McKiernan Review 2002

The Committee considered two proposed amendments to the Act:

Proposed amendment

(8) In an action brought against a corporation by the ACCC under subsection (1), if the ACCC can show that the corporation:

(a) has a substantial degree of market power; and

(b) has taken advantage of that power;

the onus rests with the corporation to show that the corporation has not taken advantage of its power for a purpose referred to in subsection (1).

Proposed amendment

(1) If a corporation:

(a) owns shares in the capital of a body corporate; or

(b) owns assets of a person;

and the ownership has the effect of substantially lessening competition in a market, the ACCC may apply to the Court for an order that the corporation divest itself of the shares or assets

(2) If a person:

(a) owns shares in the capital of a corporation; or

(b) owns assets of a corporation;

and the ownership has the effect of substantially lessening competition in a market, the ACCC may apply to the Court for an order that the person divest himself or herself of the shares or assets.

(3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the ownership has substantially lessened competition in a market, the matters mentioned in subsection 50(3) may be taken into account.

The Committee considernoted that the dawson Review had commenced and stated:

The Committee considers therefore that it may be premature to make recommendations on these amendments while other reviews of the Trade Practices Act 1974 are proceeding, most notably the review of the competition provisions of the Act announced by the Prime Minister in October 2001, details of which were first made public on 9 May 2002. [para 3.76]

... The Committee proposes to refer the public submissions, the transcript of the public hearing and this report to the review committee. [para 3.77]

Chapter 1 - Introduction

Chapter 2 - The Broader context

Chapter 3 - The amendments

Additional Comments by Senator Murray on Behalf of the Australian Democrats

Appendix 1: List of submissions

Appendix 2: Witnesses who appeared before the committee

Appendix 3: Concurrent developments likely to impact on s 46 and s 50AA of the Trade Practices Act

Senator J McKiernan (Chairman) (ALP)

Senator M Payne (Deputy Chair) (LP)

Senator N Scullion (CLP)
Senator KemB Cooney (ALP)
Senator J Ludwig (ALP)
Senator B Greig (AD)

1 Mr Reg T Fisk

2 Confidential

3 Mr Chiu-Hing Chan

4 The Shell Company of Australia Limited

5 Confidential

6 AUSVEG

7 G & P Watts Pty Ltd

8 Chartered Secretaries Australia

9 Vegetable Council of the Tasmanian Farmers and Graziers Association

10 Spier Consulting

11 Wimmera Region - Victorian Farmers Federation

12 Motor Trades Association of Australia

13 Woolworths Ltd

14 Mr Weeliem Seah (private capacity)

15 Business Council of Australia

16 Australian Institute of Petroleum

17 Victorian Farmers Federation Egg Producers Group

18 Confidential

19 Australian Newsagents’ Federation Limited

20 Queensland Fruit & Vegetable Growers Ltd

21 Confidential

22 National Association of Retail Grocers of Australia

23 Law Council of Australia

24 Haas School of Business, University of California

25 Australian Chamber of Commerce and Industry

26 Prof. Neville Norman, Department of Economics

27 Prof Warren Pengilley

28 Telstra Corporation Limited

Mr Bob Alexander
General Counsel, Australian Competition and Consumer Commission

Mr Brian David Cassidy
Chief Executive Officer, Australian Competition and Consumer Commission

Professor Allan Fels AO
Chairman, Australian Competition and Consumer Commission

Mr Steven John Munchenberg
Assistant Director, Business Council of Australia

Mr Alan John Mckenzie
Director, National Spokesman, National Association of Retail Grocers of Australia

Mr Frank Zumbo
Consultant, National Association of Retail Grocers of Australia

Mr Brent Davis
Director, Australian Chamber of Commerce and Industry

Dr Steven Kates
Chief Economist, Australian Chamber of Commerce and Industry