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Thursday, 15 August 1974
Page: 993

Senator MURPHY (New South WalesAttorneyGeneral) - Really what is being said is that we should contemplate that the Commission may upon application grant an authorisation to a corporation to engage in conduct that would contravene clause 46 ( 1 ) which states:

A corporation that is in a position substantially to control a market ibr goods or services shall not take advantage of the power in relation to that market . . .

(a)   to eliminate or substantially to damage a competitor in that market or in another market;

(b)   to prevent the entry of a person into that market or into another market: or

(c)   to deter or prevent a person from engaging in competitive behaviour in that market or in another market.

While members of the Opposition might say that there would be no harm m including the amendment in the Bill because such conduct would never be authorised by the Commission, surely once we put it in we are saying to the Commission: 'Here, the legislature has contemplated that you could authorise such conduct'. Such an alteration would start to change the whole character of the Bill. We would be saying: 'Look, even this kind of conduct can be authorised ', because it would be considered that it was not there for nothing. It would seem to the Commission that the legislature had solemnly and deliberately said that authorisation procedures could be used in this way to authorise conduct of a kind that would allow a monopolist to use the monopoly power to destroy a competitor, to keep competitors out or to undertake the other kinds of behaviour which are prohibited by this clause. We think that this is the very kind of guideline that ought not to be given to the Commission.

How can we seriously contemplate that a commission would do this? Yet if this amendment is accepted the Commission will say: 'Well, if the legislature said we can do it, and gave us the power to authorise it, that is what it intended us to do and there must be some cases in which we would be expected to authorise this kind of use or abuse of monopoly power'. The Opposition might answer my argument by saying that the power will never be used because how could it be used in the context of this legislation. Our answer is that if the power is put in the legislation the Commission will think that it is expected to use the power, that it is expected to condone and preauthorise abuse of monopoly power to destroy competitors or to prevent the entry of competitors into the field or substantially to damage them or to engage in the other kind of conduct prohibited in the clause. So I must say that we think it would be wrong to include such an authorisation power. It is quite different from the other provisions and it would start to distort the character of the legislation.

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