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

I was just being very cautious in this place. We have to be very cautious about all the things we do, like citizenship and all those sorts of things. I move amendment (2) on sheet 8139 revised in relation to cost orders:

(2) Page 13 (after line 8), at the end of the Bill, add:

Schedule 3—Adverse costs orders

Australian Small Business and Family Enterprise Ombudsman Act 2015

1 At the end of section 7

Add:

; and (h) conduct within the meaning of subsection 4(2) of the Competition and Consumer Act 2010.

2 At the end of section 15

Add:

; (c) to give assistance under Division 3A of Part 4 in advising on and preparing a person's case for a no adverse costs order under subsection 82(4) of the Competition and Consumer Act 2010.

3 After subparagraph 23(h) (ii)

Insert:

  (iia) assistance being given under section 74B (assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010);

4 At the end of section 65

Add:

; (g) conduct, within the meaning of the Competition and Consumer Act 2010, that:

  (i) may be in contravention of a provision of Part IV of that Act; and

  (ii) affects, or may affect, a small business or family enterprise.

5 After Division 3 of Part 4

Insert:

Division 3A—Assistance where there may be a contravention of the Competition and Consumer Act 2010

74A Application of this Division

This Division applies if the relevant action in relation to which a person requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

(a) may be in contravention of a provision of Part IV of that Act; and

(b) affects, or may affect, a small business or family enterprise.

74B Ombudsman may give assistance in relation to costs order

(1) The Ombudsman may assist the person by doing either or both of the following:

(a) advising the person on the arguments that might be made, and the evidence that might be adduced, to satisfy a court that an order under subsection 82(4) of the Competition and Consumer Act 2010 should be made (a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of that Act);

(b) preparing arguments that might be made in satisfying a court that an order under that subsection should be made.

(2) Nothing in this section limits the functions, duties and powers of the Ombudsman under this Part in relation to the relevant action.

6 At the end of Division 2 of Part 5

Add:

91A Disclosure for the purposes of a no adverse costs order under the Competition and Consumer Act 2010

(1) This section applies if the relevant action in relation to which a person (the applicant) requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

(a) may be in contravention of a provision of Part IV of that Act; and

(b) affects, or may affect, a small business or family enterprise.

(2) A person assisting a small business or family enterprise may disclose to the applicant any document or information obtained by the person assisting the small business or family enterprise in the course of performing functions or duties, or exercising powers, in relation to assistance given to the applicant under section 74B.

Note: Section 74B allows the Ombudsman to give assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010. This assistance may include advising the applicant on the arguments that might be made, and the evidence that might be adduced, in pursuing a no adverse costs order, and preparing arguments.

Competition and Consumer Act 2010

7 At the end of section 82

Add:

No adverse costs orders

(3) A person who brings an action under subsection (1) in relation to a contravention of a provision of Part IV may at any time during proceedings on the matter seek an order under subsection (4) from the court hearing, or that will hear, the matter.

(4) The court may order that:

(a) a respondent in the proceedings is liable for any of its costs in relation to the proceedings; or

(b) two or more respondents in the proceedings are jointly and severally liable for any of their costs in relation to the proceedings.

(5) The court may only make an order under subsection (4) if the court is satisfied that:

(a) the action has a reasonable prospect of success; and

(b) the action raises an issue that is not only significant for the applicant, but may also be significant for other persons or groups of persons; and

(c) the disparity between the financial position of the applicant and the financial position of the respondent or respondents is such that the respondent or respondents could use the possibility of a costs order that does not favour the applicant as a means to deter the applicant from pursuing the action.

(6) A person who appeals a decision of the court under section (4) is liable for any costs in relation to the appeal.

8 Application

The amendment of the Competition and Consumer Act 2010 made by this Schedule applies in relation to actions under subsection 82(1) of that Act brought on or after 1 July 2017.

This relates to adverse costs orders. As I indicated in my second reading contribution, no matter how good a piece of legislation is—and I think it is fair to say that this has good elements, but I believe it should have gone further. Notwithstanding that, we need an ability to have real access to justice for competition law in this country. As I indicated previously, there are many businesses who get advice from their lawyer saying there has been an abuse of market power—predatory pricing or whatever the breach may be—but the lawyer then advises their client, 'By the way, if you want to take this to court, you'll be spending a couple of million dollars and you might be up for an adverse cost order in the millions of dollars.' An adverse cost order could be $5 million, $10 million or $15 million, depending on the complexity of the case, because these can be complex matters.

What I have done here is to move amendments that—and I make no apology for this—are effectively lifted from the amendments that Senator Gallagher moved in her bill, a very good piece of legislation. I think Senator Gallagher was concerned I would be damning her with fake praise. I am praising with her real praise. There is a big difference between the two. My colleagues and I supported her bill, which I was very pleased to see pass the Senate last week as a private senator's bill, and I hope it will pass the lower house as well.

That bill sets a framework for the first time in this country to allow for real access to justice where there can be a whole range of measures: ensuring there are no adverse cost orders; having the office of the Australian Small Business and Family Enterprise Ombudsman act as part of the framework of this; enabling applications to be made for assistance and enabling the ombudsman to give assistance in relation to cost orders. It would provide a framework, as set out effectively in Senator Gallagher's bill, as incorporated in this amendment, to ensure that, once and for all, we can proceed to test the competition laws in this country in a way that would make sure they have real teeth. That is why I think Senator Gallagher's bill is such a good bill and why it needs to be incorporated in this particular amendment, to give real teeth to these competition laws.

Mr Temporary Chair—I know this is a bit unfair on you because I know you can't interject from the chair, but your interjection would be one of hearty support, I'm sure—you and the Nationals have had a very important role in driving competition law reform in this country and you should be congratulated for it. All I am seeking to do here is to ensure that this piece of legislation works as intended. It won't work as intended unless we have real access to justice. This is what these amendments are about.