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Friday, 25 November 2011
Page: 9656


Senator MILNE (TasmaniaDeputy Leader of the Australian Greens) (12:04): In the interests of time I did not choose to make a second reading contribution so I will quickly sum up where we are coming from with this legislation and Senator Xenophon's amendments. I note that the concluding comments of the Parliamentary Library's Bills Digest say:

Given the history of reviews and the Rudd Government’s commitment to implement a ‘creeping acquisitions’ law ‘as a matter of urgency’, it might seem that the amendments to the merger provisions proposed by the Bill are an anti-climax. Descriptions of the amendments as ‘window dressing’ or ‘pragmatic’ would also appear to be apt. These minor amendments largely reflect the ACCC’s current interpretation of the existing law and are unlikely to have any substantial effect on merger analysis in the future.

Similarly with the unconscionable conduct provisions. The Federal Government has been under pressure for some time to strengthen these prohibitions and the Bill purports to finally address these calls. The changes are, in fact, relatively minor. Their real effect seems likely to be minimal and they are not expected to have a substantial impact in practice. However there are other reforms happening at this time including the amendments to the Franchising Code of Conduct ...

It goes on to say that they might have a collective impact. I think the reality is, as Senator Sherry has just outlined, that the word 'substantially' is understood in case law on this legislation. It is true that it is consistent with legislation in the UK, the US, Canada and New Zealand and it has been part of case history and case law in Australia since 1993. There is a concern that if the word were changed to 'materially' the gov­ernment would be arguing that 'substantially' and 'materially' mean the same, because this is to be seen as only a clarification, not a change. So the government would argue that 'substantially' and 'materially' are the same. However, if 'substantially' were changed in the legislation, people would come back, in relation to all those cases since 1993, saying, 'Where does that leave us?' The difference between 'substantially' and 'materially' would need to be tested in the courts. We could end up with a bit of a process in the courts, in the making of that determination. Although Senator Xenophon says that 'materially' is understood to be a lesser threshold than 'substantially', there would be a legal argument as to whether that was the case and, if it was the case, at what point would 'materially' kick in as opposed to the stronger definition that is 'substantially'. It is for that reason that the Greens will not support Senator Xenophon's amendments: they lead to that unresolved question of the difference between 'materially' and 'substantially'. I do not want to bring into play at this time that which has already been dealt with. I also want the legislation to stay consistent with international law and with other countries' laws and experience.

The other comment I will make, quickly, is that the ACCC is under different leadership. It is quite clear from that new leadership that the ACCC intends to take a more assertive position in relation to mergers and so on, and that it wants to become a little more proactive. I am concerned that making this change now might in some way complicate the opportunity that exists for a more aggressive and assertive role for the ACCC in this space. I support the ACCC's new leadership's stated position of taking a more assertive position in this area. I do not want to complicate those matters. That is why the Greens will not be supporting Senator Xenophon's amendments.

However, I say to the government that, while it is says this clarifies things, the Parliamentary Library's assessment suggests it is extremely minor and does not really make any substantial change. The Greens agree with Senator Xenophon that we need substantial change. If the ACCC's attempts to use the law as it currently stands in a more assertive and proactive way fail, because the law turns out to restrict the ACCC's ability to do so, I will be very happy to be back here supporting a much more substantial intervention. At this stage we support the minor amendment that the government is proposing but will not support Senator Xenophon's amendment. I will say that this is a space that we are all going to be watching with a very interested eye so as to see how the ACCC proceeds in the next 12 months.