George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

If I may contribute one last observation on this matter, the effect of the government amendment to section 46(1AB) is not merely to introduce the concept of recoupment into the legislation for the first time but also to repeal the existing section 46(1AB). So what would be repealed from the act is the requirement that for the purposes of proving up a case brought under the Birdsville amendment—that is, brought under the ‘share of market power’ test—the court may have regard, for the purpose of determining whether a corporation has a substantial share of a market, to the number and size of competitors of the corporation in the market.

The government’s proposed amendment to section 46(1AB) has a double effect: it introduces this foreign concept into the act which, for the reasons Senator Joyce has explained, should not be there; but, secondly, it removes the guidance to the court in the existing section 46(1AB) as to what the court may have regard to. Presumably it does that because the words in the existing section 46(1AB) are premised upon market share rather than market power. So the government may think that, logically, if market share goes out of section 46(1AA) then that guidance to the courts about the determination of market share should go from section 46(1AB). But it is not right to say, with respect, Minister, that 46(1AB) or the changes to section 46(1AB) are unlinked from or not logically contingent upon the Birdsville amendment. They are. And if the integrity of the Birdsville amendment were to be respected then section 46(1AB) should be left as it is in the bill and section 46(1AA) should be left as it is in the bill.

If you wanted to introduce recoupment, which conceptually you could, you could introduce it as a further or additional subsection. Perhaps the inadvertence is on, with all due respect, the government’s part, and we could have that argument as a freestanding argument. But at the moment what you are doing by introducing this new section 46(1AB)—that is, the recoupment element—through the repeal of the existing section 46(1AB) is depriving a court seized of a case under the Birdsville amendment, in which the court has to consider market share, of the guidance the statute gives it. Section 46(1AB) in its existing form is, in other words, integral to section 46(1AA) in its existing form.