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Tuesday, 14 May 2002
Page: 1405

Senator COONEY (5:43 PM) —As has been said by the previous speakers, this was a Senate Legal and Constitutional References Committee inquiry into two matters of great importance in the world of business. It was initiated by Senator Murray who, to me at least, seems to have a great natural understanding of the world of business. It is important that we in the Senate do have that understanding available to us because business is the driving heart of the economy. It is because of that, because we as a community depend so much on how business acts, that this is so important and it is why Senator Murray initiated this inquiry, which was well chaired by Senator McKiernan, and the things that Senator Murray said about him I say again.

Senator Abetz —Barney should have been the chair.

Senator COONEY —Senator Abetz, you have been on this committee, as indeed has every senator in this chamber, excepting you, Mr Acting Deputy President Chapman. Nor has Senator Ferris but I have served with her on other committees and she is outstanding. In any event, how to get fair competition in the business world is an important issue. As section 46 stands now, it is not working as well as it might, even under the considerable skills of Professor Fels, and I think he has been outstanding in the Australian Competition and Consumer Commission. He has been outstanding as the person who does most of the planning and who runs that very important commission so well. I hope he continues for a good time into the future.

The issue, as has been described, is whether in talking about whether competition has been fair we ought to look at the intention of a particular company that has pursued a course of conduct. That raises the question whether or not it has been acting fairly and whether we should test that in terms of the intent of the company or whether we should look at it in terms of the effect. Sir Daryl Dawson, a very eminent jurist and a former member of the High Court, is going to conduct an inquiry into this issue and people have already spoken of wanting to wait to see what happens in that area before a final commitment is given here. In the meantime it would seem more logical, if you are looking at whether the marketplace is operating as is best for competition, that the test you should take is the effects test because it does not depend on the intent as to whether competition is good but on the effect of the company's conduct as to whether the competition is free and flowing as we want it. I just make that as a preliminary point.

On the other question of whether we should be able to divest a company of part of its operations, that matter will be looked at, but it seems to be highly dramatic surgery indeed. It will be interesting to see what finally happens there. I congratulate the committee. It has been absolutely dedicated to the proper attention of how the law operates and Senator McKiernan needs credit for that. This is an inquiry that was obviously needed because an inquiry to be conducted by Sir Daryl Dawson has taken up the path shown to us all by Senator Murray. I seek leave to continue my remarks at a later date.

Leave granted; debate adjourned.