The resolution of access disputes under section 46 of the Trade Practices Act

The ensuing analysis is based on the present wording and current interpretation of s 46 [of the Trade Practices Act 1974] - drawing support, where relevant, from the anti-trust jurisprudence of the United States, European Union and New Zealand. The article finds that the Hilmer committee anticipated correctly the difficulty of establishing a contravention of s 46 and recognised that this would significantly constrain the usefulness of the provision as a means of facilitating access to essential facilities. In outline, the article proceeds as follows. The next part confirms the continuing relevance of s 46 to essential facilities cases and clarifies the nature of the provision's relationship with Part IIIA of the Trade Practices Act. This discussion leads to the comprehensive analysis, of the guiding principles applicable in cases of refusal to supply/denial of access. The article concludes by summing up the current challenges confronting access seekers under s 46.