Andrew Murray (WA, Australian Democrats) Share this | Hansard source

I move Democrat amendment (9):

(9)    Schedule 2, page 6 (after line 12), after item 3, insert:

3F  Subsections 51AC(9) and (10)

Repeal the subsections.

Just to explain briefly: as I said, it arose from recommendation 7 of the Senate Economic References Committee report of March 2004. I will not recap all the arguments in its favour, but it dealt with unconscionable conduct. The ACCC agreed with the view that the present limit of $3 million was too low. I quote from the report:

The ACCC agreed with this view, saying that subsection 51AC(3)(a) already stated that the courts may have regard to the relative strengths of the bargaining positions of the companies, so no threshold is necessary.

The Committee noted these arguments and further noted that subsections 51AC(1) and (2) exclude publicly listed companies from the protection of the section. The Committee agrees that the removal of the thresholds will not reduce the current protection for small businesses, and will enhance protection for businesses involved in transactions over $3 Million, who are nevertheless subject to unconscionable conduct within the terms of s.51AC.

Government senators rejected that view but accepted the view that the threshold was too low. I cite government senators’ remarks:

Government Senators are not persuaded of the need to lift the ceilings so as to extend the protections in the section to all firms, irrespective of size. On the other hand, we are concerned that the current statutory ceiling may be unrealistically low, given the size of transactions which some small businesses undertake. Accordingly, we recommend that the government consider prescribing $10 million as the relevant amount for the purposes of the section.

We accept that that is a good advance. The government itself has accepted the recommendation of the government senators but we still hold to the view of the original committee recommendation.