George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Hansard source

I will deal with what Senator Fielding had to say first. Recoupment may be an issue because, if a corporation engaged in conduct of the kind that section 46 or the cognate provisions that have now been introduced are intended to proscribe and can be demonstrated to be intending to recoup its short-term losses by long-term monopoly profits after it has eliminated a competitor from a market, that may very well be good evidence that will supply the wanting proof of the anticompetitive purpose. It might also, in certain circumstances, demonstrate that advantage had been taken of market power too—but it really goes to the issue of purpose primarily.

But that is not always going to be the case. The point that I am making is that you do not do the operation of section 46 and like provisions of part IV of the Trade Practices Act any favours by imposing these structural rigidities in what may or may not be taken into account for the purposes of proof. These cases—and, as you know, I have run them—are very hard to prove. But you do not do yourself any favours by rigidifying the requirements of proof. An applicant in a section 46 proceeding is always better off, in my view, when they can have the full flexibility of the section at their disposal, including the provisions that enable proof by inference that are in section 46(7) of the act, which we have not discussed so far this evening. There are many, many refinements to this argument. People have spent weekends at conferences debating this very point. But in layman’s language, as it were, that is the point: it rigidifies something that does not need to be rigidified.