Misuse of Market Power Bill passes but held

Published On 22/08/2017 | By Sam Goldsmith | Reform

The Bill passes Parliament

On 15 August 2017, the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 finally passed both Houses. The Bill contains much-debated amendments to s 46 of the Competition and Consumer Act (Act) to prohibit conduct by a corporation with substantial market power that has the purpose, effect or likely effect of substantially lessening competition.

The Senate voted to pass the proposed amendments to s 46 in the same terms in which they passed the House. See our last update on the Bill’s progress, complete with a description of the Hon. Andrew Leigh MP’s favourite micro-animal, the tardigrade, here.

Contingent commencement

Despite the Bill’s passage being commended in the media, in fact the Misuse of Market Power Bill will not come into effect for some time yet, as its commencement is tied to the progress of the broader set of competition law reforms contained in the Competition and Consumer Amendment (Competition Policy Review) Bill 2017. More specifically, the Misuse of Market Power Bill will not commence until Schedule 1 of the Competition Policy Review Bill commences, which will occur on the earlier of 6 months after both Bills receive Royal Assent, or a date fixed by proclamation.

Amongst its changes, the Competition Policy Review Bill contains amendments to the Act that would enable the Commission to grant authorisation in relation to conduct that may otherwise fall foul of the ‘effects test’ in s 46 as amended (once the Misuse of Market Power Bill has commenced).

Progress of the Competition Policy Review Bill

The Competition Policy Review Bill was included in the draft legislation agenda for the House of Representatives for 14 to 17 August, but was omitted from the final program. This means that the Competition Policy Review Bill will not progress any further until the next Parliamentary sitting, from 4 to 14 September.

We will continue to monitor the progress of this Bill as it approaches commencement.

Image credit: Flickr / River Siren (resized) / CC BY-SA 2.0

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About The Author

is a solicitor in the Sydney office of King & Wood Mallesons.

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