Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Competition and Consumer Act 2010, and for related purposes
Administered by: Treasury
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 02 Dec 2016
Introduced HR 01 Dec 2016
Table of contents.

2016

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Competition and Consumer Amendment (Misuse of Market Power) Bill 2016

 

No.      , 2016

 

(Treasury)

 

 

 

A Bill for an Act to amend the Competition and Consumer Act 2010, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Misuse of market power                                                                       3

Competition and Consumer Act 2010                                                                     3

Schedule 2—Telecommunications industry                                                           8

Part 1—Main amendments                                                                                         8

Competition and Consumer Act 2010                                                                     8

Part 2—Consequential amendments                                                                      9

Competition and Consumer Act 2010                                                                     9

 

 


A Bill for an Act to amend the Competition and Consumer Act 2010, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Competition and Consumer Amendment (Misuse of Market Power) Act 2016.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedules 1 and 2

A day or days to be fixed by Proclamation.

However, if any of the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Misuse of market power

  

Competition and Consumer Act 2010

1  Section 46

Repeal the section, substitute:

46  Misuse of market power

             (1)  A corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:

                     (a)  that market; or

                     (b)  any other market in which that corporation, or a body corporate that is related to that corporation:

                              (i)  supplies goods or services, or is likely to supply goods or services; or

                             (ii)  supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

                     (c)  any other market in which that corporation, or a body corporate that is related to that corporation:

                              (i)  acquires goods or services, or is likely to acquire goods or services; or

                             (ii)  acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

             (2)  Without limiting the matters to which regard may be had in determining for the purposes of subsection (1) whether conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market, regard must be had to the extent to which:

                     (a)  the conduct has the purpose of, or has or would be likely to have the effect of, increasing competition in that market, including by enhancing efficiency, innovation, product quality or price competiveness in that market; and

                     (b)  the conduct has the purpose of, or has or would be likely to have the effect of, lessening competition in that market, including by preventing, restricting, or deterring the potential for competitive conduct or new entry into that market.

             (3)  A corporation is taken for the purposes of this section to have a substantial degree of power in a market if:

                     (a)  a body corporate that is related to that corporation has, or 2 or more bodies corporate each of which is related to that corporation together have, a substantial degree of power in that market; or

                     (b)  that corporation and a body corporate that is, or that corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in that market.

             (4)  In determining for the purposes of this section the degree of power that a body corporate or bodies corporate have in a market:

                     (a)  regard must be had to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of:

                              (i)  competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or

                             (ii)  persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market; and

                     (b)  regard may be had to the power the body corporate or bodies corporate have in that market that results from:

                              (i)  any contracts, arrangements or understandings that the body corporate or bodies corporate have with another party or other parties; or

                             (ii)  any proposed contracts, arrangements or understandings that the body corporate or bodies corporate may have with another party or other parties.

             (5)  For the purposes of this section, a body corporate may have a substantial degree of power in a market even though:

                     (a)  the body corporate does not substantially control that market; or

                     (b)  the body corporate does not have absolute freedom from constraint by the conduct of:

                              (i)  competitors, or potential competitors, of the body corporate in that market; or

                             (ii)  persons to whom or from whom the body corporate supplies or acquires goods or services in that market.

             (6)  Subsections (4) and (5) do not limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a body corporate or bodies corporate has or have in a market.

             (7)  To avoid doubt, for the purposes of this section, more than one corporation may have a substantial degree of power in a market.

             (8)  In this section:

                     (a)  a reference to power is a reference to market power; and

                     (b)  a reference to a market is a reference to a market for goods or services; and

                     (c)  a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

2  Section 46 of Schedule 1

Repeal the section, substitute:

46  Misuse of market power

             (1)  A person who has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:

                     (a)  that market; or

                     (b)  any other market in which that person, or a body corporate that is related to that person:

                              (i)  supplies goods or services, or is likely to supply goods or services; or

                             (ii)  supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

                     (c)  any other market in which that person, or a body corporate that is related to that person:

                              (i)  acquires goods or services, or is likely to acquire goods or services; or

                             (ii)  acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

             (2)  Without limiting the matters to which regard may be had in determining for the purposes of subsection (1) whether conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market, regard must be had to the extent to which:

                     (a)  the conduct has the purpose of, or has or would be likely to have the effect of, increasing competition in that market, including by enhancing efficiency, innovation, product quality or price competiveness in that market; and

                     (b)  the conduct has the purpose of, or has or would be likely to have the effect of, lessening competition in that market, including by preventing, restricting, or deterring the potential for competitive conduct or new entry into that market.

             (3)  A person (the first person) is taken for the purposes of this section to have a substantial degree of power in a market if:

                     (a)  a body corporate that is related to the first person has, or 2 or more bodies corporate each of which is related to the first person together have, a substantial degree of power in that market; or

                     (b)  the first person and a body corporate that is, or the first person and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in that market.

             (4)  In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate have in a market:

                     (a)  regard must be had to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:

                              (i)  competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or

                             (ii)  persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market; and

                     (b)  regard may be had to the power the first person or bodies corporate have in that market that results from:

                              (i)  any contracts, arrangements or understandings that the first person or bodies corporate have with another party or other parties; or

                             (ii)  any proposed contracts, arrangements or understandings that the first person or bodies corporate may have with another party or other parties.

             (5)  For the purposes of this section, a person may have a substantial degree of power in a market even though:

                     (a)  the person does not substantially control that market; or

                     (b)  the person does not have absolute freedom from constraint by the conduct of:

                              (i)  competitors, or potential competitors, of the person in that market; or

                             (ii)  persons to whom or from whom the person supplies or acquires goods or services in that market.

             (6)  Subsections (4) and (5) do not limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate have in a market.

             (7)  To avoid doubt, for the purposes of this section, more than one person may have a substantial degree of power in a market.

             (8)  In this section:

                     (a)  a reference to power is a reference to market power; and

                     (b)  a reference to a market is a reference to a market for goods or services; and

                     (c)  a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

Schedule 2Telecommunications industry

Part 1Main amendments

Competition and Consumer Act 2010

1  Divisions 2 and 3 of Part XIB

Repeal the Divisions.

Part 2Consequential amendments

Competition and Consumer Act 2010

2  Paragraph 6(2)(h)

Omit “81, 151AE or 151AJ”, substitute “81 or 151AE”.

3  Subparagraph 6(2C)(n)(ii)

Omit “44ZZRD, 151AE or 151AJ”, substitute “44ZZRD or 151AE”.

4  Subparagraphs 6(2D)(b)(ii) and (2E)(b)(ii)

Omit “4, 151AE or 151AJ”, substitute “4 or 151AE”.

5  Part XIB (heading)

Repeal the heading, substitute:

Part XIBThe Telecommunications Industry: Tariff filing, record‑keeping rules and other matters

6  Section 151AA

Repeal the section, substitute:

151AA  Simplified outline of this Part

This Part contains additional requirements in relation to the telecommunications industry.

Carriers and carriage service providers may be directed to file tariff information with the Commission.

The Commission may make record‑keeping rules that apply to carriers and carriage service providers.

Carriers and carriage service providers may be directed by the Commission to make certain reports available.

7  Section 151AB

Repeal the following definitions:

                     (a)  definition of ACMA;

                     (b)  definition of anti‑competitive conduct;

                     (c)  definition of competition notice;

                     (d)  definition of competition rule;

                     (e)  definition of eligible partnership;

                      (f)  definition of exemption order;

                     (g)  definition of Part A competition notice;

                     (h)  definition of Part B competition notice.

8  Subsection 151AE(3)

Repeal the subsection.

9  Paragraph 151BU(4)(a)

Omit “the competition rule”, substitute “section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48”.

10  Before subparagraphs 151BUA(2)(b)(i), 151BUB(2)(b)(i) and 151BUC(2)(b)(i)

Insert:

                            (ia)  Part IV; or

11  Division 7 of Part XIB (heading)

Repeal the heading, substitute:

Division 7Enforcement of tariff filing directions, record‑keeping rules and disclosure directions

12  Section 151BW (heading)

Repeal the heading, substitute:

151BW  Person involved in a contravention of a tariff filing direction, a record‑keeping rule or a disclosure direction

13  Section 151BW

Omit “the competition rule,”.

14  Section 151BX (heading)

Repeal the heading, substitute:

151BX  Pecuniary penalties for breach of a tariff filing direction, a record‑keeping rule or a disclosure direction

15  Paragraphs 151BX(1)(a) to (c)

Omit “the competition rule,”.

16  Paragraph 151BX(3)(a)

Repeal the paragraph.

17  Paragraph 151BX(4)(b)

Omit “in any other case”, substitute “in the case of a contravention of a tariff filing direction”.

18  Subsection 151BX(6)

Repeal the subsection.

19  Subsection 151BY(3)

Repeal the subsection.

20  Section 151BZ (heading)

Repeal the heading, substitute:

151BZ  Criminal proceedings not to be brought for contraventions of tariff filing directions, record‑keeping rules or disclosure directions

21  Paragraphs 151BZ(1)(a) to (c)

Omit “the competition rule,”.

22  Subsection 151BZ(3)

Repeal the subsection.

23  Paragraphs 151CA(1)(a) to (f)

Omit “the competition rule,”.

24  Sections 151CB to 151CE

Repeal the sections.

25  Subsection 151CG(1)

Repeal the subsection, substitute:

             (1)  This section applies to a person if the Commission institutes a proceeding against the person under Division 7.

26  Paragraphs 151CG(2)(a) and (b)

Omit “application, proposal or”.

27  Subsections 151CI(1) and (2)

Repeal the subsections.

28  Paragraph 151CI(4)(b)

Repeal the paragraph.

29  Paragraphs 151CJ(1)(a) to (d)

Repeal the paragraphs, substitute:

                     (a)  affirming the Commission’s decision; or

                     (b)  setting aside the Commission’s decision; or

                     (c)  varying the Commission’s decision;

30  Paragraph 151CJ(2)(c)

Repeal the paragraph.

31  Subsection 151DA(1) (note 1)

Omit “Note 1”, substitute “Note”.

32  Subsection 151DA(1) (note 2)

Repeal the note.

33  Subsection 155AAA(21) (subparagraph (c)(i) of the definition of protected information)

Omit “151AU,”.

34  Paragraph 162(1)(b)

Omit “93A, Division 3 of Part XI or section 151AZ”, substitute “93A or Division 3 of Part XI”.