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Monday, 18 June 2001
Page: 24504


Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (6:20 PM) —I move:

That the committee insists on the amendments made by the Senate to which the House of Representatives has disagreed.

I would like to make some remarks in relation to the Trade Practices Amendment Bill (No. 1) 2000. Senators will recall that the last time this bill was before the Senate the government flagged the view that the provisions we are dealing with, which the ALP, the Democrats and I think some other senators voted to excise from the bill, relates to provisions that enable the ACCC to take representative actions on behalf of them, particularly in relation to the secondary boycott provisions.

The government has made a decision that has been flagged publicly that it will not hold up the many other benefits that will flow from the reform of the Trade Practices Act by seeking to continue the disagreement between the two houses on this issue. I certainly would like to make it clear that the government is committed in a policy sense to pursuing this. We are somewhat bamboozled at the incredible backflip performed by the Australian Labor Party. It is probably not incredible when you are made aware of the policy paucity, the policy laziness, on the other side and also the incredible power that the trade union movement has over Labor Party members and senators. It is not surprising that that power exists, because most members on the other side of the chamber are either active union members or have come from careers within the union movement.

During the last debate, I believe Senator Andrew Murray made the point that he would like to see far greater disclosure of the union movement's donations and influence over the Australian Labor Party. What occurred during debate on this bill earlier this year should ring loud alarm bells with not only Senator Murray and the Australian Democrats but also anyone who cares about parliamentary democracy. We saw on a series of occasions late last year a range of Labor spokesmen making comments about not only how desirable this bill was for Australia but also how desirable this very provision of the bill was for Australia. I quote none other than Joel Fitzgibbon, the shadow spokesman for small business, on 9 November 2000 at approximately 1.22 p.m. in the House of Representatives, when he said:

The ACCC already has the power to take representative actions under parts IVA and V of the act, and it makes sense to extend that to part IV.

... ... ...

This is a sensible amendment and both the Reid committee and the Joint Select Committee on the Retailing Sector unanimously recommended it.

This chap in the other place was very enthusiastic, and he was joined in his enthusiasm by Mr Kim Wilkie, who I might say is very hard to get enthusiastic about anything. But on this issue Mr Wilkie became almost animated, which again is unusual for Mr Wilkie. He said:

It gives small businesses more reasonable powers to be able to seek redress and fairness ...

He is right. On this occasion Mr Wilkie actually got it right. It may have been an aberration, but he is in fact right. He said:

It gives small businesses more reasonable powers to be able to seek redress and fairness in relation to unconscionable conduct. It is a most important bill—

right again, Mr Wilkie—

given the lost opportunities that the government has had since it came to power to amend and improve the Trade Practices Act.

I tell you what, Mr Acting Temporary Chairman, it is pretty hard to amend things like the Trade Practices Act when you have to bring the bills through this place, the Senate, when you have the trade union movement's advocates sitting on the other benches. Mr Wilkie also said:

Small businesses are crying out for fairer competition laws ...

Hear, hear, Mr Wilkie—yes, they are, and they are crying out for representative actions. So Mr Wilkie was behind us at 5.08 p.m. on 9 November, and he was joined by Stephen Martin, another Labor member. On 27 November, Mr Martin said:

As I have indicated, they certainly chose to support the measure that the Trade Practices Act be amended to give the ACCC the power to undertake representative actions and to seek damages on behalf of third parties under part IV of the act—and that is great; Labor certainly supported that.

Stephen Martin would know this, because I think at one stage he was the shadow minister for small business. So he would have actually spoken to small businesses about this. At the risk of boring you, Mr Acting Temporary Chairman, I will just repeat what he said:

... and that is great; Labor certainly supported that.

That is, the power to undertake representative actions and to seek damages on behalf of third parties.

And what are we talking about? What is Mr Martin talking about? He made the point that I made back in March—that is, that taking action under the secondary boycott provisions is something that a Woolworths or a Coles can do because they have a legal department and they have significant resources. If you are the little local super value store or the little local grocery store and you are being affected by a secondary boycott—you might have a lawyer you employ every now and again for contractual or commercial reasons, but you probably never contemplate suing someone and taking action under the Trade Practices Act because of the resources you would require—you would need a bank account of potentially hundreds of thousands of dollars to take these sorts of actions.

The government has sought to put these provisions in the law to ensure that those small businesses—which are obviously in head to head competition with massive nationwide and sometimes internationally based organisations which can afford big legal departments and big legal bills—are provided with an option, a remedy, a course of action that is open to small businesses. Labor has said no—and sadly they have said no to this important provision with the support of the Australian Democrats. Kelvin Thomson, another Labor member of the other place, said:

The ACCC currently has the power in part IVA and part V, so this change will help make the act more consistent and help to protect small business people. Let me also indicate that I think these changes are very modest and that more action is needed in this area generally.

So he was saying that we should go further—but, again, he was supporting it. That was on 28 November 2000 at 4.51 p.m.

What happened between 4.51 p.m. and 5.12 p.m. on 28 November? This is something that Senator Murray should look at very closely. Anyone who is contemplating a vote for Labor, but who is concerned about the incredible and quite often insidious influence of the trade union movement upon people who are elected by the people and come into this place, should look closely at this and ask Labor: who took a phone call on 28 November 2000 between 4.51 p.m., when Mr Kelvin Thomson spoke in the other place, and 5.12 p.m., when Mr Bevis, the shadow minister for industrial relations—not small business; nothing to do with the Trade Practices Act—spoke? It was 21 minutes. That 21 minutes is the closest parallel to the faceless men photograph and description of the Labor Party back when Gough Whitlam was trying to reform the Australian Labor Party. In that 21 minutes a phone call was received by someone in the Labor Party in this building from someone outside the building. We will not hear who they were, Senator Murray, because they do not have to reveal these sorts of things. Mr Bevis said:

... the Labor Party do not believe that the secondary boycott provisions should be dealt with under trade practices law.

Sitting suspended from 6.30 p.m. to 7.30 p.m.


Senator IAN CAMPBELL —The point I was making before we suspended an hour ago was that between 4.51 p.m. and 5.12 p.m. on 28 November—I am assured that it was a period of about 21 minutes—a telephone call was made from someone in the union movement we would suggest and we saw the Labor Party do one of the most miraculous backflips in Australian political history. Within less than half an hour they went from saying, `What a fantastic amendment this is that we are debating tonight,' to saying—in Mr Bevis's speech on 28 November at 5.12 p.m.—that this was part of some ideological campaign in the industrial relations community by the government. I will remind the chamber that this was 21 minutes later. I find this quite incredible, and it is the only evidence you need to know that the Labor Party in government are certainly a government of the people, by the people, for the people, as long as those people are trade union officials. Twenty-one minutes after Mr Thomson said that this was an important change and a good change to the legislation, Mr Bevis said:

... the Labor Party do not believe that the secondary boycott provisions should be dealt with under trade practices law ... it is our intention to move amendments to carve out the secondary boycott provisions from this bill so that it is clear that the wider, more extensive powers that the bill affords the ACCC are not used as a backdoor method by the government in its ongoing ideological campaign in the industrial relations community.

That comment was made at the same time that Joel Fitzgibbon, the shadow minister for small business, was saying, `This is a sensible amendment'. Mr Wilkie, the member for Swan, said that `small businesses are crying out' for this, and Mr Martin said that this would give the ACCC power `to take representative action and to seek damages on behalf of third parties for breaches of part IV of the act'. That was great. Labor certainly supported that. But 21 minutes and one or two telephone calls later, a huge backflip occurred. We know who is in control of the Labor Party. That seems to be the only reason that Labor have given for this incredible backflip, this awesome abuse of union power within the Australian political process and this abuse of small business. We want small businesses to be able to go to the ACCC and seek the use of representative actions in the case of alleged secondary boycotts. The Australian Labor Party and the Australian Democrats do not want small businesses to have that open to them. In fact, the union movement do not want the people to have that open to them.

The ALP's contention is that the government could use the powers afforded the ACCC in some mythical, ideological campaign. In fact, the record shows that the ACCC has been in a position to take action against secondary boycotts since the current provisions came into effect in 1997 and in that time has undertaken only a handful of cases. Under section 29 of the act a minister cannot direct the ACCC on part IV matters. As I think all Australians know, the ACCC—and I challenge any member of the Labor Party to allege otherwise—guards this independence closely. Small businesses can take action under the Workplace Relations Act but those actions are necessarily restricted to actions provided for by that act and generally speaking must be employment related. The Workplace Relations Act does not give small business the right to take actions arising out of an alleged breach of the anticompetitive conduct provisions, including the secondary boycott provisions of the Trade Practices Act.