Footnotes

Chapter 1 - Introduction

[1]        Selection of Bills Committee, Report No. 10 of 2007, dated 21 June 2007.

Chapter 2 - Background to the bill

[1]        Explanatory Memorandum (EM), p. 7.

[2]        [2003] HCA 5

[3]        Australian Competition and Consumer Commission, ‘Dawson Report—Preliminary response: criminal sanctions major step forward for competition policy’, Press Release, no. 74, 16 April 2003, http://www.accc.gov.au/content/index.phtml/itemId/347733 (accessed 10 July 2007).

[4]        The Hon. Peter Costello, ‘Commonwealth Government response to the review of the competition provisions of the Trade Practices Act 1974’, Commonwealth of Australia, http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp (accessed 10 July 2007).

[5]        Melway Publishing Ltd v Robert Hicks Pty Ltd (2001)

[6]        ACCC v Safeway Stores (2003)

[7]        Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 12.

[8]        Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 13.

[9]        Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, March 2004.

[10]      Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. xi.

[11]      Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 11.

[12]      Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 14.

[13]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, pp xiii and 19.

[14]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 87.

[15]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. xiii.

[16]      The committee recommended that '"financial power" should be defined in terms of access to financial, technical and business resources'. Recommendation 4, see page xiv. 

[17]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 88.

[18]      These recommendations were based on the majority judgement in Rural Press v ACCC.

[19]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. xiv.

[20]      Australian Government response to the Senate inquiry into the effectiveness of the Trade Practices Act 1974 in protecting small business, p. 7, http://www.treasurer.gov.au/tsr/content/publications/pub_downloads/TPA_small_business.pdf (accessed 10 July 2007).

[21]      Australian Government response to the Senate inquiry into the effectiveness of the Trade Practices Act 1974 in protecting small business, p. 8, http://www.treasurer.gov.au/tsr/content/publications/pub_downloads/TPA_small_business.pdf (accessed 10 July 2007).

[22]      Explanatory Memorandum, p. 8.

[23]      Explanatory Memorandum, p. 8.

[24]      Mr Graeme Samuel, 'Competition and fair trading: a fair go for small business', Speech, National Small Business Summit, 3 July 2007, p. 3.

[25]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 40. See also Senate Standing Committee on Rural and Regional Affairs and Transport, Operation of the wine-making industry, October 2005, pgs. xi and 47, Recommendation 2.

[26]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 38.

[27]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 40.

[28]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 37.

[29]      Transcript of Evidence, Mr Graeme Samuel, 7 November 2003, p. 16.

[30]      Government Senators' Report, The effectiveness of the Trade Practices Act 1974 in protecting small business,  March 2004, p. 88.

Chapter 3 - The bill

[1]        The Hon. Peter Costello MP, Treasurer of Australia, Second Reading Speech, House of Representatives Hansard, 20 June 2007, p. 7.

[2]        See Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, pp 23–25, recommendation 5.

[3]        The bill also inserts section 151AH(5A) to enable courts to rule in determining the degree of power that a person has in a telecommunications market, any 'contracts, arrangements or understandings' that the person may have.

[4]        See Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 26, recommendation 6.

[5]        The bill also inserts section 151AH(6A) to enable courts to rule that a person may have substantial power in a telecommunications market even though the person does not substantially control the market or does not have absolute freedom from constraint.

[6]        Commonwealth of Australia, Trade Practices Legislation Amendment Bill (2007) No. 1, http://parlinfoweb.parl.net/parlinfo/Repository/Legis/Bills/Linked/20060701.pdf (accessed 24 July 2007). See also Explanatory Memorandum, pp 27–28.

[7]        ACCC, Submission 30, p. 19. Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 11, recommendation 6.

[8]        Explanatory Memorandum, p. 27, paragraph 3.23.

[9]        The Hon. Peter Costello MP, Treasurer of Australia, Second Reading Speech, House of Representatives Hansard, 20 June 2007, p. 8. See also, Explanatory Memorandum, p. 28, paragraph 3.29.

[10]      Emphasis added. Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, p. 19, recommendation 3.

[11]      Explanatory Memorandum, p. 28.

[12]      Boral para 130 per Gleeson CJ and Callinan J.

[13]      Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 19, recommendation 3.

[14]      Explanatory Memorandum, p. 13.

[15]      See Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 37, recommendation 7.

[16]      Section 51AC(3) relates to suppliers. Section 51AC(4) relates to acquirers.

[17]      ACCC, Submission 30, pp 48–49. Senate Economics References Committee, The effectiveness of the Trade Practices Act in protecting small business, p. 40. Recommendation 8.

Chapter 4 - Issues relating to subsections 46(1), 46(3A-3C), 46(4A) & 51AC

[1]        Law Council of Australia, Submission 13, p. 4. The submission was written by a member of the Trade Practices Committee.

[2]        Boral Limited, Submission 26, p. 1.

[3]        National Farmers' Federation, Submission 8, p. 5.

[4]        Business Council of Australia, Submission 11, p. 3. See also Mr Dave Poddar, Committee Hansard, 27 July 2007, p. 15.

[5]        Ms Melinda Cilento, Committee Hansard, 27 July 2007, p. 16.

[6]        Emphasis added. Business Council of Australia, Submission 11, p. 4.

[7]        Law Council of Australia, Submission 13, p. 5.

[8]        See also David Liebermann and Associates, Submission 6.

[9]        Woolworths Limited, Submission 10, p. 2.

[10]      Woolworths Limited, Submission 10, p. 3.

[11]      Law Council of Australia, Submission 13, pp 5–6.

[12]      Law Council of Australia, Submission 13, p. 6.

[13]      Law Council of Australia, Submission 13, p. 7.

[14]      Fair Trading Coalition, Submission 21, p. 4.

[15]      Pharmacy Guild of Australia, Submission 20, p. 4.

[16]      Pharmacy Guild of Australia, Submission 20, p. 4.

[17]      Associate Professor Frank Zumbo, Submission 25, p. 27. See also Committee Hansard, 27 July 2007.

[18]      Committee Hansard, 27 July 2007, p. 5. Associate Professor Zumbo told the committee that the fact that the ACCC had not brought a section 46 case to court since Boral suggested that the section was not working as it should.

[19]      Committee Hansard, 27 July 2007, p. 7. Associate Professor Zumbo noted that this amendment would be contrary to the High Court's Boral decision.

[20]      Addisons, Submission 23, p. 6.

[21]      See Addisons, Submission 23, pp 7–8.

[22]      Ms Kathryn Edghill, Committee Hansard, 27 July 2007, p. 27.

[23]      Addisons, Submission 23, p. 9.

[24]      Addisons, Submission 23, p. 11.

[25]      Australian National Retailers Association, Submission 16, p. 18. Mrs Margy Osmond, Committee Hansard, 27 July 2007, p. 34.

[26]      Australian National Retailers Association, Submission 16, p. 19.

[27]      Southern Sydney Retailers Association, Submission 15, p. 2.

[28]      National Farmers' Federation, Submission 8, p. 7.

[29]      Associate Professor Frank Zumbo, Submission 5, pp 34–35.

[30]      Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business, Government Senators' report, March 2004, p. 85.

[31]      Associate Professor Frank Zumbo, Submission 5, p. 34.

[32]      Explanatory Memorandum, p. 20.

[33]      Ms H. K. Holdaway, Committee Hansard, 27 July 2007, p. 39.

[34]      Ms H. K. Holdaway, Committee Hansard, 27 July 2007, p. 40.

[35]      See Graeme Samuel, 'Competition and fair trading: a fair go for small business', National Small Business Summit, 3 July 2007, http://www.accc.gov.au/content/item.phtml?itemId=791291&nodeId=e13ac2c93b89ec9869b59f8d26e4b475&fn=20070703_Small%20Business%20Summit.pdf (accessed 23 July 2007).

Labor Senators’ Minority Report

[1] Frank Zumbo submission p. 3.

[2] Dr Evan Jones submission, p. 15.

[3] Woolworths submission, p. 2.

[4] FTC submission p. 4.

[5] Shopping Centre Council of Australia Submission, p. 2.

[6] Addisons Commercial lawyers submission, p. 9.

[7] Ibid. p. 10.

[8] Shopping Centre Council of Australia, submission, p. 2.

[9] FTC, submission, p. 5.

[10] FTC submission pp6.

[11] Spier Consulting submission, pp1.

[12] Associate Professor Frank Zumbo submission, p. 16.

[13] ILG submission, p. 1.

[14] David Lieberman and Associates submission, p. 2.

Additional Remarks Senator Andrew Murray: Australian Democrats

[1] Senate Economics Reference Committee, The effectiveness of the Trade Practices Act in protecting small business, March 2004.

Family First Additional Comments

[2]        Submission 21 (Fair Trading Coalition), page i.

[3]        Submission 21 (Fair Trading Coalition), page ii, iii.

[4]        NARGA Urges Swift Passage of Trade Practices Reforms, NARGA Media Release, 20 June 2007; Win for Small Business in the Trade Practices Act, COSBOA Media Release, 19 June 2007.

[5]        Crowe, D, Look what I do for you, PM tells small business. Australian Financial Review, 3 July 2007, page 4; Trade Practices Act Just the Beginning! COSBOA Media Release, 3 July 2007.

[6]        Submission 15 (Southern Sydney Retailers Association), page 2.

[7]        Associate Professor Frank Zumbo, Committee Hansard, 27 July 2007, page 11.

[8]        Associate Professor Frank Zumbo, Committee Hansard, 27 July 2007, page 5.

[9]        Ms Cilento, Business Council of Australia, Committee Hansard, 27 July 2007, pages 14, 17.

[10]      Submission 6 (David Lieberman and Associates), page 2.

[11]      Submission 11 (Business Council of Australia), page 2.

[12]      Submission 16 (Australian National Retailers Association), page 4-5.

[13]      Submission 4 (Coles Group), page 1.

[14]      Submission 10 (Woolworths Limited), page 1, 2.

[15]      Submission 23 (Addisons Lawyers), page 3.

[16]      Submission 13 (Law Council of Australia), page 3.