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Tuesday, 10 February 2009
Page: 729


Mr OAKESHOTT (3:44 PM) —Before I begin speaking on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 I would like to put on record very briefly the views of the mid-North Coast of New South Wales, following the very generous and passionate comments from others in relation to both the Victorian bushfires and the Queensland floods. I represent an area which is geographically between the two natural disasters that are currently going on. Whilst the mid-North Coast is not physically affected, many in the region are very touched emotionally and their thoughts are with family, friends and communities affected. The communities of the mid-North Coast are also helping through offering financial assistance, donating blood and contacting family and friends. We also have one of the major Centrelink call centres, which is dealing with many calls in relation to both natural disasters. At a local level our thoughts are also with those taking those calls. All support locally will be in place.

I turn to the bill before the House. After four months in this chamber, having seen $70 billion spent by government in relation to many financial affairs, I consider this to be of equal significance in finally dealing with the issue of cartels within Australia and their impacts on local communities throughout Australia. When I first spoke in this chamber three to four months ago, I said that I would advocate as much as possible not only on behalf of the 90,000 residents of the mid-North Coast of New South Wales—and in this particular legislation you can change the word ‘residents’ to ‘consumers’—but also on behalf of the business community of the mid-North Coast of New South Wales, which is one that is 95 per cent dominated by organisations of five employees or fewer. The two groups that are going to feel the full impacts of cartel behaviour are those in the micro small businesses in local communities and regions such as mine and consumers who are paying too much for the end product. We are finally seeing legislation that is dealing with cartel behaviour and treating it as what it is, which is essentially theft, fraud and criminal behaviour. That is certainly long overdue and it is welcomed. I thank the government for bringing it in and for making it fit into the federal jurisdiction.

For some reason, and it has always confused me, Australia seems to lag with regard to cartel behaviour. Whether it is because the concept is probably not cracking through to the common psyche as much as it could, whether it is because of our penal background, whether it is because of our larrikin nature in trying to beat the tax man—whatever the reason is—I would hope that there is an educational element in this legislation that is going to make very clear to the common man and woman on the street that cartel behaviour is probably the most significant offence in a market economy with regard to impacts on the consumer and the small business on the street in regional areas such as mine.

I support this legislation as it upholds a couple of fundamental principles of justice under the rule of law, one being consistency. It is crazy that we could have eight different players involved in the one cartel that may be based in eight different states and that they would be treated differently by eight different jurisdictions, with eight different outcomes. There would be a fundamental inconsistency in the way the message of the consequences of cartel behaviour would be sent to communities. There would be an inconsistency in the fundamental principles of the rule of law. This would lead to fundamentally inconsistent outcomes in dealing with cartel practice. So consistency is a critical and important aspect of these changes, which I certainly welcome. I know these issues have been highlighted by others far more eminent than me, such as Justice Weinberg and others, in promoting the argument that there is a problem that needs to be addressed to achieve greater consistency in dealing with cartel behaviour.

Fundamentally, there is the issue of relevance. All of us, if we are being good local members, respond to frustrated letters about price fixing in all its forms, whether at the petrol bowser or in the shopping centre. If this legislation can start to up the ante in putting pressure on those involved in illegal activity and in developing more transparent practices at the top end of the market economy of Australia then I think it will make some substantial changes that will be recognised in local communities such as mine and I am sure in the other 149 electorates throughout Australia.

The laws in respect of cartel practices need to be relevant. Consumers have been complaining about many issues that they feel aggrieved about. We can start to shoot some of them home with regard to cartel behaviour. There is the high profile example of last year in which small business operators in their many forms around Australia who were involved in the lower levels of the chain of that particular product were left out of pocket. Where is the deterrence for that future behaviour unless there is legislation such as this? This is an important reflection of those frustrations at a community level and, hopefully, it will achieve some good outcomes on behalf of small business and consumers, particularly, from my point of view, in regional areas.

The constitutional issues that are contained in this legislation are also fascinating, with the Federal Court sticking its nose into indictable offences for the first time. I wish the court luck. I hope that this is the start of an expanded role of the Federal Court and I wish it success in this particular field. I am one who shakes their head that it is 2009 and we are still having these jurisdictional issues. I certainly hope that this is a success and that the laws can be expanded into other areas with regard to criminal practices, again, based on the two previous points I raised on relevancy in local communities and on consistency in the delivery of law.

I note the comments and concerns raised by the Law Council of Australia, the coalition and others on issues of the accused’s right to silence and bail. I also note that we can argue about that in this chamber until we are blue in the face until we have some test cases that start to define some of the terms in question. The government could try and be as prescriptive as possible on some of the definitions in question but let us have a look at the notes, practices and definitions that come from the court. I hope the Attorney-General has a watching brief so that, if it does not go in the direction that I hope we all want it to go, we can see further legislation or regulations come through this chamber.

Finally, whilst the Attorney-General is here, there are some issues relating to cartel practice that I would like to raise. This is an opportunity for cartel practices to take a greater role and significance in law enforcement, competition law and trade practices law in Australia. I would be very interested to hear responses from the Attorney-General with regard to the consideration of specialisation and, potentially, a cartel branch within law enforcement operations. It would marry up nicely with this legislation, and the Trade Practices Amendment that is coming up soon, to see greater resourcing for the specialisation of law enforcement and the fingering of cartel practices at the highest level. In addition, with regard to criminal jurisdiction and cartel practices, it is noted from various international jurisdictions that reached this point earlier than us that there are still some question marks about the use of those laws. It is one thing to have these laws but it is another thing to use them. From the various surveys that have gone on in the various jurisdictions, the actual use of the laws is still relatively low. Imprisonments from the sanctions that are being proposed today are relatively low. If we are going to take this step and put this legislation in place, I hope that what comes with that is the upping of the ante in respect of the concept of cartel practices throughout Australia, and with that comes the clear message to directors, shareholders and anyone involved that this is a no-go zone; it is something that is the complete antithesis of everything about a market economy that is operating in the people’s interests.

We are in the people’s chamber. I hope that vested interest can be put to one side by all the various players in this chamber and that we are advocates and lobbyists for people. If we are, we would then place great significance on this legislation today. I hope that it is used, used well and that we can have the market economy that we all want to see operate in the people’s best interests in Australia today.