Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Hansard source

The government will indeed be supporting this Greens amendment. This amendment will replace schedule 2 in the bill with a new schedule. The new schedule will retain the telecommunications-specific anticompetitive conduct provisions in part XIB but stop the new broader section 46 flowing through to that part. As introduced, the bill sought to repeal the anticompetitive conduct provisions in part XIB in light of the introduction of the broader and stronger general misuse of market power law in section 46. With the strengthening of section 46, it would not have been necessary to apply part XIB because section 46 effectively supersedes the competition law rule in XIB. It would also be inappropriate for section 46 to flow through unimpeded to part XIB because of the unique and heavy-handed enforcement mechanisms in part XIB.

Competition notices, which can result in significantly higher pecuniary penalties and the reversal of the onus of proof, are designed for a completely different legal trigger. Our view is that a strengthened section 46 will be able to address any misuse of power in the telecommunication industry. In addition, the Australian Competition and Consumer Commission continues to retain other targeted powers to deal with competition concerns in telecommunications. However, it has also become clear that the repeal of the part XIB rules is not supported by all senators. Given this, the government will support the alternative approach developed by the Greens. This retains the part XIB provisions but stops the new section 46 flowing through to part XIB. This approach will leave part XIB largely in place as it stands, with its own additional enforcement provisions but linked to the existing lower effects test. However, the new section 46 will not be enforceable using the disproportionate enforcement mechanism in part XIB. The amendment does not change the new section 46, which will apply to all sectors of the economy.