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

The government does not support this amendment. The issue was considered by the Dawson report, and Mr Dawson recommended against it. I should point out, though, to the committee that the act does contain divestiture powers, in section 81, but those divestiture powers apply expressly to section 50. The logic of having divestiture powers for section 50, which deals with anticompetitive acquisitions, but not having divestiture powers for section 46, which deals with misuse of market power, is that by committing a breach of section 50 what the corporation does is, ex hypothesi, acquire an anti-competitive market share; therefore there is a logic in having a power to require it to divest of that additional acquisition, because the acquisition itself is the very conduct which the act in the relevant circumstances stipulates against. But in section 46, what one is looking at is not the anticompetitive acquisition of market power but the anticompetitive use of market power, which is not the product of an acquisition but the product of conduct in a given market.

It is the government’s view—as it was Mr Dawson’s view—that the existing sanctions regime, which, you will remember, Senator Murray, was very significantly tightened by the so-called Dawson amendments, is a sufficient deterrent and corrective for misuse of market power which section 46 would render unlawful. May I remind you that the penalty that can be imposed upon a corporation for a section 46 breach includes a fine of up to $10 million per breach, five per cent of the corporation’s turnover or three times the economic value of the transaction which is attacked in the section 46 proceedings per breach. That is in addition to the remedies under section 80 for injunctive relief and the various other ancillary remedies in part VI of the act. So, for all of those reasons, the government’s view is that the armoury of sanctions in relation to section 46 is sufficient and, indeed, very strong and, for the other reason I gave earlier in these remarks, there is a certain illogic in applying, beyond a breach of section 50, the divestiture powers.

Question negatived.