Reports
Swanson Report 1976
Trade Practices Act Review Committee
Report to the Minister for Business and Consumer Affairs
Length: 101 pages
View full report (PDF: 242mb - fully searchable)
Key Recommendations
Concept of competition
Noted that the concept of 'competition' is not defined in the Act and to attempt to do so could mean a 'substantial loss of many of the dynamic features of the concept'. The Committee did, however, express their views of what competition meant; in this respect they considered that the Trade Practices Tribunal's discussion of the concept in Re Queensland Co-operative Milling Association Ltd, Defiance Holdings Ltd (1976) ATPR 40-012 was appropriate.
Section 45
Recommended that the phrase 'restraint of trade' as adopted in the original s 45 should be removed.
More forthcoming
Terms of reference
In April 1976 then Minister for Business and Consumer Affairs, the Hon John Howard MP, announced the establishment and terms of reference of this Committee. The terms of reference were:
"1. The Committee shall consider the operation and effect of the Act, not including Par X, and report ... on:
(a) whether the Act is achieving its intended purpose of the development and maintenance of a free and fair market, and whether Australian consumers are benefiting from the Act.
(b) whether the Act is causing unintended difficulties or unnecessary costs to the Australian public, including Australian business;
(c) whether in the curent economic circumstances of Australia the operation of any part of the Act inhibits, or is likely to inhibit, economy recovery, contrary to the economic objectives of the Government; and
(d) the measures open to the Government, by way of amendment of the Act or otherwise, to improve the operation of the Act in the light of (a), (b) and (c) above.
2. The Committee should pay particular attention to the need to ensure that the Trade Practices Act is sufficiently certain in its language to enable persons affected by it to understand its operation and effect so as to be reasonably able to comply with its obligations in th eordinary course of business.
3. The Committee is asked to report on the effect of the Act on small business and to assess whether small businesses could and should be accorded special treatment by the Act.
4.In considering the operation of the substantive prohibitions of the Act relating to restrictive trade practices, the Committee is asked to give close attention to the sections dealing with exclusive dealing, price discrimination and mergers, and particularly -
(a) whether it is desirable for the Act to contain a prohibition relating to anti-competitive mergers and, if it is, what form that prohibition should take; further, if there is to be such a prohibition, whether it would be appropriate to make special provision for mergers involving failing companies and whether it would be appropriate and practicable to exclude mergers involving small companies, possibly by a threshold test; and
(b) whether, in relation to price discrimination, it is appropriate for the Act to have regard to anti-competitive effects in the market of the buyers subject to a discrimination in price, or in any other markets other than the market of the seller.
5. The Committee is requested to give particular attention to the application of the Act to anti-compettiive conduct by employees, and employee or employer organisations.
6. In its consideration of the provisions of the Act dealing with consumer protection, the Committee is asked to give attention to any particular problems arising from the inter-relationship with State laws.
7. The Committee is requested to report by 30 June 1976.
Membership
Mr T B Swanson (Chairman)
Mr J A Davidson
Mr A G Hartnell
Professor A Kerr
Mr H S Schreiber
Submissions and meetings
Forthcoming
Legislative changes
Forthcoming
