Nick Sherry (Tasmania, Australian Labor Party, Shadow Minister for Banking and Financial Services) Share this | Hansard source

Labor will be supporting the government’s amendments. The amendments insert a specific section dealing with predatory pricing. Currently, predatory pricing is one type of conduct that can be captured by the section 46 ‘Misuse of market power’ provisions. The new specific predatory pricing section prohibits a corporation with substantial market share from supplying goods at a price below relevant cost for a sustained period of time for an anticompetitive purpose. The new concept of ‘substantial market share’ is different from the concept of substantial market power in section 46. A further difference is that there is no requirement to prove that a corporation took advantage of its substantial market share for an anticompetitive purpose. This removes the second hurdle, of proving taking advantage, which currently exists in section 46.

Labor will support the amendments but is concerned that this amendment was hastily cobbled together at the last minute. It was a very last-minute backflip by the government, and that was due to the pressure brought to bear on the government by small business and Labor, the Democrats, Family First and others. The government’s changes are welcomed but only go a small step of the way. There is a lot more the government needs to do to strengthen the act, on matters such as creeping acquisitions, criminal penalties for cartel conduct, and access to justice for small business through the Federal Magistrates Court. Supporting Labor’s sensible and balanced amendments, which we will deal with, would have dealt with these issues. The key is to strengthen section 46, not to introduce new sections. This change does nothing to crack down on anticompetitive conduct other than predatory pricing but it goes some way—a small way—towards what needs to be done and, to that extent, Labor will be supporting the government’s amendments.