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Competition Policy Review (Harper Review)

For the latest news and information on the Harper Review visit my review page or the official Competition Policy Review website. The panel's draft report was released on 22 September 2014.

 

Latest Competition Law News and Commentary

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24 October 2014 - Justice Gordon not impressed with lack of focus in ACCC case against Coles

In a directions hearing this morning Justice Gordon has criticised the ACCC for lack of focus in its unconscionable conduct claims against Coles. Justice Gordon also questioned the need for Coles to use 17 junior lawyers to defend the case. See Eli Greenblat, 'Judge slams lack of focus in ACCC cases against Coles' (The Australian, 24 October 2014)

24 October 2014 - $8.3 million forklift gas cartel fine

The Federal Court has ordered (by consent) penalties of $8.3 million against Renegade Gas Pty Ltd, Speed-E-Gas (NSW) Pty Ltd and three current and former senior officers of the companies for engaging in cartel condut. See ACCC Press Release. Read judgment.

24 October 2014 - Expedia/Wotif deal faces NZ hurdle

The ACCC approved Expedia's acquisition of Wotif on 2 October, but the deal now faces a NZ hurdle with the Commerce Commission issuing a letter of 'unresolved issues'. A decision is due on 5 November. See Clearances Register (does not include letter) and Wotif's ASX announcement. See also Jamie Freed, 'Expedia's Wotif takeover held up again' (The Australian Financial Review, 23 October 2014, page 24 (online version)).

23 October 2014 - Billson on the agriculture green paper

Small Business Minister, Bruce Billson, has spoken at the Competition Policy Review International Conference in Canberra today. John Durie has a piece in today's Australian noting that in that speech Billson stressed that it is the Harper Review, not the Agriculture Green Paper, that is the 'key tool in setting competition policy'. See Durie, 'Bruce Billson seeks to soothe supermarkets' concerns over agriculture green paper' (The Australian 23 October 2014).

See also, for example, Fluer Anderson, 'Producers in Power Push' (The Australian Financial Review, 20 October 2014, page 5), Fluer Anderson and Katie Walsh, 'Cold shoulder for carve-ups' (The Australian Financial Review, 22 October 2014, p 11), Editorial, 'Open economy is good for the farm' (Australian Financial Review, 21 October 2014, p 58), Lexi Metherell, 'Agriculture green paper to spark debate over water, competition' (ABC Radio, The World Today, 20 October 2014) and Joe Kelly, 'Green paper canvasses court orders to break up businesses' (Dynamic Business, 20 October 2014). For more detail see also my Agricultural Competitiveness White Paper page.

23 October 2014 - New publications

The latest issue of the Competition and Consumer Law Journal is out now with a couple of competition items of interest: Rhonda L Smith, 'Market definition and substitution options' and George Raitt, 'Misuse of market power: Why policy objectives matter'. Piper Alderman has also released their latest Competition and Consumer Law News (October 2014) which includes items on section 155 Notices, Merger clearance proposals, the proposed (semi) effects test for s 46 and more.

21 October 2014 - Gough Whitlam and competition law

Malcolm Maiden had an item in today's SMH on Gough Whitlam's impact on competition law - see Malcolm Maiden, 'Gough Whitlam 'changed the way business is done' with lasting competition laws' (SMH, 21 October 2014)

21 October 2014 - ACCC proposes first RPM authorisation

The ACCC has issued a draft determination proposing conditional authorisation to Tooltechnic to set minimum retail prices on Festool power tools for three years. The ACCC has accepted that there is market failure caused by free riding of some Festool retailers in this case sufficient to justify authorisation. This represents the first ever application for authorisation for RPM conduct under the Act. See press release. See authorisation register. Submissions are due by 7 November. It is notable that the Harper Review has proposed retaining the per se ban on RPM, but introducing a notification option.

21 October 2014 - Agricultural Competitiveness Green Paper

The Agricultural Competitiveness Green Paper was released yesterday. See my Agricultural Competitiveness White Paper page for details - includes discussion of competition law 'policy ideas'.

21 October 2014 - Coles v ACCC - balance between fair trading and competition

Prof Caron Beaton-Wells has an opinion piece in today's Conversation discussing the ACCC's recent actions against Coles. See Caron Beaton-Wells, 'Coles v ACCC: finding the balance between fair trading and competition' (The Conversation, 21 October 2014)

17 October 2014 - ACCC releases Statement of Issues on proposed acquisition of Dux by Rheem

The ACCC has released a Statement of Issues outlining competition concerns relating to the proposed acquisition of the Dux hot water heater business by Rheem Australia. The ACCC has expressed concern that the proposed acquisition would substantially lessen competition 'in the supply of storage water heaters'. See press release. See merger register.

16 October 2014 - ACCC authorises owner drivers to collectively bargain with Toll Transport

The ACCC 'has granted authorisation allowing a group of small business owner drivers to collectively bargain with Toll Transport Pty Ltd for the supply of air freight courier transport services at the Toll Priority Brisbane depot.' See press release. See authorisation register.

16 October 2014 - ACCC releases Statement of Issues on CSR and Boral proposed clay brick JV

The ACCC has today released a Statement of Issues outlining competition issues arising from the ACCC's review of the proposed CSR/Boral clay brick JV. ACCC Chairman, Rod Sims, stated that: "The proposed joint venture would result in a duopoly in eastern Australia. The ACCC’s preliminary view is that this would be likely to lead to an increase in the price of clay bricks as well as a reduction in the product range available to residential builders, architects, and end-consumers". Submissions on the SOI are due by 6 November with a final decision to be announced on 18 December. See press release. See merger register. See, for example, Tim Binsted, 'ACCC raises concerns about Boral-CSR brick JV' (SMH, 16 October 2014)

15 October 2014 - ACCC proposes to allow new levy to combat oyster mortality syndrome

The ACCC has issued a 'draft determination proposing to allow Australian Seafood Industries (ASI) to collect a levy, in conjunction with hatcheries, on the purchase of Pacific oyster spat.' See press release. See authorisation register.

15 October 2014 - ACCC reauthorises Consumer Electronic Clearing System regulations

The ACCC has 're-authorised the certification, suspension and termination provisions of the Australian Payments Clearing Association’s (APCA) Consumer Electronic Clearing System (CECS) regulations.' See press release. See authorisation register.

15 October 2014 - ACCC accepts undertakings over restrictions on Taxi booking apps and mobile phones

The ACCC 'has accepted a court enforceable undertaking from Standard White Cabs Limited, trading as Townsville Taxis, relating to alleged breaches of the competition provisions'. Part of the undertaking requires Townsville Taxis to ensure 'affiliated drivers are free to lawfully use a third party booking application and/or a mobile telephone to receive taxi bookings from customers'. View media release.

15 October 2014 - Barnett attacks Rio and BHP

WA Premier, Colin Barnett, has told the state Parliament that he thought it 'strange' that Rio Tinto and BHP Billiton were "seemingly acting in a concert way". See AAP, 'Barnett says Rio, BHP likely colluders' (The Australian, 14 October 2014) Ian Verrender, 'Rio Tinto, BHP Billiton iron ore strategy crushes Colin Barnett' (ABC News, 14 October 2014). See also Hansard (Uncorrected Proof) pages 2-3

15 October 2014 - Telstra pricing

There has been a bit in the media over the last couple of days about Telstra's call to the ACCC to raise prices for access to copper. See, for example, Supratim Adhikari, 'A "greedy" Telstra will test ACCC's resolve' (Business Spectator, 14 October 2014), Chris Ducket, 'NBN causing inevitable copper cost increase for users: Telstra' (ZDNet, 13 October 2014), David Ramli, 'Carrier copper plea falls flat' (The Australian Financial Review, 14 October 2014, page 14), David Ramli, 'Sims makes probing Telstra over copper a top priority' (The Australian Financial Review, 13 October 2014, page 9) and Mitchell Bingemann, 'Telstra accused of fudging prices' (The Austrlaian, 15 October 2014, p 7). See further ACCC Fixed line services FAD inquiry 2013 - Consultation on primary prices (July 2014).

15 October 2014 - Abertis unhappy with ACCC decision on Qld Motorways-Transurban deal

Abertis CEO, Francisco Reynés has argued that Transurban's purchase of Qld Motorways in April gives it control of most of the east coast tollroads. See Jenny Wiggins, 'Abertis chief lashes ACCC for allowing $7b Queensland Motorways-Transurban deal' (SMH, 15 October 2014).

14 October 2014 - Allens >< Linklaters Competition Law Update

Allens >< Linklaters latest In touch: Competition law update is now available, covering the Harper Review, ACCC immunity policy, NZ unfair contract terms draft guidelines, ACCC news, case news ACCC v Breast Check; Zen Telecom; Pirovic Enterprises; Safe Breast Imaging Pty Ltd (No 2) and Seafolly v Madden).

13 October 2014 - Focus on electricity generation assets

In a speech to Energy Users' Association of Australia, ACCC Chairman, Rod Sims, has indicated the ACCC will focus on electricity generation assets when the privatisation of Qld electricity assets is triggered. See press release. See speech - Sims, 'Carbon, mergers and other issues' (13 October 2014) Annual Energy Users' Association of Australia Conference, Melbourne. See also Maggie Lu YueYan, 'Break up Queensland generators: ACCC' (Business Spectator, 13 October 2014), Amy Remeikis, 'Tim Nicholls looks for silver lining in ACCC comments on electricity privatisation' (Brisbane Times, 14 October 2014) and Mark Ludlow, 'Sims to Queensland: split electricity assets' (The Australian Financial Review, 13 October 2014, page 6).

11 October 2014 - Samuel raises concerns on proposed ACCC board

Today's Weekend Australian (Business p 29) has a brief item noting that former ACCC Chairman, Graeme Samuel has raised concerns about Harper Review draft proposals to add a Reserve Bank-style board to the ACCC. This followed concerns raised by current Chairman, Rod Sims, in his speech at the UniSA Competition and Consumer Law Workshop in Adelaide yesterday. See Annabel Hepworth, 'Samuel cool on ACCC 'board'' (The Weekend Australian, 11 October 2014, Business 29) (online for subscribers only).

10 October 2014 - ACCC initial comments on Harper Review

ACCC Chairman, Rod Sims, spoke at today's UniSA Competition and Consumer Law Workshop in Adelaide. In part, Sims indicated in was pleasing that the panel had 'given the core elements of Australia's merger laws a stamp of approval' and that its recommendation regarding concerted practices responded to longstanding ACCC concerns of a gap in the law. Sims also welcomed the Panel's recommendations on misuse of market power. Concerns were raised about separating regulatory functions between different bodies and the recommendation to replace the current Commission with a differently composed Board. See press release. See full speech. See also Michael Roddan, 'ACCC concerned over Harper competition review' (Business Spectator, 10 October 2014).

10 October 2014 - Convenience stores v supermarkets

SMH reports that Australasian Association of Convenience Stores chief executive, Jeff Rogot, has spoken about Coles and Woolworths growth strategies (in particular in relation to convenience stores) arguing that the ACCC must ensure convenience stores and small business aren't disadvantaged by such strategies. See Carolyn Cummins, 'Convenience stores call on ACCC to keep watch as supermarkets plan smaller shops' (SMH, 10 October 2014) and Carolyn Cummins and Julie-anne Sprague, 'Woolworths, Coles to take on convenience stores' (SMH, 6 October 2014)

9 October 2014 - The State of Competition

The latest 'The State of Competition' is out now and focus on the Harper Panel's recommendations for s 46. In it, authors Rachel Trindade, Rhonda L Smith and Alexandra Merrett 'road-test the Harper proposal, trying it out with examples of allegedly anti-competitive conduct said to fall outside the scope of the current law.' View the latest The State of Competition ('Building better mousetraps: Harper’s re-write of section 46'). See also The State of Competition homepage for earlier issues.

9 October 2014 - ACCC clears

The ACCC has "allowed taxi operators working in co-operatives in regional and country Victoria to agree on the maximum fares they will charge taxi-users for work booked within their cooperative network." See press release. See authorisation register.

8 October 2014 - NBN oversight

Allan Asher has a piece in today's The Conversation discussing NBN oversight and the recent Harper and Vertigan recommendations. See Allan Asher, 'Why handing NBN oversight to a new regulator is a recipe for failure' (The Conversation, 8 October 2014).

6 October 2014 - No Woolworths liquor split

The ACCC has indicated it will not try to force Woolworths to divest assets to reduce market power (noting that it does not and should not have the power to break up companies). This follows a suggestion by former Woolworths and Coles executive, Tony Leon, suggested a forced liquor separation may be necessary. See, for example, 'ACCC won't hunt Woolworths split' (The Australian, 6 October 2014) and Julie-Anne Sprague, 'Competition watchdog won't call for Woolies liquor split' (AFR, 6 October 2014) and Julie-Anne Sprague, 'Tony Leon, liquor legend with a thirst for a deal' (AFR, 4 October 2014, p 35)

3 October 2014 - Harper Review a chance for economic leadership

Dr Martyn Taylor has an item in the Australian Financial Review on the draft Hilmer recommendations. See Martyn Taylor, 'Harper review a chance for economic leadership' (AFR, 3 October 2014) (alternate source: Norton Rose Fulbright website)

3 October 2014 - 40 years of the TPA

The Trade Practices Act (still in force but re-named the Competition and Consumer Act 2010) celebrated its 40th anniversary on 1 October. The ACCC has released a commemorative magazine and 30-min video showcasing the history of the Act. See press release.

 

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Hot topics

Competition Policy Review (Harper)

Harper Review

Read moreThe first major review of competition policy in Australia in 20 years is underway with a draft report released on 22 September.

 

New cartel immunity and cooperation policy

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Read moreOn 10 Sept 2014 the ACCC released a new Immunity and Cooperation Policy for Cartel Conduct.

ACCC takes on Informed Sources

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Read moreThe ACCC has instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45.

 

Misuse of market power

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Read moreAlways topical, the issue of misuse of market power is set to feature prominently in the Harper Review.

First Tribunal merger authorisation

Merger authorisation

Read moreIn June the Australian Competition Tribunal granted its first direct merger authorisation to AGL.

 

TPA celebrates 40 years

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Read moreOn 1 October 2014 the Trade Practices Act 1974 (now named the Competition and Consumer Act 2010) celebrated 40 years.

 

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