George Brandis (Queensland, Liberal Party) Share this | Hansard source

At long last it seems that the parliament will pass the Trade Practices Legislation Amendment Bill (No. 1) 2005, what has been commonly called the Dawson bill. This has been a long time coming. Small business has been waiting for these reforms for a very long time—a year longer than it needed to have waited for them. But at last it seems it will get them.

As you know, Mr Temporary Chair Watson, and as other senators know, there are two big issues for small business in relation to the reform of the Trade Practices Act: collective bargaining and reform of section 46. Those are the two issues which concern it most. This bill, the Dawson bill, delivers on one of those two big issues: collective bargaining. And contrary to the rather wild and as usual false assertions we heard from Senator Conroy about a fix, the small business community in Australia, speaking through its representatives and its peak organisations, is delighted that at last this Senate, it seems—subject to the vote that will occur later—will deliver on this reform.

Let me correct incorrect statements that were made by those who have come before me in the debate. First let me deal with what Senator Murray said about process. There has been no irregularity of process in coming to this point. The Dawson committee delivered its report on a review of the competition provisions of the Trade Practices Act on 31 January 2003. That is three years and nine months ago. In the meantime, the government introduced the legislation giving effect to the Dawson recommendations, which were very much a package deal, last year—more than a year ago. They were amended in a manner inconsistent with the Dawson report in this place last year. Now the government, having pursued the matter with the various peak small business organisations, has made some amendments to schedule 1 of the bill, concerning the merger authorisation provisions, and it seems that we will now get the bill.

If the result is—as has been freely predicted by other senators—that Senator Fielding may have changed his position, that is a matter for him; I do not know. But the fact is that this has been before the parliament for more than a year. We are usually chastised by the other side that we rush these things through. This has nearly been a four-year process, which has been before the parliament for more than a year. If it passes tonight or tomorrow then that will be the fulfilment of a totally orthodox process in which the bill has been amended and improved in certain respects. There has been no abuse of process, Senator Murray—no procedural issue at all.

Might I also deal with what Senator Stephen Conroy had to say about section 46. Senator Stephen Conroy says that this bill is inadequate because it does not contain any proposal to amend section 46. It does not, and there is a reason for that. This is the bill to give effect to the Dawson report, and the Dawson report recommended that there should be no changes to section 46. Section 46 reform was never part of the Dawson package. But there is another bill being contemplated which does deal with the quite separate and discrete topic of section 46 and which will proceed after this bill is out of the way. So what Senator Conroy had to say about section 46 is completely wrong.

Once again, there is a reason why the Dawson report does not deal with section 46 of the Trade Practices Act. It is to do with the sequence of events. The Dawson report, as I said before, was tabled on 31 January 2003. Those of us who have followed the issue of section 46 of the Trade Practices Act know that the concern about the limits of the operation of that section came to a head with the decision of the High Court of Australia in the Boral case, and I myself jumped into the arena and began advocating for reform of section 46 of the Trade Practices Act directly as a result of what I thought was the judicial narrowing of its reach by the Boral case. But the High Court delivered its judgement in the Boral case on 7 February 2003—a week after the Dawson report had been delivered. If you look at chapter 3 of the Dawson report, which deals with reform of section 46, and in particular if you read the discussion of the judicial interpretation of section 46 at page 84 of the Dawson report, there is of course no mention of the Boral case—because it had not been decided. That is why the Dawson report does not deal with Boral, and that is why the Dawson bill does not deal with section 46—because the Dawson report was overtaken by events after the report was tabled.

What did happen after the Boral case was that the Senate Economics References Committee, as it was then called, had a public hearing in late 2003 dealing with the specific topic of the effectiveness of the Trade Practices Act in protecting small business. Senator Murray knows that; he was a member of and an active participant in the deliberations of that committee. As a result, the committee made 17 recommendations in its majority report—including, I might say, in recommendation 11, collective bargaining, which this bill this evening now delivers on.

The government senators on the committee—I was the deputy chair, so I was the senior government senator on the committee, I suppose—agreed, in whole or in part, with 10 of those 17 recommendations and did not agree with seven of the 17 recommendations. But, importantly, the government senators agreed with—and, if I may say so, led the discussion on—the key recommendations for reform of section 46. The Prime Minister was asked some questions in question time about the Senate committee’s recommendations, and he undertook, on behalf of the government, to examine very closely the government senators’ report. The government did that and announced its response. And the announced position of the government was that the government would accept all but one of the 10 recommendations which the government members of that committee had embraced—which, in my view, as the draftsman of the government senators’ report, were all of the important ones. The one point of difference was not, in my opinion, particularly significant or consequential.

We have been waiting to get the quite different topic of the Dawson bill out of the way before the section 46 bill is proceeded with. It has not been introduced into the parliament yet, as I understand. A process of consultation has been undertaken, as it ought to have been. But here it is: I have a draft of the bill, concerning which I was consulted. So there is no doubt that a section 46 bill is awaited and is in contemplation and will be proceeded with.