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Thursday, 14 February 2019
Page: 10380


The PRESIDENT (20:12): Order! The time allotted for the remaining stages of the bill has expired. The question is that this bill be now read a second time.

Question agreed to.

Bill read a second time.

The PRESIDENT: Can I just clarify which amendments were withdrawn. I have that opposition sheet 8640 was withdrawn.

Senator O'Neill: Thanks, Mr President, that's correct.

The PRESIDENT: I'm just clarifying because the question that I have, and I'll look at the Clerk and minister, that schedules 2 and 3—

Senator Whish-Wilson: On a point of order: can you please reconfirm what legislation we're on. We missed it.

The PRESIDENT: It is the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018. The first question is that schedules 2 and 3 on sheet PL100 stand as printed.

The government opposed schedule 2 and schedule 3 in the following terms—

(2) Schedules 2 and 3, page 13 (line 1) to page 15 (line 6), TO BE OPPOSED.

Question negatived.

The PRESIDENT: The question now is that amendment (1) on sheet PL100 be agreed to.

Government ' s circulated amendments—

(1) Clause 2, page 2 (table items 3 and 4), omit the table items.

Question agreed to.

The PRESIDENT: The question now is that the amendments on sheet 8553, circulated by the opposition, be agreed to.

Opposition ' s circulated amendments—

(1) Clause 2, page 2 (at the end of the table), add:

6. Schedule 5

The day after this Act receives the Royal Assent.

 

[small business access to justice]

(2) Page 17 (after line 2), at the end of the Bill, add:

Schedule 5—Small business access to justice

Australian Small Business and Family Enterprise Ombudsman Act 2015

1 At the end of section 7

Add:

; and (h) conduct within the meaning of the Competition and Consumer Act 2010.

2 At the end of section 15

Add:

; (c) to give assistance under Division 3A of Part 4 in advising on and preparing a person's case for a no adverse costs order under subsection 82(4) of the Competition and Consumer Act 2010.

3 After subparagraph 23(h ) ( ii)

Insert:

   (iia) assistance being given under section 74B (assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010);

4 At the end of section 65

Add:

; (g) conduct, within the meaning of the Competition and Consumer Act 2010, that:

   (i) may be in contravention of a provision of Part IV of that Act; and

   (ii) affects, or may affect, a small business or family enterprise.

5 After Division 3 of Part 4

Insert:

Division 3A—Assistance where there may be a contravention of the Competition and Consumer Act 2010

74A Application of this Division

This Division applies if the relevant action in relation to which a person requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

(a) may be in contravention of a provision of Part IV of that Act; and

(b) affects, or may affect, a small business or family enterprise.

74B Ombudsman may give assistance in relation to costs order

(1) The Ombudsman may assist the person by doing either or both of the following:

(a) advising the person on the arguments that might be made, and the evidence that might be adduced, to satisfy a court that an order under subsection 82(4) of the Competition and Consumer Act 2010 should be made (a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of that Act);

(b) preparing arguments that might be made in satisfying a court that an order under that subsection should be made.

(2) Nothing in this section limits the functions, duties and powers of the Ombudsman under this Part in relation to the relevant action.

6 At the end of Division 2 of Part 5

Add:

91A Disclosure for the purposes of a no adverse costs order under the Competition and Consumer Act 2010

(1) This section applies if the relevant action in relation to which a person (the applicant) requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

(a) may be in contravention of a provision of Part IV of that Act; and

(b) affects, or may affect, a small business or family enterprise.

(2) A person assisting small business/family enterprise may disclose to the applicant any document or information obtained by the person assisting small business/family enterprise in the course of performing functions or duties, or exercising powers, in relation to assistance given to the applicant under section 74B.

Note: Section 74B allows the Ombudsman to give assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010. This assistance may include advising the applicant on the arguments that might be made, and the evidence that might be adduced, in pursuing a no adverse costs order, and preparing arguments.

Competition and Consumer Act 2010

7 At the end of section 82

Add:

No adverse costs orders

(3) A person who brings an action under subsection (1) in relation to a contravention of a provision of Part IV may at any time during proceedings on the matter seek an order under subsection (4) from the court hearing, or that will hear, the matter.

(4) The court may order that the applicant is not liable for the costs of any respondent to the proceedings, regardless of the outcome or likely outcome of the proceedings.

(5) The court may only make an order under subsection (4) if the court is satisfied that:

(a) the action raises a reasonable issue for trial; and

(b) the action raises an issue that is not only significant for the applicant, but may also be significant for other persons or groups of persons; and

(c) the disparity between the financial position of the applicant and the financial position of the respondent or respondents is such that the possibility of a costs order that does not favour the applicant might deter the applicant from pursuing the action.

(6) The court may satisfy itself of the matters in subsection (5) by having regard only to the documents filed with the court in the proceedings.

(7) A person who appeals a decision of the court under subsection (4) is liable for any costs in relation to the appeal.

8 Application

The amendment of section 82 of the Competition and Consumer Act 2010 made by this Schedule applies in relation to actions under subsection 82(1) of that Act brought on or after 1 July 2019.