The recent Cement Australia decision of the Federal Court raises a number of questions for the interpretation and application of s 46 of the Competition and Consumer Act 2010 (Cth). Given the Australian Competition and Consumer Committee’s (ACCC) historical lack of success in contested s 46 actions, the provision has been reviewed a number of times, including the recent Harper Review. This article considers whether the Cement Australia decision resolves the “would vs could” debate in the context of the “take advantage” limb of s 46, and makes some general comments as to possible implications of the decision, both for the ACCC when enforcing the provision and for the Harper Review..

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