Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I move:

That the committee does not insist on its amendment No. (1), to which the House of Representatives has disagreed, and agrees to the further amendments made by the House.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The principal change in the government’s amendments is to ensure that the commission must give a report to the tribunal in authorisation matters. This is a concession to Labor’s calls for the government to stop sidelining the ACCC in the merger process. The government plan is to make the tribunal the decision maker, but Labor believes the ACCC, the regulator, should be defended. The ACCC should be the decision body. The change is an improvement but not enough to gain Labor’s support. We want the ACCC to be the decision maker.

The government made its new amendments available at 5.30 last night. There has not been time for consultation, and Labor argues that House procedures were breached in moving this amendment this morning. Senator Fielding has caved in yet again. I can probably only say on this matter, yet again, that I concur with what my colleague Senator Murphy said in the other place. But having said that—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Murphy in the other place?

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Abetz—Mr Murphy in the other place. We know you are always here to help, just like with the Tasmanian opposition. As I was saying, Senator Fielding has caved in. He has put small business in a very difficult position. Yet again we have vague promises about reforms to section 46. Let me give you a track record on this government’s vague promises. I would hope even at this late stage, Senator Boswell, you would understand the importance of this. Just because big business leaned on the small business organisations that had previously opposed this, and in some cases quite simply brutalised them and did them over—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Get the conspiracy going!

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

No, this is all on the record. Let’s be clear. Those who know something about this debate, Senator Abetz, unlike you, know exactly what has gone on with the small business organisations that are now signed up to this deal. But small businesses themselves will not welcome this cave-in.

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

Well, they have.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

No, the organisations have had the fix put in, Senator Boswell. You know these people; you should know better. You are going to feel as bad about this as you felt the last time you voted with the government in an important vote, because the small business community have been sold out by their organisations. They have been bullied into this.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Senator Conroy, please address your comments through the chair.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you for that. I accept your admonishment, Madam Temporary Chairman. This is a very important issue—the small business organisations have been bullied and had the fix put in. Through you, Madam Temporary Chairman, Senator Boswell should understand that and not just believe these dodgy press releases.

That is what happens when it comes to this government making promises, like the promise in the cross-media laws that you would get some local content after a 12-month review. The radio networks are already telling anybody and everybody that that local content is never going to happen. The fix is in from the government—from the Liberals and the minister. These local content rules are going to get butchered. So, when the government comes to you and says, ‘We promise to fix section 46 later,’ have the gumption to stand up and make them move the amendments at the same time.

The Labor Party still has a letter signed by Mr Peter Costello, Treasurer of this country, on behalf of the government about the alienation of personal income. We have a signed letter; you have a vague promise. And let me tell you, when it came to delivering, we voted for the government’s package on the basis that we would get this commitment from the Treasurer first—a written letter. Senator Joyce understands this concept. It is a written letter from the Treasurer which was ripped up, with the Treasurer saying: ‘Sorry, guys. It’s too hard. We’re not doing it.’

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

We’ve had commitments in the chamber.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

We have had commitments in the chamber. That is exactly right, Senator Bartlett. So, if you are going to do deals like this, at least do a good enough deal to get them to move the amendments up-front, because you are about to be had again, just like they had you early last week. They are going to have you again.

The proposed section 46 changes are an emaciated version of the Senate committee’s recommendations. In the case of the recoupment of losses from predatory pricing, it might actually be negative. Only Labor—and, to give him his due, Senator Barnaby Joyce—are the defenders of competition policy. Senator Fielding has caved in, and Mr Costello has proven that he is only interested in pandering to sectional interests rather than ensuring productivity gains will be generated from a strong competition environment. So you have a choice here today. It is not too late, Senator Boswell—through you, Madam Temporary Chair—to make a difference on this bill. It is not too late.

Ron Boswell (Queensland, National Party) Share this | Link to 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.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Yeah, look at you.

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

No, do not look at me on this one. I am very firm on this one. I believe this is a good outcome.

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

Hear, hear! It is a very outcome, Senator Boswell.

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

It is a very good outcome, and I have had a fair bit to—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Conroy interjecting—

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

No, Senator Brandis has not talked to me about this, as a matter of fact. I have done this through other people.

The Fair Trading Coalition represents around 30 small business organisations. Their convenor, Michael Delaney, who is also the head of the Motor Trader Association of Australia, said in a recent letter to the Prime Minister that he was:

... pleased to advise that the Fair Trading Coalition and MTAA support the proposals outlined in the draft statement to be issued by the Treasurer and the Minister for Small Business and that we look forward to the foreshadowed consultations by the government with small business organisations on the higher collective bargaining thresholds and the terms of the government’s final proposals in relation to Trade Practices Legislation Amendment Bill (No. 2) 2006.

I am committed to seeing that happens now and, if it does not happen, I am in big trouble. There have been commitments given to me which I am confident will be enacted in legislation. I assure Mr Delaney that I will be working closely with him and his fellow small business representatives to make sure the thresholds for his business members are set at the required level in regulation after the passage of this bill.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Conroy interjecting—

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

NARGA, the National Association of Retail Grocers of Australia expressed reservations about this bill in the previous debate, Senator Conroy, but they are now behind it too. Their release this week states:

NARGA and other small business organisations have agreed that no benefit would derive from further blocking of the Trade Practices Legislation Amendment Bill.

It went on to state:

Now that the major small business organisations have agreed on a way forward, we are hopeful that the Dawson bill will receive support in the Senate.

The NFF have also consistently expressed their support for the changes that we are today proposing go ahead. That includes the dairy industry and the fruit and vegetable industry. They all want this bill to be passed.

COSBOA, another major peak body of small businesses, said yesterday in their release that they welcomed the Treasurer’s changes to include the ACCC in the proposed new formal process for the merger and acquisition approvals. They said:

COSBOA looks forward to the bill being passed as soon as possible to ensure the benefits of the collective bargaining notification process can be used and further negotiations on the second bill can begin.

I share COSBOA’s zeal for negotiations on the second bill, and I can assure people that that is going to happen. That can go ahead when this bill is passed. I will be working closely with all the small business organisations on section 46. Senator Brandis and I both agree that section 46 needs tightening. It is very important that it is tidied up.

This bill clearly has the support of small business—and that of all coalition members in the Senate, I believe, though maybe Senator Joyce has other ideas. Under this bill the mergers test in section 50 remains safe. The principle of law remains that a merger clearance should not be given if the merger is likely to lessen competition in a substantial market. Former Labor Senator Schacht and I managed to put this strong merger test in place to replace the old monopoly test. It is one of my proudest achievements in the Senate, and I am pleased that the test will remain secure under the coalition government.

I want to see this bill pass. Its passage will enable collective bargaining provisions to come into play and will clear the air so that I, along with my Nationals colleagues and business representatives from all sectors, can move on and return our focus to the really big issue, which is the strengthening of section 46 of the Trade Practices Act, which deals with the misuse of market power, predatory pricing and other unfair practices, and section 51, on unconscionable conduct. I seek leave to table the rest of my speech. (Time expired)

Leave not granted.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Firstly, I want to go to the process here. I cannot speak for the opposition, but certainly the Democrats were given no notice that the Trade Practices Legislation Amendment Bill (No. 1) 2005 was going to be brought on for immediate debate. That in itself is problematic. As I mentioned earlier today in relation to another matter, the Senate is a law-making body and the laws we make affect Australians directly and often for very long periods of time. The absence of notice and the absence of an opportunity to scrutinise what is actually put into law are big problems. It is not just that something might pass that people do not approve of in a policy sense; history has shown that, when deals are stitched together and legislation is rushed through very quickly before people change their minds, that can lead to bad drafting.

We have just had a report from a non-partisan Scrutiny of Bills Committee highlighting extremely bad drafting in legislation the government had months to work on. Yet here is something that is cobbled together and rushed through as part of a quickly stitched up deal. We are supposed to be confident that it is actually well drafted and that all the implications have been fully thought through.

From a purely process point of view, the arrangements are seriously problematic. That is why the Democrats continue to make this point. For the Democrats, a key part of our core value is, as our name implies, democracy. Making democracy work well is one of the jobs for the parliament. It is not just having an opportunity for senators to scrutinise amendments and proposed amendments. We might all like to think that we are the fount of all wisdom, but there are other people in the community who have expertise and knowledge. It is often very helpful for them to have the opportunity to properly scrutinise what is being done.

Those of us who have been around for any length of time know how these processes often work. You get people in and say, ‘Here is what we are going to do.’ You will get government ministers, bureaucrats or advisers explaining to people: ‘Here is what we are going to do. Here is how it is going to work.’ It all sounds great. In many cases, people who then sign up to those deals do not get to scrutinise the actual wording of the legislative changes—what the law will look like. There are many examples where the impact and the consequence of the actual wording are different from the promises.

Then there is the problem that Senator Conroy referred to. When the commitments relate not to promises that are actually put forward in legislation in black and white but to other promises about things that will happen down the track, the history of this government—and that of previous governments as well; this government is not the first government in history to break its promise on a matter—shows that even written commitments and promises from ministers saying that this is what will happen do not materialise. I can certainly say from the Democrats’ point of view that that has happened more than once in my period in this chamber: commitments given in the chamber—not just to the Democrats but to the Senate as a whole, and through the Senate to the Australian people—that certain things would happen have not materialised.

There is a very long list of flagrant breaches of promises where commitments are given as part of getting support for something being passed and, as soon as it is passed, all bets are off. There have been many examples of that, certainly in the life of this government. Anybody who does not acknowledge that and recognise that, and who is willing to enter into agreements on the basis of a promise, is being foolish.

Another point that needs to be emphasised is that it appears that this has been brought on and rushed through all of a sudden because of a change of view by Senator Fielding, the Family First senator. He is entitled to change his view; people can always change their views. Unfortunately, he is not here to explain what his change of position is and the reasons behind it. It would be desirable for him to do that. At first glance, the changes that have been made are not sufficient to satisfy the Democrats.

The Democrats supported the omission of one schedule in the bill. We also have significant problems with one other schedule in the bill, which for us goes to a core value and which I would have thought was a core value of the Liberal Party—that is, the question of choice. We have just had all this talk from Senator Boswell about the opportunity for small businesses to have collective bargaining. That is something the Democrats support, but the legislation contains a component that says, ‘Collective bargaining, except for anything involving trade unions,’ that the only people who cannot be involved in collective bargaining are unions. It is a blatant anti-union clause. It was not based on any recommendation or finding through any of the processes that led up to this legislation. It was simply the Treasurer, and more widely the government, taking the opportunity to stick one in the neck of the unions.

That in itself is offensive enough, but the fact is that it goes against stated principles of choice—and this is supposed to be all about choice—and against the people it is supposed to help. The whole principle of this component of the legislation is constrained by saying, ‘You can do this, except you can’t do it with unions.’ That is ridiculous and offensive.

There is no doubt that there are other aspects of this legislation which are desired by people in the small business community in general and which they would like to see go through. But there is one person responsible for those measures not going through more than a year ago, and that is Treasurer Costello. All these measures, apart from schedule 1, could have gone through 12 months ago. He is the one who has held them up. There were certainly other avenues for him, even if he did not want to accept and pass those parts that could have been passed straight up. There was certainly ample opportunity for him to consult with others and to ensure that all of these matters, including the section 46 matters, were advanced. Unfortunately, the way in which this Treasurer operates is extraordinarily inflexible. You need only talk to people in the business community, big business or small business, to know the low regard in which he is held, as much for his inflexible attitude as for any of his policy views. This legislation again reflects this very poor process.

I want to quickly make a point about the role of Senator Fielding. I do not know his reason for changing his position. I think he might have made some comments to the media, in which case he is also following the habit of members of this government these days, which is not to bother talking to the parliament about anything and instead holding media conferences.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The Democrats never do that, do they, Andrew! Give me a break!

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

We hear repeated assertions by Senator Fielding that Family First does not do deals.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

What a joke!

Jeannie Ferris (SA, Liberal Party) Share this | Link to this | Hansard source

Are you reflecting on another senator?

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Senator Bartlett, ignore the interjections.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I think they are very informative interjections, frankly, Madam Temporary Chairman.

The Temporary Chairman:

Pick them up if you choose to.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

It is always useful to get those sorts of things on the record. The Democrats have quite openly stated when we have done deals. Indeed, if the minister would like I could elaborate at length about some of the deals the Democrats have done over time, including some very good deals when I was leader. The point is that we were open about the deals we made, and we justified them and copped the flak or the praise as we went along. There is nothing wrong with doing deals if they are open deals. The problem is when they are secret deals, and the bigger problem is when people deny that they are doing them and continue to assert plaintively and with great innocence that Family First does not do deals.

Frankly, if you have an opportunity as a representative of your constituency to improve legislation for your constituents in an area of importance to you, I think it is pretty irresponsible not to seek to use opportunities to do that, as long as it is not dishonest or secretive and does not involve a compromise of your own principles and values. Certainly you want to do smart deals. Senator Conroy perhaps confessed—at least I think it was a confession—that Labor had made a mistake in doing a deal on business tax reform when supporting the government’s business tax changes.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

For the record, your party spokesman supported it as well.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

At that time, I think Simon Crean was Leader of the Opposition, Labor did a deal in exchange for a promise on other reforms, which never happened. I thought it was an appalling deal, and the Democrats opposed it. I think it was incredibly inequitable. We can all point to others. I did not support an agreement that my own party made on one particular issue back in 1999. You put forward your position and you make your arguments on the basis of the facts, out in the open. You do not deny the fact that it is happening.

The most extraordinary thing is how Family First can keep getting away with saying, ‘Family First doesn’t do deals,’ with big, unblinking eyes. We saw it repeated again, and greatly insisted upon, on Crikey this week. The only reason Senator Fielding is a senator is that Family First did a deal with the Labor Party. It may or may not have been a good deal, but they did a deal. To keep saying, ‘We don’t do deals,’ and the only reason you are in the Senate is because of a deal, I find extraordinary. Those preferences did not come by accident.

Just to be completely open, the Democrats did a deal when I was leader. I did a deal with Family First, so I do not know which Family First party Senator Fielding represents which does not do deals, but it was a Family First party that I did a deal with on preferences—a deal that, with the benefit of hindsight, I think was a great mistake. I completely underestimated what Family First were about, and they have proven that, sadly, in their performance in this chamber. Frankly, we got greater openness and consistency from former Senator Harris, the One Nation senator. I am certainly not saying that I agreed with all his policy positions, but at least he was intellectually consistent with regard to his position and at least he was open about what he was doing. I thought he made some terrible agreements—one of which was supporting dramatic increases in university fees. I think the agreement that he and all of the then crossbenchers reached on allowing university fees to go up was a terrible and very poor deal. But at least they were open about what they were doing.

To continue to insist that you do not do deals when your whole presence here is as a result of one is extraordinary. To reaffirm, whilst I very much regret it now and think it was an incorrect decision, I fully admit I was part of a deal done by us. We all do deals. The Democrats and Greens do deals all the time on preferences; the Liberal Party does deals with other parties, whether they are on legislation or on preferences; the Labor Party does it. The key issue is that the deals are open, not that you deny that they are being made, and that is really the problem here.

Frankly, I think it would be much better if we just had some transparency about what is going on rather than this continual denial and secrecy. Secrecy, deceit, dishonesty and the breaching of promises are all the things that bring politics into discredit. Lack of due process is another. They are all things that I think are becoming more and more prevalent. They are certainly not unique to this government or the federal parliament. But the federal parliament is where we are now, this government is the one in power now and the actions before us are the ones that we describe. I am certainly not going to shy away from describing them as I see them.

I think there are significant problems with the process, regardless of some of the policy issues before us. I will say again that we could have had the vast majority of the gains wanted by the business community, large and small, 12 months ago if it was not for the Treasurer and his intransigence. I do not see getting them 12 months later than necessary via shabby processes as a particularly good thing.

Finally, I will just repeat the biggest problem that the Democrats have with this particular bill, which this message refers to. It is actually not schedule 1—although we certainly were not 100 per cent thrilled with that. I think from memory it was schedule 2—it was a year ago now—which perverted the government’s own so-called principles with regard to choice on these matters. I do think it should be recognised that if this motion before us is agreed to that very unconscionable component of the legislation will pass into law as well.

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

Well, numbers is numbers! In a place like a house of parliament you respect the numbers. The government has the numbers and that is it. What we are left with, of course, is two things: firstly, explaining how we feel about the process and, secondly, explaining how we feel about the policy. And the process is an issue. There is an old-fashioned expression: be careful of whom you kick on your way up in case you pass them on the way down. I would suggest to you that rushing contentious legislation like this through with insufficient warning to the major participants is not just bad process; it is a bad look. It contributes, eventually, to a payback mentality.

I would be very surprised if, when the government does eventually lose office—whether it is next time or the time after that—there was not a bit of payback for bad process. I will not be here, but I know enough about the Labor Party to know that they have long memories. You are very unwise to do this sort of thing, to bring something on in a rush with insufficient warning. Senator Bartlett has expressed his lack of appreciation with respect to that quite clearly, and I concur.

Moving on to the next issue, which is of numbers, the government senators—except for the very brave amongst them—will, by and large, follow their leader. This is legislation which has been ticked off by the cabinet and they will support it as such—sometimes with a full knowledge; sometimes with very little knowledge. The people who have to justify their vote outside of the government—because it is a job of government members to back government legislation—are those who give their vote to the government.

As some of the participants in this debate will know, many are the times I have had to stand and justify supporting the government of the day, or indeed supporting the opposition of the day, with respect to particular amendments or bills. You need to be very clear as to your principles and why you are doing things. Those who have been in the balance of power position before include Senator Colston and Senator Harradine, Senator Harradine, by himself at times, and two Greens—believe it or not. Senator Bob Brown and Senator Margetts had the balance of power once on the constitutional convention bill. Incidentally, I am talking about in my time, not before then. And, of course, the Democrats have. You have to be very clear on what principles, and on what basis, you are supporting one side or the other.

The difficulty for Senator Fielding is that his policy positions, the principles under which he has based his decisions in various key areas, probably have not been expressed or outlined as fully as they might be. If I were to give him some advice from the hard rock of experience it would be that he is very clear as to exactly why he has made a decision to support the government. Having made those remarks, of course he is perfectly entitled to support the government. It is an entitlement of every senator in this place, to vote as they see fit. I just wish that more senators, both from the opposition and the government, had the courage and gumption of somebody like Senator Joyce, who does indeed vote on conscience. I should name in those brave ranks Senator Humphries, of course, who recently voted on conscience. I think it is a good thing.

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

Wouldn’t say you did it too often.

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

That is true! Having got that off my shoulder, I have to come back to the policy. By and large, I never thought that much of the Dawson report, frankly. I was not that impressed with it as a great work of policy and I did not think its outcomes mattered too much—and, that being so, you could probably happily support most of it. But there are two issues of contention. One is easiest to identify in principles terms, and I would remind the chamber that I am a very, very strong supporter of choice. In the days when it was not too popular to do it in this chamber I vigorously supported the right to join or not to join a union.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Except a student union!

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

With respect to students, by the way—I take the interjection—I do not regard them as unions. And I speak to you as probably one of the people in this place who has held one of the highest ranks in student bodies because, in my day, I was vice-president of the National Union of South African Students—which was not a very popular post! People there did not last too long. They tended to get—

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Shot!

Andrew Murray (WA, Australian Democrats) Share this | Link to 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.

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

It’ll happen next week.

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

Well, if it happens next week I will be glad to come into this chamber and say I was wrong.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

We’re not sitting next week.

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

I will, but as we are not sitting next week I do not think I will have to. Thank you, Minister.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Yes, very helpful!

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

We slipped out of that one.

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

Next sitting week, then.

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

I would be happy to; I would honestly be very happy to say that if it comes in the next sitting week, because that would please me enormously. I do not think you should engage in what we have been engaging in—the Telstra sale, the media law changes and various other changes in the corporate concentration world—and not simultaneously be strengthening the regulators, particularly the ACCC.

So, to sum up: this should not have been brought on in a rush. I have a fundamental policy problem with a couple of areas of the bill. The new bill is an improvement on the old one; my congratulations. And it is without the accompanying strengthening of the Trade Practices Act bill. Those are my comments.

George Brandis (Queensland, Liberal Party) Share this | Link to 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.

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

Senator Murray interjecting—

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

So, Senator Murray, to the extent to which you say, ‘That’s just not going to happen,’ with all due respect to you, you are wrong. And I am sure Senator Murray will be delighted to see the section 46 reform which we have, from our different points of view, worked on through the Senate committee process come to fruition. It may not be what you wanted, Senator Murray; it may be closer to my model—I hope it is. But I hope that you will take some satisfaction from the fruition of that process.

Let me finish on this note. Let the Dawson bill now proceed. Let the amendments that the government has made to the authorisation of mergers provisions be passed this evening by the Senate. I think that the proposal to give the primacy to the Australian Competition Tribunal, rather than, in the first instance, the Australian Competition and Consumer Commission, is a good proposal. It is a good proposal because—and, Senator Murray, what you neglected to say in your contribution was that—the current arrangement, whereby a party can seek a clearance under section 88(9) of the Trade Practices Act from the ACCC, lacks transparency. It is an informal process. It lacks transparency. If a party is dissatisfied with that outcome, it can then make an application to the Australian Competition Tribunal.

How much better, and how much less wasteful, to have a transparent process, so that if there is to be a dispute about a merger authorisation it be before the Australian Competition Tribunal, where it would have ended up in a disputed case anyway. And how much better to have—as the amendments we have before us tonight propose—the ACCC as a full party before the Australian Competition Tribunal, able to make submissions, so that there can be a full, contested, transparent, inter partes hearing of a controversial merger proposal. That is a better way of going about it. It has the dual virtues of efficiency and transparency. And I would have thought, Senator Murray, particularly having regard to many things you have said in related contexts about transparency, that that would have been something you would have welcomed.

Be that as it may, those are the virtues of the reforms to the merger authorisation proposal. But that is not what small business is delighted about tonight. Small business is delighted that—after an unwanted delay as a result of a stunt we saw in this chamber last year—collective bargaining, No. 1 on their wish list, will be delivered. It will be delivered, in fidelity to the Dawson recommendations—consistent with your own recommendations in the Senate committee, Senator Murray, and something to which this government has been committed for a very long while.

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

We are discussing an amendment to schedule 1. The Dawson provisions to do with small business were passed one year ago. So to bring into the debate that this is about everything in Dawson is not correct. If they have been sat on for a year, the reason has nothing to do with this chamber. That is something entirely different. What we should be debating here is schedule 1, mergers and acquisitions power, because that is basically what we are dealing with. If you vote for this, you believe that the mergers and acquisitions power is correct; if you vote against it, you do not.

We have had a lot of people who have said that the amendment is a good amendment, a great amendment, a hard-fought-for amendment. You only have that amendment because a senator crossed the floor. That is the only reason that amendment came about, because it was not in the initial bill. Let us just look at some of the other things. Since that time, of course, NARGA has changed their position. They have also changed their board—Alan McKenzie and Frank Zumbo are now no longer there. Inordinate pressure has been coming in from all sorts of directions to get this.

There are a lot of other things that we have to look at. It has been clearly stated that the primacy of deliberations will now be held by the Australian Competition Tribunal. That has been said tonight. That is a clear statement that the ACCC’s position is being circumvented. We are now moving the powers to a judicial body that will basically come up with a yes or no answer. Before we had yes, no or maybe; now we have yes or no. You are right: they are only going to take the evidence in the so-called 40 days—40 days to deal with a merger! Imagine the ACCC trying to deal with a merger between PBL and News within 40 days. It is blatantly ridiculous. The only evidence they can take is the evidence that was presented, and of course the only evidence that is going to be presented is favourable evidence.

There are a whole range of things that have been suggested, because this goes hand in hand with the media issue. We have a raft of mergers and takeovers out there. This works hand in hand with that. We are at the same time promoting the idea that the ACCC, which has had 22 years of dealings with mergers and acquisitions, is now going to be circumvented as we move to a purely judicial form of Australian Competition Tribunal judgement made on section 50, which is a substantial lessening of competition. Let us say News decides to merge with PBL. They have to prove that if they raise prices they would lose some of their customers. Of course they could prove that. It is a very easy thing to prove. Once they do prove that, the merger is through. That is why this is so important, because it is a package deal.

I look forward to Family First explaining their logic over the last period of time as to why they believe they are not circumventing the process of democracy in this nation. I have heard from Family First that the diversity of ownership does not reflect diversity of opinion. Well, that is interesting. I have a report from the Committee to Protect Journalists looking at the number of media outlets and how democracy is protected. Funnily enough, the fewer the media outlets, the worse democracy gets! At the top of the list is Burma, Turkmenistan, Equatorial Guinea, Libya and North Korea. The most democratic places are places such as the United States, France and Germany. These are the issues, because the diversity of ownership equals the support of democracy.

Some people have said, ‘Oh well, there is still an authorisation process.’ Yes, for one in 700. One in 700 of these mergers will end up in an authorisation process, where the Australian Competition Tribunal can take over undertakings. But that is not going to happen, because the vast majority are going straight through. They would not be promoting changes to mergers and acquisitions laws if they thought they were going to make them harder. This is to make them easier.

The former process of ACCC undertakings was maybe a clumsy instrument but a better instrument than no instrument at all. You need to have the ability to have that open-ended negotiation of merger issues, to be fair dinkum and have the dignity to show to the Australian people all the nuances and inflections in the merger. I would not care so much if they limited it and put a ceiling on it saying: ‘We can’t go on forever. You have to get to a point and stop.’ An amendment was moved in that regard, with an extra 80 days, giving you 120 days in all—four months. I think even four months is an expressly short period of time to try to deal with mergers like Toll, which we have had lately. We have Coles. It is about to be broken up and Woolworths will probably be in the market to pick some of it up. These are vitally important processes in our nation. If you believe that the nation is threatened with too much concentration then you have to have a mechanism to protect it. The vote that is coming up is not about the Dawson provision, because that vote has been had; this is a vote about an amendment of schedule 1. It is a clear statement by those who believe that schedule 1 is correct and those who do not. That is what it is about.

There are other things that came through. We have had statements that this actually increases the ACCC’s powers. But we can see that contradicted in some of the fine detail. The current provisions in the TPA provide the ACCC with the power to enter premises and inspect documents ‘without a warrant’. The bill will provide the ACCC with the ability to search premises and seize evidence ‘when backed by a warrant’. Even in those statements, things have changed. I take on board and I take on trust the section 46 provisions but, as Senator Brandis has said, that has got nothing to do with Dawson. They say these are following and we are to just take on trust the government’s promise that they will put those forward.

We have in front of us right now an absolute hotbed of mergers and acquisitions out there in the media market. The media is the protector of democracy. The diversity of the fourth estate directly relates to the protection of our democratic process. You cannot get a merger if it is not allowed, but what we are doing today goes hand in hand with what happened in the last major piece of legislation that went through here. It is saying, ‘Not only will we allow mergers; we are also going to take away the strong investigative powers that were formerly there.’ The law may be substantially the same, but the law is of no use to you when you do not have the time to fulfil it and follow it to the nth degree.

Over the last year amendments have been suggested; they were written. The moment the legislation failed in the first instance, amendments were suggested. The fact that we have waited one year is not because people were obstinate or ridiculous. There was always an open communication with the amendments that were suggested, if they were rejected. It was all about trying to protect small business. The issue here is about trying to get a better deal for small business. For everyone who said that the ACCC are now a party to the Australian Competition Tribunal—although they do not get a vote; they get to turn up, ask questions, interrogate, but they do not put their position forward—

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

Senator Brandis interjecting—

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

They certainly do that, Senator Brandis—their position can be ignored. For those who think that is a good outcome, there is only one reason that outcome came about. You cannot have it both ways; you cannot say what was proposed initially was right and the amendment is also right. If you believe the initial position is right then you should not support this amendment. Why would you? If you believed the initial position is right—and I disagree with you fervently—you would knock this amendment out. But this is an instance of trying to invigorate in the Senate a proper sense of debate. If this proper sense of debate had been seen during the media debate, maybe we would have had a different result because the proof is in the pudding there today.

This step goes hand in hand with cross-media ownership and the new mergers and acquisitions powers. Hand in hand, the nation will walk down the path with these and we will see where we end up. We are going to have a new landscape in which you could have a private equity firm from the US controlling one of the major media houses, and another private equity firm from the US controlling another major media house. There is no register of interest in those private equity houses, so you do not know who is backing them; you do not know what their vested interests are. The world is awash with funds, but we have changed it so the main staple, the fourth estate that protects this democracy, is now going into an uncertain area. I hope it works out well, I really do. I do not want to be a Cassandra; I hope it works out well.

But if it does not, if we have got ourselves into a position where these have been foisted on us, you will not have the power in this chamber to be able to change it back. The power of an overcentralised media is immense. It is clearly defined as going hand in hand with democracy. This is why this is so important. It goes beyond small business. It goes beyond being partisan about an issue. It is about dealing with the environment Australia is in as of this morning. This morning every paper talked about a flurry of media mergers. It is this chamber that has delivered those, and you must accept responsibility for where it goes; you must acknowledge your role in that process.

With respect to all of the decisions and deliberations that made up your vote, you must wear that for the rest of your life. You cannot step away from it and give some paltry excuse as to why it may be so, because in the end you had the freedom of this nation to be able to vote as you wished to. The moment that freedom is taken away from the Senate, it works its way down and down and down until it starts taking away from the freedom of the nation itself. Your responsibilities to that freedom are far higher, I hope, than your responsibilities to any other body. I hope that, in good conscience, the decision you make in this chamber takes into account first and foremost our nation and then your state. In the discussions that will be had from now on, I hope you will be able to explain—on this mergers and acquisitions power and its relationship to the former media ownership power—how it is good for your nation and your state, and give proper account of yourself to the Australian people in your explanation. That is important.

I will be moving an amendment to this to try to at least get an increase in the time limit for the ACCC. It is the most minor of amendments to give the ACCC more time. We brought this up with the ACCC; we talked about this during the cross-media ownership debate. The ACCC was held out as the arbiter and protector of media diversity over and over again, but what does the next piece of legislation do? It gets rid of the time frame in which the ACCC deals with that. The question was asked of the ACCC, ‘Isn’t there a piece of legislation out there that can circumvent your powers?’ The reply was, ‘That is a matter of policy,’ which is code for, ‘You are dead right.’ That is the issue we are dealing with here today.

My final point is: you are about to vote on mergers and acquisitions powers, not the Dawson committee. If someone has endowed you with a sense of connection or threat or purpose that it is connected to something else— (Time expired)

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to support the Trade Practices Legislation Amendment Bill (No. 1) 2005 and to make it very clear that this bill will provide a net benefit for small business.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Rubbish. It will not.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

It will. There are benefits specifically in regard to collective bargaining and to increasing the powers of the ACCC in terms of increasing the penalties that the ACCC can apply. I want to place on record my thanks to Senator George Brandis and the Senate Economics Legislation Committee, which produced the report last year, for the work that they undertook. It was very comprehensive indeed, and the government senators’ report has essentially been adopted by the government and now implemented at least in part. I want to acknowledge Senator Ron Boswell for his support and for his work with the small business organisations to get an outcome on this.

I want to specifically acknowledge the now strong support of the National Association of Retail Grocers of Australia, the Council of Small Business Organisations of Australia and the Fair Trading Coalition, together with the National Farmers Federation. Senator Barnaby Joyce indicated that NARGA’s board has changed. That is true. John Cummings is the chairman and Ken Henrick is the executive director. They have led that organisation in a very sensible fashion and are now acting in the best interests of their organisation and their members. Indeed, I want to congratulate and acknowledge Bob Stanton as president of COSBOA and Tony Steven as executive director of COSBOA for the cooperative, conciliatory and measured approach that they have taken to getting an outcome for small business. That is what has been delivered: a net benefit for small business.

I want to also put on the record, as I have stated publicly and previously, that I acted for 13 years for small business organisations both in Tasmania and nationally prior to entering the Senate, including for NARGA for some five years and COSBOA intermittently. That ended in a professional capacity when I entered the Senate in 2002. Nevertheless, I have continued my interest in, support of and advocacy for small business. Indeed, that will remain—I hope—for many years to come.

I want to note that the issue of misuse of market power and section 46 has been raised in the debate. Senator Brandis and indeed the government have already acknowledged that that will be put forward into the public arena in the very near future. Full consultations and discussions will be had with the various small business organisations with regard to that bill. I look forward to partaking in those discussions and getting feedback from the small business community.

Finally, with respect to Senator Joyce’s comments on the 40-day limit, I want to make it clear that the 40-day limit commences on the day that the ACCC receives a valid application, but the 40-day limit is also capable of extension at the request of the applicant. That is on the record. That is the advice that I have. If the ACCC has not made a determination on a merger clearance application 40 business days after the application is given to the ACCC, it is deemed to have refused to grant the clearance. I hope that clarifies the matter for Senator Joyce and perhaps others. I conclude by also saying thank you to the Treasurer and the Minister for Small Business and Tourism, Fran Bailey, for their perseverance and for their efforts to ensure that we have a good, positive net benefit outcome for small business.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First’s priority is small business. That is why Family First supports the Trade Practices Legislation Amendment Bill (No. 1) 2005. Small business groups across Australia want these numerous changes. One of these changes allows easier collective bargaining for small businesses. The bill also gives more power to the ACCC, not less. My third point is that the government has given a commitment to small business to amend section 46 of the Trade Practices Act to help fight predatory pricing by big business. The government has made it clear that these further amendments to section 46 will not proceed unless the legislation before the committee proceeds. Family First will not stand in the way of small business getting wins.

Debate interrupted.

Progress reported.