Andrew Murray (WA, Australian Democrats) Share this | Hansard source

Or peanuts, which interestingly are a legume, not a nut. So there we are. I also sympathise with the minister’s advisers, because I suspect the advisers available on this bill are not advisers who commonly deal with the Trade Practices Act either; that falls under a different agency and authority.

This particular amendment goes to the heart of the problem which is being explored by the Senate committee, which perhaps is groping towards a better understanding. The problem, as outlined in Mr Samuel’s evidence, is that the ACCC can presently only go so far in monitoring the conduct of petroleum suppliers and companies. Unless they have evidence of predatory or other behaviour which contravenes the act, they are only able to monitor prices on the basis of what information is publicly available or is supplied voluntarily by the companies. The issue that the Senate committee is grappling with is how to get more detailed, more insightful and more informed knowledge into the hands of the ACCC—effectively, to use the phrase which is commonly used, to get behind the corporate veil. One of the ways in which that can be done is to either assume or adopt ASIC type powers—which is the route down which I have been going—which work very effectively in areas like continuous disclosure reporting requirements and so on. The alternative is to have ministerial discretion. The problem with ministerial direction is that it becomes a political decision—a minister, to take a decision, has to receive evidence and effectively is saying, ‘We think we’ve got enough to nab you and we’re sending the ACCC after you.’ It is much better if the ACCC is in fact pursuing these matters as part of its normal regulatory activity.

When this list was originally compiled, it is my assumption that some of the items were particularly sensitive. I was not there when they were put in, but I suspect that they were areas of the economy which had particular attention applying to them. I can see the hands of The Nationals perhaps in items (b) and (c). Items (d) and (e) are definitely still current. Item (a) has probably fallen off the list a little except with regard to some specific areas. Unlike the shadow minister, whom I think is also operating in a system where trade practices issues are not a common feature of his particular responsibilities, I suspect it is not a question of this amendment not doing much harm but rather a question of the amendment giving greater power to a minister of the Crown to instruct the ACCC to attend to a particular area. Of course it does not mean that they automatically will, because, as I said, it is a political decision and a great deal rests on these sorts of decisions. If you were of the view that ministers should have this sort of direction, then the question is: what industries deserve to be covered?

If we are all in agreement that petroleum products are a crucial strategic as well as consumer good which is a necessity, then probably it does deserve to be on this list along with water, gas and electricity—and perhaps others deserve to be off the list. I would suggest to the minister, through the chair and without any impertinence, that—even though you are bound, I suspect, to reject it by virtue of your brief—it is the sort of issue that the government needs to think about a bit more in terms of what should actually be on this list for ministerial direction and whether petroleum products may in fact qualify. I am grateful to Senator Joyce for drawing this to my attention. I must confess that, despite having trade practices law as one of my portfolio responsibilities, I have never looked at this before and I am absolutely delighted to find that minerals, trees and crops, whether on, under or attached to land or not, are subject to ministerial direction. I guess on balance, given that I am involved in the Senate inquiry and given that I think there is a need for added focus on this area, I would support the amendment because I think there is still that threshold determination: the minister will have to make a decision. It is not as if this implies an automatic function.