The Business Council has made a combined submission to:
- the Treasury on the exposure draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, and
- the Australian Competition and Consumer Commission (ACCC) on its ‘draft framework on the misuse of market power guidelines’ and ‘draft framework for concerted practices guidelines’.
The draft Bill gives effect to many of the changes to competition law recommended by the National Competition Policy Review (‘Harper’ review).
The Business Council’s submission attaches an independent opinion of the draft changes to section 46, the misuse of market power provision, by Neil J Young QC.
Drawing upon Neil Young’s opinion, the submission finds the new section 46 is poorly drafted as it will extend to conduct beyond its role as a misuse of market power provision and creates unnecessary regulatory uncertainty for business and the court. This regulatory uncertainty and overreach risks deterring competitive conduct that is in the interests of consumers.
The Business Council recommends, at a minimum, that the provision be amended to apply to 'exclusionary conduct' and to allow for conduct with 'legitimate business reasons'. These changes are consistent with the ACCC 's view on how the law should be applied and with the government’s policy commitment to strengthen the provision.
The submission also recommends clarification of the ACCC’s guidelines and makes comments on some other aspects of the exposure draft legislation, including recommending a clearer definition of the new prohibition on concerted practices.