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

by leave—I move:

That the Senate take note of the report.

Section 51AC of the Trade Practices Act is very important and is going to be a crucial issue when it comes before this chamber in, I hope, the not too distant future. Section 51AC, and especially ‘unconscionable conduct’, is an area of serious concern for small business people around this nation, predominantly those who are dealing with retail tenancies in big shopping malls.

I would like to thank members of the committee for the work that was done through this process, and I see that Senator Cameron is in the chamber. Although members may not have come to a consensus in the report—there being additional comments by coalition senators and Senator Xenophon—there was general agreement that section 51AC needs to be tightened.

In this nation, we have to make sure that we maintain the capacity for those who wish to prevail in business to not be knocked out because they are not good at their job, or because they have a badly priced product or a badly priced service, or because they are being bullied out of the marketplace by terms that have been brought about because one player has excessive market power which is used to completely walk over the other player. To go about this process, and because of the lack of clarity of section 51AC, we need to get a more definitive approach. I stand to be corrected but I think only two cases have been prosecuted successfully by the ACCC under section 51AC in the last 10 years. That needs to be addressed by way of a stronger statutory definition of unconscionable conduct.

Unconscionable conduct has to stand in proxy where market forces have failed. If there were a strong market and ease of entry and exit, with alternative sources of supply and diversity of players, then there would really be no role for the Trade Practices Act, and that would be an idyllic world to live in. But when these forces are not present and we get a centralisation of players, or exploitation by a very strong group of players over a very weak group of players, then we have a role for the Trade Practices Act.

The issues that we looked at in section 51AC were such things as fair dealing, fair trading, fair play, good faith and good conscience. These are definitions which are not peculiar to the Australian people, and they are what a lady who runs a shop in a large shopping mall would be looking to the Senate to provide. In her negotiations with the landlord, she would be looking for fair trading, fair play, good faith and good conscience. Other people, when negotiating with centralised players in the marketplace, will look for the same outcomes. I look forward to giving the ACCC greater powers and, at times, a greater motivation to pursue these issues.

I commend the report to the Senate. I hope in relation to this matter that a reasonable approach is taken and that we see all those things that I have noted—fair trading, fair play, good faith and good conscience. They are the elements exhibited by this chamber when it comes forward with a stronger definition of 51AC so that the Australian people have access to the merchant class and have the capacity to be participants in the wealth of our nation. When the dreams and aspirations of people living in this marvellous nation of ours, Australia, and the economy—which is a manifestation of our nation’s benefaction—come forward into our legislation, we can give our citizens a better and fairer economy to enjoy and be part of.

Question agreed to.