Mr ANDREN(9.06 p.m.) —Like the member for Fisher (Mr Slipper), I congratulate the government for its initiative in introducing the Trade Practices Amendment (Fair Trading) Bill 1997 . This legislation was born of the report from the House of Representatives Standing Committee on Industry, Science and Technology, Finding a balance: towards fair trading in Australia . Its aim is to amend the Trade Practices Act 1974 to prohibit unconscionable conduct in relation to certain small businesses versus big business transactions and to allow industry codes of practice to be prescribed and, where necessary, enforced as mandatory industry codes.

In 1992 a new part IVA, `Unconscionable Conduct', was added to the Trade Practices Act to cover commercial transactions. Another section for ordinary consumers was also added. I notice that there has been much debate over the use of the term `unconscionable' and just how it fits the bill in a legal interpretation. The ACCC booklet on this act we are amending says that it is very difficult to prove unconscionable conduct because the law has accepted that commercial transactions can sometimes be unfair or hard on one party. It was argued by the committee that a better term might be `unfair' but the term `unconscionable' has turned up in this amendment, and I suggest the vagueness of its legal interpretation will continue.

I say that with regard to a case that has come to my attention in the past week. I did not intend to speak on this bill, but I could not avoid it when I saw what to my mind was unfair treatment of a businessman in Lithgow who should be—although he probably will not be—saved from the harsh and unfair treatment that has been meted out to him by the Ampol-Caltex consortium. I say that without having absolutely full details of the case at this stage, but I have spoken with both the businessman and his wife, who operate an Ampol-Caltex service station, and with Ampol. I will tell the story. It goes to the heart of franchising.

Brian and Betty Morris have operated Starlite Service Centre for 14 years. As far as I can establish, they have met all their commitments to Caltex, which is now owned by Ampol Petroleum. They buy petrol only from Caltex depots and they keep the business neat and tidy. This is according to Mr Morris's account, which has not been contradicted in discussions with Ampol, although I do respect the confidentiality of the information they can give me on this arrangement. About six weeks ago the area manager for Australian Petroleum told Mr Morris he had done the right thing by Caltex and had nothing to worry about in terms of his lease. Last week the area manager came again and, in Mr Morris' words:

. . . handed me a letter stating that I would not be granted a new franchise. He didn't tell me why. I asked him was the service station going to close. He said no. The franchise would be offered to someone else. I asked why not me and the only answer I got was that it is company policy. Me and my wife have worked our heart out for them, and all we get is the boot.

There is no payment for goodwill in this, after 14 years. There is no money for the fridges or for the car wash business he has established. No goodwill at all will be included in any settlement on this deal. Understandably, Mr and Mrs Morris are very upset. I checked with the state retail sales manager for Ampol. He says that under the three plus three plus three franchise arrangement, an oil company is allowed to take back a franchise entitlement and do with it what it chooses. In this case, after 14 years of faithful service to its product by Mr Morris, this company is pulling the franchise from beneath this operator.

At the moment, the Morrises are operating under the Petroleum Retail Marketing Franchise Act. The Minister for Workplace Relations and Small Business (Mr Reith) has announced that there will be a generic franchise act with special codes of practice, particularly for the oil industry. Talks, I understand, are well under way, with a facilitator being sought, and a code for this industry would include arbitration.

But it is too late for Brian and Betty Morris and, I suggest, for many other petroleum franchisees out there at the end of this three plus three plus three arrangement, which comes to an end in early 1998. They are going to miss out on any of the new legislation that might come forth. With Woolworths on stream now, the competition is intense. We have the multi-site franchises being organised and, as I said, the 18-year two lots of three by three by three are coming to an end.

The company tells me that, despite the regional manager telling the Morrises that they would be okay, regional managers were not in a position to know. There was no warning, no pre-counselling for these franchisees, only post-counselling after the deed was done. I understand some people with 20-25 years service in the oil industry are `in a position of not going forward,' which is the phrase that Ampol uses for those who are not going to have their franchises renewed. It is a very cute way of saying they are going to get the boot.

I could understand if, in rationalising its outlets, the company had decided Lithgow was one area to suffer and was closing up the Starlite Service Centre, but that is not the case. I understand the competition that has been forced on the industry through the cheap petroleum being brought in by the likes of Woolworths. But I cannot accept this treatment where another operator will be offered the franchise and Mr Morris will be thrown onto the street, albeit with some months notice—he does not have to vacate the premises until well into next year.

The member for Cowan (Mr Richard Evans) in his contribution to this debate speaks of hard-core business. He says that there is a legal grey area between unconscionable conduct and hard-core business. I suggest there would be no grey area in this bill and the franchise act to follow if it contained the proper wording contained in recommendation 1.1 of the Finding a balance report, namely:

. . . the committee recommends the Australian Competition and Consumer Commission be proactive in promoting compliance with the proposed new unfair conduct provisions of the Trade Practices Act.

In 2.2 of the same report it says:

. . . thus providing for courts to take into account whether or not business conduct is unfair and thus unlawful.

Those are the terms that should be in this bill, in my estimation. Hard-core business might be the reality, but small business has been suffering long enough under a litany of impediments and unfairness, much of it brought on by large absentee landlords or franchisors. The bipartisan, cross-party committee which tabled this report said:

. . . small business in its many dealings with big business often has to accept unfair terms and conditions on a take it or leave it basis. Small business people are then open to subsequent arbitrary or opportunistic conduct.

In the case of the Morrises, it is certainly that. I suggest that Brian Morris falls into this category. Although Australian Petroleum Ltd has given him nine months notice at the end of this franchise entitlement, he has certainly been given the boot. It is unconscionable, unfair conduct, because he was told just six weeks before that he had done the right thing and was told not to worry. In evidence to the fair trading inquiry, the Australian Institute of Petroleum's Mr James Starkey told the committee:

The AIP and its member companies fully support the concept of fair trading. Indeed, we believe that it is a central plank of a flourishing economy.

I send a challenge out to Mr James Starkey and his colleagues to review the case of the Morrises. I believe I will hear of other cases in my electorate, and other members will hear of cases in their electorates. Review those franchises. Why are they not being granted the opportunity to at least manage that multi-franchise site? At least give them that chance. They have just been kicked out and they do not believe that there is anything the government will do for them. I have told them that there is legislation in the offing; but it will not help them, I believe. They say, `Why wasn't it in place before?' Indeed, why not?

In the struggling city of Lithgow, Mr Brian Morris kept on keeping on for 14 years, did nothing wrong and was rewarded with the flick. Professor Andrew Terry, in his evidence to the inquiry, said:

Good franchising is so much better than independent small business operation and bad franchising is so much worse.

The Lithgow example is, on the evidence available to me, bad franchising. To make it worse, Mr Ewen MacPherson, also representing the Australian Institute of Petroleum at the committee hearings, said:

. . . if you go back over the history of the industry a reasonable dealer would expect over time to see that he would be renewed.

What about Mr Morris? I call on Australian Petroleum to restore the franchising entitlements to Brian and Betty Morris. I believe he has not only been a reasonable dealer but also certainly provided that `over time'. I sincerely hope the Morrises of the world after them—the people who follow them—will be covered by this bill and others to follow, the upcoming franchise legislation and the industry codes that they will embrace. I hope the Morrises of this world and other franchisees are covered from the situations that related to the inquiry. This bill is too late to help Mr and Mrs Morris. In fact such cases may well still slip through the net because, as the member for Cowan so inelegantly put it, perhaps this is just a case of hard-core business. As we all know, `hard-core' most often has connotations of the obscene.

In as far as this bill represents a toughening of regulation and codes of conduct through the ACCC, I welcome it. The bill does not reflect all the intents of the recommendations of the committee; but that I guess is the prerogative of government. But it does smack again of executive government. Again, like I alluded to in a debate earlier today, we have committees of parliament recommending one thing and government doing the other; but some would say that is its prerogative. It has treated the will, though, of the parliament through its committee with some contempt.

Small business needs a break. It is the engine room of the economy if given an even break. It can generate jobs if given a break, as Mr Morris has done for 14 years. It needs to be given a break from the impost, too, of workers compensation, unfair dismissal and the plethora of taxes. But it cannot any longer be hammered from both directions by unfair treatment from both government—until this bit of legislation—and big business landlords and franchisers; although the area the government is hammering it is in taxation and red tape, which we still have not slashed enough according to the feedback I am getting. I will be looking forward to the generic franchise act and the codes contained therein particularly relating to the oil industry. In as much as this bill does offer a net improvement to the lot of small business, I reject the opposition amendments and support the bill.

Mr Deputy Speaker, can I take some sort of indulgence, having spoken of Lithgow and its problems, and refer to the tragedy in Lithgow this afternoon when two local fire captains lost their lives in the bushfires. Their bodies, I understand, are yet to be recovered from the fire, which is still on the fringes of the city and headed at last reports away from Lithgow and across the mountains towards Bell. I bumped into the Prime Minister (Mr Howard) earlier this evening and he passed on his deepest sympathies to the families of those two tragic victims. I know everybody in the House shares my grief and that of the Prime Minister not only in the devastating loss of those two lives but also in the fires throughout the state. In the second day of summer, let us pray there is a break in this horrible season which is so frightening so early in the season. All our prayers are with those families tonight and other families of firefighters around the state. I thank you for that indulgence.