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petition. Market power can also be established by contracts, arrangements or understandings that the corporation has with another party - in the case the agreement between Golf Australia and the R&A. This is supported by the significant barriers to entry that any new regulatory agency would have to establish - most notably affiliation with the Royal and Ancient Golf Club of St. Andrews or the United States Golf Association. One suspects that it simply would not be “rational or possible for new entrants to enter the market,” - golf also not interchangeable with other sports.

Has there been a Taking Advantage

Assuming that market power has been established, the next query becomes whether there has been a taking advantage of that market power. In Pacific National (ACT) Limited v Queensland Rail, the Federal Court enunciated 10 principles as a guide to the construction of the phrase 'take advantage' in s46 of the Trade Practices Act 1974.

1. There must be a sufficiency of the connection, or a causal connection, between the market power and the conduct complained.

2. If the impugned conduct has an objective business justification, this will go against the existence of a relevant connection between the market power and the conduct.

3. The words 'take advantage' do not encompass conduct that has the purpose of protecting market power but no other connection.

4. In deciding whether a firm has taken advantage, one must ask how it would have behaved if it lacked power and whether it could have behaved in the same way in a competitive market.

5. It may be proper to conclude that a firm is taking advantage of market power where it does something that is materially facilitated by the existence of the power.

6. The conduct must have given the firm an advantage it would not have had in the absence of market power.

7. The test may be whether the conduct was necessarily an exercise of market power.

8. One of the difficulties in determining what constitutes taking advantage stems from the need to distinguish between monopolistic practices and vigorous competition.

9. The purpose of s46 is the promotion of competition — it is concerned with the protection of competition, not competitors.

10. It is dangerous to proceed from a finding of proscribed purpose to a conclusion of the existence of a substantial degree of market power that can be taken advantage of — to do so will ordinarily be to invert the reasoning process.

In other words s 46 is not directed at size or at competitive behaviour, as such. What is prohibited, rather, is the misuse by a corporation of its market power. In addition, s46(4)(a) provides that the reference to power in s 46(1) is a reference to market power - the power to be taken advantage of must be market power and not some other type of power.

A corporation which satisfies the threshold test by reason of its market power is not permitted by s. 46(1) to take advantage of that power for the purpose of one or other of the objectives set out in paras. (a), (b) and (c).

The term take advantage in this context indicates:

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