Andrew Murray (WA, Australian Democrats) Share this | Hansard source

I move:

(1)    Schedule 1, item 8, page 20 (after line 15), at the end of Subdivision D, add:

61 ATA  Injunctions

        (1)    Subject to subsection (2), where, on the application of the ACMA, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

             (a)    a contravention of section 61AG, 61AH, 61AL, 61AM, 61AQ or 61AR;

             (b)    attempting to contravene such a provision;

             (c)    aiding, abetting, counselling or procuring a person to contravene such a provision;

             (d)    inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;

             (e)    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

              (f)    conspiring with others to contravene such a provision;

                 the Court may grant an injunction in such terms as the Court determines to be appropriate.

        (2)    Where an application for an injunction under subsection (1) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

        (3)    Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

        (4)    The Court may rescind or vary an injunction granted under subsection (1) or (3).

        (5)    The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

             (a)    whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

             (b)    whether or not the person has previously engaged in conduct of that kind; and

             (c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

        (6)    The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

             (a)    whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

             (b)    whether or not the person has previously refused or failed to do that act or thing; and

             (c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

        (7)    Where the ACMA makes an application to the Court for the grant of an injunction or an interim injunction under this section, the Court shall not require the ACMA or any other person, as a condition of granting an injunction or an interim injunction, to give any undertakings as to damages.

61ATB  Stay of injunctions

        (1)    The Court may stay the operation of an injunction granted under section 61ATA if:

             (a)    any of the following has applied for the stay:

                   (i)    a Minister of the Commonwealth;

                  (ii)    the ACMA;

                 (iii)    a party to the proceeding for the injunction; and

             (b)    the Court considers that granting the stay would, in all the circumstances, be just.

        (2)    An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.

        (3)    Nothing in this section affects other powers of the Court.

        (4)    In this section, injunction includes an interim injunction.

61ATC  Divestiture

        (1)    The Court may order, on the application of the ACMA, if the Court finds or has found in another proceeding instituted under this Part that a person has contravened section 61AG, 61AH, 61AL or 61AM, the disposal by the person of all or any of the shares or assets acquired in contravention of that section.

        (2)    Where:

             (a)    the Court finds, in a proceeding instituted under this Division, that a person (in this subsection referred to as the acquirer) has acquired shares in the capital of a body corporate or any assets of a person in contravention of section 61AG, 61AH, 61AL or 61AM; and

             (b)    the Court finds, whether in that proceeding or any other proceeding instituted under this Division, that the person (in this section referred to as the vendor) from whom the acquirer acquired those shares or those assets, as the case may be, was involved in the contravention; and

             (c)    at the time the finding referred to in paragraph (b) is made, any of those shares or those assets, as the case may be, are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;

                 the Court may, on the application of the ACMA, declare that the acquisition, in so far as it relates to the shares or assets referred to in paragraph (c), is void from the day on which it took place and, where the Court makes such a declaration:

             (d)    the shares or the assets to which the declaration relates are deemed not to have been disposed of by the vendor; and

             (e)    the vendor must refund to the acquirer any amount paid to the vendor in respect of the acquisition of the shares or assets to which the declaration relates.

        (3)    Where an application is made to the Court for an order under subsection (1) or a declaration under subsection (2), the Court, instead of making an order under subsection (1) for the disposal by a person of shares or assets or a declaration under subsection (2) that the acquisition by a person of shares or assets is void, may accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.

        (4)    An application under subsection (1) or (2) or an undertaking under subsection (3) may be made at any time within 3 years after the date on which the contravention occurred.

        (5)    Where an application for an order under subsection (1) or for a declaration under subsection (2) has been made, the Court may, if the Court determines it to be appropriate, make an order or a declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (2).

I will not delay the Senate in committee at all, because this is a question of numbers. The minister and the chamber are well aware of my view that you can diminish industry specific laws if you strengthen regulators. I am of the view that the ACCC is too weak with respect to the Trade Practices Act and its provisions, and that strengthening that would improve competition in this country a great deal. I am of the view that with respect to these specific issues, the ACMA deserves to be strengthened and the Foreign Investment Review Board provisions need to be strengthened. Now and again I quarrel with Senator Brandis on issues, but I must say that his concerns and the concerns of other members of the committee with respect to the injunctive powers of the ACMA were well conceived. I certainly always respect Senator Brandis’s contribution in these areas, where he is very well informed.

I have the view that the government has moved quite a way in improving the injunction capacity of the ACMA, but my advice is that it needs to be stronger than it has been put to the chamber in government amendments, and so I have constructed a far stronger set of injunctive abilities. No doubt, the government will reject those and, therefore, I will not have the numbers, but they are on the record and I would urge the government, when the friendly debate is over, to look more deeply at this area and perhaps to consider whether any of the provisions I suggest or any strengthening of the injunctive rules that they are bringing in could be advanced.