Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I move the opposition amendment on sheet 4820:

(1)    Schedule 1, item 1, page 3 (line 7), before “Part IVA”, insert “section 46 or 46A of Division 8, Part IV,”.

This amendment seeks to extend the jurisdiction of the Federal Magistrates Court to include matters arising under sections 46 and 46A of the Trade Practices Act. This would fully implement the recommendations of the Senate Economics References Committee, and it would help small business to access remedies for the misuse of market power by providing a cheaper and less complex forum. In its response to the economics committee’s report, the government said it disagreed with this recommendation on the ground that these matters were too complex for the Federal Magistrates Court. I am not sure who it was insulting in that respect.

We can see where the government is coming from on this matter. Misuse of market power cases certainly can be complex and time consuming; there is no argument about that. But we are confident that the law is sufficiently flexible to ensure that complex cases can be dealt with in the Federal Court and simpler cases can be dealt with in the Federal Magistrates Court.

Section 39 of the Federal Magistrates Act provides a mechanism for the Federal Magistrates Court to transfer any matter to the Federal Court, including where the resources of the Federal Magistrates Court are not sufficient to hear and determine the proceedings. Any complex matters beyond the capacity of the Federal Magistrates Court could easily be transferred to the Federal Court, either on application of the respondent or on the initiative of the magistrate. This would be, and is, a sufficient safeguard.

In fact, my recollection is that this matter was raised right back when the Federal Magistrates Court was first established, in order to ensure the ability on the part of the Federal Magistrates Court to deal with simpler matters and the Federal Court to deal with more complex and time-consuming matters. That was a reasonable split between the particular courts. That was an issue that we ventilated at the time the Federal Magistrates Act was introduced—that we wanted to ensure that there was that flexibility and the ability to transfer those matters.

It should also be recognised that it is possible to have relatively simple misuse of market power litigation. It would be wrong for the government to suggest that all misuse of market power litigation is complex and time consuming. There are, and would be, such circumstances, especially under section 83 of the Trade Practices Act. That provision allows for findings of contravention in one case to be used as prima facie evidence in a later case. In the context of misuse of market power cases, this might mean that complainants in later cases can rely on the findings made in earlier cases on the forensic economics and forensic accounting that tend to make these cases so long and complex. This is a rarely used provision, but opening up the option of utilising follow-up litigation in the Federal Magistrates Court might give it new life.

Of course, it was not put there for no purpose. As the Senate Economics References Committee found, small business would benefit from giving the Federal Magistrates Court jurisdiction to deal with misuse of market power cases. Given the ability of the federal judiciary to transfer complex and simple cases to their more suitable forum, we are not convinced that the complexity of much of this litigation is sufficient reason to deny small business this opportunity for improved access to justice.

It is disappointing that National Party senators are not here to contribute to this debate. I know they have an interest in small business and I know they have an interest in sections 46 and 46A. It makes me wonder why they are not arguing for this change. I know they would have taken a deep interest in the Senate Economics References Committee report. I know that many Liberal backbenchers have had an interest in this area. I am sure they would want to be able to support this amendment, which would ensure that, under sections 46 and 46A, the less complex cases can be dealt with in the Federal Magistrates Court. It would be a boon to small business. Small business would have the ability to take matters involving misuse of market power to the Federal Magistrates Court and, if they are advised that they are less complex and less time-consuming matters, may therefore be given access to a cheaper forum than the Federal Court. However, it is disappointing to note that those backbenchers have not made a contribution and that they are not concerned about the matter. They do not take the interests of small business seriously, as small business should be able to access less expensive and less time-consuming forums so that they can be assisted in dealing with these types of cases. I commend the amendment to the committee.