Supplementary Order Paper No 93

No 93

House of Representatives

Supplementary Order Paper

Tuesday, 9 November 2021

Commerce Amendment Bill

Proposed amendments

Hon Todd McClay, in Committee, to move the following amendments:

Clause 14

In clause 14, new section 36, after subsection (2) (page 8, after line 12), insert:

(3)

Nothing in this section applies to any conduct carried out by a person where that person can demonstrate that:

(a)

it engaged in the conduct for the dominant purpose of protecting a legitimate business interest; and

(b)

the conduct was reasonably necessary to protect that legitimate business interest.

In clause 14, new section 36A, after subsection (5) (page 9, after line 4), insert:

(6)

Nothing in this section applies to any conduct carried out by a person where that person can demonstrate that:

(a)

it engaged in the conduct for the dominant purpose of protecting a legitimate business interest; and

(b)

the conduct was reasonably necessary to protect that legitimate business interest.

Explanatory note

The new effects test in this bill could unintentionally capture normal commercial conduct, including commonplace actions and conduct that credibly protects the dominant firm’s business interests. The legitimate business conduct defence proposed by this Supplementary Order Paper is consistent with international precedents, and aligns with the bill’s intent to prohibit anti-competitive conduct while reducing uncertainty and risk for routine business actions.