George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

In response to what the minister has said, I am afraid that the minister misunderstands that recoupment, as the term is used in the cases, is an incident of market power. The concept that section 46(1AA) operates on is market share. Now, I can see the logic of the government amending section 46(1AB) in the manner indicated if section 46(1AA) were also amended to remove the Birdsville amendment so that section 46(1AA) operates not on market share but on market power. But for so long as section 46(1AA) operates on the concept of market share and not market power—and that is the essence of the Birdsville amendment, which the government is seeking to remove from the Trade Practices Act—then the proposed amendments to section 46(1AB) just do not make logical sense, because, as I said a moment ago, recoupment is understood as an incident of market power, not as an incident of market share. So section 46(1AA) is about market share. Section 46(1AB) cannot be about market power.