Treasury has released the Exposure Draft (Misuse of Market Power and related Provisions) to implement the changes announced by the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs, the Hon Chris Bowen MP to  section 46 of the Trade Practices Act 1974  in order to improve its operation in relation to anti-competitive behaviour.

The measures include:

1. providing that recoupment is not required to be proved when alleging predatory pricing;
2. amending section 46 to clarify the meaning of ‘take advantage’ in that section;
3. amending section 46(1AA) of the Act to remove any ambiguity in that
   section and so as to make its operation consistent with the remainder
   of section 46 by targeting market power;
4. access to less expensive justice for small and medium enterprises
   by extending the jurisdiction of the Federal Magistrates Court to allow
   it to hear matters arising under section 46;
5. removing the monetary threshold that currently applies to the
   claims of unconscionable conduct in business transactions under section
   51AC;
6. providing that the ACCC may utilise its powers under section 155 until it commences proceedings; and
7. requiring that one of the deputy chair positions at the ACCC has a small business focus.

The Assistant Treasurer has written to the States and Territories seeking their approval for the proposed amendments.