George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Hansard source

The government supports neither of these amendments. The reason the government does not support the recoupment amendment, opposition amendment (2), is that it rigidifies the process of proof. A court—and this is uncontroversial—may have regard to the issue of recoupment, but to erect stringent statutory guidelines as to whether or not a court must have regard to a particular criterion or circumstance is, in my view, generally not desirable and certainly not desirable here because, in these cases, it all depends on the particular facts of the operation of a corporation and a market with particular features. They vary from one to another, so I think it would be very bad law to overly rigidify the considerations to which the court might have regard.

With regard to opposition amendment (3), I make the same point that I tried to make to Senator Murray before: the scheme of section 46 of the Trade Practices Act is really very elegant. There are three elements. There has to be a corporation with a substantial degree of power in a market—and there can be a debate about how that is determined and how it raises the issue of thresholds. Then it has to be actuated by a malign purpose—one of the three purposes proscribed by section 46(1). The link between them is taking advantage of the power for the proscribed purpose. The courts have been very clear about this. ‘Take advantage’ means ‘use’. All it means is that there be a causal or functional relationship between the use of the market power and the achievement of the malign purpose. What the court said in the Rural Press case is quite right. It is quite conceivable that you could have a corporation with substantial power in a market which acts for the purpose of eliminating or substantially damaging a competitor in a market but which nevertheless ought not to be caught by section 46 because the functional or causal relationship between the first and the third elements does not exist.

Let me give you a hypothetical example, Senator Sherry. Let us say there was a corporation with a substantial degree of power in a market that decided to eliminate a competitor by surreptitiously engaging some hoodlum to burn down its competitor’s warehouse. That is a corporation with a substantial degree of power in a market that has done something that is in fact unlawful and that is designed to eliminate or substantially damage a competitor, but it has not used its market power to engage in that conduct; it has done something independently unlawful. For section 46 to work, there has to be a functional or causal relationship between the market power and the proscribed purpose. That is supplied by the element ‘taking advantage’. But what has to be taken advantage of or ‘used’—to use the simplest Anglo-Saxon word you can imagine that the courts have settled on—is the market power in order to achieve that purpose. The four tests that you propose adding to section 46 would really add complications to what is a very simple set of propositions and would make section 46 work much less effectively or thoroughly. For that reason, the government opposes that amendment too.