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

They tended to be dealt with severely by the government of the day, shall we put it that way—more like a soldier of fortune, I think. Let us not get distracted by that. I am a strong supporter of choice. I do believe that there are unions who have the expertise to be of great assistance to small business. I see absolutely no reason why a small shopkeeper would not want to use the shoppies in a negotiation. I can see absolutely no reason why a truck driver would not want to use the transport union. And I cannot understand, because it is not part of the Dawson package, why that anti-union clause is in the bill. I am strongly opposed to that on a principles ground and I think it offends the views that I have heard the Liberal Party express time and again about choice. By the way, I strongly supported choice in superannuation as well, which I am glad has happened. So we can put that aside as one of the two major elements.

The other major element is, of course, schedule 1. Essentially I have a view which I hope, because this bill is going to pass, will be found to be wrong. I hope that the Dawson bill changes will in fact result in more mergers being rejected rather than fewer. I have a view of a highly dynamic and very effective Australian capital market. As members in the chamber know, I have strongly participated in taxation debates. I do not think it is commonly understood how important the tax laws consolidation measures were in freeing up artificial structures in the tax law, and I strongly supported the Corporations Law and the creation of the highly dynamic market, particularly with the introduction of the informal appraisal system based on the British precedent. So Corporations Law in combination with tax law and the modern economy has produced an extremely dynamic mergers and acquisitions market, which is at its most dynamic ever. And the level of foreign involvement in mergers and acquisitions is also at an extremely high level, which indicates capital fluidity and diversity and access to capital in the market, which is highly desirable. So I see no impediments in the way in which mergers and acquisitions are operating.

In fact, my criticism would be that not enough are rejected—but, nevertheless, that is where we are. I think the figures are around 98 per cent of all mergers and acquisitions are passed and something like two per cent are refused. That hardly seems dramatic or onerous. If it works out that, as a result of this legislation, instead of two per cent being rejected, 0.1 per cent are rejected, then I will have been proven to be right and the new process will be able to be condemned. If, on the other hand, the new process results in more being rejected, then I would be prepared to admit I was wrong.

On another matter I am concerned about, I have always regarded the ACCC as, broadly speaking—and a distinguished barrister like Senator Brandis would recognise the meaning of this word—an ‘inquisitorial’ regulator. That is, it has a high level of discretion, it examines issues and it is able to move flexibly to resolve matters. I think that is most desirable in mergers and acquisitions activity. I am alert to the dangers of a more adversarial and more traditional yes/no kind of approach with the tribunal. I am not overly impressed with the fact that mechanisms have been introduced for the ACCC to interact with the tribunal; I cannot see that that contributes vastly. It is, of course, good process. But the fact is the ACCC becomes a supplicant and not a decision maker. So the question of the tribunal’s lift in status and power in decision making and the ACCC’s reduction is a difference of opinion. I recognise that others do not hold that opinion, but I do. The problem with these changes, I think, is that they will allow for an even greater acceleration of big corporate agglomerations in this country. I have always thought that is bad for competition, not good for competition.

That leads me to the last parcel of opinion I have. As participants in these debates know, I have again and again stressed our fundamental weakness in terms of our trade practices law, and that is that we do not have adequate divestiture powers. I think the flip side of a merger and acquisition power is a very strong divestiture power, and I am somewhat of an admirer of the American anti-trust divestiture tradition. That is not supported by the government. It is now supported by the Labor Party, as expressed in the Senate’s March 2004 report. Of more immediate concern within the range of Australian experience is the ability to strengthen section 46; and section 51 can be strengthened and probably a few others as well. That is with regard to ensuring that anti-competitive behaviour can be properly disciplined and policed.

I would have been far happier if this bill had arrived in conjunction with that particular section of legislation. The Senate report in March 2004 was supported by the government in quite a number of recommendations and further amplified by Senator Brandis, who sat on that committee. And then the government reacted favourably to all those Brandis recommendations. Two years later they are still trying to spin me a story and spin the world a story that they need to consult more with small business on this matter. I do not accept that spin, I am afraid.