Deputy President, Senator Whitten should take his own advice with respect to unfair trading practices and stop spewing this rubbish that there is actually a uni-party in this place.
I can remember, Acting Deputy President, standing in this place and calling for greater powers to deregister trade unions engaging in corrupt practices. Senator Whitten was not here, but he comes from the building industry, and One Nation voted against that enhanced control and that ability to deregister trade unions engaging repeatedly in corrupt practices. One Nation stood with the government when that legislation, introduced under the Morrison Government, was considered.
So, while we are talking about unfair trading practices, maybe we should talk about unfair political representations, like the one you just made, Senator Whitten.
Having said that, I did agree with much of what you said in relation to the delegation of executives, but I reject this rubbish about there being a uni-party. I have consistently voted against legislation put forward by the Labor Government in accordance with Liberal values, and while I have been in this place for the last seven years, I have consistently voted for Liberal values. So I reject this rubbish, this propaganda, this misleading political rhetoric about there being a uni-party. It is nonsense. It is rubbish.
Now, Acting Deputy President, I would like to move to the bill.
First, Senator Darmanin, we must catch up. You must tell me about this subscription service, and I promise to give you the benefit of my 25 years in the legal industry, at no cost, to come up with strategies by which we can hold them to account. But I would say to you that perhaps we do need to make public the names of these businesses that are engaging in this sort of unfair practice in relation to subscriptions.
I do sympathise with you, and I noted how prudent you are when you enter into these arrangements. I am at the opposite end of the spectrum. My beautiful wife, Louise, would say I am a spendthrift, so I suspect my credit card statement is full of subscriptions I do not even know I have and which I need to purge. But thank you for that contribution.
Senator McKim, I was not aware, I must say, of the nuances in relation to—or, indeed, what you referred to as the elephant in the room—in terms of these laws not applying to financial services products. I think you made a number of very relevant points, and I know that you have a longstanding commitment to prosecuting these issues.
Due to changes in my responsibilities over the last six months, I have now rejoined the Joint Standing Committee on Corporations and Financial Services, and it is certainly something I will be looking into further, including the comments you referred to that were made by Commissioner Kirkland, for whom I have a great deal of respect. So thank you for that contribution.
I would also like to acknowledge the work of the Economics Committee in the preparation of the report. Looking into this from somewhat of a standing start, I thought it was an excellent report. I thought the positions of all stakeholders were weighed appropriately and reflected in the content of the report. So, as a former Chair of the Economics Legislation Committee: good job.
Now, I want to make three points in relation to this legislation.
The first is that the Senate’s main role is to act as a House of Review. What does that mean? It means that when a piece of legislation comes to the Senate, we should all try to work collaboratively together to improve the legislation, to make sure it does not have unintended consequences, and to ensure it is reasonable and proportionate and does not place disproportionate burdens on individuals or small businesses, as Senator Canavan referred to.
In undertaking that process, we must always remember that it is easy for us to pass laws in this place that other people then have to abide by and implement in their day-to-day lives.
We heard from Senator Little that the regulatory impact of this law is estimated at about $123 million for one year. That is $123 million that businesses—particularly small businesses, accounting for over $100 million of that total—will have to find in order to comply with this legislation.
If there is a way we can reduce that regulatory burden, I would argue, Acting Deputy President, that we should try to identify it and work collaboratively together to pursue that course.
In that respect, the Coalition has put forward a number of what I believe are sensible amendments, and I want to speak to those amendments.
Whenever we are imposing additional legal obligations on anyone in this country, I think we need to ask ourselves whether the obligation we are imposing is clear and easily understood.
In this case, I think the obligations around subscriptions, and the obligations with respect to drip pricing—which are specifically defined in the legislation—meet that requirement. I have absolutely no problem with those, and I fully support them.
I do, however, have some concerns with respect to clause 208(b) of the bill, which refers to unfair trading practices towards consumers and introduces a more general obligation.
When you have general obligations, you have to ask yourself the question: what does that mean in practice?
In this case, paragraph (a) of the bill provides as follows:
The conduct does, or is likely to do, either or both of the following:
(i) manipulate the consumer; or
(ii) unreasonably distort the environment in which the consumer makes, or is likely to make, a decision;
and
(b) causes, or is likely to cause, detriment, whether financial or otherwise, to the consumer.
If we go through each of those clauses, the first is “manipulate the consumer”. What does that mean?
Well, I did what many people would presumably do when trying to interpret a bill, and that is look at the Oxford Dictionary definition of “manipulate”. That definition includes conduct which is unfair, but it also includes conduct that is not necessarily unfair—conduct designed to influence someone.
Obviously, a marketing campaign undertaken by a business is seeking to influence people to buy a product or service. So the question becomes: when does that manipulation cross the line? When does it move from influence into unfairness?
Given that the Oxford Dictionary definition of “manipulate” encompasses both unfair conduct and conduct that is not unfair, the Coalition is suggesting—and Senator Kennedy has put forward this amendment—that the word “unfairly” be inserted before the word “manipulate”.
That makes sense to me. It makes the provision clearer. In circumstances where the ordinary meaning of “manipulate” covers both unfair and non-unfair conduct, I think we should include “unfairly” as a qualifier in relation to “manipulate”.
The second amendment put forward by the Coalition concerns the phrase “causes, or is likely to cause, detriment, whether financial or otherwise, to the consumer”.
Again, I think there is a good argument that there needs to be some sort of materiality test inserted. In this case, adding the words “material detriment”, as generally proposed in the amendment, is a way to address that issue so that we are only talking about detriment that reaches a certain threshold of materiality with respect to the conduct.
I think those are two sensible amendments. They would assuage many of the concerns I have regarding the general nature of the obligation.
