Competition, Consumer & Regulatory

Increase text sizeDecrease text sizeDefault text size

Client Update: Federal Government amends section 46

16 March 2016

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.


For further information, please contact:

Share or Save for later

What are these?


To save this publication on your smartphone or
tablet for off-line reading (eg on a plane flight),
we recommend Pocket.



You can leave a comment on this publication below. Please note, we are not able to provide specific legal advice in this forum. If you would like advice relating to this topic, contact one of the authors directly. Please do not include links to websites or your comment may not be published.

Comment Box is loading comments...