The Turnbull Government has today legislated significant amendments to strengthen Australia’s competition law providing greater protections for small businesses and more choice for consumers by boosting innovation and opening new markets.
The amendments implement a key recommendation of the Harper Competition Policy Review to strengthen section 46 of the Competition and Consumer Act 2010, also known as the misuse of market power provision. The Harper Review found the misuse of market power law was not reliably enforceable and did not effectively target and deter anti-competitive conduct.
The reforms represent a pivotal step towards ensuring Australia’s competition laws are fit for purpose and support competition in a dynamic economy.
The new section 46 is robust law that will prevent firms with substantial market power engaging in conduct that harms competition in Australian markets. This is particularly important for Australia’s 3.2 million small businesses which make up more than 97 per cent of all businesses.
The reformed section 46 will prohibit a corporation from engaging in conduct with the purpose, effect or likely effect of substantially lessening competition in a market in which it directly or indirectly participates.
The new provision will more effectively address anti-competitive conduct, protecting the process of competition rather than individual competitors.
Typically, the Labor party was left almost alone in opposing these important reforms, preferring to back big businesses and big unions over the interests of consumers and small businesses.
The amendments have been subject to extensive public consultation following the release of the Government’s response the Harper Review, an exposure draft in 2016, and a Senate inquiry. Concerns raised by stakeholders have been addressed in the legislation.
Further amendments to the Competition and Consumer Act 2010 to implement a range of other important reforms recommended by the Harper Review are currently before the House of Representatives. These include replacing the never-used and unworkable price-signalling provisions with a general prohibition on concerted practices with the purpose or effect of substantially lessening competition, and reforming merger clearance and authorisation processes.
Both section 46 and the additional amendments will commence as soon as possible, once the additional amendments have passed the Parliament.