Matthew Canavan (Queensland, Liberal National Party) Share this | Hansard source

I thank Senator Whish-Wilson. I was just about to come to section 46. The centrepiece of our law which seeks to restrain the activities of dominant firms or firms with a significant degree of market power is section 46. The jurisprudence around section 46 has evolved over time. I would argue—and I agree with the Harper review—that the jurisprudence has evolved to an extent which effectively means that actions under section 46 have very limited ability to succeed. The courts' interpretation of the 'taking advantage' test is a hypothetical one and one that, as an economist, I would say helps economists put their kids through college but does not help small businesses take action in court. Recent cases on Rural Press and Melways that have come to the court on section 46 have involved long, arduous and technical debates about economic structures, particularly of markets and particularly hypothetical structures in those markets, and it has proven very difficult for plaintiffs to prove and take successful action on that. It is also the case that the 'purposes' test as it is currently drafted is out of kilter with the rest of the world. Most other countries, at least in western and English-speaking countries with a common law background similar to ours, have adopted codified laws which make it an offence for a dominant firm to act in a way that has the effect of being anticompetitive in some way, shape or form as defined.

The Harper review has made some detailed recommendations as to how we could finetune our law to introduce an 'effects' test, to remove that 'taking advantage' test which has proven so problematic and, relatedly, to adjust the proscribed purposes under section 46 to make it a more comprehensive test of a substantial lessening of competition. I know that the government is considering its response to the Harper review at this point. I am on record in this chamber as supporting the general thrust of the Harper review recommendations. I think it has clearly identified a problem in our existing law and jurisprudence and a problem that deserves some response.