As foreshadowed earlier this year, the Rudd Government has announced a package of measures to further amend the Trade Practices Act 1974 including the predatory pricing amendments passed late last year
The Government’s amendments will:
- ensure that victims of predatory pricing will not need to
prove that the predator has the ability to recoup losses after
participating in an anticompetitive below cost pricing strategy. - clarify
the meaning of the term ‘take advantage’ in section 46 in response to
concerns raised by businesses and the ACCC that the present meaning of
that term has prevented section 46 from capturing anticompetitive
behaviour. - remove the uncertainty that has
arisen following the ‘two track’ process for predatory pricing that
developed under the previous government. The ACCC has said that the
dual track process has “caused considerable confusion” because they
focus on the “fundamentally different concepts” of market power and
market share.
The reforms will also strengthen the role of the ACCC by enabling it
to fully investigate suspected breaches of the law by enhancing its
information gathering powers under section 155 of the Act .
The Government will also extend the reach
of the ACCC by repealing the $10 million threshold that applies to actions under section
51AC of the Act for unconscionable conduct in business transactions,
with duplicate amendments made to the equivalent provisions of the Australian Securities and Investments Commission Act 2001 (‘the ASIC Act’) which apply to transactions involving financial services.
The Government will amend the Act to require at least one ACCC Deputy Chairperson to have knowledge of, or experience in, small business matters.
The jurisdiction of the Federal Magistrates Court will be extended to include matters arising under section 46 rather than requiring prosecution in the Federal Court, in appropriate
circumstances.
The Government wants to have its amendments to the Trade Practices
Act passed by parliament by August.
UPDATE: Speech by Chris Bowen. Assistant Treasurer, Minister for Competition Policy and Consumer Affairs
