Barnaby Joyce (Queensland, National Party) Share this | Hansard source

We are discussing an amendment to schedule 1. The Dawson provisions to do with small business were passed one year ago. So to bring into the debate that this is about everything in Dawson is not correct. If they have been sat on for a year, the reason has nothing to do with this chamber. That is something entirely different. What we should be debating here is schedule 1, mergers and acquisitions power, because that is basically what we are dealing with. If you vote for this, you believe that the mergers and acquisitions power is correct; if you vote against it, you do not.

We have had a lot of people who have said that the amendment is a good amendment, a great amendment, a hard-fought-for amendment. You only have that amendment because a senator crossed the floor. That is the only reason that amendment came about, because it was not in the initial bill. Let us just look at some of the other things. Since that time, of course, NARGA has changed their position. They have also changed their board—Alan McKenzie and Frank Zumbo are now no longer there. Inordinate pressure has been coming in from all sorts of directions to get this.

There are a lot of other things that we have to look at. It has been clearly stated that the primacy of deliberations will now be held by the Australian Competition Tribunal. That has been said tonight. That is a clear statement that the ACCC’s position is being circumvented. We are now moving the powers to a judicial body that will basically come up with a yes or no answer. Before we had yes, no or maybe; now we have yes or no. You are right: they are only going to take the evidence in the so-called 40 days—40 days to deal with a merger! Imagine the ACCC trying to deal with a merger between PBL and News within 40 days. It is blatantly ridiculous. The only evidence they can take is the evidence that was presented, and of course the only evidence that is going to be presented is favourable evidence.

There are a whole range of things that have been suggested, because this goes hand in hand with the media issue. We have a raft of mergers and takeovers out there. This works hand in hand with that. We are at the same time promoting the idea that the ACCC, which has had 22 years of dealings with mergers and acquisitions, is now going to be circumvented as we move to a purely judicial form of Australian Competition Tribunal judgement made on section 50, which is a substantial lessening of competition. Let us say News decides to merge with PBL. They have to prove that if they raise prices they would lose some of their customers. Of course they could prove that. It is a very easy thing to prove. Once they do prove that, the merger is through. That is why this is so important, because it is a package deal.

I look forward to Family First explaining their logic over the last period of time as to why they believe they are not circumventing the process of democracy in this nation. I have heard from Family First that the diversity of ownership does not reflect diversity of opinion. Well, that is interesting. I have a report from the Committee to Protect Journalists looking at the number of media outlets and how democracy is protected. Funnily enough, the fewer the media outlets, the worse democracy gets! At the top of the list is Burma, Turkmenistan, Equatorial Guinea, Libya and North Korea. The most democratic places are places such as the United States, France and Germany. These are the issues, because the diversity of ownership equals the support of democracy.

Some people have said, ‘Oh well, there is still an authorisation process.’ Yes, for one in 700. One in 700 of these mergers will end up in an authorisation process, where the Australian Competition Tribunal can take over undertakings. But that is not going to happen, because the vast majority are going straight through. They would not be promoting changes to mergers and acquisitions laws if they thought they were going to make them harder. This is to make them easier.

The former process of ACCC undertakings was maybe a clumsy instrument but a better instrument than no instrument at all. You need to have the ability to have that open-ended negotiation of merger issues, to be fair dinkum and have the dignity to show to the Australian people all the nuances and inflections in the merger. I would not care so much if they limited it and put a ceiling on it saying: ‘We can’t go on forever. You have to get to a point and stop.’ An amendment was moved in that regard, with an extra 80 days, giving you 120 days in all—four months. I think even four months is an expressly short period of time to try to deal with mergers like Toll, which we have had lately. We have Coles. It is about to be broken up and Woolworths will probably be in the market to pick some of it up. These are vitally important processes in our nation. If you believe that the nation is threatened with too much concentration then you have to have a mechanism to protect it. The vote that is coming up is not about the Dawson provision, because that vote has been had; this is a vote about an amendment of schedule 1. It is a clear statement by those who believe that schedule 1 is correct and those who do not. That is what it is about.

There are other things that came through. We have had statements that this actually increases the ACCC’s powers. But we can see that contradicted in some of the fine detail. The current provisions in the TPA provide the ACCC with the power to enter premises and inspect documents ‘without a warrant’. The bill will provide the ACCC with the ability to search premises and seize evidence ‘when backed by a warrant’. Even in those statements, things have changed. I take on board and I take on trust the section 46 provisions but, as Senator Brandis has said, that has got nothing to do with Dawson. They say these are following and we are to just take on trust the government’s promise that they will put those forward.

We have in front of us right now an absolute hotbed of mergers and acquisitions out there in the media market. The media is the protector of democracy. The diversity of the fourth estate directly relates to the protection of our democratic process. You cannot get a merger if it is not allowed, but what we are doing today goes hand in hand with what happened in the last major piece of legislation that went through here. It is saying, ‘Not only will we allow mergers; we are also going to take away the strong investigative powers that were formerly there.’ The law may be substantially the same, but the law is of no use to you when you do not have the time to fulfil it and follow it to the nth degree.

Over the last year amendments have been suggested; they were written. The moment the legislation failed in the first instance, amendments were suggested. The fact that we have waited one year is not because people were obstinate or ridiculous. There was always an open communication with the amendments that were suggested, if they were rejected. It was all about trying to protect small business. The issue here is about trying to get a better deal for small business. For everyone who said that the ACCC are now a party to the Australian Competition Tribunal—although they do not get a vote; they get to turn up, ask questions, interrogate, but they do not put their position forward—