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Friday, 25 November 2011
Page: 9652

Senator XENOPHON (South Australia) (11:44): I have a couple of comments to make on the Competition and Consumer Legislation Amendment Bill 2011. I did not have an opportunity to speak to it during the second reading debate, not through any lack of trying on the part of the minister, who graciously tried to see where I was—I was in another meeting. I will make a couple of short contributions that will lead into the amendments that I will be moving shortly.

I do not oppose this bill, but I believe that it could be improved. That is why I will be moving amendments to omit the word 'substantially' and substitute the word 'materially' when it comes to mergers. It is my view that the ACCC does not have the legislative firepower that it needs to deal with the issue of mergers. Having the word 'materially' rather than 'substantially' with regard to lessening competition would make a very real difference to the highly concentrated markets we have here in Australia. We have a situation where Woolworths and Coles control some 80 per cent of the dry grocery market. We have had too many mergers that have been approved by the ACCC under the current legislation. We have seen the difficulties in the grocery sector with petrol and we have a looming problem with the liquor market, and the word 'substantially' does not do the job that it should—it is too high a test. That is why I am grateful for the work that Associate Professor Frank Zumbo, from the University of New South Wales, has done in relation to this and other competition issues.

I have some questions for the government. I am aware of the time constraints and I will be short and succinct. I am concerned about the amendments to the definition of unconscionable conduct in this regard. My question is as follows: the government is going to include a number of paragraphs in the legislation that set out examples of unconscionable conduct. It is quite proscrip­tive, but I ask the minister whether what is proposed in the bill is essentially repeating what the courts have said in previous cases? Do these amendments expand the scope of the unconscionable conduct provisions in the legislation? I will start off with that, and I had two or three more questions after that.