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

I indicate to the House that the government proposes that amendments (1), (3), (4), (6) and (7) be agreed to, that amendments (2) and (5) be disagreed to and that a further six relevant amendments be made. I suggest, therefore, that it may suit the convenience of the House to first consider amendments (1), (3), (4), (6) and (7), then amendments (2) and (5) and, when those amendments have been disposed of, to consider the further amendments. I move:

That Senate amendments Nos 1, 3, 4, 6 and 7 be agreed to.

The Trade Practices Legislation Amendment Bill 2008 amends the Trade Practices Act 1974 and the Australian Securities and Investments Commission Act 2001. The bill promotes competition and fair trading in Australian markets. In particular, it enhances the prohibitions against anticompetitive unilateral conduct and unconscionable conduct contained in the Trade Practices Act. The bill also improves the ability of the act to be effectively enforced.

Following the bill’s introduction into parliament on 26 June 2008, it was amended by the opposition and minor parties in the Senate. The Senate opposed the provisions of the bill which would align the predatory pricing prohibition in subclause 46(1AA) with the longstanding prohibition in clause 46(1). Those amendments would have removed uncertainty in the current drafting of subclause 46(1AA). The government is disappointed in this as it means that this ill-conceived and poorly drafted piece of legislation will continue in place.

However, the bill contains a number of other important amendments including those clarifying the meaning of ‘take advantage’ and the role of recoupment under section 46. These amendments derive from the recommendations of the 2004 report of the Senate inquiry into the effectiveness of the Trade Practices Act 1974 in protecting small business. They are well-overdue amendments which the previous government neglected to introduce and the absence of which would prevent section 46 effectively prohibiting unilateral anticompetitive conduct to the detriment of consumers. Accordingly, the government reluctantly accepts the Senate amendments which will relate to subclause 46(1AA) in the interests of passing the bill. However, the government will continue to monitor the effectiveness of subclause 46(1AA) and reserves the right to revisit this issue given the concerns of the ACCC and the concerns of every expert credible commentator on this issue.

The government has good reason to be concerned about the opposition’s insistence on keeping the Birdsville amendment because the very people who will be enforcing the law are advising that the law is confusing and has unintended consequences. It not only creates confusion but also opens up the possibility of small businesses being prosecuted, which is the very opposite of its intention. It is a poorly drafted, ill-conceived amendment which does not set out what it is intended to set out and it has unintended consequences. The only commentator who thinks that it is good law is the one who drafted it. Every other academic expert and every other practitioner have noted that it is a seriously deficient law. We do, however, accept it. If we did not accept these amendments, then this bill would fail and it would remain in law anyway. We do, however, reserve the right to revisit the issue in the future.

Question agreed to.

I move:

That Senate amendments (2) and (5) be disagreed to.

The Senate moved amendments which purported to prevent the bill conferring jurisdiction on the Federal Magistrates Court to hear section 46 matters in appropriate circumstances. The government does not accept these amendments. The Senate has opposed the consequential amendments which would have been required as a result of any conferral of jurisdiction on the Federal Magistrates Court but has not opposed the actual conferral of that jurisdiction. As a result, the amendments cannot be accepted in their present form.

See this speech in context