On 5 September 2016, the Australian Government published a discussion paper seeking submissions on the operation of Australia's existing telecommunications-specific anti-competitive conduct laws. This consultation coincides with the Australian Government's release of a draft exposure bill implementing reforms from the Harper Competition Policy Review (Harper Review).
One of the Harper Review's recommendations is that the test for misuse of market power under section 46 of the Competition and Consumer Act 2010 (Cth) (Act) be amended. The current test involves an assessment of whether a corporation has misused its market power for one of the anticompetitive purposes listed in the section. The Harper Review proposes that the test be recast to prohibit a corporation with a substantial degree of market power from engaging in conduct if that conduct would have the purpose, or would have or be likely to have the effect, of substantially lessening competition.
Section 46 interacts with the telecommunications-specific prohibitions contained in Part XIB of the Act. Under Part XIB, a carrier or carriage service provider engages in anti-competitive conduct if it has a substantial degree of market power in a telecommunications market, and takes advantage of that power in any market with the effect or likely effect of lessening competition in a telecommunications market.
The discussion paper notes that Part XIB of the Act was introduced in 1997 to facilitate the transition to open competition in the telecommunications market. In light of the connection between section 46 and Part XIB, and the change in market dynamics since 1997, the Australian Government seeks submissions that address whether Part XIB should be retained, removed or amended to provide greater certainty for business.