort to appease the public rather than where there are specific and well-founded competition concerns. I'm not reassured by the government saying that the ACCC could always participate in the public consultation process. The ACCC has specific expertise and a specific role in this area and should be consulted specifically in advance of any public consultation.

These two amendments are minor but practical improvements to much-needed reform so that we can build a more competitive economy.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

At the outset can I say I am grateful for the way in which the member for Curtin has approached these amendments. She brings a great deal of policy rigour to her analysis of issues in the House, and the parliament benefits from her insights and her consideration of this and many other issues. The government, however, will not be supporting the amendments, and I wish to outline in process and specific terms why that is.

The first is that these amendments were only circulated yesterday for a bill which has been through a very extensive consultation process. For the benefit of the House, can I outline some of that consultation process.

The Competition Taskforce within Treasury was established in the middle of last year, and merger reform has been the major issue that they have considered. They have conducted extensive consultation to inform the policy and legislative design, including three public consultations. They've engaged in targeted stakeholder engagement and meetings to gather a diversity of perspectives. They have met with groups representing consumers, larger businesses, including multinational firms, and small and medium enterprises. They've engaged with businesses in the agricultural sector, with legal practitioners, with academics and industry associations, and all non-confidential submissions are available on the Treasury website.

The bill was also considered by the Competition Review Expert Advisory Panel comprising some of the best Australian and global competition thinkers: Kerry Schott, David Gonski, John Asker, Sharon Henrick, John Fingleton, Danielle Wood and Rod Sims. I want to thank each of them and the competition taskforce, led by Jason McDonald and Marcus Bezzi, for their careful analysis of these reforms.

It's also worth the House being aware that following its introduction to the House the bill went through extensive scrutiny in the Economics Legislation Committee. The committee unanimously recommended passage of the bill after hearing from key stakeholders.

I'll take the House now to the specifics of the member for Curtin's amendments. Regarding the 'notification threshold' amendment, the relevant provision makes it clear that the level of concentration in a market may be a specified threshold in any legislative-instrument-determining notification threshold. The Treasurer has clearly decided that market concentration should not be used as a way of assessing whether a matter should be notified as this bill takes effect, but it is possible that there may be circumstances in the future where a minister may want to take a different view. The provision as currently drafted would enable that flexibility without needing to amend the legislation. The Treasury and the ACCC are working together to develop data analytic capability which may in future provide a reliable evidence base for a threshold that uses concentration in a market. If so, there might be substantial efficiencies for business and the ACCC in being able to use such a threshold in the future.

Regarding the 'classes of acquisition' amendment moved by the member for Curtin, including 'may' allows more targeted consideration as there may be many reports or pieces of advice which could be irrelevant to the immediate matter under the minister's consideration. It's important that the minister be able to flexibly exercise the power in 51ABR independently of the ACCC, which is the regulator and administrative decision-maker. The exercise of the Treasurer's power would be subject to the usual parliamentary scrutiny process.

In closing, can I note that this is the biggest reform to Australia's merger laws in half a century. I want to thank the many stakeholders who've engaged with us on this reform journey, reform which will see Australia's merger laws become more efficient and more timely, better targeted at high-risk mergers and underpinning the more dynamic competitive economy that the Albanese government is committed to. Competition reform is a core aspect of our cost-of-living plan, delivering better prices for Australians. But it's also critical to ensuring economic dynamism, as the House economics report, chaired by Daniel Mulino, made abundantly clear. Merger reform is one of the most important parts of competition law. I commend the bill to the House and I thank the member for Curtin for her engagement with it, albeit that the government will not, on this occasion, be supporting her proposed amendments.

Question negatived.

Bill agreed to.