ACCC must make comparison between two hypothetical future situations, one ‘with’ the proposed arrangements and one ‘without’ – the focus is on likely future competitive effects and the public detriments likely to result An understanding of functioning of relevant markets with and without conduct CCA is drafted in reliance on the ‘corporations power’ of the Cth CCA applies to the Crown in right of the Cth in so far as it carries on a business (s 2A) Pt IV applies to the Crown in right of each of the states and territories in so far as it carries on a business (s 2B) States and territories legislated to mirror Cth leg Indicia of carrying on business: Business: regular, systematic, repetition Business includes a business not carried on for profit (s 4(1)) Nature of the activities: public or regulatory as opposed to private or commercial Repetition, system, regularity Exemptions: granting licences to supply goods or services (s 2C) Indirect application to persons: Act extends to natural persons s 150H avoids double jeopardy Actions brought under Competition Code (State application legislation) involving medical practitioners: WA anaesthetists admitted price fixing allegations: WA Code Rockhampton obstetricians exclusionary provision: Qld Code Adelaide cardiothoracic surgeons: exclusionary provision and misuse of market power: SA Code Abalone growers: Vic code WEEK 3: ECONOMIC CONCEPTS MARKET POWER ‘In identifying the relevant market… the object is to discover the degree of the defendant’s market power. Defining the market and evaluating the degree of power in that market are part of the same process, and it is for the sake of simplicity of analysis that the two are separated…’ (Qld Wire)
ACCC must make comparison between two hypothetical future situations, one ‘with’ the proposed arrangements and one ‘without’ – the focus is on likely future competitive effects and the public detriments likely to result An understanding of functioning of relevant markets with and without conduct CCA is drafted in reliance on the ‘corporations power’ of the Cth CCA applies to the Crown in right of the Cth in so far as it carries on a business (s 2A) Pt IV applies to the Crown in right of each of the states and territories in so far as it carries on a business (s 2B) States and territories legislated to mirror Cth leg Indicia of carrying on business: Business: regular, systematic, repetition Business includes a business not carried on for profit (s 4(1)) Nature of the activities: public or regulatory as opposed to private or commercial Repetition, system, regularity Exemptions: granting licences to supply goods or services (s 2C) Indirect application to persons: Act extends to natural persons s 150H avoids double jeopardy Actions brought under Competition Code (State application legislation) involving medical practitioners: WA anaesthetists admitted price fixing allegations: WA Code Rockhampton obstetricians exclusionary provision: Qld Code Adelaide cardiothoracic surgeons: exclusionary provision and misuse of market power: SA Code Abalone growers: Vic code WEEK 3: ECONOMIC CONCEPTS ‘In identifying the relevant market… the object is to discover the degree of the defendant’s market power. Defining the market and evaluating the degree of power in that market are part of the same process, and it is for the sake of simplicity of analysis that the two are separated…’ (Qld Wire) MARKET POWER