Any proposals to amend or reform the Trade Practices Act 1974 (Cth) (TPA) require proper economic analysis and consideration of both the policy objectives and practical effect of the proposals.
This submission discusses the following key issues and makes the following recommendations:
- The conferral of jurisdiction on the Federal Magistrates Court (FMC) to consider cases involving allegations under section 46 of the TPA.
- Recommendation: alternative solutions such as an ombudsman or a specialist dispute resolution forum would be a more appropriate means to address concerns relating to cost and difficulties in the Federal Court jurisdiction.
Proposed changes to section 46 of the TPA – the expansion of the ‘take advantage’ element in proposed subsection 6A, the removal of the requirement to prove recoupment and the removal of references to market share.
- Recommendation: the proposed changes in subsection 6A to the ‘take advantage’ element are not necessary, and in particular the deletion of proposed section 46(6A)(d) is strongly recommended.
- Recommendation: proposed new section 46(1AB) relating to recoupment is unnecessary and may have unintended consequences on competition.
- Recommendation: the removal of references to ‘market share’ and replacement with ‘market power’ is supported.
- The expansion of the information gathering powers of the Australian Consumer and Competition Commission (ACCC) under section 155 of the TPA.
- Recommendation: sufficient safeguards should be put in place to ensure that the ACCC’s powers under section 155 (as amended) do not conflict with or interfere with the proper application of Court processes or impose undue burdens on business.