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Tuesday, 16 September 2008
Page: 7

Senator SHERRY (Minister for Superannuation and Corporate Law) (1:11 PM) —If we go back to the Senate inquiry we will see that it recommended that section 46 be amended to clarify that it was not necessary to prove recoupment when establishing a breach of section 46 in relation to predatory pricing. The government’s bill gives effect to that recommendation. We argue that that strengthens the position of small businesses which have been attacked as a consequence of this behaviour. Our concern with your amendment is that whatever your position on Birdsville—and we know what that position is—you are preventing, perhaps inadvertently, a stronger and tougher position, which is to the advantage of a business, presumably a smaller business, that is being preyed on. Recoupment may be an indicator of such behaviour but it is not an essential precondition. We argue that the effect of what you are doing—by the form in which you are opposing the government in this amendment—is to return section 42 to uncertainty and an undesirable position resulting from the High Court’s Boral decision. That is what we are arguing.