Reform to ss 47 and 45AR of the Competition and Consumer Act 2010 (Cth)
The Competition and Consumer Committee of the Business Law Section of the Law Council of Australia provides this submission, following discussions with representatives of Treasury in relation to the Commonwealth Government’s ongoing consideration of reforms to s 47 of the Competition and Consumer Act 2010 (Cth) (CCA).
The Commonwealth Government's consideration of whether reforms to s 47 of the CCA may be appropriate dates back at least to the Competition Policy Review conducted by the Harper Panel.1
For the reasons set out below, the Committee considers that s 47 of the CCA is no longer fit for purpose. Insofar as it purports to regulate anti-competitive vertical conduct:
(a) it is unnecessarily complex, difficult to understand and carries a high compliance and uncertainty cost;
(b) it contains a number of anomalies, regulating certain types of vertical conduct but not others for no discernible policy reason; and
(c) it has been rendered largely obsolete by recent amendments to the misuse of market power prohibition set out in s 46 of the CCA, except as to antioverlap with the cartel provisions (s 45AR). Any potential gap in enforcement is mitigated by the combination of the anti-overlap provisions in s 45 and the introduction of the 'substantial lessening of competition' test into s 46, as discussed in the submission below.
1 See Professor Ian Harper, Peter Anderson, Sue McCluskey and Michael O'Bryan QC, Competition Policy Review: Final Report, March 2015 (Harper Review, Final Report).