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

The government do not support these Democrat amendments, not because we disagree with the sentiment but because they are otiose—either they merely restate in, if I may say so, less appropriate statutory language the effect of the government’s amendments in any event or they merely state unnecessarily what is uncontroversially the existing law.

In amendment (2) proposed section 46(3E) seems to be based upon recommendation 6 of the 2004 Senate committee report and is comprehended by the government’s amendments to insert section 46(3A) in the existing legislation. This is a point, Senator Murray, if I may be permitted to say so, that Ms Kiefel QC, as Her Honour then was, and I argued in the Federal Court 16 years ago in Dowling v Dalgety. It was a proposition settled by Justice Lockhart in Dowling v Dalgety in 1992. This is nothing new and dramatic. Government senators supported recommendation 6 of the Senate committee because we thought it was just as well to import that proposition into the legislation, but it was already set in law at the time. The government has adopted our support for recommendation 6 in proposed section 46(3A).

Your proposed amendment to insert section 46(3F) is again, with respect, not required because the freedom from the constraint by the conduct of competitors and suppliers which the amendment contemplates is already covered by proposed section 46(3C)(b) in the government’s bill. In fact, the government’s bill goes further than your amendment would, Senator Murray, by dealing with constraint by customers—that is, persons to whom the firm supplies goods and services.

In relation to your amendment to insert section 46(3F)(b), the government’s response to the 2004 Senate economics committee report rejected that amendment on the grounds that it is unnecessary because firm behaviour is already taken into account in assessing market power and nothing in the Boral case changed that. The Boral case, as you know, Senator Murray, did change the judicial interpretation of section 46 in a number of respects but not in that respect. So what you seek to achieve through proposed section 46(3F)(b) it seems to me is entirely unnecessary, given the uncontroversially understood existing state of the law.

Turning to Democrat amendment (3), regarding the capacity of a corporation to sell below cost, once again the amendment is not required because the provisions in the government bill already explicitly provide that the court may have regard to that matter—‘the supply of goods or services for a sustained period at a price that is less than the relevant cost to the corporation’; that is, the provision of one of the two government amendments I moved a few moments ago. Perhaps your amendment was drawn before you saw the government amendments, but I think, Senator Murray, that the mischief that you seek to correct there, if it was not already dealt with under existing section 46, is certainly now covered by government amendments. I see the time, and I might leave the matter there. When I resume I will return to your other amendments, Senator Murray.

Progress reported.