find the latest legal job
Senior Associate - Competition, Policy & Regulatory
Category: Other | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Work with a well regarded Partner · Sydney CBD
View details
Commercial Litigation Senior Associate
Category: Litigation and Dispute Resolution | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Lawyers Weekly Australia Partner of the Year 2016, Insolvency
View details
MULTIPLEX Regional Legal Counsel (Vic) | 7 to 10 years + PQE
Category: Generalists - In House | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Career defining in-house role · Tier One international contractor
View details
Junior Lawyer - Personal Injury Law
Category: Personal Injury Law | Location: Parramatta & Western Suburbs Sydney NSW
· Highly specialized practice · Challenging role with great opportunities
View details
IR Advisor/Member Advocate
Category: Industrial Relations and Employment Law | Location: St Leonards NSW 2065
· Permanent (0.8-1.0 FTE) role in a developing team
View details
Firm opposes Harper Review reform to ‘misuse of market power’

Firm opposes Harper Review reform to ‘misuse of market power’

competition

Boutique firm Arnold Bloch Leibler has argued against proposed changes to the Competition and Consumer Act 2010 in a submission to the Treasury.

On the back of the Harper Review into competition policy's release last year, the Treasury has invited submissions on the proposed amendments.

Among the recommendations were changes to section 46 of the act, which prohibits the misuse of market power.

The Harper Review recommended removing the “take advantage” test, inserting a “purpose, effect or likely effect” test and shifting focus from “damage to a competitor” to “substantially lessening competition”.

The review also proposed introducing a number of mandatory factors for the court to take into account and “additional measures to reduce uncertainty”.

In a submission on behalf of ABL, partners Zaven Mardirossian and Matthew Lees urged the government to reject the proposed amendments, citing a “lack of evidence of a need to change”.

“It remains unclear what conduct the changes are trying to capture that is not already captured by the current law,” they said.

“It is remarkable that the Discussion Paper proposes six options but does not define the problem those options are seeking to address. This prevents any serious cost-benefit analysis of those options, and means the debate must be conducted at the level of general principles around the drafting of competition laws.”

In Mr Mardirossian’s and Mr Lees’ view, the current law sets out clear parameters for businesses to follow to avoid falling foul of competition rules.

By contrast, the proposed legislation would potentially open “each and every aspect of a business’s unilateral conduct” open to scrutiny by the ACCC, competitors or other commercial players.

“As lawyers, we see clearly the potential for the proposed s 46 to facilitate unmeritorious claims that are designed to hinder, not protect, competitive conduct,” they wrote.

“It would be all too easy to allege that any vigorous competitive conduct that adversely affects competitors would be ‘likely’ to have the effect of substantial lessening competition at some stage in the future.”

Given the “inherent uncertainty” of the test, businesses may find it safer and easier to avoid aggressive competitive strategies, damaging the strength of the market overall, they warned.

“The Harper Review itself acknowledged that the proposed s 46 risked prohibiting legitimate competitive conduct that should not be prohibited.

“It might seem desirable, in theory, to prohibit all conduct that has an anti-competitive purpose, effect or likely effect but this would, in reality, increase uncertainty for businesses, facilitate unmeritorious claims and inhibit legitimate competitive conduct.

"Ultimately, this would be bad for competition and consumers.”

Do you know an outstanding competition lawyer? Submit a nomination for the Lawyers Weekly Partner of the Year Awards.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Firm opposes Harper Review reform to ‘misuse of market power’
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Human body, illegal organ trafficking, ALHR
07:05
Australia poised to combat illegal organ harvesting: ALHR
The Australian Lawyers for Human Rights are calling for changes to the law so that organ trafficking...
Online service, barristers, BarristerSELECT, Stephen Foley
07:04
New online service leverages barristers’ clerks to aid briefing
A new online tool has been launched to help NSW solicitors find the most suitable barristers for the...
NSW District Court judge, Tim Gartelmann SC, next appointment,
07:00
Silk replaces outgoing NSW District Court judge
A barrister has been named as the next appointment to the NSW District Court, following the retireme...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...