Legislation
Competition and Consumer Legislation Amendment Act 2011
Note: this bill was previously introduced as the Competition and Consumer Legislation Amendment Bill 2010. It passed through the House of Representatives but lapsed at the end of Parliament on 29 September 2010 before it passed through the Senate. A Senate Inquiry into Competition and Consumer Legislation Amendment Bill 2010 recommended its passage.
The bill received Royal Assent on 6 December 2011 and will come into operation on a day to be fixed by Proclamation or 2 months from the day after the day of Assent (whichever is sooner).
Overview
This bill includes the following key amendment to the competition law provisions:
(1) replacing the words 'a market' in section 50(1) with 'any market'
(2) Removing the requirement that a market, for purposes of the merger provision, be a 'substantial' market, by removing the word substantial from subsection 50(6)
The Government claims that this will address some of the concerns raised about creeping acquisitions and followed two inquiries into creeping acquisitions.
Note, the bill also introduced amendments to the unconscionable conduct provisions of the Act.
Key provisions
Subsection 50(1)
The existing s 50(1) provides:
A corporation must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
The bill proposes to amend the last two words from 'a market' to 'any market'. This, the EM explains (at para 1.18), is to 'clarify the ability of the ACCC or a court to consider multiple markets when assessing mergers' and to 'prevent businesses from being able to challenge a decision that a proposed merger or acquisition would, or would be likely to, substantially lessen competition in a market in breach of section 50, on the grounds that the lessening of competition identified was in one or more markets other than the primary market in which the merger or acquisition would occur.'
Subsection 50(6)
The existing provision provides that, for purposes of s 50:
market means a substantial market for goods or services in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
The Act willremove the word 'substantial'. The government claims that the current provision is unclear about whether or not the market definition extends to 'local' markets and is also unclear on just how 'substantial' a market must be to be caught. In particular, they claim (at para 1.30 of the EM) that removing the word substantial will 'remove the risk ... that a court may in the future adopt the view that the substantiality of a market should be determined with reference to Australia as a whole.' The EM goes on to state that the 'amendment will also remove doubts regarding the ACCC's ability to examine markets where creeping acquisitions concerns may arise in the future'.
The concern about the potential for the word 'substantial' to be limited by reference to the market in Australia as a whole, arose in part out of the following comments (obiter) made by Justice French (as he then was) in AGL v ACCC (at 353):
The competitive process under scrutiny with and without the acquisition is competition in a market. That means a substantial market for goods or services in Australia or a State or a Territory or a region of Australia (s 50(6)). The definition in s 50(6) does not exclude the operation of the definition in s 4E which will pick up, in a product market, goods and services substitutable for or otherwise competitive with each other. However the definition in s 50(6) introduces the qualifying term ‘substantial’ before ‘market’. It is suggested in Heydon, Trade Practices Law (LBC) at [9.570] that the aim of the qualification is to exclude from the Act cases where a merger occurs in a very small market. The learned author there observes:
‘Section 50(6) involves sacrificing the interests of those in small markets to the interests of the parties to the merger. If a small merger in a small market were to be unlawful on the ground that it led to the acquiring corporation obtaining market control, though this result may be harsh for the acquiring corporation, the merger would be likely to cause as much damage to competition in that market as would be caused to competition by like events in a much larger market.’
It does not seem likely that the relativity implied by the term ‘substantial’ in s 50(6) relates to the size of other markets in whichever of the geographical areas mentioned in the definition the market is to be found. For there is no lower bound on the size of ‘a region of Australia’. It may be that having regard to s 4E the substantiality of the market in question, even if it be geographically limited to a State or a Territory or a region, is to be judged by reference to Australia as a whole. I express no concluded view on that difficult constructional issue because the present case does not appear to throw up any dispute between the parties that, whichever of their propounded markets is in issue, it is a ‘substantial market’ for the purposes of s 50(6). [emphasis added]
Second reading speeches and committee debate
House - The Hon David Bradbury MP
Extract to follow
Senate (25 November 2011)
Senatory Ryan (Victoria) (11:25):
I rise today with some relief to speak upon the Competition and Consumer Legislation Amendment Bill 2011. Let me say upfront that the coalition does not oppose this package of legislative changes. Indeed, it is the role of the law to facilitate domestic market conditions that are good for business and the community, and competition policy plays a critical part in that role.
The amendments in this bill attempt to strengthen the competition policy regime, which in turn should facilitate a more conducive economic and business environment. That said, the coalition believes that this is an extremely modest bill with modest aims. While we see no damage being caused by this bill, we also see no great cause for celebration. The government's language of accomplishment and achievement does not suit this bill. It is misleading and overstates the impact these changes will make. Yet again we have the Labor Party seeking to create the illusion of reform. Desperate to claim some sort of policy success that assists businesses, and particularly smaller businesses, it makes claims where there are none and overstates the impact of minor changes.
Essentially, this bill has two aims. The first is to clarify the operation of existing provisions - and, I stress, not to create new ones - relating to mergers and acquisitions by addressing a potential uncertainty or ambiguity that may arise in defining what a market is for the purposes of section 50 of the Competition and Consumer Act. It does this by broadening the language of 'market' so that all markets can be included and so that creeping acquisitions can also be scrutinised. This will ensure that a court or the ACCC can examine mergers in a greater number of markets.
The second aim of the bill is to insert interpretive principles into the unconscionable conduct provisions to assist the courts in applying the law as well as to assist broader community and stakeholder understanding. What the bill does not achieve is that which was described in the government's speeches in the second reading debate, when it claimed great accomplishments for small business and groundbreaking shifts in competition and consumer law in Australia. It does not do anything of that sort. It is what it is, and we support it for the aims I have just outlined. It is a modest gain to clarify contested and often misunderstood aspects of competition law.
I first want to address the bill's provisions in relation to its amendments to the Competition and Consumer Act 2010 with respect to section 50, which is the key provision relating to mergers and acquisitions. It provides the ACCC with the legislative framework to analyse, consider and address potential competition policy concerns posed by mergers and acquisitions in Australia. Most of us agree that mergers and acquisitions are important for the efficient functioning of the Australian economy. They allow firms to achieve efficiency such as economies of scale and the diversification of risk across a range of activities. Absent some genuine and real concern for the greater community, there is no role for the state or the law in restricting these.
However, the current law does contain a weakness, and this bill addresses the issue of 'creeping acquisitions'. Creeping acquisitions are a series of small-scale acquisitions that individually may not substantially lessen competition in a market but collectively have the potential to do so over time. Each of these small acquisitions may not be in breach of section 50, and therefore the series of acquisitions are permissible by law. However, over a long period of time such transactions may have the cumulative effect of substantially lessening competition in a market. There are currently no provisions in the Competition and Consumer Act to prevent or limit creeping acquisitions.
Over the past decade or so there have been concerns raised about market concentration in a number of key sectors. We have seen it recently in banking, groceries, fuel and a few other areas. As a result, issues have arisen as to how section 50 of the Competition and Consumer Act is applied to these markets, particularly those affected by creeping acquisitions. One just has to look at the supermarket sector to see my point. Just over two decades ago, when Professor Hilmer was doing his work looking at our competition and consumer framework and recommending the reforms which earned a wide degree of support and which have been of significant and undoubted benefit to Australia and Australians, the two major supermarket chains had less than half of the total grocery market. Today, those same two chains have more than two-thirds - approaching three-quarters - of the market. Nothing enormous or transformational happened overnight. Indeed that change in market share may partly simply reflect changing consumer preferences. But we also know that, through a series of acquisitions, new presences and purchases of new properties, the supermarket majors have greatly enhanced their positions. It is only fair to concede that the degree of increase in market share of these two major chains has caused a level of concern in some areas of our community - amongst consumers, producers and businesses alike.
To start with, these changes to the act remove the word 'substantial' in relation to the ACCC's analysis of mergers and acquisitions, so now even those mergers not considered substantial can be scrutinised by the ACCC. The hope is that this will remove the risk that a court might adopt the view that an acquisition in a geographically confined market is not substantial and therefore does not fall within the scope of section 50.
The bill also amends section 50 to replace references to 'a market' with references to 'any market'. Together, these changes clarify the ability of the ACCC or a court to consider multiple markets when assessing mergers, including smaller mergers which over time may amount to potentially damaging creeping acquisitions. It is important to note, however, that the amendments to section 50 do not oblige the ACCC to examine the competitive impact of an acquisition in a small market. It is simply a clarification that it indeed may do so and that it is a relevant factor where a merger is being considered for other reasons.
So what do we have here? In short and put simply, this is a clarification of the law to reduce an ambiguity that might become a legal basis to challenge the work of the ACCC. On that basis, the coalition supports the bill. But I say again: we do not support the government's claim that this bill is somehow a profound strengthening of the Competition and Consumer Act.
The other aspect of this bill relates to the concept of unconscionable conduct. ...
The government claims that this bill before the Senate today implements a Labor election commitment to introduce a law in relation to creeping acquisitions - they claimed the then regulatory response did not adequately address the problem. They claim great reform. But that is little more than misplaced grandeur. In reality, what we have here is the government applying a dictionary and a thesaurus to the original bill - expanding some definitions and giving us some interpretive guidelines to better understand the sometimes complex language of competition law. That is an important objective. These are all good and necessary changes that the coalition supports. However, they must be understood and explained for what they are - this is a start and a step in the right direction, but many more steps are needed. That is why the coalition has called for a root and branch review of the competition and consumer law. Two decades on, such a review is only appropriate, but for some reason this government seems to think that a few tweaks and a few changes here and there will create the illusion that it is really listening when it is not.
Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:35)
In summing up and closing the second reading contributions on the Competition and Consumer Legislation Amendment Bill 2011, I firstly thank Senator Ryan.... This bill will strengthen and clarify Australia's competition and consumer laws, which are designed to improve the welfare of Australians. The bill makes two important changes. ...
Firstly, the bill will enact laws to deal with creeping acquisitions by amending the mergers and acquisitions provisions in section 50 of the Competition and Consumer Act 2010. The bill will remove the requirement that a market in which the competition effects of a merger or acquisition are assessed must be a substantial market. The amendments will also ensure that the courts and the Australian Competition and Consumer Commission, the ACCC, can consider the competitive effects of a merger or acquisition in any market.
...
I will make a couple of concluding remarks. Firstly, I do not agree with the level of Senator Ryan's critique. ...
Senator Ryan stated a number of concerns. One in particular was the presence in our marketplace of what are known as the 'big two' retailers and their growth in market share over a long period of time. I note that he expressed some concerns about the trend and also referred to the need to do more with respect to this issue. Senator Ryan, I look forward to a policy contribution from the opposition in this regard. ...
IN COMMITTEE (Senate, 25 November 2011)
Senator Xenophon (South Australia) (11:44)
I will make a couple of short contributions that will lead into the amendments that I will be moving shortly.
I do not oppose this bill, but I believe that it could be improved. That is why I will be moving amendments to omit the word 'substantially' and substitute the word 'materially' when it comes to mergers. It is my view that the ACCC does not have the legislative firepower that it needs to deal with the issue of mergers. Having the word 'materially' rather than 'substantially' with regard to lessening competition would make a very real difference to the highly concentrated markets we have here in Australia. We have a situation where Woolworths and Coles control some 80 per cent of the dry grocery market. We have had too many mergers that have been approved by the ACCC under the current legislation. We have seen the difficulties in the grocery sector with petrol and we have a looming problem with the liquor market, and the word 'substantially' does not do the job that it should - it is too high a test. That is why I am grateful for the work that Associate Professor Frank Zumbo, from the University of New South Wales, has done in relation to this and other competition issues.
...
I move the amendments on sheet 7136 [to change the test from 'substantially lessens competition' to 'materially lessens competition']
These amendments are intended to lower the threshold by which mergers are considered by the ACCC. Under the current threshold a merger is only prohibited if it 'substantially' lessens competition. The use of the word 'substantially' makes the threshold a very high one requiring the merged entity to exercise market power after the merger. Proving the existence of market power requires proof of an ability to raise prices without losing business. Very few businesses would have market power under the definition as it is effectively only a monopolist that would have the power to raise prices without losing business.
Under the existing threshold relatively few mergers or acquisitions are stopped by the ACCC. Mergers and acquisitions reduce competition in the market and lead to higher levels of market concentration. A reduction in competition is detrimental to competition and consumers as it may lead to higher prices and reduced product choices. We need a stricter threshold for assessing mergers. Within this context the concept of materiality is adopted, as that is a commonly understood concept used in the accounting and business world to assess the impact of particular conduct or an event. In this context a merger will substantially lessen competition if it has or would have a noticeably adverse impact on competition by reducing in a material way the number of efficient independent competitors and the range of product choices available to consumers.
That is at the heart of this. We need to do a lot better. In recent years too many mergers have been approved by the ACCC. The ACCC does not have the legislative firepower to deal with these issues adequately. The threshold is simply too high under 'substantially'; 'materially' would remedy that.
Senator Sherry (Tasmania - Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (12:01): I acknowledge and appreciate the concern of Senator Xenophon and the attention he has paid to this issue - as has Senator Ryan. I recall a significant number of discussions about this at Senate estimates. We are dealing with substituting the word 'substantially' with 'materially'. The detailed and principled approach that Senator Xenophon is proposing reflects what is known as his trade practices Richmond amendment bill. I do note we are developing a trend to name amendments in this area after geographic locations based on where proposals are drafted or communicated. But that is by the by.... the proposal is to change the test to 'material' lessening of the competition, as reflected in Senator Xenophon's earlier bill. That bill was referred to the Senate Economics Legislation Committee for inquiry. The majority report - both government and opposition - recommended against the passage of the bill with this approach contained in it. The concept of substantially lessening competition has been part of section 50 since 1993. It is well established and understood by the courts, the ACCC, business and consumers.
The concept of 'substantially' is interpreted by the courts to mean 'that the effect of the acquisition be 'meaningful or relevant' to the competitive process'. Australia's SLC test for mergers is consistent with merger laws in many other OECD countries, including the US, Canada, the UK and New Zealand. What is proposed - effectively the Richmond amendment - could have the effect of moving Australia out of line with international practice. It would make significant changes to Australia's merger law that are likely to have substantial and unintended consequences. Consistent with our previous position, as enunciated in the Senate Economics Legislation Committee and the response to considering what is known as the Richmond bill, the government is unable to support the amendments that Senator Xenophon has presented.
Senator Milne (Tasmania - Deputy Leader of the Australian Greens) (12:04): In the interests of time I did not choose to make a second reading contribution so I will quickly sum up where we are coming from with this legislation and Senator Xenophon's amendments. I note that the concluding comments of the Parliamentary Library's Bills Digest say: Given the history of reviews and the Rudd Government’s commitment to implement a ‘creeping acquisitions’ law ‘as a matter of urgency’, it might seem that the amendments to the merger provisions proposed by the Bill are an anti-climax. Descriptions of the amendments as ‘window dressing’ or ‘pragmatic’ would also appear to be apt. These minor amendments largely reflect the ACCC’s current interpretation of the existing law and are unlikely to have any substantial effect on merger analysis in the future.
... I think the reality is, as Senator Sherry has just outlined, that the word 'substantially' is understood in case law on this legislation. It is true that it is consistent with legislation in the UK, the US, Canada and New Zealand and it has been part of case history and case law in Australia since 1993. There is a concern that if the word were changed to 'materially' the government would be arguing that 'substantially' and 'materially' mean the same, because this is to be seen as only a clarification, not a change. So the government would argue that 'substantially' and 'materially' are the same. However, if 'substantially' were changed in the legislation, people would come back, in relation to all those cases since 1993, saying, 'Where does that leave us?' The difference between 'substantially' and 'materially' would need to be tested in the courts. We could end up with a bit of a process in the courts, in the making of that determination. Although Senator Xenophon says that 'materially' is understood to be a lesser threshold than 'substantially', there would be a legal argument as to whether that was the case and, if it was the case, at what point would 'materially' kick in as opposed to the stronger definition that is 'substantially'. It is for that reason that the Greens will not support Senator Xenophon's amendments: they lead to that unresolved question of the difference between 'materially' and 'substantially'. I do not want to bring into play at this time that which has already been dealt with. I also want the legislation to stay consistent with international law and with other countries' laws and experience. The other comment I will make, quickly, is that the ACCC is under different leadership. It is quite clear from that new leadership that the ACCC intends to take a more assertive position in relation to mergers and so on, and that it wants to become a little more proactive. I am concerned that making this change now might in some way complicate the opportunity that exists for a more aggressive and assertive role for the ACCC in this space. I support the ACCC's new leadership's stated position of taking a more assertive position in this area. I do not want to complicate those matters. That is why the Greens will not be supporting Senator Xenophon's amendments.
However, I say to the government that, while it is says this clarifies things, the Parliamentary Library's assessment suggests it is extremely minor and does not really make any substantial change. The Greens agree with Senator Xenophon that we need substantial change. If the ACCC's attempts to use the law as it currently stands in a more assertive and proactive way fail, because the law turns out to restrict the ACCC's ability to do so, I will be very happy to be back here supporting a much more substantial intervention. At this stage we support the minor amendment that the government is proposing but will not support Senator Xenophon's amendment. I will say that this is a space that we are all going to be watching with a very interested eye so as to see how the ACCC proceeds in the next 12 months.
Senator Ryan (Victoria) (12:10): I rise to outline that the coalition will not be supporting Senator Xenophon's amendments. The consequences of moving from 'substantially' to 'materially' may be significant. It is our view that those issues should be considered as part of the root-and-branch review of the competition act that we have proposed. Senator Xenophon, I know that you have a very good productive relationship with the shadow minister, Mr Billson, as you do with me. I know that he is keen to continue these discussions with you. But at this stage, that slight change of words needs to come from an evidence based assessment. The coalition will not support the amendments.
Senator Sherry (Tasmania - Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (12:11): I thank Senator Milne for her contribution. She makes two very reasonable points. In noting that, I have been present on one occasion when the new head of the ACCC, Mr Sims - this was in the context of franchising law, on which there has been some recent improvement in dispute resolution and a range of other changes - indicated the ACCC's renewed interest in applying the upgraded franchising area of the legislation and devoting more attention to that. I will not go to other issues of franchising reform, but I do note that. I think it is an important consideration. I accept Senator Milne's caveat that, in supporting these amendments today, the Greens will be keeping a close eye on developments as they emerge from the focus of the ACCC.
Senator Xenophon (South Australia) (12:13): I am grateful for the comments made by my colleagues. In relation to those of Senator Milne: it is fair enough for her to say, by referring to the Bills Digest - the objective analysis of legislation, if you like, that we receive here - that it is about clarification and could be seen to be window dressing. I am disappointed that the Australian Greens cannot support the amendment at this time, but at least they are keeping the door open. I do acknowledge that there has been a change of guard at the ACCC, and that Mr Rod Sims, the new chairman, has taken a different approach. The statements he has made to date have been encouraging. The way in which he has approached evidence at Senate estimates hearings is refreshing. I welcome that, but I still think we are not giving the ACCC the powers it needs to deal with this adequately.
When it comes to issues of mergers and acquisitions, let us put this in perspective. Senator John Williams is in the chamber. I thought his contribution and a question he put to Mr Sims during a Senate estimates hearing not so long ago were telling. Senator Williams basically asked - I am sure he will correct me if I misquote him - how is it that in the last 30 years, the last generation, we have had a situation where Coles and Woolworths have gone from a 40 per cent market share between the two of them to something like an 80 per cent market share? That is an exponential increase. How is that good for competition? How is that good for suppliers down the supply chain? How is that good for wholesalers? How is it good for consumers that they have so little choice in this country? And how is it good that we have two big gorillas in the room when it comes to our grocery sector? You even have multinationals, such as Heinz, saying: 'This is killing us in terms of food processing. This is actually squeezing us out of the marketplace because of the conduct of those two.'
Our current laws are not good enough and that is why we need a change from 'substantially' to 'materially'. I am grateful to the Minister for Small Business for mentioning the Richmond amendment because I was going to get to it. The Richmond amendment is named after the location of the United service station at 128 Marion Road Richmond West in South Australia - a service station run for many years by William and Samira Fares. This is a small family business - a business where they put in hard work, do great mechanical work and serve petrol, and they are salt of the earth people. They have worked their guts out to build up that business, and what happens? Woolworths decides to set up an outlet right next door to them - blocking the view of oncoming traffic to their service station - to compete with them in a way that is not fair; to compete with them with their huge buying power in a way that cannot allow a level playing field.
It is an issue that I raised directly with Michael Luscombe, the former CEO of Woolworths, and he was good enough to meet with me in Sydney last year about this. I put to him - I do not think he would mind me saying this - 'If you say that they can compete then why don't you let the Fares, in their United service station at 128 Marron Road Richmond West in South Australia, access petrol at the same price you can access petrol?' There are days when the wholesale price that William and Samira Fares pay for their petrol is higher than the price that Woolworths is retailing it for. How can that be fair? We need to remedy that. We need to give small businesses in this country are fighting chance.
I have small businesses - I am not going to do anything to identify them - come to my office, and they are even reluctant to be seen to walking into my office. They tell me, 'If we make a complaint to the ACCC about what Woolworths and Coles are doing to us, about the conditions they sometimes put on us, such as they suddenly want ten tonnes of a particular vegetable at a certain price' - which is below the cost of production for these businesses - 'and we do not do it, then that will be the end of their relationship with us.' You also have small businesses setting up a business model that is based on having Coles and Woolworths as their main buyer, and they say, 'There's no point going to the ACCC because if we make a complaint we're finished.' If these things are happening then we need to do something about mergers in this country, we need to do something about increasing competition, and we need to do something about small businesses having a fighting chance.
That is why I have moved this amendment.... We need to do something better. We need to have a situation where the laws of this nation work for the small business sector and, in turn, for consumers. As for the references that have been made to other countries not going to 'materially', in the United States - I am grateful for the work that Senator Williams has done on this - they have got the Robinson-Patman Act where you cannot have anyone having more than 20 per cent of the market. [ED: this is clearly not accurate - the RPA (sections 13(a)-(c) and 21a of the US Code Ch 15), deals with price discrimination, contains numerous exemptions, is heavily criticised (see eg, Hugh Hansen's 1983 paper) and has largely fallen into disuse] You do not have a situation there where two supermarket chains control 80 per cent of the dry grocery market as in this country. They have got legislative safeguards. They may not have the word 'materially' in some of those jurisdictions, but they have got other pieces of legislation that gives a semblance of protection to small business. That is what the key to this is.
I note that Senator Ryan, on behalf of the coalition, says that he is not supporting this. Senator Ryan and I have disagreements about the marketplace, but I have a genuinely good work relationship with Senator Ryan. I do respect that he has got some intellectual firepower. I do not agree with his position on the $1 milk and the like. I say that genuinely; at least we can have a discussion about it. My plea to Senator Ryan, to the coalition, to the Greens and to the government is: something has gone seriously wrong in this country when it comes to allowing the level of market concentration in so many industries. Associate Professor Frank Zumbo has assisted me with drafting the Richard [sic!] amendment. He met the Fares; he spoke to them and he spoke to the Minister for Small Business, the Hon. Tom Koutsantonis, their local member. One good thing that has come out of the meeting that we had at Richmond West a year and a half ago is that there is now a Small Business Commissioner of South Australia, which Associate Professor Zumbo had a key role in creating.
... There is something seriously wrong in this country in the way that we have dealt with the big end of town and small businesses.
Senator Madigan (Victoria) (12:21): The DLP strongly supports Senator Xenophon's amendments.
The Temporary Chairman (Senator Boyce):
The question is that amendments (1) to (3) on sheet 7136 be agreed to.
The Senate divided. [12:26]
(The Deputy President - Senator Parry)
Ayes - 2 [Senators Xenophon and Madigan]
Noes - 37
Majority - 35
...
Proposed Amendment
Independent Senator Nick Xenophon proposed an amendment [sheet 7136] on 25 November 2011 - proposal was negatived (35-2). The proposed amendment was:
(Amendments to be moved by Senator Xenophon in committee of the whole)
(1) Schedule 1, page 3 (after line 3), before item 1, insert:
1AA Subsection 50(1)
Omit “substantially”, substitute “materially”.
[materially lessening competition]
(2) Schedule 1, page 3 (after line 5), after item 1, insert:
1A Subsection 50(2)
Omit “substantially”, substitute “materially”.
[materially lessening competition]
(3) Schedule 1, page 3 (after line 17), after item 3, insert:
3A Subsection 50(1) of Schedule 1
Omit “substantially”, substitute “materially”.
[materially lessening competition]
