Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

The Greens will be supporting the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill today. This bill is a private senator's bill. It amend two acts, the Competition and Consumer Act 2010 and the Australian Small Business and Family Enterprise Ombudsman Act 2015. It allows judges in the Federal Court to waive liability for adverse costs to small business private litigants in cases related to the misuse of market power. It also allows the Small Business and Family Enterprise Ombudsman to provide assistance to small businesses in preparing these cases. The explanatory memorandum that has been provided by the Labor Party says:

This Bill addresses a prominent problem with the operation of section 46 without changing the intention. The problem relates to private parties litigating breaches of the competition law, namely the risk of significant adverse cost orders should an applicant lose and the time taken to finalise action in the Courts.

That may be the case, that this is not changing the intention of section 46—the Greens are supporting this because we will support anything that helps the competitive process and especially helps small business and farmers take action against what they see as uncompetitive behaviour—but let me make it very clear: the intent of section 46 does need to change. My party, the Greens, have campaigned for years on changing section 46. It is unworkable in its current form and, while it is good to be giving assistance wherever you can to struggling hardworking small businesses and farmers who feel that they have been negatively impacted by or had adverse consequences from especially misuse of market power by big powerful companies, it is no good doing that if it is nearly impossible for them to prosecute a case because of the way section 46 stands now. The way it stands now, a small business of any kind, no matter how much financial assistance they are given, needs to prove the intent that it was intended to be anticompetitive when a big supermarket was to buy, for example, all the land in their area and block competitive access. As we know from personal experience, and I look forward to giving some case studies on this when we debate the effects test bill, that is next to impossible and a small business or a farmer or a medium-size enterprise has always failed when it has tried to prove intent.

I have been through this situation myself with the ACCC. What we need to do is look at the effects themselves as the basis for section 46, and that is what the effects test will do. While we are happy to support this bill today, we do believe that it is actually the intention of section 46 that we need to change because it is unworkable. If we did both, if we had this bill today, which we commend Labor for bringing forward, and we also changed section 46 to make it workable, then we would get the best of both worlds, the best possible outcome for struggling small businesses and farmers in Australia.

As a Tasmanian senator, this issue is particularly acute for me and I have campaigned strong and hard on it since I have come into the Senate. Prior to my taking over the competition and small business portfolio, my previous colleague, Senator Milne, campaigned on this issue with Tasmanian farmers for a number of years. We need to do everything we can to improve competition policy in this country. Don't just take it from me as a Greens senator. The head of the ACCC, Mr Rod Sims, has been scathing of the way section 46 has played out in competition policy in this country. He has been out there publicly stating he wants to see section 46 changed; he wants to see the implementation of an effects test. The ACCC's submission to the Senate inquiry and to the Harper review was very clear. Mr Simms has been in the media taking on the heads of the big supermarkets, who don't want to see change, and you need to ask yourself: why? He has been out there dispelling the myths that have been pedalled by big powerful businesses in this country that want to keep section 46 left intact the way it is now. He is the guy that we trust to actually crackdown on misuse of market power and anticompetitive behaviour. We may all have different views in here as to how effective the ACCC has been, but Mr Simms is making this very clear: don't expect me to get good outcomes for you unless you change section 46.

So let's do both. Let's support Labor's bill today, which I think is a good one. I know Senator Xenophon himself has campaigned for years to get a funding system put in place to help small businesses litigate against big businesses. But let's also make it a lot easier for them to win, to get justice in the case of misuse of market power. Let's take the Harper recommendations, which the Greens have campaigned on for years, and let's change section 46 as well. In this building we have politics and we have policy. Sometimes the two co-join and sometimes they don't. The policy the ALP are putting up today is not a bad policy, but I hope that the ALP aren't going to use this as an excuse to get out of supporting a change to section 46 on the effects test.

This is something that no doubt we'll be debating shortly. We are expecting the competition and consumer amendment on the effects test to come to the Senate this week. No doubt it will be here next week. We need to ask ourselves the question: why, if the ALP are putting this up as a ruse to not support section 46, would that be the case? Why would Mr Bill Shorten and Senator Sam Dastyari and all the Labor MPs in this place not support a change to section 46? This is a change that small business groups around this country want, the farming community wants, and the head of the ACCC, Rod Simms, wants. Why would we not support a change to section 46? It is a question that I don't have the answer to at this stage. No doubt we will hear from the ALP when this legislation comes to the Senate.

But I note there have been articles about this in the media, including in the Ageand the Australian. The one I want to quote from was written by Mr Ken Phillips in the Business Spectator. It talks about the close relationship between the SDA—the Shop, Distributive and Allied Employees' Association, or what we commonly call 'the shoppies'—the ALP and the two big supermarkets, Coles and Woolworths. He says in his article of 30 March 2016:

With some 230,000 members, the SDA are one of the largest unions funding the ALP. And arguably the largest source of money for the SDA is Australia’s largest retailer, Wesfarmers. Coles always 'encouraged' employees to be members of the SDA and that tradition of union membership 'encouragement' continues today under Wesfarmers.

He goes on to say:

In effect, Wesfarmers is a massive funding source for the ALP and others through the SDA.

This fact turns on its head the probably naive assumption of Australians that the Coalition—

that is, of course, the coalition in this chamber—

is by default, pro-big business and the ALP pro-worker. Rather, the political game has had powerful undercurrents that of late are little commented upon.

I hope to be commenting more on this when the debate on the effects test comes to this chamber. I think it's really important to highlight why the ALP would effectively jump into bed with big business, and that's what they'll be doing if they vote against an effects test in here next week. Just to wrap up, in the little time I have left: we will be supporting this policy. It is good policy. We congratulate the ALP for bringing it forward. But let's not put the politics of this issue aside. If the ALP are going to use this as an excuse not to support long-needed and much campaigned for changes to section 46 then it will be very disappointing indeed.