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Thursday, 15 March 2012
Page: 3090


Mr FLETCHER (Bradfield) (13:18): I rise to make a further contribution in relation to the merits or otherwise of the 64 amendments that have been provided to the House at very short notice by the Minister for Employment and Workplace Relations. Again I want to come to the question of the merits of the provisions proposed to be added to the bill dealing with the authorisation of conduct which would otherwise be anticompetitive. I am referring to the provisions of proposed clause 37A. Mr Deputy Speaker, I would also like to take you to proposed clause 32A. You will notice that under clause 32A(2) the tribunal is to weigh up the benefit of the agreement against any 'detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the Tribunal approved the agreement'. So we have the tribunal charged with the task of assessing the impact of a particular agreement on competition.

As you will have noticed, Mr Deputy Speaker, the language in proposed clause 37A is quite specific. It says:

(2) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, entry into an approval-pending road transport collective agreement … is specified in and specifically authorised by this Act.

The point is that it refers specifically to an approval-pending road transport collective agreement. If you go back to proposed clause 32A, you will recognise immediately that what is referred to here is an agreement that is pending approval by the tribunal. If the tribunal approves the agreement it is automatically authorised by reason of the operation of proposed clause 37A.

This raises a number of serious policy issues. One of them is this: what are the qualifications of members of the Road Safety Remuneration Tribunal to deal with the issue of the impact of a collective agreement on competition? Clause 79 of the bill describes the composition of the tribunal. Clause 79(2) states:

The Tribunal consists of:

(a) the President; and

(b) at least 2 and no more than 4 persons who are experienced in workplace relations matters; and

(c) at least 2 and no more than 4 persons who have knowledge of, or experience in, one or more of the following fields …

None of those fields is competition law. None of those fields is the impact of collective agreements on competition. If the House were to accept these amendments—the 64 amendments moved by the minister at very short notice—and pass them into law a consequence would be that the tribunal would be put in the position of assessing the competition impacts of agreements in the road transport sector without having any expertise regarding such matters.

Mr Deputy Speaker, I need hardly remind you that competition law is specialised. It raises many difficult issues. An entire agency of the Australian government, the Australian Competition and Consumer Commission, deals with these issues. But it seems that this government has not seen fit to make provision for persons with such expertise to sit on the tribunal, even though the powers of the tribunal have been expanded to weigh up the merits of an agreement against any detrimental consequences to competition that might follow. I might add that taking the overall policy scheme under which road transport collective agreements are specifically authorised outside the operation of the Competition and Consumer Act is very bad policy. It is the kind of policy that we have come to expect from a government that has no commitment to competition. It has white-anted it in telecommunications and it is white-anting it here.