Home Page / Legislation / Competition and Consumer Act 2010 / s 4E

Competition and Consumer Act 2010 (Cth)

Section 4E
Market

 

The provision

For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.

The meaning of 'market in Australia' was be considered by the High Court for the first time in Air New Zealand Ltd v ACCC; Pt Garuda Indonesia Ltd v ACCC [2017] HCA 21

 


Legislative history

 

Case references

Please note that this is not intended to be exhaustive.

External linkACCC v Australian Safeway Stores Pty Limited [2003] FCAFC 149 (30 June 2003)
Misuse of market power, exclusive dealing, price fixing (relating to bread)

ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 December 2013)

ACCC v Liquorland (Australia) Pty Ltd [2006] FCA 826
Exclusionary provisions, anti-competitive agreements, market definition

Air New Zealand Ltd v ACCC; Pt Garuda Indonesia Ltd v ACCC [2017] HCA 21
High Court - meaning of 'market in Australia' (in the context of price fixing allegations)

External linkAuskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256; [2008] FCA 1458
Alleged cartel - specificity of market

Australian Gas Light Company v Australian Competition and Consumer Commission (2003) 137 FCR 317
See para's 378-379

External linkEmirates v ACCC [2009] FCA 312
Validity of s 155 notice - issue of market definition

QIW Retailers Ltd v Davids Holdings (1993) ATPR 41-226
Mergers; Trade Practices Economics

Re QIW Ltd (1995) 132 ALR 225
Merger, Market definition

Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Mergers; Trade Practices Economics

[at 190] "... a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive."

In Re Tooth and Co Limited; In Re Tooheys Limited (1979) ATPR 40–113 (Tribunal)
Market definition

Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465
Market definition

Trade Practices Commission v Australian Meat Holdings (1988) 83 ALR 299
Mergers; Market Definition

[at 317] 'A market is the field of activity in which buyers and sellers interact, and the identification of market boundaries requires consideration of both the demand and supply side. The ideal definition of a market must take into account substitution possibilities in both consumption and production. The existence of price differentials between different products, reflecting differences in quality or other characteristics of the products, does not by itself place the products in different markets. The test of whether or not there are different markets is based on what happens (or would happen) on either the demand or the supply side in response to a change in relative price.'

Seven Network Ltd v News Limited [2007] FCA 1062; [2009] FCAFC 166 (the C7 case)
Anti-competitive agreements; misuse of market power; market definition

External linkSingapore Airlines Ltd v Approbate Tours WA Pty Ltd (1991) 33 FCR 158
Market definition

The Concept of Market

35. The concept of "market" has long involved elements of both activity and location. The ordinary meanings set out in the Shorter Oxford English Dictionary include "the meeting together of people for the purchase and sale of provisions or livestock, publicly exposed at a fixed time and place" and "the action or business of buying and selling". At common law it was a "franchise right of having a concourse of buyers and sellers to dispose of commodities in respect of which the franchise was given" - Downshire (Marquis) v O'Brien (1887) 19 LR Ir 380 at 389.

36. In competition law it has a descriptive and a purposive role. It involves fact finding together with evaluative and purposive selection. In any given application it describes a range of economic activities defined by reference to particular economic functions (e.g. manufacturing, wholesale or retail sales), the class or classes of products, be they goods or services, which are the subject of those activities and the geographic area within which those activities occur. In its statutory setting the market designation imposes on the activities which it encompasses limits set by the law for the protection of competition. It involves a choice of the relevant range of activity by reference to economic and commercial realities and the policy of the statute. To the extent that it must serve statutory policy, the identification will be evaluative and purposive as well as descriptive.

[The decision goes on to discuss the issue of market definition - including development in Australia and the United States - at length]

 

Commentary

See also policy and economics commentary generally

2015

externallinkNicolas Taylor and Prudence Smith, 'Australia Court Broadens "Market" Definition in Australia' (Jones Day Antitrust Alert, May 2016)

2012

Rachel Trindade and Rhonda L Smith, 'Football and Substitutes - A Primer in Market Definition' (October 2012) 7 The State of Competition

2010

Stephen Corones, 'Market Definition in the age of the internet' (2010) 38 Australian Business Law Review 309

Justice Greenwood, ‘Recent Developments in Market Definition’, 2010 Competition Law Conference, Sydney, 29 May 2010

Rhonda Smith, 'Market definition: Going, going, gone? Developments in the United States' (2010) 18 Competition and Consumer Law Journal 119

Cam Truong, 'Transnational commerce and the problem of market definition' (2010) 18 Trade Practices Law Journal 254

2009

Daniel Clarry, 'Contemporary approaches to market definition: Taking account of international markets in Australian competition law' (2009) 37 Australian Business Law Review 143

1996

External linkDavid Brewster, 'Market Definition and Substitutability - Australian Courts Continue to Struggle with Part IV of the Trade Practices Act 1974 (Cth)' (1996) 12 QUTLJ 246-263

1995

George Hay, 'Market definition and market dominance: issues from the Davids/QIW case' (1995) 3 Competition & Consumer Law Journal 1.

1990

Maureen Brunt, 'Market Definition Issues in Australian and New Zealand Trade Practices Litigation' (1990) 18 Australian Business Law Review 86-128

1983

N Norman and P Williams, 'The analysis of market and competition under the Trade Practices Act: towards the resolution of some hitherto unresolved issues' (1983) 11 Australian Business Law Review 396