'Unilateral anti-competitive conduct is regulated by section 46 of the Trade Practices Act 1974 (Cth) (TPA). Section 46 prohibits a corporation with ‘market power’ from ‘taking advantage’ of that market power for a ‘proscribed anti-competitive purpose’. The very low success rate of actions brought under section 46 has led many to argue that these elements are too difficult to prove and, in turn, that section 46 needs to be amended if businesses with a small share of the market are to be appropriately protected from anti-competitive conduct engaged in by their larger rivals. The Senate Economics References Committee (Senate Committee) shared this view and recommended that amendments be made to the ‘market power’ and ‘take advantage’ requirements in section 46. ...'

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