Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
i
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
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
1
A Bill for an Act to amend the Competition and
1
Consumer Act 2010, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Competition and Consumer Amendment (Misuse of
5
Market Power) Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
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
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Misuse of market power Schedule 1
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
3
Schedule 1--Misuse of market power
1
2
Competition and Consumer Act 2010
3
1 Section 46
4
Repeal the section, substitute:
5
46 Misuse of market power
6
(1) A corporation that has a substantial degree of power in a market
7
must not engage in conduct that has the purpose, or has or is likely
8
to have the effect, of substantially lessening competition in:
9
(a) that market; or
10
(b) any other market in which that corporation, or a body
11
corporate that is related to that corporation:
12
(i) supplies goods or services, or is likely to supply goods
13
or services; or
14
(ii) supplies goods or services, or is likely to supply goods
15
or services, indirectly through one or more other
16
persons; or
17
(c) any other market in which that corporation, or a body
18
corporate that is related to that corporation:
19
(i) acquires goods or services, or is likely to acquire goods
20
or services; or
21
(ii) acquires goods or services, or is likely to acquire goods
22
or services, indirectly through one or more other
23
persons.
24
(2) Without limiting the matters to which regard may be had in
25
determining for the purposes of subsection (1) whether conduct has
26
the purpose, or has or is likely to have the effect, of substantially
27
lessening competition in a market, regard must be had to the extent
28
to which:
29
(a) the conduct has the purpose of, or has or would be likely to
30
have the effect of, increasing competition in that market,
31
including by enhancing efficiency, innovation, product
32
quality or price competiveness in that market; and
33
Schedule 1 Misuse of market power
4
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
(b) the conduct has the purpose of, or has or would be likely to
1
have the effect of, lessening competition in that market,
2
including by preventing, restricting, or deterring the potential
3
for competitive conduct or new entry into that market.
4
(3) A corporation is taken for the purposes of this section to have a
5
substantial degree of power in a market if:
6
(a) a body corporate that is related to that corporation has, or 2 or
7
more bodies corporate each of which is related to that
8
corporation together have, a substantial degree of power in
9
that market; or
10
(b) that corporation and a body corporate that is, or that
11
corporation and 2 or more bodies corporate each of which is,
12
related to that corporation, together have a substantial degree
13
of power in that market.
14
(4) In determining for the purposes of this section the degree of power
15
that a body corporate or bodies corporate have in a market:
16
(a) regard must be had to the extent to which the conduct of the
17
body corporate or of any of those bodies corporate in that
18
market is constrained by the conduct of:
19
(i) competitors, or potential competitors, of the body
20
corporate or of any of those bodies corporate in that
21
market; or
22
(ii) persons to whom or from whom the body corporate or
23
any of those bodies corporate supplies or acquires goods
24
or services in that market; and
25
(b) regard may be had to the power the body corporate or bodies
26
corporate have in that market that results from:
27
(i) any contracts, arrangements or understandings that the
28
body corporate or bodies corporate have with another
29
party or other parties; or
30
(ii) any proposed contracts, arrangements or understandings
31
that the body corporate or bodies corporate may have
32
with another party or other parties.
33
(5) For the purposes of this section, a body corporate may have a
34
substantial degree of power in a market even though:
35
(a) the body corporate does not substantially control that market;
36
or
37
Misuse of market power Schedule 1
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
5
(b) the body corporate does not have absolute freedom from
1
constraint by the conduct of:
2
(i) competitors, or potential competitors, of the body
3
corporate in that market; or
4
(ii) persons to whom or from whom the body corporate
5
supplies or acquires goods or services in that market.
6
(6) Subsections (4) and (5) do not limit the matters to which regard
7
may be had in determining, for the purposes of this section, the
8
degree of power that a body corporate or bodies corporate has or
9
have in a market.
10
(7) To avoid doubt, for the purposes of this section, more than one
11
corporation may have a substantial degree of power in a market.
12
(8) In this section:
13
(a) a reference to power is a reference to market power; and
14
(b) a reference to a market is a reference to a market for goods or
15
services; and
16
(c) a reference to power in relation to, or to conduct in, a market
17
is a reference to power, or to conduct, in that market either as
18
a supplier or as an acquirer of goods or services in that
19
market.
20
2 Section 46 of Schedule 1
21
Repeal the section, substitute:
22
46 Misuse of market power
23
(1) A person who has a substantial degree of power in a market must
24
not engage in conduct that has the purpose, or has or is likely to
25
have the effect, of substantially lessening competition in:
26
(a) that market; or
27
(b) any other market in which that person, or a body corporate
28
that is related to that person:
29
(i) supplies goods or services, or is likely to supply goods
30
or services; or
31
(ii) supplies goods or services, or is likely to supply goods
32
or services, indirectly through one or more other
33
persons; or
34
Schedule 1 Misuse of market power
6
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
(c) any other market in which that person, or a body corporate
1
that is related to that person:
2
(i) acquires goods or services, or is likely to acquire goods
3
or services; or
4
(ii) acquires goods or services, or is likely to acquire goods
5
or services, indirectly through one or more other
6
persons.
7
(2) Without limiting the matters to which regard may be had in
8
determining for the purposes of subsection (1) whether conduct has
9
the purpose, or has or is likely to have the effect, of substantially
10
lessening competition in a market, regard must be had to the extent
11
to which:
12
(a) the conduct has the purpose of, or has or would be likely to
13
have the effect of, increasing competition in that market,
14
including by enhancing efficiency, innovation, product
15
quality or price competiveness in that market; and
16
(b) the conduct has the purpose of, or has or would be likely to
17
have the effect of, lessening competition in that market,
18
including by preventing, restricting, or deterring the potential
19
for competitive conduct or new entry into that market.
20
(3) A person (the first person) is taken for the purposes of this section
21
to have a substantial degree of power in a market if:
22
(a) a body corporate that is related to the first person has, or 2 or
23
more bodies corporate each of which is related to the first
24
person together have, a substantial degree of power in that
25
market; or
26
(b) the first person and a body corporate that is, or the first
27
person and 2 or more bodies corporate each of which is,
28
related to the first person, together have a substantial degree
29
of power in that market.
30
(4) In determining for the purposes of this section the degree of power
31
that a person (the first person) or bodies corporate have in a
32
market:
33
(a) regard must be had to the extent to which the conduct of the
34
first person or of any of those bodies corporate in that market
35
is constrained by the conduct of:
36
Misuse of market power Schedule 1
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
7
(i) competitors, or potential competitors, of the first person
1
or of any of those bodies corporate in that market; or
2
(ii) persons to whom or from whom the first person or any
3
of those bodies corporate supplies or acquires goods or
4
services in that market; and
5
(b) regard may be had to the power the first person or bodies
6
corporate have in that market that results from:
7
(i) any contracts, arrangements or understandings that the
8
first person or bodies corporate have with another party
9
or other parties; or
10
(ii) any proposed contracts, arrangements or understandings
11
that the first person or bodies corporate may have with
12
another party or other parties.
13
(5) For the purposes of this section, a person may have a substantial
14
degree of power in a market even though:
15
(a) the person does not substantially control that market; or
16
(b) the person does not have absolute freedom from constraint by
17
the conduct of:
18
(i) competitors, or potential competitors, of the person in
19
that market; or
20
(ii) persons to whom or from whom the person supplies or
21
acquires goods or services in that market.
22
(6) Subsections (4) and (5) do not limit the matters to which regard
23
may be had in determining, for the purposes of this section, the
24
degree of power that a person or bodies corporate have in a market.
25
(7) To avoid doubt, for the purposes of this section, more than one
26
person may have a substantial degree of power in a market.
27
(8) In this section:
28
(a) a reference to power is a reference to market power; and
29
(b) a reference to a market is a reference to a market for goods or
30
services; and
31
(c) a reference to power in relation to, or to conduct in, a market
32
is a reference to power, or to conduct, in that market either as
33
a supplier or as an acquirer of goods or services in that
34
market.
35
Schedule 2 Telecommunications industry
Part 1 Main amendments
8
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
Schedule 2--Telecommunications industry
1
Part 1--Main amendments
2
Competition and Consumer Act 2010
3
1 Divisions 2 and 3 of Part XIB
4
Repeal the Divisions.
5
Telecommunications industry Schedule 2
Consequential amendments Part 2
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
9
Part 2--Consequential amendments
1
Competition and Consumer Act 2010
2
2 Paragraph 6(2)(h)
3
Omit "81, 151AE or 151AJ", substitute "81 or 151AE".
4
3 Subparagraph 6(2C)(n)(ii)
5
Omit "44ZZRD, 151AE or 151AJ", substitute "44ZZRD or 151AE".
6
4 Subparagraphs 6(2D)(b)(ii) and (2E)(b)(ii)
7
Omit "4, 151AE or 151AJ", substitute "4 or 151AE".
8
5 Part XIB (heading)
9
Repeal the heading, substitute:
10
Part XIB--The Telecommunications Industry:
11
Tariff filing, record-keeping rules and
12
other matters
13
6 Section 151AA
14
Repeal the section, substitute:
15
151AA Simplified outline of this Part
16
This Part contains additional requirements in relation to the
17
telecommunications industry.
18
Carriers and carriage service providers may be directed to file tariff
19
information with the Commission.
20
The Commission may make record-keeping rules that apply to
21
carriers and carriage service providers.
22
Schedule 2 Telecommunications industry
Part 2 Consequential amendments
10
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
Carriers and carriage service providers may be directed by the
1
Commission to make certain reports available.
2
7 Section 151AB
3
Repeal the following definitions:
4
(a) definition of ACMA;
5
(b) definition of anti-competitive conduct;
6
(c) definition of competition notice;
7
(d) definition of competition rule;
8
(e) definition of eligible partnership;
9
(f) definition of exemption order;
10
(g) definition of Part A competition notice;
11
(h) definition of Part B competition notice.
12
8 Subsection 151AE(3)
13
Repeal the subsection.
14
9 Paragraph 151BU(4)(a)
15
Omit "the competition rule", substitute "section 44ZZRJ, 44ZZRK, 45,
16
45B, 46, 47 or 48".
17
10 Before subparagraphs 151BUA(2)(b)(i), 151BUB(2)(b)(i)
18
and 151BUC(2)(b)(i)
19
Insert:
20
(ia) Part IV; or
21
11 Division 7 of Part XIB (heading)
22
Repeal the heading, substitute:
23
Division 7--Enforcement of tariff filing directions,
24
record-keeping rules and disclosure directions
25
12 Section 151BW (heading)
26
Repeal the heading, substitute:
27
Telecommunications industry Schedule 2
Consequential amendments Part 2
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
11
151BW Person involved in a contravention of a tariff filing
1
direction, a record-keeping rule or a disclosure direction
2
13 Section 151BW
3
Omit "the competition rule,".
4
14 Section 151BX (heading)
5
Repeal the heading, substitute:
6
151BX Pecuniary penalties for breach of a tariff filing direction, a
7
record-keeping rule or a disclosure direction
8
15 Paragraphs 151BX(1)(a) to (c)
9
Omit "the competition rule,".
10
16 Paragraph 151BX(3)(a)
11
Repeal the paragraph.
12
17 Paragraph 151BX(4)(b)
13
Omit "in any other case", substitute "in the case of a contravention of a
14
tariff filing direction".
15
18 Subsection 151BX(6)
16
Repeal the subsection.
17
19 Subsection 151BY(3)
18
Repeal the subsection.
19
20 Section 151BZ (heading)
20
Repeal the heading, substitute:
21
151BZ Criminal proceedings not to be brought for contraventions of
22
tariff filing directions, record-keeping rules or disclosure
23
directions
24
21 Paragraphs 151BZ(1)(a) to (c)
25
Omit "the competition rule,".
26
Schedule 2 Telecommunications industry
Part 2 Consequential amendments
12
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
No. , 2016
22 Subsection 151BZ(3)
1
Repeal the subsection.
2
23 Paragraphs 151CA(1)(a) to (f)
3
Omit "the competition rule,".
4
24 Sections 151CB to 151CE
5
Repeal the sections.
6
25 Subsection 151CG(1)
7
Repeal the subsection, substitute:
8
(1) This section applies to a person if the Commission institutes a
9
proceeding against the person under Division 7.
10
26 Paragraphs 151CG(2)(a) and (b)
11
Omit "application, proposal or".
12
27 Subsections 151CI(1) and (2)
13
Repeal the subsections.
14
28 Paragraph 151CI(4)(b)
15
Repeal the paragraph.
16
29 Paragraphs 151CJ(1)(a) to (d)
17
Repeal the paragraphs, substitute:
18
(a) affirming the Commission's decision; or
19
(b) setting aside the Commission's decision; or
20
(c) varying the Commission's decision;
21
30 Paragraph 151CJ(2)(c)
22
Repeal the paragraph.
23
31 Subsection 151DA(1) (note 1)
24
Omit "Note 1", substitute "Note".
25
Telecommunications industry Schedule 2
Consequential amendments Part 2
No. , 2016
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016
13
32 Subsection 151DA(1) (note 2)
1
Repeal the note.
2
33 Subsection 155AAA(21) (subparagraph (c)(i) of the
3
definition of protected information)
4
Omit "151AU,".
5
34 Paragraph 162(1)(b)
6
Omit "93A, Division 3 of Part XI or section 151AZ", substitute "93A or
7
Division 3 of Part XI".
8