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AustraliaCompetition and Consumer Amendment (Misuse of Market Power) Bill 2016

Senate Economics Committee

External linkView Committee page

View my separate Bill page

About this Review

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was introduced into the House of Representatives on 1 December 2016. It is intended to give effect to the substance of the Harper Committee recommendations on misuse of market power; in particular it will replace the existing purpose based test with one focussing more directly on conduct having the purpose, effect or likely effect of substantially lessening competition.

Although there have now been several reviews into this proposed change (the various Harper Review stages, a subsequent Treasury discussion paper and an exposure draft bill) the matter was referred to the Senate Economics Committe for further consultation and reporting. The report was released on 16 February 2017.

The bill subsequently passed (in August 2017), with amendment, as the Competition and Consumer Amendment (Misuse of Market Power) Act 2017.

 

Report

The Report was released on 16 February 2017.

By majority the Committee recommended that the bill be passed, subject to some amendment. The three recommendations made were:

  • Recommendation 1: The committee recommends that the proposed mandatory factors, asdrafted in subsection 46(2) of the bill, be removed.
  • Recommendation 2: The committee recommends that the government undertake a post-implementation review of the reforms to section 46 at least five years after commencement.
  • Recommendation 3: The committee recommends that the bill be passed.

Senator Nick Xenophon offered some additional comments, including once again calling for introduction of divestiture powers for breaching the misuse of market power provision as well as greater access to justice for small business.

Labor senators dissented, claiming the effects test is 'a particularly dangerous economic policy' and may make big business afraid of competing.

More details to follow.

 

Submissions

Submissions to the Review were due by 9 January 2017. Thirty-five submissions were received and can be viewed on the Committee website.

  • 1 Waste Buying Group
  • 2 Optus
  • 3 National Farmers' Federation
  • 4 Mr Winston Rodrigue (plus 4.1 Supplementary to submission 4)
  • 5 Retail Council
  • 6 Australian Dairy Farmers
  • 7 Dr Julie Clarke, Deakin University
  • 8 AUSVEG
  • 9 Australian Hotels Association
  • 10 Telstra
  • 11 Insurance Council of Australia
  • 12 Institute of Public Accountants
  • 13 Master Grocers Australia
  • 14 Housing Industry Association Limited
  • 15 MinterEllison
  • 16 Queensland Dairyfarmers’ Organisation Ltd
  • 17 BlueScope Steel Limited
  • 18 Australian Small Business and Family Enterprise Ombudsman
  • 19 Woolworths Limited
  • 20 Law Council of Australia
  • 21 Mr Michael Cunningham
  • 22 Australian Bankers' Association
  • 23 Council of Small Business Australia
  • 24 Arnold Bloch Leibler
  • 25 Australian Chamber of Commerce and Industry
  • 26 Australian Competition & Consumer Commission
  • 27 Business Council of Australia
  • 28 Mr Hank Spier
  • 29 Australian Lottery and Newsagents’ Association
  • 30 Mr Daniel Black (see also Response from Telstra to submission 30)
  • 31 Queensland Law Society
  • 32 Competitive Carriers' Coalition
  • 33 Macquarie Telecom Group
  • 34 Vodafone Hutchison Australia
  • 35 Mr John Dahlsen

 

Committee members

Members of the Senate Economics Legislation Committee for purposes of the Report:

Senator Jane Hume (Chair) (Victoria, LP)

Senator Chris Ketter (Deputy Chair) (Qld, ALP)

Senator Cory Bernadi (from 5 Dec 2016 - 15 Feb 2017) (South Australia, AC)

Senator David Bushby (Tasmania, LP)

Senator Jenny McAllister (NSw, ALP)

Senator Ian Macdonald (from 5 Dec 2016 - 15 Feb 2017) (Qld, LP)

Senator Nick Zenophon (South Australia, NXT)

[For party abbreviations see glossary]

 

The bill

View my separate Bill page for details of the bill and the explanatory memorandum. No further documentation is provided on the Committee page.

 

Media and commentary