Nick Sherry (Tasmania, Australian Labor Party, Shadow Minister for Banking and Financial Services) Share this | Hansard source

I rise to indicate Labor’s view on these amendments. Senator Fielding has indicated he had drafted them prior to the government’s eleventh-hour amendments, which—as I mentioned earlier—we do not believe go far enough. But, having examined Senator Fielding’s amendments, we believe they would create some uncertainty because they would make it difficult to distinguish between genuine competitive conduct and anticompetitive conduct, which would discourage discounting and drive up prices for consumers.

Amendment (1) ensures there is no double jeopardy issue arising through the senator’s amendments. Amendment (2) does not provide any criteria as to what constitutes lessening of competition. It is unclear when prices would reduce competition as stated in the amendments. The amendments also introduce an effects test so that conduct can be predatory pricing even if there was no purpose for the conduct to be anticompetitive. But this introduces a concept that could limit rather than encourage competition.

Further, the amendments list some factors for the courts to use in determining whether predatory pricing has occurred. However, these factors do not adequately define predatory pricing and hence introduce further uncertainty into the act. Also, at least in part, the amendments have the same effect as Labor’s amendment to ensure that recoupment of costs is not required to prove predatory pricing. So all in all our conclusion on the amendments is that, whilst in one area there is a crossover with a Labor amendment to be dealt with, the level of uncertainty and difficulty that is created by the amendments as a whole leads Labor to the conclusion that it cannot support them.