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24 March 2017 - More Harper reforms on their way
The Australian's John Durie reports today that the next suite of Harper Reforms are expected to be tabled in Parliament next week: John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').
24 March 2017 - Debate on MMP bill adjourned
Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday, with Andrew Leigh MP (ALP), Ted O'Brien (LNP) and Tim Watts MP (ALP) all delivering speeches. Debate was adjourned in the late afternoon; the House next sits on Monday 27 March.
See also Eli Greenblat, 'BCA's Grant King: effects test will lead to lawsuits' (The Australian, 24 March 2017); Jacob Greber, 'BCA unleashes on Malcolm Turnbull's 'supposed free-market government (AFR, 23 March 2017); Michael Smith, 'BCA's King talks tough as government relations sour' (AFR, 23 March 2017) and John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').
23 March 2017 - Debate to resume on Misuse of Market Power Bill
Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 is set to resume in the House of Representatives today, with Treasurer Scott Morrison set to move the amendment to the bill proposed by the Senate Economics Committee. This amendment can be found on the Bill's homepage and removes the mandatory factors originally provided for in s 46(2).
The proposed amendment also changes the commencement date of the bill from the date of Royal Assent to the date that Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences. That bill has not yet been introduced, but presumably contains the other reforms outlined in the Exposure Draft Legislation released late last year. This change would delay the commencement of the MMP changes but would also overcome the problem associated with the authorisation provisions for misuse of market power not being included in the separate MMP Bill.
See further Emma Koehn, 'Scott Morrison to amend effects test legislation to remove hurdles for proving misuse of market power' (Smart Company, 23 March 2017) and Jacob Greber, 'Morrison to kill off 'lawyer's picnic' in competition effects test' (Australian Financial Review, 22 March 2017) and John Durie, 'Business to lament competition law changes' (The Australian, 23 March 2017).
23 March 2017 - ACCC wins competition advocacy award
The ACCC received an award by the World Bank and International Competition Network 'for its advocacy work in promoting pro-competition measures when governments are privatising public assets'. The award fell under the category 'Levelling the playing field through competitive neutrality or by elevating competition policy to the economic policy agenda'. See media release. See ICN-WBC Winners page.
23 March 2017 - ACCC will not oppose Healthe Care's proposed acquisition of Pulse Health
20 March 2017 - ACCC grants interim authorisation for airline Alliance
The ACCC has granted interim authorisation to Virgin Australia, HNA Group, Hong Kong Airlines, HK Express and their subsidiaries in relation to a proposed Alliance for the coordination of international passenger tarnsport between Australia and China. See authorisation register.
16 March 2017 - ACCC releases statement of issues on Caltex's proposed acquisition of Milemaker
The ACCC this morning released a Statement of Issues in relation to the proposed acquisition by Caltex of a chain of Victorian service stations from Milemaker Petroleum: 'The ACCC's preliminary view is that the acquisition may substantially lessen competition for the retail supply of petrol in Melbourne'. View media release. View merger register.
14 March 2017 - Tabcorp's authorisation filing now available on Tribunal website
The Tribunal has now published Tabcorp's merger authorisation application on its website. View Australian Competition Tribunal current listings page. See also my case page.
For additional media on the Tribunal move see: Sarah-Jane Tasker, 'Tatts deal: Tabcorp ditches ACCC review, goes to tribunal' (The Australian, 14 March 2017) and Paul Gilder, 'Tabcorp cracking the whip in push to get merger past the post' (Herald Sun, 14 March 2017).
13 March 2017 - Tabcorp heads to Tribunal for ruling on merger deal
Following the ACCC's release of a statement of issues on the proposed merger of Tabcorp and Tatts last week (see media release and merger register) Tabcorp is heading to the Tribunal seeking authorisation fo the deal. See Tabcorp media release.
See further John Durie, 'Tabcorp decision to switch regulators mid-race is being led by lawyers' (The Australian, 13 March 2017), James Thomson and John Stenshold, 'Tabcorp takes Tatts Group merger case straight to Competition Tribunal' (Australian Financial Review, 13 March 2017) and AAP, 'Tabcorp takes Tatts bid to tribunal' (SBS, 13 March 2017).
10 March 2017 - Cartel proceedings dismissed
The Federal Court yesterday dismissed cartel proceedings brought by the ACCC against electrical cable manufacturers and wholesalers. See ACCC press release. View judgment (ACCC v Olex Australia Pty Ltd  FCA 222). See further my case page.
9 March 2017 - ACCC releases SOI on proposed Tabcorp-Tatts merger
The ACCC has issued a statement of issues on the proposed merger of Tabcorp and Tatts. See media release. See merger register. See also John Durie, 'ACCC reaction shortens odds of a Tass-Tabcorp tie-up' (The Australian, 9 March 2017).
9 March 2017 - Authorisation denied
3 March 2017 - PT Garuda Indonesia / Air NZ High Court appeal
The High Court has heard appeals in PT Garuda Indonesia v ACCC and Air NZ v ACCC. A key issue revolves around the meaning of market 'in Australia'. The appeal documents as well as audio-visual recordings of the appeal can be found on the High Court website.
24 February 2017 - ACCC Compliance and Enforcement Policy
ACCC Chairman, Rod Sims, outlined the ACCC's 2017 Compliance and Enforcement Policy at his annual CEDA address today. See transcript: 'CCA compliance in interesting times' (24 February 2017). See ACCC media release. See also Gilbert+Tobin Insights, 'The ACCC’s 2017 Compliance and Enforcement Policy – Prioritising the busy year ahead!' (24 February 2017).
23 February 2017 - ACCC concerns on Wollongong coal acquisition
The ACCC has published a Statement of Issues raising concerns about South32's proposed acquisition of Peabody's Metropolitan coking coal mine near Wollongong. See ACCC media release. See merger register. See Matt Chambers, 'ACCC raises flag on South32 Wollongong coal acquisition' (The Australian, 23 February 2017).
20 February 2017 - Maddocks - ACCC 2016 Year in Review
Maddocks has published its ACCC-2016 in Review.
19 February 2017 - COSBOA confirms support for effects test
The Council of Small Business Australia (COSBOA) has issued a media release confirming that it supports an effects test for misuse of market power. This was released in response to comments by the ALP 'insinuating that COSBOA does not support an effects test', which COSBOA has labelled wrong and 'fake news'. See COSBOA Media, 'ALP must support an effects test to have any competition credibility – and stop the fake facts' (17 February 2017)
17 February 2017 - Allens client update on MMP
Allens >< Linklaters have issued a client update on the Senate Committee's support for an effects test for MMP. See 'Client Update: Senate Committee Supports Proposal to Broaden the Misuse of Market Power Prohibition' (17 February 2017)'
16 February 2016 - Senate Economics Committee gives green light to effects test
I've posted a blog piece providing an overview and some commentary on today's Senate Economics Committee report on the misuse of market power bill. See Julie Clarke, 'Senate Committee Gives Green Light to Effects Test' (Australian Competition Law Blog, 16 February 2017).
16 February 2017 - Senate Economics Committee recommends passage of misuse of market power bill
The Senate Economics Committee today released its report on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 which will, amongst other things, introduce an effects test into Australia's abuse of power laws.
Labor senators dissented, claiming the effects test is 'a particularly dangerous economic policy'. Nick Xenophon, while 'broadly' supporting the committee recommendations, offered some additional comments, including once again calling for introduction of divestiture powers for breaching the misuse of market power provision. Further details to follow on my report page.
Competition Policy Review (Harper)
The first major review of competition policy in Australia was conducted in 2014-2015 with the final report released on 31 March 2015. The Government has accepted many of the recommendations and exposure draft legislation was released on 5 September 2016. The MMP bill was released 1 December; remaining reforms are expected to appear in a separate bill early 2017.
Misuse of market power
Always topical, the issue of misuse of market power featured prominently in the Harper Review, with the Panel recommending introduction of an effects test. In March 2016 the Government announced that it would introduce an effects test and a slightly modified version appeared in a bill released 1 December 2016. On 16 February 2017 the Senate Eco Committee recommended passage of the bill.
First criminal cartel case
On 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.
Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 led to some uncertainty about the circumstances in which agents may be considered in competition with their principals for purposes of the cartel laws. The appeal decisions in both cases were handed down on 31 July 2015. The ACCC successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)
Resale Price Maintenance
The decision in CFMEU cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA; on 9 December 2015 the High Court overturned this decision with the result that parties may continue to negotiate and submit agreed penalties to the Court.
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