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Predatory Pricing Essay

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Quo vadis? Towards an effective predatory pricing provision
Garth Campbell*
The level of criticism directed at s 46 of the Trade Practices Act 1974 (Cth) for its inability to capture predatory pricing indicates that smaller businesses are extremely concerned about this practice. Such criticism reached its peak following the High Court’s decision in Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374, which rejected a claim of predatory pricing. Since then, the Birdsville Amendment and other recent amendments to s 46 have attempted to more effectively capture predatory pricing by defining it more accurately. However, it remains to be seen whether these amendments will be successful. This article assesses the application and effectiveness of …show more content…

Section 46 has been amended several times since its enactment with predatory pricing in mind; to date, only two prosecutions for predatory pricing under this section have been successful.2 Consequently, s 46 has attracted a large volume of criticism for its perceived inability to capture predatory pricing behaviour. As a result of significant levels of criticism of s 46, the Trade Practices Legislation Amendment Act (No 1) 2007 (Cth) and Trade Practices Legislation Amendment Act 2008 (Cth) recently amended s 46 in a number of aspects (New Amendments). Of particular interest was the Birdsville Amendment, which is actually several related amendments proposed by Senator Barnaby Joyce. Another was the addition of the words “in that or any other market” after the words “of that power” in section 46(1) (Cross-market Amendment). These amendments will be considered further below. Unlike general misuse of market power provisions, the Birdsville Amendment boldly attempts to proscribe predatory pricing by way of a more proscriptive definition of predatory pricing conduct. In one sense, this new approach has already had some results by providing increased certainty. From the date of enactment of the Birdsville Amendment and up to 11 April 2008, none of the 47 predatory pricing complaints received by the Australian Competition and Consumer Commission (ACCC) were found by the ACCC to warrant a prosecution or further investigation due to falling

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