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Tuesday, 11 February 1986
Page: 67

Senator SHORT(6.50) —The Trade Practices Amendment Bill, and the handling of it, provides a very good example of two things that responsible governments should not do. Firstly, they should not introduce legislation on which those in the community who will be most affected have had insufficient time for appropriate comment or input. Secondly, they should not rush legislation through the Parliament with no opportunity for reasoned or measured consideration. Yet the Government is guilty on both counts with this legislation when we consider its history through the House of Representatives last year. For example, concerning one of the important provisions of the Bill, the product recall provision, a white paper was put out by the Government-a discussion paper-on 21 June making various proposals about the proposed legislation and seeking reactions and submissions from business and other interested groups in the community by the end of August.

That was a very admirable procedure but what happened? Five weeks later the Bill was in the House of Representatives. Particularly given the nature of the submissions received-some were very detailed and important-no one can tell me that it would simply not be possible for relevant government departments, let alone the political process of government itself, to give those submissions due consideration and to get them into the Parliament within five weeks. That task really boggles the imagination, if the Government were really serious about taking account of the views put to it.

The Bill went before the House of Representatives on 9 October and subsequently in November it was steamrollered through the House along with the many other pieces of legislation that the Government pressurised through at the end of the last session. In fact, so eager was the Government to get that Bill through the House last year that it was circulating amendments to its own proposals on the very day that the Bill was debated and voted through the House. What a mockery that makes of the parliamentary processes.

I put it to the Government as a general proposition that if we are to have responsible and serious government in this country there must be a much greater regard for the due processes of consideration of the important issues of the day that affect us as a community or important sections of the community. We do ourselves and the democratic process a disservice by treating important legislation in the way we so frequently do. It is a criticism that can be made certainly of this Hawke Government but previous governments have not been exempt from such criticism. As parliamentarians, we have a responsibility to say to governments of whatever political persuasion: `Let us have a proper look at what we are doing'. If we do not, we will get bad government, bad laws and we will rightly deserve the opprobrium of the community which, I believe, the parliamentary process has at the moment.

This lack of appropriate consideration of the trade practices amendment legislation, which is a major legislative package, has merely reinforced the entrenched ideology of the Hawke Government by producing a Bill which is anti-business and, despite protestations to the contrary in the second reading speech of the Minister for Industry, Technology and Commerce (Senator Button) and in some of the contributions made in the Senate and the House, it is not only anti-business but also anti-consumer because of the cost implications. The cost of additional regulation has to be passed on. In the end it is the consumer who pays. We have an anti-business and anti-consumer piece of legislation because it is extremely costly. We do not have an exact costing of this legislation but it has been estimated that the direct cost to the business community will be of the order of $50m and could well be considerably higher.

We have a repeat of the old Australian Labor Party socialist philosophy that industry and the community can be improved by more and more regulation and involvement by government in telling sections of the community what to do and what is in their best interests. This Bill flies in the face of what the Government professed to be its concern to reduce business regulation over the last couple of years. The Prime Minister (Mr Hawke) in his 1984 election policy speech, less than 18 months ago, said:

Over the next term of Parliament we will remove legislation and regulation which is damaging to business and employment expansion and which is not justified as an efficient means of promoting economic and social objectives.

That is a direct quote from the Prime Minister's election policy speech for 1984. In mid-1985 the Government, to its credit, set up a Business Regulation Review Unit to apply a cost benefit approach to new regulatory proposals and to seek out existing regulations which might be eliminated. Not one of those objectives leading to the establishment of the Business Regulation Review Unit appears to have been met in this regulatory passage before the Senate.

As Senator Puplick mentioned, the first report of the Business Regulation Review Unit was released only a couple of weeks ago. Among other things the report said that the unit has found more than 30,000 Commonwealth public servants to be employed in administering business regulations at an annual cost to the taxpayer of $1,400m. That is an estimate for the Commonwealth Public Service alone. The Secretary of the Confederation of Australian Industry, Mr Overland, is reported as saying that for every officer employed by the Commonwealth there is at least another employed in the private sector. That adds another $1,400m to the cost to the community. Mr Overland is also reported as saying that if we add State and local government regulations the cost can be quadrupled.

On that basis, the total annual cost to the community of the regulation of business in Australia could well exceed $10,000m per year. Even if that is an over-estimate, a substantial discounting of that figure would still lead to the inevitable conclusion that the community faces an enormous cost through business regulation. It is an enormous drag on business activity. No wonder we are rapidly falling behind as a nation in terms of our international cost competitiveness. We need to get off the back of business, not to strangle it with an ever increasing burden of regulation. Obviously, that is not to say that no new regulations are ever necessary or desirable.

Before we add to the already overwhelming mass of such regulation, we need to exercise the closest scrutiny, and that quite patently is not being done in this Bill. It is for that reason that the Opposition seeks to refer consideration of this Bill to the Standing Committee on Constitutional and Legal Affairs to enable some of its detailed provisions to be examined in a way that has not occurred to date. I cannot understand the reason for the Government, and presumably the Australian Democrats, not supporting this proposal. The Democrats say that they believe in looking at the efficiency of industry and in protecting business, be it large or small business, from the vagaries of ever bigger government. The only way one can do that is to satisfy oneself that any additional regulations that are being proposed have a sound basis for their imposition. We do not have that in this case at this stage.

I will reserve detailed comments on the provisions of the Bill until the Committee stage but I foreshadow that there are certainly several issues that concern me very much and, as has been outlined by Senator Durack and others, that concern the Opposition very much. The proposed changes to section 46 are an obvious example of that. Senator Puplick in his comments quoted from the submission to the Attorney-General (Mr Lionel Bowen) from the Business Council of Australia of 15 November 1985. I support the Business Council's views on this and the comments made by Senator Puplick. Without taking a final judgment on section 46, I am concerned that organisations like the Business Council of Australia and the Law Council of Australia, which have considered these matters and provisions very carefully, have come to the conclusions that they have. I quote from the letter to the Attorney-General from the Business Council which states:

The cumulative effect of the changes to Section 46, as they now stand, means that the primary thrust of the Act will be directed towards damage to individual competitors rather than damage to competition itself.It goes on to state:

If we are to ensure the maintenance of a vigorous, efficient and internationally competitive Australian industry, we believe there is an urgent need for the Government to remove unnecessary uncertainties and confusion which currently exist in the proposed amendments to Section 46.

If the business groups in this country are saying that type of thing, surely it is incumbent on the Government at least to give those claims the closest scrutiny and consideration. There is no evidence that the Government has done that. Section 46 is a matter of major concern and so are the mandatory product recall provisions in the legislation. Several well researched sub- missions have been made to the Government on the matter of recall procedures. Even though it is a reserve power that is being proposed, there are various matters for concern in that. For example, as I understand it, the reserve power does not contain a requirement that, before a mandatory control power is used, a product must first of all have been banned from sale. There is the issue that the mandatory reserve power to recall products is not, as I understand it, subject to independent administrative law review. In terms of the mandatory provisions, there is the whole question of the role of administrative decisions and administrative law vis-a-vis the common law processes of this nation. That is another area that certainly concerns me.

Beyond those two and other specific provisions in the Bill, I believe that we need-I am not suggesting that it can be done in the context of this Bill-to look more closely at the whole philosophy behind the Trade Practices Act. Senator Puplick and others outlined the history of this Act in Australia. It goes back a long way. Consideration of it goes back to the days of the Menzies Government. We then had the impact on it of the Whitlam Government's ideology and policies. Then we went through the Fraser period and now we are in the Hawke Government period.

I have very grave doubts as to whether any of us have looked sufficiently at the Trade Practices Act as it now stands to see whether it is an internally consistent document in terms of its philosophy and its spirit. I believe that we have not looked at it to that extent and indeed that it is not such a document at the moment. We also need to look at its relevance to the needs of Australia in the 1980s. We talk about the need for rationalisation. We talk about the need for restructuring. That is very desirable. But we have Acts of Parliament with provisions that are contrary to the encouragement of some of those processes and to the encouragement of greater competition and international competitiveness on which this nation will depend for the future living standards of all Australians. There are some very considerable issues at stake here.

With respect to the Attorney-General, I happen to believe that the Trade Practices Act is in the wrong portfolio. It is essentially a business Act. Sure, it is a piece of law but in my view the Trade Practices Act should be within the portfolio of a Minister with specific economic and business responsibilities. I appreciate that is not a matter for debate here but it is a matter that I hope the Government will consider in due course. I will reserve further comments until the Committee stage.