Competition and Consumer Amendment (Misuse of Market Power) Act 2017
An Act to amend the Competition and Consumer Act 2010, and for related purposes
1 Short title
competition-and-consumer-amendment-misuse-of-market-power-act-2017.pdf, p.5
The Act is the Competition and Consumer Amendment (Misuse of Market Power) Act 2017.
2 Commencement
competition-and-consumer-amendment-misuse-of-market-power-act-2017.pdf, p.6
1 Section 1
Commences at the same time as Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017.
6 November
Note on table limitations and amendments
3 Schedules
Legislation in schedules is amended or repealed according to its terms.
1 Section 46
Repeal section and substitute with new content.
competition-and-consumer-amendment-misuse-of-market-power-act-2017.pdf, p.7
46 Misuse of market power
46(1) Misuse of market power
Must not engage in conduct that has the purpose or effect of substantially lessening competition.
(1) A corporation that has a substantial degree of power in a market must not...
...must not engage in conduct that has the purpose or effect of substantially lessening competition.
Relates to temporal intervals of conduct.
...conduct that has the purpose or effect of substantially lessening competition.
46(3) Misuse of market power
A corporation is taken to have a substantial degree of power in a market if certain conditions are met.
The corporation has power in the market.
(3) A corporation is taken for the purposes of this section to have a substantial degree of power in a market if:
The power in the market is determined by the temporal intervals.
(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.
The power in the market over time is determined by the temporal intervals.
The power diffuses from the corporation to its related bodies corporate.
(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;
The corporation has cognitive abilities.
46(4) Misuse of market power
Regard must be had to the extent to which conduct is constrained by competitors or suppliers.
46(5) Misuse of market power
A body corporate may have a substantial degree of power in a market even though it does not substantially control that market or has absolute freedom from constraint by competitors.
46(6) Misuse of market power
Regard may be had in determining the degree of power that a body corporate or bodies corporate has or have in a market.
46(7) Misuse of market power
Clarifies that more than one corporation can have substantial power in a market.
Multiple corporations can have substantial power.
46(8) Misuse of market power
2 Section 46 of Schedule 1
competition-and-consumer-amendment-misuse-of-market-power-act-2017.pdf, p.9
(1) A person who has a substantial degree of power in a market must not...
Defines temporal interval for prohibition.
Diffuses prohibition to related markets.
Classifies conduct as prohibited using AI.
A person is taken to have a substantial degree of power in a market if certain conditions are met.
The first person is taken to have a substantial degree of power in a market if...
The first person and bodies corporate have power in the market.
(b) the first person and a body corporate that is...
Multiple bodies corporate together have power in the market.
2 or more bodies corporate each of which is related to the first person...
A substantial degree of power in the market if certain conditions are met.
A person is taken to have a substantial degree of power in a market if...
A person may have a substantial degree of power in a market even though they do not substantially control the market or are not absolutely free from constraint by others.
Expresses a possibility or potential obligation.
No misuse of market power in determining the degree of power that a person or bodies corporate have in a market.
Clarifies that more than one person can have substantial market power.
Multiple persons can have substantial market power.
Definition of market power and its relation to conduct in a market.
1 Paragraph 151AJ(3)(a)
competition-and-consumer-amendment-misuse-of-market-power-act-2017.pdf, p.12
2 Subsections 151AJ(4) and (5)
Prohibits omission of specified subsections.
3 Paragraph 151AJ(5)(a)
Repeal paragraph and substitute assumption that certain subparagraphs had not been enacted.
4 Paragraphs 151AJ(5)(c) and (d)
5 Subsection 151AJ(7)
Prohibits omission of specified sections.
6 Paragraph 151AJ(7)(d)
7 Subsections 151BC(4) and (5)