Chris Bowen (Prospect, Australian Labor Party, Shadow Assistant Treasurer) Share this | Hansard source

I move amendment (7) circulated in my name:

(7)    After schedule 3, page 11 (after line 11), insert

Schedule 4 - Other matters

1  After subsection 155(1)

Insert:

     (1A)    The power under subsection (1) can be exercised at any time prior to the commencement of substantive proceedings in a matter before the courts.

2  Subsection 86(1A)

After “any matter arising under “insert” section 46”.

Section 155 of the act provides the ACCC with powers, under certain circumstances, to obtain information relevant to its decisions under the act by issuing a notice requiring a person:

(a) to furnish to the Commission ... within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission ... in accordance with the notice, any such documents; or

(c) to appear before the Commission ... at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

There are similar powers available to ASIC, APRA, the Australian Customs Service and the Australian Taxation Office. Currently, the courts have ruled that these powers cease when the ACCC begins an action. The ACCC has consistently argued for the act to be strengthened to enable it to retain these powers when seeking an injunction and for them to continue until the substantive case begins.

In evidence before the committee, the ACCC argued that the revocation of section 155 powers is a disincentive to begin court actions and seek injunctions for anticompetitive behaviour to stop, thus delaying the provision of relief to affected businesses and consumers. As the ACCC argued:

At the moment, we have a trade-off between either getting an interim injunction and therefore losing the ability to use our section 155 powers thereafter, or not getting an interim injunction until the point where we have ... got our case together and finished using our 155 powers. But that can be a reasonable way down the track and the conduct continues in the meantime.

The need for this trade-off is unacceptable. The amendment I have moved will extend the ability of the ACCC to keep its section 155 powers after it has sought an injunction but before a substantive action commences. The ACCC should not be forced to choose between seeking an injunction to stop anticompetitive behaviour and getting more information to prove its case. My amendment will strengthen the ACCC’s powers whilst protecting the rights of a defendant in a substantive court case. I commend the amendment.

Question negatived.

Bill agreed to.

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