Speech
Senator JOYCE (Queensland) (9.29 p.m.)—I would like to start by acknowledging and thanking some people who have been involved with this piece of legislation. I acknowledge that the legislation has taken a dramatic step forward, although in the past I thought that this would not be the case. The first person I would like to thank is the Treasurer. He has listened. I will be so presumptuous as to term the government amendment ‘the Birdsville amendment’ because that is the town in which it was devised. It was devised in a motel room whilst I was travelling out to the west of Queensland. Taking that on board was a great step forward, not just for small business in Australia but for the way in which small businesses throughout the world assess market share.

I would also like to thank the Senate Standing Committee on Economics, which I see as a very informed and bipartisan committee. It works very effectively on some of these more complicated pieces of legislation. The members generally have their hearts in the right place. I would like to thank my colleague Senator Boswell who, for as long as he has been in this place, has been a fighter for small business. I hope that Senator Boswell sees this legislation as yet another endorsement of his career in working for small business. Senator Boswell and I—being National Party senators from Queensland—have been working with small business to try to get a better deal.

I would like to acknowledge Senator Murray from the start. This legislation, which we all know he has an extremely strong connection to, will possibly be one of the last pieces of legislation he deals with. Senator Murray has been one of the most diligent and hardworking senators to have graced this chamber. If you want an expert on this issue and if you want someone who will go through the fine detail and who is always a gentleman in the way in which he deals with other people doing committee work, then Senator Murray is a pretty good exemplar. I would like to acknowledge the efforts he puts in.

Finally, I would like to acknowledge the support of all colleagues, but especially my National Party and Liberal Party colleagues, who have put up with what they would see as my irrational and threatening behaviour at times in trying to get a better deal. There are some people who have said tonight that they believe this legislation could have gone further—that will always be the case—but they must agree with what we have. It is always easy to say we should have gone further and not acknowledge the point which we have reached. The point we have reached is a major step forward. I know it is major step forward because people such as the Australian National Retailers Association—who inform me that they were founded in 2006 to become the voice of large-scale retailers in Australia—have big problems with my amendment. That, for me, is a great endorsement.

We have to look after small business. Small businesses encapsulate the freedom of living in this nation—the freedom to go into business, to be master of your own ship, to determine your own destiny, to profit by the sweat of your brow and by so doing to espouse that freedom in the way you think and the way you act in society. Small business is the absolute seedbed from which the freedom of democracy is built. You have to make sure that you keep looking after that seedbed so that you keep the ability for people to enter at the ground level and prosper.

One of the things that the Australian people have spoken loudly on—whether it be on the Alan Jones show; Today Tonight; Leon Byner, in South Australia; or Steve Austin up in Queensland—is the fact that the scale has tipped too much in favour of big business. That needed to be addressed. In this legislation we are addressing that. We are taking that issue on board. There is a substantial change here. The substantial change is to do with the assessment of predatory pricing and the move to ‘significant market share’ and away from ‘substantial lessening of competition’.

I just want to run through those two terms because they are very important. The ‘substantial lessening of competition’ test, as Senator Stephens pointed out, was the premise that you had to prove that someone had the ability to put up prices without losing market share. Unless you could pass that test you could not proceed with a predatory pricing case. The only people who can put up prices without losing market share are monopolies. That issue had to be addressed. In this legislation and the amendment that the government has put forward that issue is addressed. We are now moving to a completely new definition which says that a corporation that has a substantial share of a market must not supply goods and services for the purpose of eliminating or substantially damaging a competitor, preventing the entry of a person into a market, or deterring or preventing a person from engaging in competition. To put that in another way, a big supermarket cannot drop its price below cost to put the corner store out of business. A big liquor distributor attached to a big supermarket cannot drop the price of a case of beer to a level that puts out of business every bottle shop in town. That is now illegal, and that is a major step forward.

Some people say that it is going to be the end of discounting. What a load of rubbish! When you do it with the motive of destroying small businesses—those mum-and-dad businesses which are the cornerstone of our economy and which encapsulate the aspiration of freedom to advance within Australia—then you are breaking the law. That is why this amendment and this legislation has been so well received today. It has been unanimously well received, whether it was on the Alan Jones show, Leon Byner’s show, or the ABC in Melbourne. People have been looking for this and this is a dramatic step in the right direction for the protection of small business.

The other issue that is dealt with is the conjecture that has surrounded the recoupment test. The recoupment test is the belief that you have to prove that the person who put you out of business is going to put up the price to recoup the loss that they incurred in that action. It has never actually been defined, but it has morphed into that through the actions of the court. The explanatory memorandum in this bill clearly deals with that issue, and no doubt we will be hearing about that in the second reading speech as well. That is something that needs to be put to bed, because it was one of the problems that emerged from the Boral decision in 2003. That issue has hung around and stymied—in fact, not stymied but completely stopped—the process of predatory pricing cases. There have been no successful predatory pricing cases since the 2003 Boral decision. If we believe in predatory pricing, we must believe in dealing with the issues that have stymied the progression of those cases, and this deals with them.

This bill reflects hard work and the aspiration of democracy. Certainly within the National Party—I am not fully aware of Liberal Party resolutions; I imagine they have been the same—there have been unanimous resolutions from our state conference in Queensland that started on the ground and said people wanted this issue dealt with. When the democratic process of the state conference indicates they want an issue dealt with, you have the responsibility when you get yourself to Canberra—if you are so lucky as to have the honour to represent your nation—to try and progress it, to try and pursue the issues on their behalf. It is good to be able to go back to your membership of the National Party in Queensland and say: ‘You’re a member of a political party because you want to see change. You asked for change, and here the change