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Thursday, 2 December 1965

Mr BOWEN (Parramatta) .- Clause 37, which deals with monopolisation, is one of the more important clauses of the Bill. We have spent a good deal of time on far less important clauses than this one. One of the reasons why it is important is that whereas, when an agreement which falls within clause 35 is knocked out the way in which the people concerned conduct their business may be little affected. The same applies to a practice which falls within clause 36. If that practice is knocked out, it may affect very little the way in which the people concerned conduct their business. But if a business falls within clause 37, then the terms and conditions on which it does business may come under the control of the Tribunal which may direct by its orders under clause 52 what it shall do. For example, it is empowered to place a ceiling on what may be charged.

I want to raise only one question in relation to this clause. It has to do with paragraph (c). If a concern has one-third or more of the market, when it comes to fix prices, terms or conditions for dealing in its products, inevitably it must do so having regard to the position that it holds in the market. It cannot do anything else. If it has 28 per cent, of the market and it is trying to outsell its competitors and arrive at 30 or 35 per cent, of the market, it can do that only at their expense. It must- take part of the market away from some of its competitors if it is to increase its own share of the market. Inevitably such a concern will have regard to its position in the market when it fixes its price. 1 should have thought that this provision would have isolated those practices that we really want to hit if it had contained some such words as " improperly or unfairly impose prices ". The clause as amended is better in this respect than the clause in the original Bill, but I am not convinced that the words " would be unable to impose but for his dominant position " are anything but neutral. One of the difficulties about putting in a phrase like " unfair or unreasonable ", which is not neutral, is that it would require judgment of the practice before one came to apply the test of public interest in clause 50. Therefore, it may be inappropriate to insert the word " unfair " or the word " improper " in clause 37. They would appear more properly in sub-clause (3.) of clause 50. It may be possible to make some reference there to the requirement that the action taken by the person having 30 per cent, of the market should be predatory or unfair or unreasonable in some way. If it is a perfectly neutral action in fixing prices, the seller is still imposing them. That contains no sense of impropriety. Everyone, simply by having a share of the market that reaches 30 per cent., would inevitably come within paragraph (c). This is not really the intention. The intention, I take it, is to catch the improper or unfair practice. Without suggesting any amendment to clause 37, I suggest for consideration that clause 50 (3.) be varied in order to make this intention clear.

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