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

I understand entirely, Senator Murray, what you are saying. This is, if I may perhaps describe it this way, the straw that broke the camel’s back problem. There is nothing in the language of the existing section 50, though, which in the government’s view would not be adequate to deal with the problem that you raise. The effect of your amendment is to introduce into section 50 some additional words:

... and any previous acquisitions by the corporation in any relevant market in the 5 years preceding the current proposed acquisitions collectively ...

Now, it is the interposition of those words, because the other part of your two proposed subsections merely replicates the existing language of 50(1) and 50(2). So the question one has to ask, Senator Murray, is: is the effect you are seeking to achieve by the insertion of those words not already achieved by the existing language of section 50? I respectfully submit to you that it is, particularly if you look at the very broad language of 50(3), which sets out a non-exhaustive list of nine factors to which the court may have regard in determining whether an acquisition has the effect of substantially lessening competition. Those factors include, by subparagraph (c) of 50(3), ‘the level of concentration in the market’; by subparagraph (g), ‘the dynamic characteristics of the market’; and by subparagraph (h), ‘the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor’.

Senator Murray, I do not think logically it is possible to say that it adds anything to enjoin a court to have regard to acquisitions over the previous five years when already, under the existing language of the section, one of those factors to which the court may have regard is the level of concentration. If the level of market concentration has been built up cumulatively over the previous five years or even longer than the previous five years, that is something to which the court can have regard under the existing provisions of 50(3)(c). So the amendment, it seems to me, if I may say so, is unnecessary.

There is also, though, the not unimportant problem that the draftsman has used the expression ‘any relevant market’ without defining what the relevant market is. For those reasons the government will not support the amendment—not because we disagree with you but because we think the mischief which you identify is already dealt with by the current language of the act.