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Trade Practices Legislation Amendment Bill (No. 1) 2007

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5333

2004-2005-2006-2007

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

Trade Practices Legislation Amendment Bill (No. 1) 2007

 

(1)     Schedule 2, page 6 (after line 12), after item 3, insert:

3A  After subsection 46(7)

Insert:

             (8)  Where a corporation is held to have breached section 46AA of this Act, the corporation shall not be held to have breached this section with respect to the same conduct.

[predatory pricing]

(2)     Schedule 2, page 6 (after line 12), after item 3, insert:

3B  After section 46

Insert:

46AA  Predatory pricing

             (1)  A corporation must not engage in predatory pricing which substantially lessens competition in any market.

             (2)  For the purposes of this section, predatory pricing occurs when a corporation that has a substantial degree of power in a market, or substantial financial power in a market, offers goods or services for sale in a market at prices which have  the purpose or effect of substantially lessening competition in that market.

             (3)  Without limiting the generality of subsections (1) and (2), in considering whether a corporation has engaged in predatory pricing, the Court may have regard to:

                             (a)  whether the goods or services are offered at a price less than their relevant cost; and

                             (b)  the price for which competitors of the corporation are offering the same goods or services; and

                             (c)  the period of time for which the goods or services are offered at the relevant price; and

                             (d)  whether the corporation is offering the same goods or services in other markets for higher prices; and

                             (e)  the extent of competition in the market; and

                             (f)  the reasons for its conduct.

             (4)  In considering whether a corporation has engaged in predatory pricing, regard may be had as to whether or not it has or had the intention or capacity to recoup the costs of its predatory conduct, but actual or potential recoupment is not a necessary requirement of an offence under this section.

             (5)  The reference in subsection (2) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors.

             (6)  This section does not limit the application of section 46.

[predatory pricing]