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Thursday, 6 April 2000
Page: 15431


Mr McCLELLAND (1:13 PM) —I rise with the minister's concurrence in support of the amendments about the quarterly reporting of the ACCC and also the attendance of Professor Fels. There are important issues to determine. The first point, which Professor Fels would be able to explain, is the impact of Wakim. While the minister says, in good faith, I believe, that the advice from his department is that re Wakim does not impact on this area, his department should have a look at items 74 through to 83 of the Jurisdiction of Courts Legislation Amendment Bill 2000, which went through this House yesterday. Wakim decided that federal courts cannot exercise state jurisdiction. Those items of the bill took away those provisions accepting state referral of power under the price exploitation code, so those state matters must now be dealt with at a state level in the state courts. Professor Fels and his enforcers of this code will have to put on their running shoes, because they will have to run between the federal courts, the state courts—and, of course, Professor Fels has one or two media appearances regularly on the side that he needs to skip along to. But it is going to be a real dog's breakfast, as the shadow Treasurer said, because of this multijurisdictional issue. There is no longer one enforceable code as a result of re Wakim. The minister again candidly said, `Well, the Hughes case could have an impact.'

I note that yesterday the Attorney-General said that his department was examining potential repercussions of the Hughes case and it would be advisable for the minister's department to urgently confer with the Attorney-General because there is a real and substantial prospect of this arrangement being overturned—that is, the ability of the ACCC to administer and enforce state legislation. The shadow Treasurer has referred to the advice of Graham Hill, who is a legal officer in the Attorney-General's Department, and in particular to his advice that the incidental power in these cases suggests that the Commonwealth may be able to permit a Commonwealth body to perform state administrative functions `only if the exercise of those state functions enables the body more effectively to exercise its Commonwealth functions'. In this case, the ACCC will not be exercising any Commonwealth functions; it will be exercising entirely state functions in its enforcement of the price exploitation codes in the state jurisdictions. There is a real prospect. Indeed, if there be any doubt whatsoever, one need only look at page 86 of the transcript in the Hughes case—

Government members interjecting


Mr McCLELLAND —No, in the Hughes case. One need only look at page 86 of the transcript, not the judgment, on 1 March this year, where Justice McHugh said:

The Commonwealth executive power is not so extreme that it can be used to interfere with the traditional understanding of the distribution of Commonwealth and state functions and powers.

There were similar comments throughout that case to that effect. I said in my earlier contribution that there is a wave the size of Krakatoa on the horizon, that it is going to hit this land and hit it hard and that it will demolish at least the state aspects of the price exploitation code. What I would like the minister to contemplate, and I would ask him to concede, which no doubt he will not, is the reality that when that tidal wave hits—all states will have to do precisely what Queensland is doing and establish their own regimes because it will not be possible to use the ACCC to administer and enforce those regimes. There is a real risk that the enforcement regimes of the states will be dissipated and dismantled because of the assumption that the ACCC will be able to continue in this role.

I suspect it will be the case—and it would be regrettable—that that will all be put asunder when the Hughes tidal wave hits. All the states will have to do what Queensland is doing. With the greatest of respect to the minister, he will have to stand up here and wipe egg from his face when he introduces legislation to facilitate that occurring. It is not a trivial issue and the minister should urgently be getting advice regarding the consequences of Hughes and tabling it. (Time expired)