Uncovering the Roots of Australia's Misuse of Market Power Provision: Is It Time to Reconsider?

Australian Business Law Review, Vol 42, 329, 2014

22 Pages Posted: 4 Feb 2016

See all articles by Katharine Kemp

Katharine Kemp

University of New South Wales (UNSW) - Faculty of Law

Date Written: 2014

Abstract

Australia’s misuse of market power provision has been the subject of debate throughout its 40-year existence. It is presently in the spotlight again, receiving consideration as part of the “Root and Branch Review” of the competition law. Despite consideration by numerous earlier reviews, the prevailing view has been that little (if any) amendment of the provision is needed. This article examines the legislative origins of the three most distinctive features of the provision, namely that it does not permit an efficiency defence (or authorisation); it does not incorporate an effects-based test; and it relies on a firm making use of its market power.The analysis reveals that these elements were shaped in significant respects by superseded theories and apparent inattention to their implications, giving rise to weaknesses in the reach and operation of s 46(1). There is good reason to question the protected status which these elements have enjoyed in Australia’s unilateral conduct law.

Keywords: Competition Law, Antitrust, Misuse of Market Power, Monopolization, History, Unilateral Conduct

Suggested Citation

Kemp, Katharine, Uncovering the Roots of Australia's Misuse of Market Power Provision: Is It Time to Reconsider? (2014). Australian Business Law Review, Vol 42, 329, 2014, Available at SSRN: https://ssrn.com/abstract=2726897

Katharine Kemp (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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