The effects vs purpose debate resumes
Over the past 15 years, there have been ongoing calls for an “effects” test in s46, as “purpose” is said to be too hard to prove. While case law shows this concern is unfounded, the perception remains. But key policy issues are at stake: giving the ACCC easier s46 cases might sound good for small business, but it also puts at risk genuine competitive conduct that benefits consumers. And it may not help smaller players anyway. With an eye to the promised “root and branch” review, here’s our contribution to an informed debate. |