Harry Jenkins (Scullin, Australian Labor Party) Share this | Hansard source

I am happy to answer the member for Rankin’s question on behalf of my colleague from the neighbouring electorate of McEwen. The answer, of course, is that small business did want this amendment. It is clear from the Senate inquiry. It is in the report of the inquiry of the Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business , from March 2004, on pages 17 and 18 about recoupment, at paragraphs 2.39 and 2.45 and recommendation 3. Let us have a look at the summary of what NARGA wanted. At paragraph 2.42 the report says:

NARGA argued that recoupment is not currently a component of s.46, since s.46 relates strictly to a corporation’s purpose.

NARGA said:

All that is required by the wording of s 46 and the parliamentary intention behind s 46 is that the corporation has a substantial degree of market power and has taken advantage of that power for one of the anti-competitive purposes identified in the provision. To require proof of recoupment is to add a new element to s 46, a state of affairs certainly not contemplated by the parliamentary intention ...

So it needs to be added. That is clearly what NARGA said. At paragraph 2.44 the Senate committee report says:

The ACCC’s submission agreed with NARGA’s view that recoupment should not be necessary under s.46:

The ACCC has been quoted during this debate. It said:

The ACCC takes the view that s.46 requires amendment to provide that in cases involving allegations of predatory pricing, a finding of expectation or likely ability to recoup losses is not required to establish a contravention of s.46. Such an amendment would ensure that the application of s.46 is consistent with Parliament’s stated intention.

That was from the submission of ACCC, submission 30 to the inquiry of the Senate Economics References Committee. I seek leave to table pages 17, 18 and 19 of this report.

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