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Wednesday, 14 August 1974
Page: 930

Senator GREENWOOD (Victoria) - I desire to comment on 2 points. I refer, firstly, to the answer that the Attorney-General (Senator Murphy) gave to the question asked by Senator McLaren. I do not know whether Senator McLaren was speaking about a hypothetical situation or whether he had in mind a situation this is likely to occur. As I understood him, he was talking about a wine producer who might want to go into the wholesale or retail market, and whether such a company would be able to do so. It seems to me that if a wine producer goes into the business of retailing he stands in a position of dominance or superiority in relation to the other retailers. He is in that position of superiority because he does not have to pay the wholesaler's costs. He can market directly to the public and do. it very cheaply compared with the other retailers.

I think that a very real question is involved and that it has not readily been answered by the Attorney-General. To give him his due, I do not think he can fairly answer the question because ultimately it is for a court to determine. I would think that if that wine producer is in business in a big way it may be said that he substantially controls a market. Maybe it is for the heavy reds, maybe it is for all reds, maybe it is for all wines. Who knows? That wine producer could well be said to be in a position substantially to control the market. If that wine producer, as a result of selling his wine more cheaply than the retailers who are already in the market, substantially damages or conceivably eliminates one of his retail competitors, can it not be said that he has taken advantage of his position of power to achieve that result?

I do not think that the wine producer intended to eliminate anybody, because he is a decent fellow. He did not want to harm his competitor; he did not want to put his competitor out of the market. However, he is engaged in the business of selling his wines in a competitive economy and the cheaper he can sell and the more he can sell the better it is, and the consumer and the economy derive benefit from that. But under this particular clause of this Bill he is at risk of being accused of monopolisation simply because, to use the language of the Bill which the AttorneyGeneral has put before us, 'a corporation that is in a position substantially to control a market for goods or services shall not take advantage ofthe power in relation to that market that it has by virtue of being in that position to eliminate or substantially to damage a competitor in that market or in another market'.

What the Opposition is trying to get is a position where one can ask: Is what is wrong when a company deliberately intends to damage a competitor or eliminate him, or is it to be wrong simply when it happens as a consequence, as a matter of result from the activity that is undertaken? The Government and Senator Murphy, as I understand them, feel that the second position is the appropriate position. If it happens it is bad and it is to be penalised and a company that does it is liable to a $250,000 penalty. We in the Opposition are saying that is unfair. If a person does it deliberately let him take the consequences because it ought to be considered wrong, but if it just happens he should not be penalised. That is not the sort of law this Parliament ought to be passing. We have moved the amendment to try to resolve that situation. I regret that the Attorney-General will not accept the amendment.

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