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Friday, 3 December 1965

In Committee.

Consideration resumed from 2nd December (vide page 3567).

Clause 37. (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in a line of trade or commerce in Australia or in a part of Australia -

(a)   by virtue of, or for the purpose of maintaining, his dominant position -

(i)   he does an act or thing intended or calculated to result in competitors, or possible competitors, being prevented from, or restricted or prejudiced in, obtaining supplies of goods or services or opportunities of marketing goods or making services available; or

(ii)   he engages in price-cutting with the object of substantially damaging the business or a competitor or preventing a possible competitor from entering into competition; or

(b)   he takes advantage of his dominant position in fixing or determining his prices or other terms or conditions of dealing. (2.) For the purposes of this section - (a) a reference in this section to a person includes a reference to a combination, and, in the application of this section in relation to a combination, an act or thing done by a member of the combination as such a member shall be deemed to be done by the combination;

(b)   a person is in a dominant position in a line of trade or commerce in Australia or in a part of Australia if, and only if, the Tribunal is satisfied that that person is the supplier of not less than one-third, by quantity or value, of the goods (including imported goods) or services of any description that are supplied in Australia or in that part of Australia (whether, in the case of goods, the person supplies the goods by wholesale, by retail or otherwise);

(c)   without limiting the meaning of the expression " combination ", two or more persons constitute a combination in relation to goods or services of any description if they so conduct their affairs as in any way to restrict or prevent competition between them in connexion with the supply of goods or services of that description;

(d)   two or more corporations that arc related to each other are a combination, and each is included in any other combination in which any of them is included; and

(e)   the matters to be taken into account by the Tribunal in determining whether goods or services are of the one description shall be such as the Tribunal thinks most suitable in all the circumstances, with particular reference to the extent to which any goods or services arc competitive.

Upon which Mr. Snedden had moved by way of amendment -

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 as 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. " (1a.) 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 substantia] 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.".

And upon Mr. Killen's amendment to the proposed amendment -

Omit paragraph (c) of proposed sub-clause (1.).







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