Ron Boswell (Queensland, National Party) Share this | Hansard source

That was a very short speech. In matters relating to the Trade Practices Act, which sets the rules and the framework for the way all businesses operate in Australia, The Nationals see our job as taking on the viewpoint and issues of the small business and farming sectors and working to ensure that they achieve their outcomes in addition to the outcomes demanded by big business. In this case, I have worked closely with both big and small business interests to get to a point today where we have across-the-board support for the bill before us and a commitment from the government to work towards further trade practices reform. And I make the point that this bill has absolutely nothing whatsoever to do with section 46. We have reached the point where we are all travelling in the one direction.

I have noted over my time in the Senate that big business trade outcomes are more readily achieved compared to those of small business. Big business is well resourced, well connected and staunchly united. Small businesses in Australia are largely sectional and different. Industries are often headed in different directions due to the healthy diversity that is a character of that sector. One issue that I have found unites small business is the need for access to a new collective bargaining authorisation regime. While there is currently a system in place under the TPA to enable collective bargaining for smaller businesses through an authorisation from the ACCC, small businesses wanted the coalition government to make it easier, faster, more definite and less expensive, and that is what this bill will do. In the past, small business based industries like the dairy industry have had to jump significant bureaucratic and financial hurdles. They actually got an authorisation at one period, but then one of the dairy companies appealed against it and they went around and around the legal mulberry bush. It cost them thousands of dollars to access a collective bargaining authorisation.

In the late nineties, I was part of a retail inquiry which initially recognised that the market between big and small operators was becoming increasingly tilted towards big business and they were dominating the market and that there was a need for collective bargaining to be made more accessible for small business and farmers prior to the 2001 election. The Nationals’ then leader John Anderson took the issue up and said in his policy speech that this process needed to be fixed. This led to the Dawson review, and Dawson’s finding led down a winding path to this legislation that we have before us today that will give small business better access to collective bargaining, with set time lines and boycott provisions to give collectively negotiated business deals some teeth.

As part of the initial debate on the Dawson bill, I worked with the Treasurer to maintain the per se prohibition on third-line forcing. This was a vital amendment for small business. Third-line forcing is selling to a buyer only on the condition that goods or services are bought from a third party. If the third-line forcing rules in section 47 were weakened, as Dawson recommended, we may have been headed toward a situation where a given pharmacy company might only sell a pharmacist a medication product at a lower rate if the pharmacist bought his toothbrushes from a nominated third-party supplier or where a car dealer would only sell you a business vehicle at a discount if you got it serviced by his chosen mechanical chain. The Treasurer looked at this issue and decided that we would not risk a return to the outdated practices eliminated from our business sector in Australia years ago.

I have spoken previously on this bill and on the importance of collective bargaining to small businesses throughout Australia, including pharmacists, bottle shop owners and farmers. I know in Victoria the grape growers are desperate for these measures to be passed, with their crop due to be picked and negotiations needing to take place on price and quantities. All the small business groups want this collective bargaining. I do not intend to take up the Senate’s time by again going into great detail on the new collective bargaining regime. It is clear that The Nationals support the new system. It is our reform that we have worked hard to put in place over a period of close to 10 years. It is an essential reform and one that I am pleased to see come into being via the passage of this bill.

However, I do wish to speak on some of the other issues associated with the bill. Any change to trade practices legislation brings with it a risk of upsetting a very fine balance, and it must be acknowledged that this bill has proven very difficult to balance between the interests of big and small business. I have always described my job in developing trade practices legislation as tilting the seesaw back toward small business, and a lot of effort has had to go into this.

Senators would be aware that much negotiation has taken place with big business on this bill. The big end of town wanted a more transparent process for merger authorisation and a timely, optional, formal process for merger clearances by the ACCC, with appeal to the tribunal. Many, including myself, expressed concern that the small business voice could be undermined or subverted by the changes which would enable final decisions on merger authorisations and formal clearances to be taken by the Australian Competition Tribunal without the full consideration and input of the ACCC. I am pleased to be able to assure small business throughout Australia that this new system is likely to improve, or certainly not disadvantage, their opportunity to have their voice and cases heard throughout the merger process, through the operations of the ACCC.

I assisted the Treasurer, and he has been back and consulted small business and has put into place some substantial safeguards. The major safeguard that we negotiated is making the ACCC a full player in the Australian Competition Tribunal merger process. Therefore, the ACCC has power in the tribunal to submit and explain its own report and support material on the merits of a merger. It will be able to call and cross-examine witnesses in the tribunal, and that material will have to be taken into consideration by the tribunal. Further, if the tribunal approves a merger with specified conditions or undertakings, the conditions will then be policed by the ACCC. The ACCC will be able to act with and alongside the tribunal process, giving small business a real opportunity to get their case heard through this new forum. It will make it, I suppose, more tidy that the ACCC will have a real power tribunal when the tribunal considers mergers. This is a great benefit negotiated by The Nationals on behalf of small business.

Concern has also been raised regarding a 40-business-day time limit that has been placed on the ACCC under the new formal process to decide on a merger clearance application. I know this concerns my colleague Senator Joyce. Under the new formal system, if a decision on a merger is not made by the ACCC within 40 working days, the application goes straight to the tribunal for a decision. The fear was that a virtually blank application with no supporting documentation could sit in the ACCC for the 40 days and that the case could effectively go straight to the Competition Tribunal. It was seen in small business circles as another way of subverting the ACCC. On a study of the legislation, I know and I am assured that the new system will ensure that documentation and information not submitted to the ACCC within a reasonable period for consideration in the 40 days will also not be eligible for introduction into the tribunal in an appeal on the ACCC’s decision. That means that, if a merger proponent wants to get their merger through, it is in their best interests to provide all their documentation to the ACCC at the outset so that it can be used if the merger case goes before the tribunal on appeal. In other words, unless that evidence goes before the ACCC, it cannot be used in the tribunal.

We have essentially considered this bill before. However, these safeguards are the differences that have brought it back to the Senate with the support of the major small business groups: NARGA, the Fair Trading Coalition, COSBOA and the National Farmers Federation. I do take issue with the Deputy Leader of the Opposition in the Senate when he accuses those people of folding over. He is suggesting that the National Farmers Federation, NARGA, COSBOA and the Fair Trading Coalition do not have any backbone and that everyone can be bullied and beaten into submission.