Market Power, Market Share, And The Changes To Section 46

Key Points

• Part of the Government's changes to the misuse of market power law have been passed into law, but the Birdsville amendment remains in force.

• The amendments will make it easier to show a firm "used" or "took advantage" of its market power.

The Government's bid to abolish the so-called "Birdsville" amendment to trade practices law and replace it with an alternative test to protect small business against below cost selling by powerful firms has been defeated by the Senate.

It also defeated the Government's bid to resolve the vexed issue of predatory pricing.

Importantly, the amendments to section 46 of the Trade Practices Act that were passed included clarification of the circumstance in which a corporation has "used" or "taken advantage" of its market power, which has being a hurdle in recent market power cases brought by the ACCC.