Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

Can I just thank my colleagues from the government, the opposition and the Australian Greens for at least stating their position on this. I won't be seeking to divide on this. I understand where the numbers lie on this. But I will just make this point to Senator Cormann, respectfully. The fact that we have a merger and acquisitions power that allows for divestiture within the mergers and acquisitions context indicates that the power does exist and the concept of divestiture is not a novel one in the context of competition law in this country. It's a point that can be made to the opposition and to the Australian Greens. I believe the time will come when divestiture will be seen as an appropriate last-resort remedy where divestiture doesn't mean the whole company is broken up. It could be that, in one state or one marketplace where a company has behaved particularly egregiously and abused its market power, the court should have the right to say, 'You will be broken up in that particular market.' That to me is in some respects more targeted and more nuanced, in a sense, than having an approach where it's just an across-the-board 30 per cent fine or a 10 per cent fine on their turnover—which I'm not opposing from what the opposition is proposing. I think this should be in the toolkit of the courts.

In Europe, they do have divestiture powers. The reason you don't hear about them is that they're not used very often. It is a last-resort power and, as Senator Whish-Wilson said, they're not used much in the US, because it does change the culture of corporations. If a corporation realises and understands that it can be broken up in whole or in part by abusing its market power, that makes a difference to the culture of that corporation and their conduct in the way they deal with smaller companies down the supply chain. That to me would have a very beneficial and powerful role in changing corporate culture in this country in terms of the abuse of market power.

I am grateful to my colleagues for having the courtesy to indicate why they don't support this. My prediction is that eventually in this place we will have a divestiture power and it will be a good thing for competition law, for the conduct of businesses in this country and for competition and the chance it will give for small businesses and medium businesses to have a level playing field against the big guys.

Question negatived.

Proceedings suspended from 18:30 to 19:30

I have another amendment to move—I think now is the appropriate time—and, insofar as I need to, I seek leave to move that amendment.