Commonwealth Consolidated Acts

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COMPETITION AND CONSUMER ACT 2010 - SECT 46A

Misuse of market power--corporation with substantial degree of power in trans-Tasman market

             (1)  In this section:

"conduct " , in relation to a market, means conduct in the market either as a supplier or acquirer of goods or services in the market.

"impact market " means a market in Australia that is not a market exclusively for services.

"market power " , in relation to a market, means market power in the market either as a supplier or acquirer of goods or services in the market.

"trans-Tasman market " means a market in Australia, New Zealand or Australia and New Zealand for goods or services.

             (2)  A corporation that has a substantial degree of market power in a trans-Tasman market must not take advantage of that power for the purpose of:

                     (a)  eliminating or substantially damaging a competitor of the corporation, or of a body corporate that is related to the corporation, in an impact market; or

                     (b)  preventing the entry of a person into an impact market; or

                     (c)  deterring or preventing a person from engaging in competitive conduct in an impact market.

          (2A)  For the purposes of subsection (2):

                     (a)  the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

                     (b)  the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.

             (3)  If:

                     (a)  a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a trans-Tasman market; or

                     (b)  a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a substantial degree of market power in a trans-Tasman market;

the corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans-Tasman market.

             (4)  In determining for the purposes of this section the degree of market power that a body corporate or bodies corporate has or have in a trans-Tasman market, the Federal Court is to have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate, in the trans-Tasman market is constrained by the conduct of:

                     (a)  competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans-Tasman market; or

                     (b)  persons to whom or from whom the body corporate, or any of those bodies corporate, supplies or acquires goods or services in the trans-Tasman market.

             (5)  Without extending by implication the meaning of subsection (2), a corporation is not taken to contravene that subsection merely because it acquires plant or equipment.

             (6)  This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, because an authorisation or clearance is in force or because of the operation of subsection 45(8A) or section 93.

             (7)  Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.

             (8)  It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section, should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of the Commonwealth.

             (9)  Subsection (8) has effect despite section 9 of the Foreign States Immunities Act 1985 .



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