Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015
Note: The Senate Economics Committee reviewed this Bill (see review page) and recommended it be passed.
The bill was introduced by the Minister for Small Business, the Hon Bruce Billson MP.
The majority of proposed amendments relate to the Australian Consumer Law.
However, the Act also proposes to amend s 5 of the Act relating to the requirement for private parties to obtain ministerial consent. In particular, it removes the requirement for private parties to seek Ministerial consent when bringing an action for a breach that takes place overseas.
Section 5 of the Act (Part 2 of the Bill)
3 Subsections 5(3), (4) and (5)
Repeal the subsections.
Section 155 of the Act (Part 9 of the Bill)
20 After subsection 155(8)
(8A) If a person refuses or fails to comply with a notice under this 7 section, a court may, on application by the Commission, make an 8 order directing the person to comply with the notice.
The Explanatory Memorandum was circulated by authority of Minister for Small Business, Hon Bruce Billson MP.
The Hon Bruce Billson MP's second reading speech was published in Hansard on 18 March 2015 (pages 8-11). It relevantly includes the following:
Another key reform is set out in part 2 of the schedule. This amendment removes the requirement for litigants to seek my agreement to bring an action for a breach of the Competition and Consumer Act 2010 that takes place overseas. This requirement was inserted into the act in 1986 due to concerns that the extraterritorial application of the act may impinge on the laws or policies of the country where the breach took place. This is not such a concern today.
Similar requirements to the Competition and Consumer Act 2010 now exist in most countries. These have a significant degree of uniformity in the general types of conduct they prohibit, with even further convergence likely in the future. Reflecting this, the government is not aware of any request for ministerial consent having ever been refused.
On the other hand, this requirement imposes a significant barrier on parties seeking private action to enforce their rights under the law. For example, the government has received feedback that this requirement could delay the course of proceedings, as the requirement for ministerial consent may not marry with the time frames of courts for filing statements of claim or defence.
The current procedure also requires applicants to provide advice on the laws of the country in which the alleged conduct took place to assist the government to assess their application. We have received advice that this may cost around $30,000 on average, and some applicants have also been required to obtain such advice from several jurisdictions, further exacerbating these costs.
And in relation to s 155
Part 9 permits the ACCC to seek a court order directing a person to comply with a notice given under section 155 of the Competition and Consumer Act 2010. This further strengthens its ability to obtain the necessary evidence to properly investigate allegations of a breach of the law.