Competition Policy Reform (Western Australia) Act 1996

A person (the first person) who has a substantial degree of power in a market shall not take advantage of that power for the purpose of:

eliminating or substantially damaging a competitor of the first person or of a body corporate that is related to the first person in that or any other market;

preventing the entry of a person into that or any other market; or

deterring or preventing a person from engaging in competitive conduct in that or any other market.

For the purposes of subsection (1):

the reference in paragraph (1)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

the reference in paragraphs (1)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.

If:

a body corporate that is related to a person (the first person) has, or 2 or more bodies corporate each of which is related to the one person (the first person) together have, a substantial degree of power in a market; or

a person (the first person) and a body corporate that is, or a person (the first person) and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in a market;

In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the Court shall have regard to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:

competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or

persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market.

In this section:

a reference to power is a reference to market power;

a reference to a market is a reference to a market for goods or services; and

a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

Without extending by implication the meaning of subsection (1), a person shall not be taken to contravene that subsection by reason only that the person acquires plant or equipment.

This section does not prevent a person from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47 and 50, by reason that an authorization is in force or by reason of the operation of section 93.

Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have taken advantage of the person’s power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.