Trade Practices Legislation Amendment Act 2008 (Cth)

Trade Practices Legislation Amendment Act 2008

No. 116, 2008

An Act to amend the law in relation to trade practices, and for related purposes

Contents 1 Short title 2 Commencement 3 Schedule(s)

Schedule 1—Misuse of market power by corporations Trade Practices Act 1974

Schedule 2—Misuse of market power by persons Trade Practices Act 1974

Schedule 3—Other amendments Australian Securities and Investments Commission Act 2001 Trade Practices Act 1974

Trade Practices Legislation Amendment Act 2008

No. 116, 2008

An Act to amend the law in relation to trade practices, and for related purposes

[Assented to 21 November 2008]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Trade Practices Legislation Amendment Act 2008.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

Trade Practices Act 1974

1A After subsection 46(1) Insert:

(1AAA) If a corporation supplies goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying the goods or services, the corporation may contravene subsection (1) even if the corporation cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services.

3 Subsections 46(3), (3A) and (3C) Omit "Court", substitute "court".

4A Subsection 46(4A) Omit "Court" (wherever occurring), substitute "court".

5 After subsection 46(6) Insert:

(6A) In determining for the purposes of this section whether, by engaging in conduct, a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to any or all of the following: (a) whether the conduct was materially facilitated by the corporation's substantial degree of power in the market; (b) whether the corporation engaged in the conduct in reliance on its substantial degree of power in the market; (c) whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market; (d) whether the conduct is otherwise related to the corporation's substantial degree of power in the market. This subsection does not limit the matters to which the court may have regard.