Trigger warning – Some jargon, site technical terms and Latin
The latest argument used by the coterie of the Business Council of Australia (and a very few dominant big businesses and last century economists) about why we don’t need an Effects Test is that it will be a lawyers’ picnic. This is as the Romans would say non causa pro causa.
They (the BCA not the Romans) believe that businesses will all be suing each other non-stop using the Effects Test as the catalyst. Let’s look at this argument which is just as wrong and full of rhetoric as all their other self serving economically damaging arguments.
The proposal for an Effects Test is that instead of a “purpose” test, decease there will be a “substantial lessening of competition” effect assessment – in other words, did a big firm misuse its market power in a way that lead to (had the effect of) a substantial lessening of competition?
The members of the trade practices mafia use the shorthand term “SLC test”, we mere mortals call it the Effects Test.
This will not create a lawyers’ picnic. As several commentators have already noted, many other parts of the CCA (Competition & Consumer Act 2010) also use the SLC test (Effects Test).
For example, mergers can only be blocked by the ACCC if it can show that a merger will lead to a substantial lessening of competition in the particular market those firms operate in. Lawyers in Australia are already well familiar with applying the SLC (Effects) test to such other parts of the Act.
The Effects Test also currently appears in sections 45, 47 and 50 of the Competition and Consumer Act 2010 (Act), so as to prevent contracts, arrangements or understandings, exclusive dealing and mergers that substantially lessen competition.
As a further discrediting of this rubbish we know that the Harper Review Panel included Michael O’Brien who is an eminent QC – do we really think he would have not spotted that issue and after due deliberation dismissed it as not a problem? (Pardon the double negative but BCA arguments produce lots of negatives).
So another false argument, another bit of misinformation from the dominant few retailers, their paid help and olden day economic rationalists is metaphorically tossed into the special virtual dustbin we keep for vested comments and false and misleading information. What are they trying to hide?
(Can we please move onto the real issues from the Harper Report – Aged care and health; transport and roads; IP etc?