deepthought wrote on May 30
th, 2008 at 12:15am:
[quote author=Alex link=1210996459/180#189 date=1212070045]
Uh oh.
Small business support it too, so whatever your concern is you shouldn't keep it to yourself because obviously they need to know your opinion in order to make an informed decision.
Like I said there is already provision in the TPA Section 46 for action against predatory pricing. But Liebor's Bowen is meddling with it in a most alarming way.
“If anything, by virtue of having a specific section in there now dedicated to predatory pricing, it just highlights the fact that there are elements of such a claim that the ACCC has to prove that are highly contentious like recoupment.”
The latest amendment by the Assistant Treasurer and Minister for Competition Policy & Consumer Affairs, Chris Bowen, stipulates there should be no element of recoupment in a predatory pricing case in Australia.
Corrigan, however, argued against the striking out of the recoupment element, citing its inclusion in the definition of predatory pricing in overseas jurisdictions such as the United States.
“That’s his view,” Corrigan said in response to Bowen’s move, pointing to the High Court’s ruling in Boral as a confirmation of the importance of recoupment to a predatory pricing action. “Even Justice Kirby accepted it, and he was a dissenter. Kirby said that when you look at that, case recoupment is an important [even] if not essential part of any predatory pricing case. So the government’s gone against the Justice Kirby line as well as the majority, without any real satisfactory explanation.”
Dr Beaton-Wells also tabled criticism of the minister’s interpretation of the High Court’s past rulings, focussing on its interpretation of the test for ‘taking advantage’.
“Bowen, the minister, says in his speech that in Rural Press, the court endorsed a test which inquired whether the corporation could have undertaken the [anti-competitive] conduct without a relevant degree of market power, but … he’s just wrong about that: the court didn’t endorse that test.
Link One aspect that they are talking about there - 'recoupment' - which Bowen is striking out, will make it harder for small business to prove intent. Another is Bowen's misinterpretation of the 'taking advantage' test. This will create considerable wealth for lawyers arguing about what constitutes 'advantage' and what is merely competition in a competitive market.
Now this would all be exacerbated in the anti-competitive environment created under the FuelWatch scam. The government is licencing petrol retailers to collude and even providing the means - a tax payer funded web site.
Bowen is making the path to predatory pricing much easier for big business. That's why they support it.