Steve Fielding (Victoria, Family First Party) Share this | Hansard source

by leave—I move Family First amendments (1) and (2) on sheet 5333:

(1)    Schedule 2, page 6 (after line 12), after item 3, insert:

3A After subsection 46(7)

Insert:

        (8)    Where a corporation is held to have breached section 46AA of this Act, the corporation shall not be held to have breached this section with respect to the same conduct.

(2)    Schedule 2, page 6 (after line 12), after item 3, insert:

3B After section 46

Insert:

46AA Predatory pricing

        (1)    A corporation must not engage in predatory pricing which substantially lessens competition in any market.

        (2)    For the purposes of this section, predatory pricing occurs when a corporation that has a substantial degree of power in a market, or substantial financial power in a market, offers goods or services for sale in a market at prices which have the purpose or effect of substantially lessening competition in that market.

        (3)    Without limiting the generality of subsections (1) and (2), in considering whether a corporation has engaged in predatory pricing, the Court may have regard to:

                  (a)    whether the goods or services are offered at a price less than their relevant cost; and

                  (b)    the price for which competitors of the corporation are offering the same goods or services; and

                  (c)    the period of time for which the goods or services are offered at the relevant price; and

                  (d)    whether the corporation is offering the same goods or services in other markets for higher prices; and

                  (e)    the extent of competition in the market; and

                   (f)    the reasons for its conduct.

        (4)    In considering whether a corporation has engaged in predatory pricing, regard may be had as to whether or not it has or had the intention or capacity to recoup the costs of its predatory conduct, but actual or potential recoupment is not a necessary requirement of an offence under this section.

        (5)    The reference in subsection (2) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors.

        (6)    This section does not limit the application of section 46.

These amendments were put forward before the government did their eleventh-hour amendments. They do address the predatory pricing specifically, by having another section called predatory pricing.

The issue here is to look at defining predatory pricing that occurs when a corporation has a substantial degree of power in the market or a substantial financial power in the market and offers goods and services for sale in that market at prices which have the purpose or effect of substantially lessening competition in that market. The difference with the Family First amendments compared to the government’s is that the government’s look at substantial share of market as one of the key sole tests and do not look at the other issue of substantial financial power or even a substantial degree of power in a market, so they are slightly different. There are probably differing opinions about which way is best to make that happen. The other difference is in the purpose or the effect of substantially lessening competition in that market. I submit those points to the Senate and the government to consider.