Institutional Mismatch and the Inevitably Failed Operation of Section 46 of the Trade Practices Act

Abstract

Following a series of narrow interpretations by the High Court of Australia, s 46 of the Trade Practices Act 1974 (Cth), has been rendered inoperable. The legislative provision seeks to prevent corporations from ‘misusing their market power,’ and is concerned with one of the long standing questions in political economy: the role of the government in the market. This article establishes that s 46 has inevitably failed as a consequence of institutional mismatch between the interpretive expectations that parliament has of the courts, and the limits of discretion in judicial interpretation.