With the announcement of yet another inquiry into the Trade Practices Act (a seemingly periodic Australian ritual), questions arise as to where mistakes in relation to the Act may have been made to date. The selection of the 10 most disastrous decisions discussed in this article is, of course a subjective one. Some decisions are those of courts – notably in relation to misuse of market power, collective boycotts and the assessment of damages for misleading or deceptive conduct. But disastrous decisions are not only those of courts. One disastrous decision discussed (the drafting of s4D) is a decision apparently made by the parliamentary draftsperson. Another relates to the Swanson Committee’s refusal to answer one of its terms of reference. The result of this refusal is that we have an Act drafted in an inexcusably obfuscatory manner. A third relates to the logic of a Senate Committee in recommending a change to the merger law test when its own report conceded that it had no basis for its view. The result has been acrimony of debate for a decade with no real evaluation of the real issues. Two disasters discussed are simple failures of policy. One such policy failure relates to third line forcing. Do we want third line forcing to be banned or allowed? No-one seems to be able to decide the answer to this seemingly simple question. The second policy failure relates to attempts to control price exploitation. These attempts resulted in the ACCC prying into the pricing of every sandwich shop in Australia and in the ACCC making quite improper representations as to its rights and powers. The failure of price exploitation control is a history lesson for Australia as illustrating the kind of economic policy which should never again be attempted. Whether or not the writer’s selection of disasters is agreed or whether or not his views find favour, it is hoped that this article will provide food for thought. It may even be of some interest to the Trade Practices Act Committee of Inquiry announced on 15 October 2001. The terms of reference of this inquiry were announced on 9 May 2002 – after the writing of this article. The inquiry is to report in November 2002. A pre-publication copy of this article was lodged as part of the writer’s submission to this inquiry.
Australian Business Law Review Vol. 30, Issue 5, p. 325-368