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ARTICLE · 07 OCTOBER 2008

Section 46 Is Alive And Kicking!

Clayton Utz
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The misuse of market power provisions are alive and kicking and capable of successful prosecution by the ACCC.

AustraliaAntitrust/Competition Law
Michael Corrigan
Michael Corrigan
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Key Points

  • The misuse of market power provisions are alive and kicking and capable of successful prosecution by the ACCC.
  • Companies which plan to engage in the bundled supply of goods or services need to be careful when competitors can't match the bundled offer or can't match the bundled offer at a competitive price.

Despite recent grumblings by the Australian Competition and Consumer Commission (ACCC) and the small business lobby that the traditional misuse of market power provision in section 46(1) of the Trade Practices Act (TPA) is dead, or at least limited in its application after the High Court's decisions in Boral and Rural Press, the ACCC has successfully prosecuted Baxter for breach of that provision as well as for exclusive dealing in breach of section 47 of the TPA.

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