Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026
Senator McKIM (Tasmania—Australian Greens Whip) (10:26): Can I just clarify that the amendments that were just negatived by the chamber were about extending unfair trading practices to include lead generation. I want to make a couple of comments about that. We'll come to our amendments to extend the requirements to the financial services sector shortly, and I will move those shortly.
Firstly, on lead generation, as I said in my second reading speech, we have just lived through the collapse of First Guardian and Shield. These matters have been explored and examined at length in this chamber and in Senate estimates not just by the Greens but by a range of other senators right across the political spectrum—and so they should have been examined very closely in those contexts, because the collapse of Shield and First Guardian cost about 12,000 Australian people over $1 billion in lost retirement savings.
As I said in my second reading speech, the chair of ASIC, Ms Sarah Court, indicated in estimates in October last year that a ban on unfair trading practices in the financial services sector may have assisted ASIC in their investigation and prosecution of the complex web of actors that were involved in the collapse of First Guardian and Shield. The reason that lead generation should be included and explicitly caught in the provisions of this legislation is, if we did so, firstly, it would send an unambiguous signal to the 12,000-odd Australians who were ripped off so egregiously during the collapse of First Guardian and Shield that the Senate has got their backs, that the Senate understands what happened and that the parliament understands what happened.
It's an opportunity for the government to show that the government understands how absolutely destructive that experience was for a significant number of Australians. Although it wouldn't necessarily get them their money back or provide the full recourse that they deserve and that justice demands, it would at least show that the Senate, the parliament and the government are taking steps to try to ensure that other Australians are protected from those kinds of situations in the future.
As we all know, the bill implements a general prohibition of businesses engaging in unfair trading practices, which is defined as behaviour that manipulates or unreasonably distorts the environment in which the consumer makes a decision. Subsection 28b 6 includes a non-exhaustive list of examples of behaviour that would constitute an unfair trading practice. The amendment, which was just negatived by the Senate, would have added lead generation to that list of examples.
Lead generation was defined in our amendment, which the Senate just negatived, as 'collecting the consumer's personal information for a sales purpose in an obscure, complex or misleading way' and 'failing to clearly disclose to the consumer the primary purpose for collecting, using or sharing the consumer's personal information'. There is absolutely nothing objectionable in the way that amendment was drafted and the way it would have operated if it had been included in the bill, as the Greens were proposing.
What we've just witnessed is a missed opportunity. Like the government's and the opposition's stated position of not currently being able to support extending the ban on unfair trading practices to the financial services sector—another missed opportunity—this was a missed opportunity to protect consumers in Australia. Let me remind you that consumers are people.
They are people—and they are people who are being price gouged everywhere they turn because of the concentration in market power in sectors like our supermarket sector, our airline sector, our insurance sector, our telecommunications sector and a range of others; the list goes on. There's health insurance—the list really does go on. They are being price gouged everywhere they turn because corporations are misusing their market power, and we all know, because of report after report, that over time the Australian economy is becoming more concentrated.
The market power in more sectors of the Australian economy is becoming more concentrated, which gives the corporations more power to do things like price gouge, because the competitive element is being reduced and eroded over time. The people that are being price gouged—the people that the corporations don't care about except for their capacity to generate profit for the corporations—will now look at what the Senate has done today and form the very reasonable view that, when the Senate had the opportunity to ensure that lead generation was added to the list of examples of behaviour that would constitute an unfair trading practice, the Senate decided not to do that.
The Labor Party, the Liberal Party, the Nationals and One Nation—none of them supported adding lead generation to the list of examples of behaviour that would constitute an unfair trading practice. And none of them are going to support extending the ban on unfair trading practices to the financial services sector. We've heard from the minister that the government is considering that matter.
But, honestly, sometimes you've got to line this government up with a tree or any other kind of vertical object you can find just to see if they're actually moving at all. It is glacial, although actually perhaps that's an adjective we shouldn't use anymore, because the glaciers are actually melting and flowing a lot more quickly than they used to be, thanks in part because of the political coalition in this place that supports destroying our native forests and opening up new coal and gas mines hand over fist.
So I withdraw 'glacial' and insert 'snail-like'. Honestly, this has been an active discussion for years. The ACCC has for a long period of time called for the ban on unfair trading practices to be extended to the financial services sector.
ASIC has called for a long period of time for the ban on unfair trading practices to be extended to the financial services sector. So, Minister, I want to ask you to explain, in the context of the collapse of First Guardian and Shield, why it is that the government took a position of not adding lead generation to the non-exhaustive list of examples of behaviour that would constitute an unfair trading practice.