2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMPETITION AND CONSUMER AMENDMENT
(MISUSE OF MARKET POWER) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Treasurer, the Hon Scott Morrison MP and
Minister for Communications, Senator the Hon Mitch Fifield)
Table of contents
Glossary ................................................................................................. 1
General outline and financial impact....................................................... 3
Chapter 1
Misuse of market power ................................................ 5
Chapter 2
Telecommunications industry .......................................15
Chapter 3
Regulation impact statement: Misuse of market
power ...........................................................................23
Chapter 4
Statement of Compatibility with Human Rights ............31
Index......................................................................................................33
Glossary
The following abbreviations and acronyms are used throughout this
explanatory memorandum.
Abbreviation
Definition
Act
Competition and Consumer Act 2010
ACCC
Australian Competition and Consumer Commission
Harper Review
Competition Policy Review
Review Panel
The Competition Policy Review Panel, chaired by
Professor Ian Harper
RIS
Regulation Impact Statement
Telstra
Telstra Corporation Limited
Vertigan Review
Statutory Review under section 152EOA of the
Competition and Consumer Act 2010
1
General outline and financial impact
Misuse of market power
Schedule 1 to this Bill amends the Competition and Consumer Act 2010
(the Act) to strengthen the prohibition of the misuse of market power by
corporations and better target anti-competitive conduct by corporations
with a substantial degree of market power.
Date of effect: The amendments will take effect from a date to be fixed
by Proclamation. If any provisions do not commence within six months
from the date of Royal Assent, then they take effect from the date after
that period ends.
Proposal announced: The proposal was announced by the
Prime Minister, Treasurer and Assistant Treasurer on 16 March 2016.
Financial impact: Nil.
Human rights implications: Schedule 1 to this Bill does not raise any
human rights issue. See Statement of Compatibility with Human
Rights - Chapter 4.
Compliance cost impact: $2.5 million per year over the next 10 years.
Telecommunications industry
Schedule 2 to this Bill makes consequential amendments to repeal the
telecommunications-specific anti-competitive conduct provisions in
Division 2 of Part XIB of the Act, and the competition notices and
exemption order regime in Division 3 of Part XIB. The Part XIB
provisions are no longer necessary or appropriate given the strengthening
of the prohibition of the misuse of market power (as proposed by
Schedule 1 to this Bill), which is applicable to all industry sectors.
These amendments will ensure that the competition rules for
telecommunications market are aligned, to the fullest extent practicable,
with general competition law.
Date of effect: The amendments will take effect from a date to be fixed
by Proclamation. If any provisions do not commence within six months
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
from the date of Royal Assent, then they take effect from the date after
that period ends.
Financial impact: Nil.
Human rights implications: Schedule 2 to this Bill does not raise any
human rights issue. See Statement of Compatibility with Human
Rights - Chapter 4.
Compliance cost impact: Nil.
Summary of regulation impact statement (Misuse of market
power)
Regulation impact on business
Impact: An increase of $2.5 million per year over the next 10 years.
Main points:
• The Government has been informed of the regulatory impacts
of various reform options by the findings of the Competition
Policy Review (the Harper Review), previous independent
reviews and inquiries, thorough public consultations and
targeted consultations with industry stakeholders at multiple
stages.
• The Harper Review found that the current section 46 is
deficient and unfit for purpose, misdirected as a matter of
competition policy and undermines confidence in the
effectiveness of the law.
• The additional regulation impact is expected to result from
businesses seeking legal advice to ensure their practices are
compliant with the rewritten section 46. Following this
transitional assessment, it is expected that any ongoing
additional regulation impact will be minimal.
4
Chapter 1
Misuse of market power
Outline of chapter
1.1
Schedule 1 to this Bill amends the Act to strengthen the
prohibition of the misuse of market power by corporations and better
target anti-competitive conduct by corporations with a substantial degree
of market power.
Context of amendments
Operation of the misuse of market power law
1.2
Section 46 of the Act prohibits a corporation with a substantial
degree of power in a market from taking advantage of that power for one
of three specific purposes. These purposes focus on damaging an actual or
potential competitor. Subsection 46(6A) sets out considerations that may
be taken into account in determining whether a corporation has ‘taken
advantage’ of its substantial market power.
1.3
Section 46 also expressly prohibits certain conduct, such as
predatory pricing (subsection 46(4A)).
The Harper Review
1.4
In 2014, the Government commissioned a ‘root and branch’
review of Australia’s competition framework: the Harper Review. A key
focus of the Harper Review was to identify impediments across the
economy that restrict competition and reduce productivity.
1.5
A number of submissions to the Issues Paper, Draft Report and
Final Report of the Harper Review outlined concerns with the operation of
section 46. Submissions focused on whether the section sufficiently
deterred anti-competitive conduct by firms with substantial market power,
and whether it created commercially predictable outcomes.
1.6
The Harper Review concluded that while the concepts,
prohibitions and structure of the Act are sound, some provisions,
including section 46, are unfit for purpose, unnecessarily complex and
impose costs on the economy and burdens on business.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
1.7
The Harper Review recommended re-framing section 46 to
prohibit a firm with a substantial degree of power in a market from
engaging in conduct with the purpose, effect or likely effect of
substantially lessening competition in any market.
1.8
In its response, released on 24 November 2015, the Government
noted the importance of the issue for businesses and the level of
contention surrounding the recommendation. The Government committed
to consult further on options to strengthen the misuse of market power
law. A Discussion Paper on section 46 was released on
11 December 2015. The Treasurer noted that the Government was seeking
to ‘ensure section 46 offers a commercially and legally robust, yet
practical, approach to preventing the misuse of market power’.
1.9
The Government received a further 86 submissions in response
to the Discussion Paper. On 16 March 2016, the Prime Minister, Treasurer
and Assistant Treasurer announced that the Government would adopt in
full the Harper Review recommendation relating to the misuse of market
power. In their joint announcement, they noted that the change ‘uses
existing legal concepts from within the competition law – such as
“substantially lessening competition” – and ensures the focus of the
provision remains only on those firms that have substantial market
power’.
Summary of new law
1.10
Schedule 1 to this Bill amends section 46 of the Act to prohibit a
corporation with a substantial degree of market power engaging in
conduct that has the purpose, effect or likely effect of substantially
lessening competition in:
• that market; or
• any market in which the corporation itself, or a related body
corporate, supplies or acquires goods or services or is likely
to supply or acquire goods or services; or
• any market in which the corporation indirectly supplies or
acquires goods or services or is likely to supply or acquire
goods or services.
1.11
Schedule 1 to this Bill also rewrites section 46 to simplify the
provision and make it easier to navigate.
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Misuse of Market Power
1.12
Schedule 1 to this Bill also makes equivalent changes to
Schedule 1 to the Act, as applied to persons.
Comparison of key features of new law and current law
New law
Current law
Section 46 only applies to
corporations with substantial market
power.
Section 46 only applies to
corporations with substantial market
power.
The conduct must have the purpose,
effect or likely effect of substantially
lessening competition.
The conduct must have one of three
specific purposes, related to
damaging an actual or potential
competitor.
The conduct must occur in a market
where there is an actual or likely
supply or acquisition of goods or
services, by the corporation or
another prescribed entity.
The conduct may occur in any
market.
The conduct does not need to ‘take
advantage’ of substantial market
power.
The conduct must ‘take advantage’ of
substantial market power.
There is a general provision only,
with no specific prohibition on
predatory pricing or other forms of
conduct (however described).
Predatory pricing and other specific
forms of conduct are expressly
prohibited.
Certain pro-competitive and
anti-competitive factors must be
taken into account when considering
a substantial lessening of
competition.
‘Substantial lessening of competition’
is not an element of section 46.
Detailed explanation of new law
Objective of the misuse of market power provision
1.13
The objective of section 46 is to prevent firms from engaging in
unilateral conduct that harms the competitive process. This requires
distinguishing between vigorous competitive activity which is desirable,
and economically inefficient monopolistic practices that may exclude
rivals and harm the competitive process.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
1.14
Despite the objective described above, the focus of the current
provision is on prohibiting damage to a competitor. The Harper Review
noted that this was inconsistent with the overriding objective of the Act,
which is to protect competition rather than individual competitors.
1.15
The amendments reframe section 46 to focus the provisions and
tests on the competitive process rather than individual competitors. The
competitive process is harmed, and competition is lessened, when actual
or potential competitors are prevented or deterred from competing on their
merits. However, the objective of section 46 is not to shield inefficient
competitors from the natural effects of strong competition in a market.
1.16
As is the case with the current section 46, under the new
section 46, a firm does not misuse its market power merely because it
competes to acquire, retain or grow its market power. The new section 46
is not intended to unnecessarily constrain the ordinary decision-making of
corporations with substantial market power, or to prevent such firms from
undertaking competitive activities. Not all actions by firms with
substantial market power will be a misuse of that power.
1.17
To better target anti-competitive conduct, and make it clear that
the rewritten section 46 is not intended to prevent pro-competitive
conduct, section 46 lists mandatory factors that must be considered when
determining whether conduct has the purpose, effect or likely effect of
substantially lessening competition.
Prohibition on the misuse of market power
1.18
A corporation with 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:
• that market; or
• any other market in which that corporation, or a body
corporate that is related to that corporation:
– supplies goods or services, or is likely to supply goods or
services; or
– supplies goods or services, or is likely to supply goods or
services, indirectly through one or more other person; or
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Misuse of Market Power
• any other market in which that corporation, or a body
corporate that is related to that corporation:
– acquires goods or services, or is likely to acquire goods or
services; or
– acquires goods or services, or is likely to acquire goods or
services, indirectly through one or more other person.
[Schedule 1, item 1, subsection 46(1)]
Substantial degree of power in a market
1.19
Section 46 only applies to corporations with a substantial degree
of power in a market. This test applies under the current section 46 and
the retention of this test was supported by the Harper Review.
1.20
Subsections 46(3) to 46(8) set out the circumstances and provide
guidance about when a corporation has a substantial degree of market
power for the purposes of section 46. These subsections remake and
simplify the former parallel subsections 46(3) to 46(4). This simplification
is not intended to change the meaning or operation of the relevant
subsections. [Schedule 1, item 1, subsections 46(3) to 46(8)]
Purpose, effect or likely effect
1.21
The rewritten section 46 prohibits a corporation that has a
substantial degree of power in a market from engaging in conduct with the
‘purpose, effect or likely effect’ of substantially lessening competition in
particular markets. [Schedule 1, item 1, subsection 46(1)]
1.22
The ‘take advantage’ element of the current section 46, which
was interpreted to require an analysis of whether a corporation could have
engaged in the same conduct if it did not possess substantial market
power, is removed. The ‘proscribed purposes’ in the current section 46,
which generally refer to damage to an actual or potential competitor, are
also removed.
1.23
The concept of the purpose, effect or likely effect of
substantially lessening competition is new to section 46. This concept
already exists in a number of provisions in Part IV of the Act, and it is
intended that the existing jurisprudence will inform the application of this
concept in the context of section 46.
1.24
The rewritten section 46 does not limit the manner in which the
existence of a purpose may be established. Purpose is primarily a
subjective enquiry as to the direct effect which the corporation intended to
achieve through its conduct.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
1.25
However, the enquiry is not limited only to subjective
factors. The fact that the purpose of the corporation is ascertainable only
by inference does not prevent a finding, where appropriate, that the
corporation acted with the purpose of substantially lessening competition.
1.26
Section 4F of the Act sets out that it is sufficient to establish that
the purpose of substantially lessening competition is a substantial purpose
for engaging in the conduct, even if it is not the sole purpose.
Substantially lessening competition
1.27
‘Substantially lessening competition’ is an existing concept
within the competition law, and the jurisprudence that has developed
under other provisions of Part IV of the Act will inform the application of
this test to section 46. However, while the test itself is not new to the Act,
section 46 requires the application of the test to unilateral conduct, rather
than to bilateral or multilateral conduct as in other provisions.
1.28
In light of this change in context, subsection 46(2) provides
guidance in the form of a list of factors that must be taken into account
when assessing whether conduct has the purpose, effect or likely effect of
substantially lessening competition.
1.29
Given the wide range of conduct which may have a purpose,
effect or likely effect of substantially lessening competition and the wide
range of circumstances in which the conduct may occur, it is not possible
to prescribe specific forms of conduct which always will or will not
contravene section 46. In some markets, a particular type of conduct may
substantially lessen competition, while in other markets the same conduct
may have little or no effect on competition.
1.30
Rather than requiring a determination of whether conduct fits
within detailed technical descriptions, the mandatory factors provide for a
principled, holistic assessment of the conduct and its purpose, effect or
likely effect in the particular circumstances of the market in question. This
ensures that section 46 is flexible and may be applied to new forms of
anti-competitive conduct as they arise.
1.31
Subsection 46(2) requires consideration of the extent to which
the conduct has the purpose, effect or likely effect of decreasing
competition in the market, and the extent to which the conduct has the
purpose, effect or likely effect of increasing competition in the market.
The requirement to consider both anti-competitive and pro-competitive
conduct emphasises that section 46 is not intended to capture conduct that
is pro-competitive overall.
10
Misuse of Market Power
1.32
Subsection 46(2) provides additional guidance by listing several
particular factors which indicate pro-competitive conduct, as well as
several particular factors which indicate anti-competitive conduct. The
requirement to consider each of these factors ensures that pro-competitive
aspects of conduct, if present, are not left out of a holistic analysis of the
conduct.
Pro-competitive factors
1.33
Factors indicating a purpose, effect or likely effect of increasing
competition in a market include enhancing efficiency, innovation, product
quality or price competitiveness. [Schedule 1, item 1, paragraph 46(2)(a)]
Anti-competitive factors
1.34
Factors indicating a purpose, effect or likely effect of lessening
competition in a market include preventing, restricting or deterring the
potential for competitive conduct or new entry into the market. [Schedule 1,
item 1, paragraph 46(2)(b)]
1.35
This ensures that section 46 better targets anti-competitive
conduct by requiring consideration of the competitive process.
Consideration of the factors
1.36
The factors in subsection 46(2) are not exhaustive, but each of
them must be considered in determining whether the conduct has the
purpose, effect or likely effect of substantially lessening competition.
The factors are intended to provide guidance about the typical effect of
these types of conduct on competition in a market.
1.37
Given the wide range of markets and circumstances in which
conduct may occur, it is not possible to prescribe how any particular
factor will be weighted in reaching a determination as to the overall
purpose, effect or likely effect of conduct. How the factors are weighted
will depend on the particular circumstances of the conduct.
1.38
In particular circumstances, it is possible that one
anti-competitive factor is so significant as to outweigh one or more
pro-competitive factors. Similarly, one pro-competitive factor may be so
significant as to outweigh one or more anti-competitive factors. In some
circumstances, a factor which is not listed in subsection 46(2) may
nevertheless be of significant weight.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
Relevant markets
1.39
Subsection 46(1) prohibits a corporation with a substantial
degree of power in a market from engaging in conduct that has the
purpose, or has or is likely to have the effect of substantially lessening
competition in:
• that market; or
• any other market in which that corporation, or a body
corporate that is related to that corporation:
– supplies goods or services, or is likely to supply goods or
services; or
– supplies goods or services, or is likely to supply goods or
services, indirectly through one or more other person; or
• any other market in which that corporation, or a body
corporate that is related to that corporation:
– acquires goods or services, or is likely to acquire goods or
services; or
– acquires goods or services, or is likely to acquire goods or
services, indirectly through one or more other person.
[Schedule 1, item 1, subsection 46(1)]
1.40
The Harper Review recommended reframing section 46 to
prohibit a firm with a substantial degree of power in a market from
engaging in conduct with the purpose, effect or likely effect of
substantially lessening competition in any market. However, extensive
consultation with stakeholders revealed a concern that the reference to
‘any market’ made section 46 excessively broad in scope.
1.41
To address this issue, the scope of section 46 is limited to those
markets in which the corporation’s conduct is most likely to have a
purpose, effect or likely effect of competition concern. In practice, it is
unlikely that a corporation’s conduct will have a purpose, effect or likely
effect of substantially lessening competition in an unrelated market
without also having that purpose, effect or likely effect in one of the
markets described in subsection 46(1). The provisions within subsection
46(1) limit the scope of section 46 to situations where there is an actual or
likely supply or acquisition of goods or services, by the corporation or
another prescribed entity.
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Misuse of Market Power
1.42
Subparagraphs 46(1)(b)(i) and 46(1)(c)(i), respectively, apply to
markets in which the corporation itself, or a related body corporate,
supplies or acquires goods or services or is likely to supply or acquire
goods or services. Section 4A of the Act details when one body corporate
is considered to be related to another body corporate.
1.43
Sub-paragraphs 46(1)(b)(ii) and 46(1)(c)(ii), respectively, apply
to markets in which the corporation is indirectly supplying or acquiring
goods or services or is likely to supply or acquire goods or services. This
is intended to apply to situations where the corporation itself is not
supplying or acquiring goods or services in a particular market, but the
corporation or a related body corporate is doing so indirectly through an
entity that does not fall within the section 4A definition of related bodies
corporate. An example of such a situation is where a corporation has
substantial market power in one market, and is supplying goods in another
market, through an arrangement with an independent distributor or a
franchisee, over which the corporation has a degree of influence. It is not
necessary that the corporation’s influence over the other person amounts
to control, nor that their arrangement is one of agency.
1.44
This allows for the application of section 46 to increasingly
common situations in which a corporation does not act through a related
body corporate, but nonetheless exercises a degree of influence or control,
such as through contractual or intellectual property rights, over another
entity which itself is directly engaged in activities in an upstream or
downstream market. The phrase ‘indirectly through one or more persons’
includes situations where a corporation is indirectly supplying or
acquiring in a single market through multiple other persons. This phrase
also includes situations where the relevant indirect supply or acquisition
takes place in multiple markets.
1.45
However, subparagraphs 46(1)(b)(ii) and 46(1)(c)(ii) are not
intended to apply to situations where the corporation and the ‘other
person’ are genuinely acting independently of one another and without
any influence, pressure or collusion. In determining the nature of the
relationship between the corporation and the other person, the focus
should be on the substance of the relationship rather than the form.
Simplification elements of section 46
1.46
The amendments remove the specific prohibition against
predatory pricing from section 46. The reframed section 46 focuses on
damage to the competitive process and so specific prohibitions are not
required. [Schedule 1, item 1, section 46]
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
1.47
Despite the removal of specific prohibitions, section 46
continues to prohibit such conduct. As discussed above at paragraphs
1.24-1.25, although ‘purpose’ is a primarily subjective enquiry, it may be
informed by objective factors. Some forms of conduct, such as predatory
pricing, are inherently anti-competitive and will almost invariably
constitute a misuse of market power. If the circumstances are appropriate,
and in the absence of strong evidence to the contrary, the fact of
inherently anti-competitive conduct may allow a determination that the
only plausible purpose for such conduct is to substantially lessen
competition.
1.48
The amendments also remove the additional provisions
providing guidance on the meaning of ‘take advantage’ from section 46.
This is because the rewritten section 46 replaces the former
‘take advantage’ test with a test of the purpose, effect or likely effect of
conduct. [Schedule 1, item 1, section 46]
Schedule version of Part IV
1.49
This Bill amends Schedule 1 to the Act, to ensure that the
amendments to the Act are mirrored in the Competition Code and apply to
persons. [Schedule 1, item 2, section 46 of Schedule 1 to the Act]
Application and transitional provisions
1.50
Schedule 1 to this Bill commences on a day or days to be fixed
by Proclamation. However, if any of the provisions in Schedule 1 do not
commence within the period of 6 months beginning on the day the Bill
receives Royal Assent, they commence on the day after the end of that
period.
14
Chapter 2
Telecommunications industry
Outline of chapter
2.1
Part 1 of Schedule 2 to this Bill deals with the repeal of
Divisions 2 and 3 of Part XIB to the Act.
2.2
Part 2 of Schedule 2 to this Bill deals with consequential
amendments to Part XIB and other provisions in the Act as a result of the
changes made in Part 1 of Schedule 2.
Context of amendments
2.3
Part XIB of the Act was introduced in 1997 to facilitate the
transition to open competition in the telecommunications market. At that
time, competition in the sector was in its infancy and Telstra Corporation
Limited (Telstra) possessed significant market power due to its
incumbency and high degree of integration.
2.4
Division 2 of Part XIB of the Act sets out a
telecommunications-specific competition rule. The competition rule
provides that a carrier or carriage service provider must not engage in
anti-competitive conduct (section 151AK). Section 151AJ defines
anti-competitive conduct for the purposes of Part XIB of the Act.
2.5
Division 3 of Part XIB sets out the competition notices and
exemption order regime. Under this Division, the ACCC may issue
two types of competition notices (Part A competition notices and Part B
competition notices). Competition notices were designed to enable the
ACCC to quickly respond to a breach of the competition rule. Part A
competition notices can give rise to substantially higher pecuniary
penalties compared to general competition law and Part B competition
notices reverse the onus of proof in court proceedings. Since the
introduction of Part XIB, the ACCC has only issued five Part A
competition notices, with the last issued in April 2006, and only one
Part B notice which was later withdrawn by the ACCC.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
The Reviews
2.6
The Statutory Review under section 152EOA of the Competition
and Consumer Act 2010, July 2014 (Vertigan Review) recommended that
the telecommunications-specific anti-competitive conduct regime in
Part XIB of the Act be reviewed to assess the effectiveness of its
provisions. The Government, in its response to the Vertigan Review,
stated that it would undertake a review of Part XIB. The review was
deferred pending the outcome of the Harper Review.
2.7
In 2015, the Harper Review noted that its proposed amendments
to section 46 would obviate the need for the telecommunications-specific
anti-competitive conduct provisions in Part XIB of the Act.
2.8
The anti-competitive conduct provisions in Part XIB of the Act
were intended to be a transitional regime for the telecommunications
sector. The Explanatory Memorandum for the Trade Practices
Amendment (Telecommunications) Bill 1996 that provided for the Part
XIB provisions indicated on page 7 that the intention was that the
competition rules for telecommunications would eventually be aligned, to
the fullest extent practicable, with general competition law.
2.9
In September 2016, the Department of Communications and the
Arts, on behalf of the Minister for Communications, conducted a review
of the future of the telecommunications-specific anti-competitive conduct
regime in Part XIB of the Act, in the context of the Government’s
decision to amend section 46. A Discussion Paper, Review of the Part XIB
telecommunications anti-competitive conduct provisions, was released
seeking feedback on the ongoing operation of Part XIB given the
interlinkages with section 46. The review was conducted simultaneously
with the Government’s consultation on the exposure draft Bill.
2.10
The Department received seven submissions in response to the
Discussion Paper, including a submission from the ACCC. The
submissions varied in the extent of support for reform of Divisions 2 and
3 of Part XIB. The ACCC was supportive of Divisions 2 and 3 being
repealed in full.
2.11
In light of the review, the Government concluded that
Divisions 2 and 3 of Part XIB are no longer necessary or appropriate
given the proposed amendments to section 46 and should be repealed. The
amendments to section 46 will include a broader effects-based test which
will supersede the effects-based test in Division 2 of Part XIB and will
better target anti-competitive conduct.
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Telecommunications industry
2.12
In addition, given the strengthening of section 46, the
Government considers it is unreasonable and inappropriate that the severe
and onerous consequences that attach to competition notices (significantly
higher penalties than under general competition law and reversal of the
onus of proof in court proceedings) under Part XIB continue to apply to
carriers and carriage service providers.
2.13
To the extent competition issues may arise in the
telecommunications sector, the ACCC will be able to use its powers under
general competition law, including those under the new section 46, as it
would in relation to other sectors of the economy. In addition, the ACCC
will retain its powers under the telecommunications access regime in
Part XIC of the Act and Part 33 of the Telecommunications Act 1997
relating to the structural separation of Telstra. The ACCC will also retain
its record-keeping rule and record disclosure powers under Part XIB.
Summary of new law
2.14
Schedule 2 to this Bill repeals Divisions 2 and 3 of Part XIB of
the Act, and makes a number of consequential amendments following the
repeal.
Comparison of key features of new law and current law
New law
Current law
The misuse of market power by
carriers and carriage service providers
is dealt with under section 46 of the
Act.
The misuse of market power by
carriers and carriage service providers
is dealt with under section 151AJ,
which imports section 46 and
includes a separate
telecommunications-specific
anti-competitive conduct rule.
The ACCC does not have the power
to issue competition notices. The
ACCC will continue to have its
general competition law enforcement
powers and telecommunications
access regime powers to address
competition issues in the sector.
The ACCC may issue competition
notices to carriers and carriage
service providers to address
competition issues in the sector. This
is in addition to the ACCC’s general
competition law enforcement powers
and telecommunications access
regime powers.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
New law
There is no procedure to exempt
conduct from the scope of the
anti-competitive conduct provisions
in Part XIB as it is no longer needed.
Current law
A person may apply to the ACCC to
exempt specified conduct from the
anti-competitive conduct provisions
in Part XIB.
Detailed explanation of new law
Repeal of Division 2 of Part XIB
2.15
Part 1 of Schedule 2 to this Bill repeals Division 2 of Part XIB
of the Act in its entirety. [Schedule 2, item 1, Division 2 of Part XIB]
2.16
Division 2 of Part XIB of the Act sets out a
telecommunications-specific competition rule. The competition rule
provides that a carrier or carriage service provider must not engage in
anti-competitive conduct (section 151AK). Section 151AJ defines
anti-competitive conduct for the purposes of Part XIB of the Act.
2.17
In Division 2, a carrier or carriage service provider engages in
anti-competitive conduct if it:
• has a substantial degree of market power in a
telecommunications market and takes advantage of that
power in any market (including by engaging in conduct or a
pattern of conduct) with the effect or likely effect of
substantially lessening competition in a telecommunications
market; or
• engages in conduct that contravenes section 46 (or other
provisions in Part IV of the Act) and that conduct relates to a
telecommunications market.
2.18
The repeal of Division 2 of Part XIB is justified because the
misuse of market power law in section 46 will be broader than the present
telecommunications-specific test in Division 2 of Part XIB. Following the
repeal of Division 2 of Part XIB, carriers and carriage service providers
will remain subject to the general competition laws in Part IV, including
the strengthened section 46, and the penalties in Part VI of the Act.
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Telecommunications industry
Repeal of Division 3 of Part XIB
2.19
Part 1 of Schedule 2 to this Bill also repeals Division 3 of
Part XIB of the Act in its entirety. [Schedule 2, item 1, Division 3 of Part XIB]
2.20
Division 3 provides for the ACCC to issue competition notices.
Competition notices are designed to enable the ACCC to quickly respond
to a breach of the competition rule. After investigation of alleged
anti-competitive conduct, the ACCC can issue a competition notice in
relation to a carrier or carriage service provider if the ACCC has reason to
believe that it is engaging or has engaged in conduct that breaches the
competition rule in Division 2 of Part XIB.
2.21
There are two types of competition notices: Part A competition
notices (section 151AKA) and Part B competition notices
(section 151AL). Part A competition notices only require the ACCC to
specify the kind of anti-competitive conduct rather than any particular
instance of anti-competitive conduct (subsection 151AKA(5)). Part B
competition notices require the ACCC to include particulars of the
contravention that the ACCC believes has occurred or is occurring
(paragraph 151AL(1)(b)).
2.22
Under Part XIB, potential penalties for contravention of the
telecommunications competition rule accrue on a daily basis from the
issue of a Part A Competition Notice (subsection 151BX(3)). A Part A
competition notice can attract higher pecuniary penalties relative to those
under general competition law. Penalties for breach of a Part A
competition notice can be as high as $31 million plus $3 million per day if
the contravention continues for longer than 21 days from the date that the
notice is issued (paragraph 151BX(3)(a))
2.23
A Part B competition notice is prima facie evidence of the
matters in the notice, and can reverse the evidentiary onus of proof in
court (subsection 151AN(1)). The reversal of the ordinary onus of proof
represents a significant deviation from the ordinary position that applies in
court proceedings.
2.24
Division 3 also allows a person to apply to the ACCC for an
order exempting specified conduct of the person from the scope of the
anti-competitive conduct provisions in section 151AJ in Division 2 of
Part XIB (section 151AS).
2.25
Without amendments to Divisions 2 and 3 of Part XIB, the
scope of conduct in respect of which the ACCC may issue competition
notices would be expanded as Division 2 directly imports section 46 as
actionable anti-competitive conduct. Given the severe consequences
attached to competition notices, their availability for use by the regulator
19
Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
would not be reasonable or appropriate for the sector in light of the
broadening of section 46. No other industry is subject to the competition
notices regime.
2.26
Given the repeal of Division 2 of the same Part and the
competition notices regime, the exemption order regime in Division 3 of
Part XIB can be repealed because it no longer has any function to
perform.
Consequential amendments
2.27
Part 2 of Schedule 2 to the Bill sets out a series of minor
consequential amendments which are necessary as a result of the repeal of
Divisions 2 and 3 of Part XIB [Schedule 2, Part 1, item 1].
2.28
Items 2-4 remove references to ‘section 151AJ’ from various
provisions in section 6 of the Act that relate to the extended application of
the Act to persons who are not corporations. These changes represent
consequential amendments which are necessary as a result of the repeal of
section 151AJ by item 1 of Schedule 2.
2.29
Item 5 amends the title to Part XIB in recognition of the removal
of the competition rule provisions. The new title is, The
Telecommunications Industry: Tariff filing, record-keeping rules and
other matters.
2.30
Item 6 updates the simplified outline of Part XIB to remove the
summary points relating to the anti-competitive conduct rules and the
competition notices and exemption order regime.
2.31
Item 7 repeals eight definitions from section 151AB. Six of the
definitions were specific to Divisions 2 and 3. These definitions are no
longer required as a result of the repeal of those divisions. The definitions
of the ‘ACMA’ and ‘eligible partnership’, which are not specific to
Divisions 2 and 3, are repealed because they are not used in Part XIB.
2.32
Item 8 repeals subsection 151AE(3), which deals with an
extended operation of subsections 151AJ(2) and (3) relating to conduct
taking place in the course of trade or commerce between Australia and
outside Australia, amongst States and within a Territory, between a State
and a Territory and between Territories and supply of goods or services by
the Commonwealth or a Commonwealth instrumentality. As subsections
151AJ(2) and (3) are being repealed, this provision is no longer required.
2.33
Item 9 updates paragraph 151BU(4)(a) which addresses the
Commission’s record keeping rules power in order to ascertain whether
the competition rule was, or is, being complied with. The item replaces
20
Telecommunications industry
the reference to the ‘competition rule’ with the specific provisions of
Part IV of the Act which represent the second form of the competition rule
in subsection 151AJ(3), namely, sections 44ZZRJ, 44ZZRK, 45, 45B, 46,
47 and 48 of the Act. This will ensure that the ACCC continues to have
the ability to make recording keeping rules in respect of compliance with
the aforementioned provisions in Part IV.
2.34
Item 10 adds a reference to Part IV into subparagraphs
151BUA(2)(b)(i), 151BUB(2)(b)(i) and 151BUC(2)(b)(i). This
amendment ensures that the ACCC’s existing powers under the disclosure
direction regime relating to the above-mentioned Part IV provisions
(currently reflected in the second limb of the competition rule) are
continued.
2.35
Items 11-15, 20, 21 and 23 make consequential amendments to
several provisions in Division 7 of Part XIB to remove references to ‘the
competition rule’ occurring in the various section headings or provisions.
2.36
Items 16, 18, 19, 22, 24, 27, 28 and 30 repeal various sections
which are no longer required as a result of the repeal of Divisions 2 and 3
of Part XIB.
2.37
Item 17 amends the text of paragraph 151BX(4)(b) to recognise
that the only remaining alternative option in the list under subsection
151BX(4) will be the contravention of tariff filing directions, as a result of
the removal of Division 2.
2.38
Item 25 updates subsection 151CG(1) by removing references to
the exemption order application and section 151BG submissions to revoke
exemption orders. This change follows from the repeal of the competition
notices and exemption order regime under Division 3 of Part XIB.
2.39
Items 26 and 29 make updates to paragraphs 151CG(2)(a) and
(b), and paragraphs 151CJ(1)(a) to (d) in recognition that the competition
notices and exemption order regime will no longer exist.
2.40
Item 31 is a minor consequential change as a result of the
removal by item 32 of the second note at subsection 151DA(1). That note
reminds readers of subsection 151AJ(10), a provision which will no
longer exist as a result of the repeal of Division 2.
2.41
Item 33 omits from subparagraph 155AAA(21)(c)(i) the
reference to section 151AU.
2.42
Item 34 removes the reference to section 151AZ from paragraph
162(1)(b), as that provision which will no longer exist as a result of the
repeal of Division 3.
21
Chapter 3
Regulation impact statement: Misuse of
market power
3.1
Prior to the 2013 Federal Election, the Government committed
to a ‘root and branch’ review of competition laws and policy. This review
was designed to examine the broader competition framework, to increase
productivity and efficiency in markets, drive benefits to ease cost of living
pressures and raise living standards for all Australians.
3.2
The Prime Minister and the Minister for Small Business
announced a review of competition policy on 4 December 2013. On
27 March 2014, the Minister for Small Business released the final Terms
of Reference following consultation with the States and Territories and
announced the Review Panel, chaired by Professor Ian Harper.
3.3
The Review was conducted over the course of 12 months, and
concluded with the release of the Final Report on 31 March 2015. The
Harper Review made 56 recommendations, one of which was to reframe
section 46 of the Act to prohibit a corporation with a substantial market
power from engaging in conduct with the purpose, effect or likely effect
of substantially lessening competition. The Harper Review further
recommended that the legislation prescribe factors to assist courts in
weighing the pro-competitive and anti-competitive aspects of conduct.
3.4
The Government released its response on 24 November 2015,
noting the recommendation on the misuse of market power. In light of the
importance of the issue for business and consumers, the Government
committed to consult further, and on 11 December 2015 released a
Discussion Paper on options to strengthen the misuse of market power
provision.
3.5
On 16 March 2016, the Prime Minister, the Treasurer and the
Assistant Treasurer announced that, following careful consideration of all
submissions, the Government would adopt in full the Harper Review
recommendation relating to the misuse of market power.
3.6
On 15 November 2015, Treasury certified that the independent
Harper Review constituted a process and analysis equivalent to a
Regulation impact statement (RIS). As the Government decided to adopt
the Harper recommendation on section 46 in full, no further certification
or RIS was required.
23
Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
3.7
On 3 November 2016, the Department of Communications and
the Arts was granted an exemption from the requirement to complete a
RIS, on the basis that the amendments to Part XIB of the Act are in
response to the amendments to section 46 and that the impacts are not
significant.
3.8
The Australian Government Guide to Regulation identifies
seven questions that a RIS should address. Following is a summary of the
analysis of these questions that occurred as part of the independent
reviews and stakeholder consultation process in relation to the misuse of
market power.
Problem
3.9
The Harper Review Draft Report and Final Report discuss, in
detail, the problem with section 46.
3.10
The Harper Review was the first comprehensive review of
Australia’s competition framework in more than 20 years. The Review
Panel examined whether Australia’s existing competition settings were
‘fit for purpose’, especially in light of the persistent forces for change that
will shape the Australian economy now and into the future.
3.11
Many submissions to the Harper Review commented on
section 46. Following consideration of these submissions as well as
significant section 46 cases, the Harper Review found that the current
section 46 does not adequately prohibit the misuse of market power,
for two key reasons.
3.12
Firstly, the ‘take advantage’ element of section 46 was found by
the Harper Review to be poorly adapted to distinguishing competitive
from anti-competitive unilateral conduct and thereby identifying a misuse
of market power. The test has also given rise to substantial difficulties in
interpretation, as revealed in decided cases.
3.13
Specifically, ‘taking advantage’ of market power has been
interpreted to mean engaging in conduct that could not be undertaken by a
firm without substantial market power. The Harper Review viewed that
conduct should not be immunised merely because it is often undertaken
by firms without market power. Conduct can be competitively benign
when engaged in by firms without market power, but may raise
competition concerns when engaged in by a firm with market power.
24
Regulation Impact Statement
3.14
The Harper Review considered that the introduction of
supplementary provisions prohibiting predatory pricing had not advanced
the policy intent of section 46. The Harper Review further noted that these
provisions are difficult to interpret and apply in practice.
3.15
Secondly, the Harper Review found that the focus on showing
the purpose of damaging a competitor was inconsistent with the
overriding policy objective of the Act, to protect competition and not
individual competitors. As part of the competitive process, vigorous
competitive conduct may result in harm to less efficient competitors.
Need for government action
3.16
The Harper Review Draft Report and Final Report explain why
government action is needed.
3.17
Section 46 of the Act has been the subject of a number of
independent reviews and parliamentary inquiries. Since 1976, 12 reviews
have considered amendments to section 46, including the Harper Review.
3.18
As described above at paragraphs 3.9 to 3.15, the Harper Review
found that section 46 was deficient and misdirected as a matter of
competition policy.
3.19
The Harper Review discussed a number of significant cases on
section 46, which illustrated the difficulties in interpreting and applying
the ‘take advantage’ test and determining whether specific business
conduct does or does not involve taking advantage of market power.
3.20
The Harper Review made it clear that the focus was not on
whether the outcomes of such cases were ‘right’ or ‘wrong’ from a
competition policy perspective, but rather on whether the ‘take advantage’
limb of section 46 was sufficiently clear and predictable in interpretation
and application to distinguish between pro-competitive and
anti-competitive conduct. The Harper Review found that section 46 was
deficient in this regard.
3.21
Government intervention is justified and necessary because, for
the reasons detailed above in this Chapter, section 46 was found to be
unfit for its purpose and the difficulties with the provision have
undermined confidence in the effectiveness of the law. In addition to
section 46 not being reliably enforceable, the lack of focus on competition
as a process meant that the provision permitted anti-competitive conduct
and failed to benefit the consumers, businesses and the economy to the
fullest extent possible.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
Policy options
3.22
The Harper Review Final Report considered and discussed a
range of options to enhance competition policy settings in Australia. The
benefits of reforms were considered, with a preference for reforms that
enhance the long-term interests of Australians.
3.23
The Issues Paper, published early in the Review process,
provided an initial forum for stakeholders to raise policy options. The
Draft Report weighed stakeholder views, considered the benefits of
potential reforms, made a range of draft recommendations and invited
further submissions in response to those recommendations. The Final
Report again weighed stakeholder views, considered the benefits of
potential reforms and made final recommendations which were considered
to be the best options for reform.
3.24
The Harper Review examined the Act to assess whether
Australia’s competition laws remained fit for purpose having regard to
consumer and business experience with the laws, changes that have
occurred in the Australian economy and that are anticipated, and relevant
international developments.
3.25
The Government Response noted the Harper Review’s
recommendation and committed to consult further. The Discussion Paper,
Options to strengthen the misuse of market power law, was released on
11 December 2015. The Discussion Paper invited submissions on each
element of the Harper Review’s proposal, as well as potential alternative
options, without limiting discussion to the options presented.
3.26
The options considered were:
• A - Making no amendment to the current provision;
• B - Amend the existing provision by removing the words
‘take advantage’;
• C - Amend the existing provision by removing the words
‘take advantage’, including a ‘purpose of substantially
lessening competition’ test, making authorisation available,
and the ACCC issuing guidelines regarding its approach to
the amended provision;
26
Regulation Impact Statement
• D - Amend the existing provision by removing the words
‘take advantage’, including a ‘purpose of substantially
lessening competition’ test, including mandatory factors for
the courts’ consideration, making authorisation available, and
the ACCC issuing guidelines regarding its approach to the
amended provision;
• E - Amend the existing provision by removing the words
‘take advantage’, including a ‘purpose, effect or likely effect
of substantially lessening competition’ test, making
authorisation available, and the ACCC issuing guidelines
regarding its approach to the amended provision; and
• F - Amend the existing provision by adopting the full set of
changes recommended by the Harper Panel.
Analysis of costs/benefits
3.27
The Review process sought to ensure that the competition law
provisions of the Act: focus on enhancing long-term consumer wellbeing;
protect competition rather than individual competitors; appropriately
balance prohibiting anti-competitive conduct and not interfering with
efficiency, innovation and entrepreneurship; and are as clear, simple and
predictable as possible.
3.28
In the case of section 46, the Government undertook a further
consultation process to analyse the costs and benefits of each element of
the Harper Review’s recommendation as well as alternative options
proposed in the Discussion Paper. Each of these options to enhance the
effectiveness of section 46 were benchmarked against the status quo.
3.29
Option A represented the status quo. As detailed above at
paragraphs 3.9 to 3.15, the Harper Review considered that the current
section 46 is unfit for purpose and is imposing costs on consumers,
businesses and the economy.
3.30
Importantly, each of the remaining options involved removing
the ‘take advantage’ requirement. As detailed above at paragraphs 3.12 to
3.13, the ‘take advantage’ element is the source of most of the costs
associated with the current provision.
3.31
Each of the remaining options also introduced a ‘substantially
lessening competition’ test. As detailed above at paragraph 3.15, the focus
on damage to an actual or potential competitor allowed for
anti-competitive conduct. The Harper Review recommended re-focusing
27
Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
section 46 on harm to the process of competition, and it was considered
that the addition of ‘effect or likely effect’, as contained in options E and
F, furthered this goal. The inclusion of this existing competition law
concept has the additional benefits of minimising transitional costs as well
as more consistently defining anti-competitive conduct across the
economy.
3.32
The Harper Review recognised that all changes to the law will
involve some transitional costs as firms become familiar with the new
provisions and as courts develop jurisprudence on their application. The
Harper Review recommended a number of measures to reduce
uncertainty, including the ACCC issuing guidelines on its approach to the
amended section 46 and the inclusion of mandatory factors for the courts’
consideration. Options C to F involve different combinations of these
measures to reduce uncertainty. However, it was considered that each of
these measures held significant benefits for users of the misuse of market
power law.
3.33
Overall, it was considered that the full set of changes
recommended by the Harper Panel represented the best option for
strengthening the law whilst also including measures specifically designed
to help businesses manage transitional costs.
Consultation
3.34
The amendment to section 46 has been the subject of extensive
consultation. The 12-month review process provided all interested
stakeholders with opportunities to comment on proposed changes to
competition policies, laws and institutions. The Harper Review process
commenced with the release of an Issues Paper on 14 April 2014,
followed by an eight week consultation period, including written
submissions and meetings with local businesses in a number of locations,
arranged through representative business groups.
3.35
A Draft Report was released on 22 September 2014, followed by
an eight week consultation period including written submissions and
public forums held in Perth, Adelaide, Melbourne, Sydney, Brisbane,
Canberra, Darwin and Hobart. On 23 24 October 2014, the Review Panel
hosted an International Conference, to draw on international and domestic
expertise to consider and review the recommendations in the Draft Report.
3.36
Over the course of the Harper Review, the Panel hosted more
than 150 meetings with stakeholders and received almost 1,000 written
submissions (almost 350 in response to the Issues Paper and around 600 in
response to the Draft Report).
28
Regulation Impact Statement
3.37
Prior to releasing its Response, the Government consulted on the
Harper Review’s Final Report, with around 140 submissions received.
3.38
The Government Response noted the recommendation of the
Harper Review, and committed to further consultation in light of the
importance of the issue for businesses and consumers. The Government
then released a Discussion Paper on options to strengthen the misuse of
market power provision on 11 December 2015, seeking views on the most
appropriate approach. A further 86 submissions were received in response
to the Discussion Paper, two roundtables were held with stakeholders, and
Treasury met with a number of stakeholders one-on-one
3.39
The amendments to section 46 were released as Schedule 7 to
the exposure draft of the Competition and Consumer Amendment
(Competition Policy Review) Bill 2016. Submissions on Schedule 7 were
received over a four week period from 5 September 2016. During this
public consultation period, 34 submissions were received relating to
section 46, of which three were confidential. A number of stakeholders
raised concerns that the draft section 46 was excessively broad and would
risk capturing pro-competitive conduct.
3.40
In response to these concerns, the Government amended the
draft section 46 to narrow its scope to markets in which the purpose, effect
or likely effect of a corporation’s conduct are of most competition
concern.
Agreed option
3.41
On 16 March 2016, following the Discussion Paper process, the
Government announced that it would adopt in full the Harper Review’s
recommendation on the misuse of market power.
3.42
A regulatory costing for the amendment to section 46 has been
prepared, consistent with the Government’s Regulatory Burden
Measurement Framework. These costs are summarised in Table 1.
3.43
It is expected that some businesses will expend additional legal
costs during the initial transitional period, to ensure that their current
practices are compliant with the rewritten section 46. Once businesses
have factored the amended section 46 into their existing practices, it is
expected that there will minimal additional regulatory costs.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
3.44
As section 46 only applies to businesses with substantial market
power, most of the businesses incurring these additional legal costs will be
large businesses operating in concentrated markets. Many businesses will
not incur any additional regulatory compliance costs as a result of the
amendment to section 46.
3.45
It is estimated that the increase in annual compliance costs for
businesses as a whole will amount to $2.5 million per year, over ten years
following commencement.
Table 1: Regulatory burden estimate (RBE) table
Average annual regulatory costs (from business as usual)
Change in
costs ($
million)
Total, by
sector
Business
-2.5
Community
organisations
-
Individuals
-
Total change
in costs
-2.5
Implementation and evaluation
3.46
Implementation of this amendment will be undertaken jointly by
the Government and the Australian Competition and Consumer
Commission (the ACCC).
3.47
Concurrently with the release of the exposure draft legislation,
the ACCC consulted on a draft Framework for misuse of market power
guidelines. The feedback from this consultation will inform the
development of the ACCC’s final guidelines, which will detail its
approach to the interpretation and enforcement of section 46 as amended.
30
Chapter 4
Statement of Compatibility with Human
Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Competition and Consumer Amendment (Misuse of Market Power)
Bill 2016
4.1
This Bill is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
Schedule 1: Misuse of market power
4.2
Schedule 1 to this Bill amends the Act to strengthen the
prohibition of the misuse of market power by corporations and better
target anti-competitive conduct by corporations with a substantial degree
of market power.
4.3
Section 46 of the Act is reframed to focus the prohibition and
tests on the process of competition rather than individual competitors.
This is achieved by introducing the concept of the purpose, effect or likely
effect of substantially lessening competition in particular markets, and by
removing three specific prohibited purposes which focus on damage to an
actual or potential competitor.
4.4
The prohibition is limited to markets to which the corporation is
directly or indirectly related, which are likely to raise a competition
concern, rather than to ‘any’ market. The assessment of a purpose, effect
or likely effect of substantially lessening competition is to be guided by
the mandatory consideration of both pro-competitive and anti-competitive
factors, listed at subsection 46(2), in addition to existing jurisprudence on
the test as it appears in other sections of the Act.
4.5
Consistently with the current section 46, the rewritten section 46
will only apply to corporations with a substantial degree of market power.
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Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
Schedule 2: Telecommunications industry
4.6
Schedule 2 to this Bill repeals Divisions 2 and 3 of Part XIB of
the Act.
4.7
Division 2 sets out a telecommunications-specific competition
rule. The competition rule provides that a carrier or carriage service
provider must not engage in anti-competitive conduct (section 151AK).
Section 151AJ defines anti-competitive conduct for the purposes of Part
XIB of the Act.
4.8
Division 3 sets out a competition notices and exemption order
regime. Competition notices were designed to enable the ACCC to
quickly respond to a breach of the competition rule. Competition notices
can give rise to substantially higher pecuniary penalties compared to
general competition law and can reverse the onus of proof in court
proceedings The anti-competitive conduct provisions in Part XIB were
always envisaged as a transitional regime for the telecommunications
sector.
4.9
These Divisions are no longer necessary or appropriate given the
strengthening of section 46 (in Schedule 1 to this Bill), which is
applicable to all industry sectors. The amendments to section 46 will
include a broader effects-based test which will supersede the effects-based
test in Division 2 of Part XIB. Given the strengthening of section 46, the
severe and onerous consequences that attach to competition notices are no
longer considered reasonable or appropriate. The repeal of these Divisions
mean the regulation of misuse of market power in the telecommunications
sector will be dealt with by general competition law, in line with the
treatment of other sectors of the economy.
Human rights implications
4.10
Schedule 1 to this Bill does not engage any of the applicable
rights or freedoms.
4.11
Schedule 2 to this Bill does not engage any of the applicable
rights or freedoms.
Conclusion
4.12
This Bill is compatible with human rights as it does not raise any
human rights issues.
32
Index
Schedule 1: Misuse of Market Power
Bill reference
Paragraph number
Item 1, subsection 46(1)
1.21
Item 1, subsections 46(3) to 46(8)
1.20
Item 1, paragraph 46(2)(a)
1.33
Item 1, paragraph 46(2)(b)
1.34
Item 1, section 46
1.46, 1.48
Item 2, section 46 of Schedule 1 to the Act
1.49
Schedule 2: Telecommunications industry
Bill reference
Paragraph number
Item 1, Division 2 of Part XIB
2.15
Item 1, Division 3 of Part XIB
2.19
Part 1, item 1
2.27
33