Section 46: The High Court, Dawson and The Senate: a review of the recent debate

Two recent reviews of Part IV of the Trade Practices Act (Cth) (1974) have looked specifically at the operation of Section 46 of this Act and come to very different conclusions concerning its efficacy. The Dawson review (2003) argued that no change to s46 was required as the courts were providing sufficient guidance in the application of the legislation in this respect. The Senate Committee review (2004) came to contrasting conclusions arguing that the Act needed clarification in regard to certain sections. These reports highlight the controversy which has surrounded this section of the Trade Practices Act for the past thirty years. The aim of this paper is to consider these reviews and evaluate the extent to which the High Court has been able to provide guidance in the application of legislation which prohibits the misuse of market power.