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Thursday, 2 December 1965


Mr SNEDDEN (Bruce) (AttorneyGeneral) . - I move -

Omit sub-clause (1.), insert the following subclauses: - " (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in the trade in goods of a particular description, or in the supply of services of a particular description, in Australia or in a part of Australia, he takes advantage of that position so 89 to -

(a)   induce or attempt to induce a person carrying on a business to refuse to deal with a third person, or to refuse to deal with a third person except, on terms disadvantageous to the third person;

(b)   engage in price-cutting with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition with him; or

(c)   impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position. "(I a.) The Tribunal shall not regard as a part of Australia for the purposes of this section an area that does not include the whole of a State or Territory unless it is satisfied that it is appropriate to do so having regard to the substantial size of the area and its significance as a market area. " (1b.) The Tribunal shall not regard a description of goods or services as being a particular description of goods or services for the purposes of this section if the Tribunal considers that it would be unreasonable to do so having regard to the fact that other goods or services are competitive with goods or services that are included in the description, and to the extent to which those other goods or services are so competitive.".

The purpose of this amendment is to make the words " takes advantage of that position " relevant to the three categories. The former sub-paragraphs (i) and (ii) of paragraph (a) of sub-clause (1.) will now become paragraphs (a) and (b) and the former paragraph (b) will now become paragraph (c). The words "takes advantage of that position " - that is, being in a dominant position - condition each of those three paragraphs. One of the most important changes is that in relation to paragraph (a) it is made clear that to induce or attempt to induce a person to refuse to deal with a third person is monopolisation. This is the corollary of clause 36 (1.) (c), which states that inducing or attempting to induce a person to refuse to deal with a third person pursuant to an agreement on behalf of a trade, association is an examinable practice.

The next point is that in relation to paragraph (c) it is made clear that taking advantage of a dominant position in fixing or determining prices is an imposition of prices. I think this is what the words would have thrown up in a proper construction but to make the implicit meaning abundantly clear and explicit, the words now will be - impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position.

Then there are two new sub-clauses. Subclause (1a.) deals specifically with a point raised by a number of honorable members and particularly the honorable member for Sturt (Mr. Wilson), namely, whether " a part of Australia" might be some small part of Australia like a country town. The subclause was redrawn in this form to make it abundantly clear that it did not refer to some small location. On the contrary, it was to be a large area. It was not possible to say that it must be a State or Territory because you could have an overlapping, for instance, the south east of South Australia and the western districts of Victoria or a part of a State which is a considerable market area, such as the Riverina, where a particular agricultural calling is followed. It is, therefore, not possible to say " a State" but it is necessary to give a clear indication of the size of the area in contemplation. I think this sub-clause does so. The Tribunal will be required to take into consideration the size of the area and the significance as a market area.

Sub-clause (1b.) makes explicit what was formerly implicit, that is, that the Tribunal is obliged, in deciding what goods it will take as being in the description of goods, to consider what goods or services are competitive with other goods or services. Let me take the example of containers. Containers can be metal, plastic, cardboard and glass, to mention only four. A person may have 33i per cent, of the glass containers but that may not put him in a dominant position because glass containers are in competition with metal containers, cardboard containers and plastic containers. So, in competition with all other containers, he may have only 10, 15 or even 20 per cent, of the total market even though he has 33 j per cent, of the glass containers, lt would be wrong to think of his position in relation only to glass containers. His position must be considered in relation to the whole range of containers.







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