In brief
The Federal Government today announced it will amend section 46, which prohibits the misuse of market power. In doing so, the Government will adopt the recommendation of the Harper Review.
The amended s46 of the Competition and Consumer Act 2010 (Cth) would prohibit a corporation with substantial market power from engaging in conduct which has the purpose, effect or likely effect of substantially lessening competition in a market. Importantly, the amended provision would not require a causal connection between a firm's conduct and its market power – conduct would not need to involve a use of market power in order to be prohibited. The amended provision will capture significantly more conduct.
This announcement follows recent public consultation, facilitated by a Treasury discussion paper on options for reform. The Government will engage in further consultation following the release of Exposure Draft legislation later in the year. The drafting proposed by the Harper Review is set out on pages 513-515 of its final report.
Allens' view on the proposed amendment to s46 is set out in our submissions to Treasury, available here and
here.
We will keep you closely informed of developments.