Competition and Consumer Amendment (Misuse of Market Power) Act 2017

Administered by Department of the Treasury

Legislation au C2017A00087 In force Act

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Competition and Consumer Amendment (Misuse of Market Power) Act 2017

 

No. 87, 2017

 

 

 

 

 

An Act to amend the Competition and Consumer Act 2010, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Misuse of market power

Competition and Consumer Act 2010

Schedule 2—Telecommunications industry

Competition and Consumer Act 2010

 

 

 

Competition and Consumer Amendment (Misuse of Market Power) Act 2017

No. 87, 2017

 

 

 

An Act to amend the Competition and Consumer Act 2010, and for related purposes

[Assented to 23 August 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the Competition and Consumer Amendment (Misuse of Market Power) Act 2017.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

At the same time as Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences.

However, the provisions do not commence at all if that Schedule does not commence.

6 November 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Misuse of market power

 

Competition and Consumer Act 2010

1  Section 46

Repeal the section, substitute:

46  Misuse of market power

 (1) A corporation that has 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:

 (a) that market; or

 (b) any other market in which that corporation, or a body corporate that is related to that corporation:

 (i) supplies goods or services, or is likely to supply goods or services; or

 (ii) supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

 (c) any other market in which that corporation, or a body corporate that is related to that corporation:

 (i) acquires goods or services, or is likely to acquire goods or services; or

 (ii) acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

 (3) A corporation is taken for the purposes of this section to have a substantial degree of power in a market if:

 (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; or

 (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.

 (4) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate have in a market:

 (a) regard must be had to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of:

 (i) competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or

 (ii) persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market; and

 (b) regard may be had to the power the body corporate or bodies corporate have in that market that results from:

 (i) any contracts, arrangements or understandings that the body corporate or bodies corporate have with another party or other parties; or

 (ii) any proposed contracts, arrangements or understandings that the body corporate or bodies corporate may have with another party or other parties.

 (5) For the purposes of this section, a body corporate may have a substantial degree of power in a market even though:

 (a) the body corporate does not substantially control that market; or

 (b) the body corporate does not have absolute freedom from constraint by the conduct of:

 (i) competitors, or potential competitors, of the body corporate in that market; or

 (ii) persons to whom or from whom the body corporate supplies or acquires goods or services in that market.

 (6) Subsections (4) and (5) do not limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a body corporate or bodies corporate has or have in a market.

 (7) To avoid doubt, for the purposes of this section, more than one corporation may have a substantial degree of power in a market.

 (8) In this section:

 (a) a reference to power is a reference to market power; and

 (b) a reference to a market is a reference to a market for goods or services; and

 (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

2  Section 46 of Schedule 1

Repeal the section, substitute:

46  Misuse of market power

 (1) A person who has 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:

 (a) that market; or

 (b) any other market in which that person, or a body corporate that is related to that person:

 (i) supplies goods or services, or is likely to supply goods or services; or

 (ii) supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

 (c) any other market in which that person, or a body corporate that is related to that person:

 (i) acquires goods or services, or is likely to acquire goods or services; or

 (ii) acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

 (3) A person (the first person) is taken for the purposes of this section to have a substantial degree of power in a market if:

 (a) a body corporate that is related to the first person has, or 2 or more bodies corporate each of which is related to the first person together have, a substantial degree of power in that market; or

 (b) the first person and a body corporate that is, or the first person and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in that market.

 (4) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate have in a market:

 (a) regard must be had to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:

 (i) competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or

 (ii) persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market; and

 (b) regard may be had to the power the first person or bodies corporate have in that market that results from:

 (i) any contracts, arrangements or understandings that the first person or bodies corporate have with another party or other parties; or

 (ii) any proposed contracts, arrangements or understandings that the first person or bodies corporate may have with another party or other parties.

 (5) For the purposes of this section, a person may have a substantial degree of power in a market even though:

 (a) the person does not substantially control that market; or

 (b) the person does not have absolute freedom from constraint by the conduct of:

 (i) competitors, or potential competitors, of the person in that market; or

 (ii) persons to whom or from whom the person supplies or acquires goods or services in that market.

 (6) Subsections (4) and (5) do not limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate have in a market.

 (7) To avoid doubt, for the purposes of this section, more than one person may have a substantial degree of power in a market.

 (8) In this section:

 (a) a reference to power is a reference to market power; and

 (b) a reference to a market is a reference to a market for goods or services; and

 (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.


Schedule 2—Telecommunications industry

 

Competition and Consumer Act 2010

1  Paragraph 151AJ(3)(a)

Omit “45B, 46,”.

2  Subsections 151AJ(4) and (5)

Omit “45B, 46,”.

3  Paragraph 151AJ(5)(a)

Repeal the paragraph, substitute:

 (a) the assumption that subparagraphs 45(3)(a)(ii) and (b)(ii) had not been enacted;

4  Paragraphs 151AJ(5)(c) and (d)

Repeal the paragraphs.

5  Subsection 151AJ(7)

Omit “45B, 46,”.

6  Paragraph 151AJ(7)(d)

Repeal the paragraph.

7  Subsections 151BC(4) and (5)

Repeal the subsections.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 1 December 2016

Senate on 29 March 2017]

(196/16)

 

 

Overview

The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 was enacted by the Parliament of Australia to amend the Competition and Consumer Act 2010, addressing the issue of corporations with significant market power engaging in conduct that substantially lessens competition. This Act was introduced to strengthen the framework that prevents the misuse of market power, aiming to ensure a competitive marketplace and protect consumers. The primary policy objective is to enhance the enforcement mechanisms against anti-competitive practices by corporations, particularly those with substantial market power, thereby promoting fair competition and protecting consumer interests. The Act commenced on 6 November 2017, aligning with the commencement of Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017. It amends the Competition and Consumer Act 2010 by introducing new provisions that prohibit corporations with substantial market power from engaging in conduct that substantially lessens competition in relevant markets. This includes markets where the corporation or related entities supply or acquire goods or services. The Act also expands the definition of entities that can be held accountable for misuse of market power, ensuring broader coverage and effectiveness in addressing anti-competitive behaviour.

Scope and Application

The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 amends the Competition and Consumer Act 2010 to address the misuse of market power, targeting both corporations and individuals who possess substantial market power. The Act applies to any corporation or person who, directly or through related entities, holds a significant degree of power in a market for goods or services. This includes markets where the entity supplies or acquires goods or services directly or indirectly. The Act's jurisdiction extends nationally across Australia, applying uniformly under Commonwealth law. The Act does not specify exclusions or exemptions but allows for its application to be extended or restricted through subordinate instruments, ensuring flexibility in enforcement and adaptation to new market dynamics. The provisions of the Act came into effect on 6 November 2017, contingent on the commencement of the Competition and Consumer Amendment (Competition Policy Review) Act 2017.

Key Provisions

The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 amends the Competition and Consumer Act 2010 by introducing new provisions to prevent the misuse of market power. Under Section 46 of the amended Act, a corporation with substantial market power is prohibited from engaging in conduct that substantially lessens competition in the market, either directly or indirectly. This prohibition extends to any market where the corporation, or a related entity, supplies or acquires goods or services. The Act further clarifies that a corporation has substantial market power if it, or entities related to it, collectively have significant influence over the market, even if they do not dominate it entirely. Entities governed by the Act must ensure their operations do not result in a substantial lessening of competition within relevant markets. This involves monitoring their market conduct and the conduct of related entities to avoid actions that could restrict competition. The Act requires entities to consider the extent to which their actions are constrained by competitors and suppliers, as well as any contractual or proposed agreements that might influence their market power. Violations of the Act can lead to significant consequences. The Act stipulates that engaging in conduct that substantially lessens competition is an offence. The maximum penalties for corporations found guilty of such conduct can include fines of up to AUD 10 million for serious or repeated breaches and AUD 1.1 million for other breaches. For individuals, the penalties can include fines of up to AUD 220,000 for serious or repeated breaches and AUD 22,000 for other breaches. Additionally, courts may order remedies such as behavioural injunctions to prevent future anti-competitive conduct, highlighting the serious nature of these violations.

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Competition Law
Consumer Law
Instrument
Act
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Commencement Provisions
Repeal & Amendment
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.