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

It is there because it may be a factor. The recoupment of short-term losses by long-term monopoly profits, which is what recoupment is about, may be a factor. Therefore, it is relevant to advert to that in the explanatory memorandum. Chapter 2.1 of the explanatory memorandum says, in slightly more considered language, what I just said to you a moment ago—that it is not a prerequisite to establish a breach of section 46(1). The explanatory memorandum states:

In short, the legal position is that recoupment is not required to prove a breach of section 46.

You see, it may well help to prove a breach of section 46, but neither is it the case that you need to show recoupment to prove that section 46 has been breached. Nor will it always be the case that recoupment is the decisive factor in showing whether or not there is a proscribed section 46 purpose. It may be relevant. In many cases, it will be relevant. But to elevate this one consideration above all the other considerations that can go to demonstrate that a corporation has acted in a particular way to achieve one of the three proscribed section 46 purposes is, as I said earlier, not really doing section 46 any favours by rigidifying the circumstances in which a breach may be demonstrated to have occurred.