Competition Policy Review Misuse of Market Power

Sunday, 16 November 2014

On 17 November 2014 Company Directors lodged a submission with the Competition Policy Review Panel in response to a call for comments on a draft report released by the Panel in September 2014. 

The submission focuses mainly on the Panel’s recommended changes to section 46 of the Competition and Consumer Act 2010, which relate to misuse of market power by corporations. It sets out our concerns with these changes, including, amongst other things, the greater uncertainties that would result, and the difficulties that both corporations seeking to comply with the section, and courts seeking to interpret the section, would face - remembering the potentially significant penalties that apply to various individuals for breaches of the section by their corporation. Our concerns also extend to the Panel’s proposed statutory defence, which we believe would inappropriately put the onus on corporations to show both the “rationality” of their conduct by reference to other corporations and that the conduct is in the long-term interests of consumers. We put forward that the overall effect of the proposed changes would be an adverse impact on innovation, efficient outcomes and pro-competitive conduct, as well as on the long-term interests of consumers.

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