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

Thank you, Senator Murray. I move opposition amendment (7) on sheet 5344:

(7)    Page 11 (after line 11), at the end of the bill, add:

Schedule 4—Other matters

1  Subsection 86(1A)

After “any matter arising under”, insert “section 46,”.

2  After subsection 155(1)

Insert:

     (1A)    The power under subsection (1) can be exercised at any time prior to the commencement of substantive proceedings in a matter before the courts.

Labor’s amendment does two things. Firstly, it allows section 155 powers to remain following the commencement of an action seeking an injunction and only cease when the substantive case commences. Labor’s amendment will allow the ACCC’s information-gathering powers under section 155 to remain following the commencement of an action seeking an injunction and only cease when the substantive case commences. This is vital to ensuring that the ACCC has the information-gathering powers for as long as possible to ensure it can act to protect small business and consumers from anticompetitive conduct.

Secondly, it provides the Federal Magistrates Court jurisdiction over section 46 and section 83 cases. The amendment will provide the Federal Magistrates Court jurisdiction over section 46 and section 83 cases. Currently, the Federal Magistrates Court can hear certain matters under the TPA, most notably section 51 cases. However, the Magistrates Court cannot hear section 46 matters. This means that small business wishing to bring an action under section 46 must commence in the Federal Court. The Federal Court is more expensive than the Magistrates Court. The Magistrates Court also provides a conciliation process that would be of particular use to small business.

In addition, under section 83 of the act, a company can bring an action for damages based on findings of fact in another case. For example, if the ACCC brings a successful action against a company under section 46, small business can bring an action for damages based on the findings of fact in the case. However, this section 83 action must be brought in the Federal Court. This amendment would provide small business with better access to compensation and justice when they suffer from anticompetitive conduct.