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Legislative Assembly for the ACT: 1995 Week 7 Hansard (19 October) . . Page.. 1859..


MR CONNOLLY (continuing):

However, I do want to place on record our grave concern that it will achieve very little in the current state of the Canberra market, where there is an absolute absence of any competitive pressure. The competitive pressure which, as a government, we had injected into the market last year, saw generally lower prices. Even the Industry Commission found that our intervention, although they opposed it and said that it was not a good idea, had reduced the price of petroleum by about 3c a litre - a saving which went directly into the pockets of Canberra consumers. We constantly worked to keep that competitive edge in the market. That is now gone and I really doubt whether multisite franchising will make any difference or have any impact at all on pricing.

There is, however, one additional concern that we now have about this legislation. I understand that similar, if not identical, legislation was introduced into the New South Wales Legislative Assembly on the motion of Miss Machin, the former Consumer Affairs Minister in the New South Wales Liberal Government, during private members business a week or so ago. The New South Wales Government, as a result, have had to look very carefully at whether to support this Bill and have publicly come out with the proposition that they will not be supporting it. As a prudent government, they have gone off and got some fairly detailed legal advisings on this legislation. They are very concerned that the legislation may well be found to be inconsistent with the Commonwealth sites legislation, which in effect allows petroleum companies to operate franchised sites. There is a grave difficulty, or a potential grave difficulty. I understand that the New South Wales Government's position is that there will be a danger in such legislation being passed. Certainly, Shell have been making noises in Sydney to the effect that they also have gone out and sought some legal advice and will be in a position to challenge the New South Wales Bill if it becomes law.

I raised earlier the issue of acquisition of property and Mr Humphries was able, through his staff, to brief me to the extent that they had taken some prudent legal advisings on that issue. I am satisfied that that has been a prudent course of action. The issue will still be debated, but the Government has trodden carefully on the question of acquisition.

I wonder whether the Government has considered this issue of inconsistency with the sites Act and what would be, effectively, a cover-the-field argument. The Commonwealth legislation permits the franchisees to operate sites. If they comply with the guidelines they are in. The ACT Bill is now saying that they cannot get in. That would be a clear covering-the-field inconsistency. I understand that the franchise Act, which is the other Commonwealth Act, was considered and that a similar covering-the-field argument was mounted in relation to a certain piece of New South Wales legislation. In fact, the New South Wales Industrial Arbitration Act, it was argued, was inconsistent with the franchise Act. In the New South Wales Court of Appeal, in a decision in Majik Markets v. Brake and Service Centres of Drummoyne in 1992 - I am putting this on the record for the benefit of Mr Humphries's advisers - the president of the New South Wales Court of Appeal pointed out that there was no inconsistency there because the franchise Act specifically has in it a savings provision which makes it clear that it is not intended to cover the field. It seems from that decision that, absent such a provision, an inconsistency argument would apply. It is significant, Mr Speaker, that the Commonwealth sites Act does not have a similar savings provision.


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