Home Page / Legislation / Competition and Consumer Act 2010 / s 46A

Competition and Consumer Act 2010 (Cth)

Section 46A
Misuse of market power — corporation with substantial degree of power in trans­Tasman market

 

The provision

(1) In this section:

conduct, in relation to a market, means conduct in the market either as a supplier or acquirer of goods or services in the market.

impact market means a market inAustralia

market power, in relation to a market, means market power in

trans‑Tasman market means a market in Australia ,New Zealand orAustralia andNew Zealand for

(2) A corporation that has a substantial degree of market power in a trans‑Tasman market must not take advantage of that

(a) eliminating or substantially damaging a competitor of the corporation, or of a body corporate that is related to the

(b) preventing the entry of a person into an

(c) deterring or preventing a person from engaging

(2A) For the purposes of subsection (2):

(a) the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular

(b) the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular

(3) If:

(a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a trans‑Tasman

(b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a ‑Tasman market;

the corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans‑Tasman market.

(4) In determining for the purposes of this section the degree of market power that a body corporate or bodies corporate has or have in a trans‑Tasman market, the Federal Court is to have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate, in the trans‑Tasman market is constrained by the

(a) competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans‑Tasman

(b) persons to whom or from whom the body corporate, or any of those bodies corporate, supplies or acquires goods or ‑Tasman market.

(5) Without extending by implication the meaning of subsection (2), a corporation is not taken to contravene that

(6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, because an  93.

(7) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any

(8) It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section, should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of

(9) Subsection (8) has effect despite section 9 Foreign States Immunities Act 1985.

 

Legislative history

 

Commentary

Forthcoming