The Turnbull announcement on 16 March 2016 that it would legislate to introduce the Harper Review’s proposed amendments to section 46 caught many observers by surprise.[1] Whilst the Government had remained remarkably non-committal about its intentions in relation to section 46 of the Competition and Consumer Act 2010 (CCA), the general expectation had been that the Government would decide on a middle path, somewhere between the existing law and the Harper proposal. [2] What few expected was the Government would go the "full monty" [3] and adopt the Harper recommendation concerning section 46 in its entirety.
In this article, I will explain how the current section 46 operates and identify its main weaknesses. I will then outline Harper’s proposed section 46 and how it differs from the existing provision. This will be followed by a discussion of the various objections to the proposed provision, as most vociferously expressed by the Business Council of Australia (BCA). Finally, I will discuss the likely effect of the new section 46 on business activity.
Section 46 as it is now
The current section 46 provides as follows:
(1) A corporation that has
a substantial degree of power in a market shall not take advantage of that
power in that or any other market for the purpose of:
(a) eliminating or substantially
damaging a competitor of the corporation or of a body corporate that is related
to the corporation in that or any other market;
(b) preventing the entry of
a person into that or any other market; or
(c) deterring or preventing
a person from engaging in competitive conduct in that or any other
market.
The purpose of
section 46 was outlined in 1974 by the then Attorney-General, Senator Murphy in Second Reading Speech who
stated:[4]
The clause [46] covers various forms of
conduct by a monopolist against his competitors or would-be competitors. A
monopolist for this purpose is a person who substantially controls a market.
The application of this provision will be a matter for the Court. An
arithmetical test such as one third of the market- as in the existing
legislation- is unsatisfactory. The certainty which it appears to give is
illusory.
Clause 46 as now drafted makes it clear that
it does not prevent normal competition by enterprises that are big by, for
example, their taking advantage of economies of scale or making full use of
such skills as they have; the provision will prohibit an enterprise which is in
a position to control a market from taking advantage of its market power to
eliminate or injure its competitors.
The first limitation on the operation of the provision
is that it only applies to corporation which possess a substantial degree of
market power. A corporation is
considered to have a substantial degree of market power when it able to
insulate itself largely, but not completely, from competition from other firms
in the market.
The second limitation is that the corporation
with a substantial degree of market power must take advantage of that market
power for a proscribed purpose. In other words, there must be a causal nexus
between the existence of a substantial degree of market power. I will return to this issue below.
Finally, the firm with a substantial degree
of market power must be shown to have used that market power for one of the
proscribed purposes. The most notable aspect
of the three proscribed purposes is how often they are misunderstood not only
by legal practitioners but also ostensibly by the Australian Competition and
Consumer Commission (ACCC) itself.
For example, ACCC Chairman Mr Rod Sims' stated
in a speech at the Hodgekiss Competition Law Conference in Sydney in May 2015 entitled
“Section 46: The Great Divide”[5]
the following view:
On its face
the wording of the section is directed at the impact of the conduct on
individual competitors rather than the impact of the conduct on the competitive
process in the market.
Yet, I have
also heard many times since arriving at the ACCC –well, we know the words say
“substantially damage a competitor” but we all know that the law really means
“do not damage the competitive process”.
So there are
these two very different view of s46. There is, on the one hand, an exclusive
club, with members of the club knowing that section 46 means ‘avoid damage to
the competitive process’.
On the other
hand, those not in the club, the vast majority of the population, aren’t privy
to this insight.
Insiders may
well feel special, indeed clever, but this divide between common interpretation
and true meaning is bad public policy.
Sims’ observations about the common
understanding of section 46 are largely correct. There is a common perception that whilst the
actual words of the provision state that its purpose is to protect competitors
from competition, the proper application of the section is to protect the
competitive process.
However, a close reading of the proscribed
purposes, as well as Senator Murphy’s comments above, show that the provision in
fact has dual purposes. Subsection
46(1)(a) is quite clearly directed to protecting competitors from the misuse of
market power by another corporation which possesses a substantial degree of
market power. Such conduct may or may not have a deleterious effect on the overall
level of competition in a market.
Subsection 46(1)(b) and (c) are also quite
clearly directed to protecting the competitive process – ie prohibiting firms
with a substantial degree of market power from preventing new entry to markets
and actions which deter persons from engaging in competitive conduct.
Section 46
as interpreted by the Courts
Despite the clear words of the provision and
the guidance provided by Senator Murphy, the Courts appear to have taken a
different approach to the interpretation of section 46. This divergence was identified by The
Treasury in its Discussion Paper
concerning Options to Strengthen Section 46, where it stated:[6]
The current provision outlines specific
examples of conduct that are prohibited, including “eliminating or
substantially damaging a competitor”. However, in practice the courts have
interpreted the provision to protect the process of competition, and not
individual competitors.
That the Courts have interpreted section 46 to
protect the process of competition, rather than individual competitors, is
beyond doubt. The more important question (which unfortunately is beyond the
scope of this article) is why did the Court’s take such approach?
The other key issue which the Courts have had
a decisive influence in shaping the meaning of the taking advantage test.
Historically, the ACCC’s position on “taking advantage” was that the term meant
no more than “use”.[7] In other words, in the ACCC’s view, the
taking advantage element did no more than import a causal requirement between
the substantial degree of market power of the corporation and the relevant
conduct.
However, in a series of cases, the High Court
has interpreted “taking advantage” as requiring a consideration of whether the
corporation would be able to engage in the particular conduct under examination
if they did not have market power. The
issue has been succinctly summarised by The Treasury in its Discussion Paper as
follows:[8]
The ‘take advantage’ test allows firms with
substantial market power to engage in particular business conduct if firms
without market power can also commercially engage in that conduct.
In effect, the Court has required the
application of a counterfactual analysis. If the answer to the question of
whether a corporation without a substantial degree of market power could engage
in particular conduct is “yes”, then the courts have concluded that section 46
was not contravened because the taking advantage limb had not been
established.
Whilst there are different views as to
whether the High Court’s interpretation of the taking advantage element is a positive
or negative development in terms of the enforcement of section 46, there is
little doubt in Justice Kirby’s mind that this interpretation has had high
negative impacts. As stated in his dissenting judgment in Rural Press:[9]
In my
view, the approach taken by the majority is
insufficiently attentive to the object of the Act to protect and uphold market
competition. It is unduly protective of the depredations of the
corporations concerned. It is unrealistic,
bordering on ethereal, when the corporate conduct is viewed in its commercial
and practical setting. The outcome cripples the effectiveness of
s 46 of the Act. It undermines this Court's earlier and more
realistic decision in Queensland Wire. The victims are Australian consumers
and the competitors who seek to engage in competitive conduct in a naive faith
in the protection of the Act. Section 46 might
just as well not have been enacted for cases like these where its operation is
sorely needed to achieve the purposes of the Act. Judicial lightning
strikes thrice. A novel doctrine of innocent coincidence prevails.
Effective anti-competitive threats can be made without the redress which
s 46 appears to promise. Once again I dissent.
The ACCC has also expressed similar views to
Justice Kirby about the utility of section 46, particularly in relation to the
application of the taking advantage test.
As stated by the ACCC in its initial submission to the Harper Review:[10]
The ACCC considers that, as currently drafted
and interpreted, the provision is of limited utility in prohibiting conduct by
firms with substantial market power which has a detrimental impact on
competition.
The ACCC considers that the provision is
deficient in two respects: first, due to its failure to capture unilateral
conduct which has a deleterious effect on competition; and second, due to the
way in which the ‘take advantage’ limb of the test is currently being applied.
ACCC’s
enforcement of section 46
Prior to analysing the new section 46, it may
be worthwhile taking a closer look at the ACCC’s record in terms of enforcing the
current section 46.
The following table shows all of the section
46 cases commenced by the ACCC over the last 43 years:
The above data shows that the ACCC (and the
TPC before it) has commenced 21 section 46 cases in the 43 years since the
section was enacted. Of the 21 section 46 cases run by the ACCC over the last
43 years it has been successful in relation to the section 46 element of their
case on eleven occasions. In other words, the ACCC has won eleven of the
20 section 46 cases it has pursued for a success rate of 53%.
However, if one looks at the data from the
perspective of the number of section 46 cases which the ACCC has actually lost
in court, the figures are substantially different. Of the 21 cases taken by the
ACCC, it has won eleven, dropped the section 46 allegations in four cases and
lost the remaining six cases. Therefore, the ACCC has only lost six cases
out of the 21 section 46 cases it has commenced, which represents a failure
rate of only 31%.
The other important observation about the six
section 46 cases lost by the ACCC are the grounds on which the ACCC failed to
establish its section 46 case in Court.
With the exception of the Pfizer case, the ACCC has been successful in
establishing a proscribed purpose in every one of its contested cases.
In the five other section 46 defeats, the ACCC
failed to establish taking advantage in three cases (ie CSBP Farmers, Rural
Press, and Cement Australia) and failed to establish a substantial degree of
market power in two cases (ie Boral and Universal).
Interestingly, eight of the eleven successful
section 46 cases taken by the ACCC were not contested, as the respondents in
these cases either consented to a finding that they had breached section 46 or
did not contest that finding. In other words, 72% of the section 46 cases
won by the ACCC were not contested by the respondents.
While it would be possible to argue on the basis
of the above statistics that the ACCC’s record in relation to section 46 cases
is quite respectable, the reality is that a most ACCC section investigations
never make it to litigation due to the complications inherent in section 46. Indeed, based on my own experience as a
former ACCC Director of Enforcement for a number of years, by far the largest
impediment to a successful section 46 case are the difficulties associated with
establishing the taking advantage element.
Often, this issue would involve interminable debates about whether a
firm without market power would or could have engaged in the allegedly illegal
conduct.
Harper Recommendation
The Harper Committee’s proposed new section
46 is as follows:[12]
(1) A
corporation that has a substantial degree of power in a market shall not engage
in conduct if the conduct has the purpose, or would have or be likely to have
the effect, of substantially lessening competition in that or any other market.
Harper’s proposed amendment makes three main
changes to section 46:
· remove the take advantage test;
· add an effects test; and
· add a substantial lessening of competition test.
The proposal to remove the taking advantage
test is the crucial change.
As argued above, there was a strong body of
opinion which saw the taking advantage element, as interpreted by the High
Court, as crippling the effectiveness of section 46. Therefore, the removal of this requirement
will permit the provision to be used in a much wider range of cases.
Most significantly under the new section 46
there is no longer a requirement on the ACCC or a private litigant to prove
that the conduct being engaged in by the firm with a substantial degree of
market power was causally related to their market power. In other words, any
firm which possesses a substantial degree of market power in a market may be
taken to court for their conduct regardless of whether it can be shown that
they are using their market power to achieve a particular outcome.
The second reason why it was appropriate in
the ACCC’s view to remove the taking advantage element from section 46 was
because it was an anomaly when compared to how almost every other competition
law and anti-trust jurisdictions currently deals with the problem of
monopolisation. As stated by Sims:[13]
Most
jurisdictions do not require proof of the nexus between market power and the
conduct itself (the taking advantage).
Sims specifically refers to section 2 of the
US Sherman Act and Article 102 of the
Treaty in the Functioning of the European
Union, neither of which contain a taking advantage element.
Concerns about the new section 46
The most vocal opponents of the new section
46 have been large business groups, such as the BCA.
For example, a recurring argument put forward
by the business groups has been that the new section 46, rather than promoting
competitive markets, will have the opposite effect of reducing competition and
innovation. Indeed, there have been claims that the mere act of opening a new
store in a market is likely to breach the new section 46 because such conduct
will have the likely effect of damaging competition.[14]
This claim would have some credibility but
for the fact that the Harper Committee has also proposed the introduction of a
substantially lessening competition test, which limits the application of the
effects test. Under the proposed section 46, the Court will have to be
satisfied of two requirements before a corporation can be found to have
breached the provision. First, the corporation will have to be shown to
have a substantial degree of market power in a market. Second, it will have to
be proved that the corporation engaged in conduct for the purpose or with the
effect or likely effect of substantially lessening competition.
It is clear that the opening of a new store
in a market will not have the effect of substantially lessening competition -
rather such conduct will have the opposite effect of substantially increasing
competition in the market.
Other complaints about the new section 46
which have been made by the BCA include the following:[15]
· because
businesses cannot know the effects of their actions on markets, they cannot be
held liable for the unintended consequences of their actions;
· that the introduction
of an effects test will introduce major uncertainty; and
· the new
provision will result in over capture, ie false negatives.
It appears that businesses have effectively
claimed that their knowledge and understanding of the markets in which they
operate is so deficient that they cannot predict with any certainty the
consequences of their actions. However,
firms are already liable for the effect of their conduct under section 45, 47
and 50 of the Competition and Consumer
Act 2010 (CCA). It appears that this particular argument failed to gain absolutely
any traction with the Government.
The claim that the new provisions will
introduce major uncertainty has also fallen on deaf ears. Indeed, the
Government seems to have accepted the reverse in relation to this argument –
namely, that the new provision should generate considerably less uncertainty
given that it will be replacing the taking advantage test with the much better
known and more often applied substantial lessening of competition test. As stated by the Government:[16]
Conscious of
the needs of business, the change is deliberately designed to reduce the
uncertainty associated with amending a law. It 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.
Whether the new provision is likely to result
in over capture is not clear. However, what seems clear is that the Government
accepted the arguments put to it by the ACCC and small business groups that the
current section 46 was ineffective and likely to have resulted in significant
under-capture of anti-competitive behaviours. As stated by the Government:[17]
This reform represents a commercially and
legally robust law, preventing firms with market power engaging in behaviour
that harms the competitive process. It places Australia’s competition law on
the right footing to encourage economic growth and innovation.
An effective misuse of market power provision
is an important and necessary part of competition law, particularly for
Australia’s more than two million small businesses which make up more than 97
per cent of all businesses.
The changes the Government has announced will
more effectively focus on the long-term interests of both small businesses and
consumers, improving the law’s clarity, effectiveness and force.
It seems apparent, based on the
Government’s announcement, that it has rejected all of the arguments put
forward by both big business groups and many members of the legal profession
about the dangers of the new section 46.
Furthermore, the Government has very high hopes for the new provision,
seeing it as a means of ensuring that Australia has the “best
possible competition framework to support innovation and boost economic growth
and jobs.”[18]
Conclusions
The Government’s decision to accept the full
Harper recommendation concerning its proposed amendments to section 46 is a
very significant change. There is no doubt that the amendment will have a
significant impact on many of the business decisions made by a relatively small
number of Australian firms, namely those firms with a substantial degree of
market power in a market. The amendments will place an obligation on these
firms to carefully consider whether the purpose and/or effect of their business
decisions is to substantially lessen competition in a market.
However, the new law will not prevent price
discounting which falls short of predatory pricing, the introduction of
innovative products to markets or even the establishment of a new store in a
geographic market. This is for the
simple reason that such conduct is, by definition, procompetitive and as such will
not result in a substantial lessening competition. Rather, firms with a substantial degree of
market power will now be held to account for both the purpose and effect of anti-competitive
strategies which damage the competitive process. For example, the new section
46 should capture such strategies as buying up development sites to prevent new
entry, taking steps to prevent competitors from gaining access to raw
materials, other inputs and the infrastructure needed for the manufacture and
sale of their products or actions aimed at preventing competitors from gaining
access to standard essential patents. In
other words, the new provision will able to capture many of the damaging
anticompetitive behaviours which currently fall outside the ambit of the
Australian’s existing monopolisation provision.
[1] Joint Media Statement of the Prime Minister of Australia, Treasure and Assistant Treasurer, Fixing Competition to Drive Economic Growth and Jobs, dated 16 March 2016 at http://www.pm.gov.au/media/2016-03-16/joint-media-statement-fixing-competition-policy-drive-economic-growth-and-jobs [2] Joint Media Statement of the Prime Minister of Australia, Treasure and Assistant Treasurer, Fixing Competition to Drive Economic Growth and Jobs, dated 16 March 2016 at http://www.pm.gov.au/media/2016-03-16/joint-media-statement-fixing-competition-policy-drive-economic-growth-and-jobs. These are also the author’s personal observations based on his attendance at one of the two Roundtables on Section 46 convened by The Hon Kelly O’Dwyer MP, Assistant Treasurer in January 2016. The author attended the Melbourne Roundtable as the representative of the Small and Medium Enterprise Committee, Business Law Section of the Law Council of Australia.
[3] Definition of the Full Monty - the whole thing; everything that is wanted or needed - Dictionary.com at http://www.dictionary.com [4] The Hon. Senator Murphy, Second Reading Speech re Trade Practices Bill, 30 July 1974 at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22hansard80%2Fhansards80%2F1974-07-30%2F0175%22 [5] Rod Sims, “Section 46: The Great Divide” at https://www.accc.gov.au/speech/section-46-the-great-divide [6] The Treasury, “Discussion Paper - Options to Strength the Misuse of Market Power Law”, dated December 2015 at http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2015/Options-to-strengthen-the-misuse-of-market-power-law
[7] ACCC, “High Court Confirms and enhances current approach to ‘misuse of market power’” ACCC Media Release, dated 16 March 2001 – at https://www.accc.gov.au/media-release/high-court-confirms-and-enhances-current-approach-to-misuse-of-market-power
[8] The Treasury, above n6.
[9] Rural Press v ACCC (2003) 216 CLR 53, para. 139.
[10] ACCC, “Reinvigorating Australia’s Competition Policy - Submission to the Competition Policy Review”, dated 25 June 2014, pp. 76-77 at http://www.accc.gov.au/system/files/Letter%20and%20Competition%20Policy%20Review%20Submission%20to%20Treasury.pdf
[11] Michael Terceiro, “Mythbusting: Bridging the Great Section 46 Divide”, Competition and Consumer Protection Law blog at http://competitionandconsumerprotectionlaw.blogspot.com.au/2015/11/mythbusting-bridging-great-section-46.html
[12] Harper Committee, Final Report – March 2015 at http://competitionpolicyreview.gov.au/files/2015/03/Competition-policy-review-report_online.pdf
[13] Sims, above n4.
[14] Business Council of Australia, Submission to the Department of Treasury on the Final Report of the Competition Policy Review”, May 2015 2014 – at file:///C:/Documents%20and%20Settings/Michael/My%20Documents/Downloads/BCA_Submission_on_the_Final_Report_of_the_Competition_Policy_Review_FINAL%20(1).pdf [15] Ibid.
[16] Joint Media Statement of the Prime Minister of Australia, Treasure and Assistant Treasurer, above n1. [17] Ibid.
[18] Ibid.
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