The missing link in section 46: The curious case of the arsonist, the mousetrap and the baby thrown out with the bathwater
Rachel Trindade
Competition and Consumer Law Journal
Rachel Trindade, ‘The missing link in section 46: The curious case of the arsonist, the mousetrap and the baby thrown out with the bathwater’ (2026) 32 CCLJ (forthcoming)
Abstract
In the first substantive judicial analysis of s 46 since the 2017 amendments, Beech J asked what does one say about French J’s infamous arsonist. His Honour may well have also asked what does one say about the firm that builds a better mousetrap. From the perspective of legal causation, both types of conduct may be caught by an effects test, but from an economic perspective, an important distinction captured in the previous take advantage test has been lost. The Harper Review appropriately identified that an effects test is more accurate in terms of alignment to the goals of our competition law, but international experience shows that such accuracy may come at the expense of administrability. If the intent is to have a fit for purpose s 46 test that minimises both over capture and under capture, then we must address the missing link of what makes conduct that substantially lessens competition a ‘misuse of market power’.