The Dawson Review and Section 46: The Good, the Bad, and the Ugly

Abstract

The Dawson Committee (‘the Committee’) has decided that s 46 of the Trade Practices Act 1974 (Cth) (‘TPA’) (misuse of market power) is best left alone, rejecting the submission by the Australian Competition and Consumer Commission (‘ACCC’) that an ‘effects test’ should be added to the current version of the law. Perhaps this decision reflects the adage ‘better the devil you know’, or perhaps it bespeaks a bureaucratic affinity for that portion of the Hippocratic Oath that states ‘first, do no (more) harm’. On its face, however, it marks a rejection of the ACCC’s main (and only) argument in support of the submission, namely ‘that the [current] section has a limited application because of the difficulty in proving purpose’.

On a certain level, the Committee’s approach to the ACCC’s submission has an air of rough empiricism about it. Citing a number of cases starting with Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, continuing through to Melway Publishing Pty Ltd v Robert Hicks Pty Ltd t/as Auto Fashions Australia (‘Melway’) and including a number of cases that are still on appeal to the High Court (though excluding Boral Besser Masonry (now Boral Masonry Ltd) v Australian Competition and Consumer Commission5 (‘Boral’) – the Committee concluded that proving purpose has not, as a matter of fact, been ‘an unnecessarily onerous hurdle for the ACCC’, and that therefore the Commission’s argument lacked a solid factual foundation. On this basis, and for other reasons discussed below, the Committee seems in my view to have reached the right conclusion. That’s the good news. The bad news is that s 46 remains in serious need of repair or reformation.