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Competition Law Reading Room

Uncovering the roots of Australia’s misuse of market power provision: Is it time to reconsider?

Katharine Kemp
(2014) 42(5) ABLR Australian Business Law Review 329



Australia’s misuse of market power provision has been the subject of debate throughout its 40-year existence. It is presently in the spotlight again, receiving consideration as part of the “Root and Branch Review” of the competition law. Despite consideration by numerous earlier reviews, the prevailing view has been that little (if any) amendment of the provision is needed. This article examines the legislative origins of the three most distinctive features of the provision, namely that it does not permit an efficiency defence (or authorisation); it does not incorporate an effects-based test; and it relies on a firm making use of its market power.The analysis reveals that these elements were shaped in significant respects by superseded theories and apparent inattention to their implications, giving rise to weaknesses in the reach and operation of s 46(1). There is good reason to question the protected status which these elements have enjoyed in Australia’s unilateral conduct law.

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