Welcome to Australian Competition Law
Latest Australian Competition Law News and Commentary
27 June 2016 - Latest Competition and Consumer Law Journal
The latest Competition & Consumer Law Journal features an article by Rob Nicholls and Jenny Buchan n local market analysis in merger clearance (Rob Nicholls and Jenny Buchan, 'Failing firm, failing franchisor: Local market analysis in Australian merger clearances' (2016) 23(3) Competition and Consumer Law Journal 247). The issue also features a number of articles on Australian consumer law.
24 June 2016 - Cartel fines
In today's Australian Leo Shanahan discusses a nifty comparison of Australian and global cartel fines for 2016 (sourced from Allen & Overy), noting a significant increase in cartel fines in Australia (currently $45.7m for 2016). See Leo Shanahan, 'Cartel fines up $45.7m as ACCC bares teeth' (The Australian, 24 June 2016). See also Lara Bullock, 'ACCC cracking down on cartel conduct' (Lawyers Weekly, 24 June 2016) and Allen & Overy, Global Cartel Enforcement 2016 (including video brief from John Terzaken).
23 June 2016 - ACCC allege cartel in polycarbonate roofing industry
The ACCC has 'instituted proceedings in the Federal Court against four companies and three individuals for alleged cartel conduct in relation to the supply of polycarbonate roof sheeting (‘polycarb’) to retailers in Australia.' See media release.
17 June 2016 - Car sales market study
The ACCC has launched a market study into the new car retailing industry, focusing on competition and consumer issues. See ACCC, 'ACCC launches market study into new car retailing industry' (MR 107/16, 17 June 2016). See also Daniel Palmer, 'ACCC to put new car sales under the microscope' (The Australian, 17 June 2016).
17 June 2016 - Authorisation news
The ACCC has authorised collective bargaining by Victorian chicken growers when dealing with processors (see ACCC chicken growers media release and authorisation register) and is proposing to authorise 'Melbourne City Council and 13 other parties to establish a joint renewable energy purchasing group', the Melbourne Renewable Energy Project (see draft determination, authorisation register ACCC media release).
16 June 2016 - ACCC accepts divestiture undertakings from Primary Health Care Ltd and Healthscope Ltd
The ACCC has accepted s 87B undertakings from primary Healthcare and Healthscope. The undertakings arose from the ACCC's investigation of Primary's acquisition of Healthscope's pathology assets in Qld in 2015, which occurred without the parties notifing the ACCC.
15 June 2016 - Labor promises increase in penalties and market studies power for the ACCC
Andrew Leigh MP announced today that Labor would:
- increase civil penalties under the Australian Consumer Law from $1.1m to $10m;
- adopt the EU's penalty system for anti-competitive conduct ('based on 30 per cent of the annual sales of the relevant product or service, multiplied by the number of years the infringement took place, limited to the greater of 10 per cent of annual turnover, or $10 million')
- use some revenue from increased penalties to increase the ACCC's litigation budget
- amend the CCA to give the ACCC a market studies function 'so that it can explore public interest issues such as pricing discrepancies and increased market competition')
8 June 2016 - Laundry detergent hearing commences
The ACCC's case against Cussons has commenced in the Federal Court. The ACCC has alleged Woolworths conspired with Colgate, Unilever and Cussons in relation to the introduction of a new detergent product in contravention of s 45 of the (then) Trade Practices Act (the conduct alleged to have contravened the Act took place prior to the introduction of the current cartel laws). The ACCC is seeking pecuniary penalties, declarations, injunctions, compliance programs and costs.
All other parties have admitted involvement: Woolworths admitted its involvement recently and was fined $9m earlier this month (see ACCC media release re Woolworths). Earlier Colgate made admissions and, on 28 April 2016, was ordered to pay penalties totalling $18m plus a contribution toward the ACCC's costs (see media release re: Colgate and reasons for judgment). Unilever was the first to admit its involvement and was granted immunity.
6 June 2016 - ACCC appeals penalty in Cement Australia
The ACCC has appealed against the $17.1m penalty against Cement Australia ordered by the Federal Court on 29 April (originally penalties totallying $18.6 were ordered, but $1.5m of those penalties has been set aside). The ACCC had sought penalties of in excess of $90m. View ACCC media release.
The penalty judgment is not currently available for viewing online: see ACCC v Cement Australia Pty Ltd  FCA 536 para 14 ('The Court orders that market sensitive data contained in the reasons for judgment published by the Court to the parties only on 29 April 2016 bearing the Medium Neutral Citation Australian Competition and Consumer Commission v Cement Australia Pty Ltd  FCA 453 be removed from the reasons for judgment until further order.')
3 June 2016 - Andrew Leigh on markets
The opposition competition spokesman, Andrew Leigh, has published another opinion piece on competition policy. See Andrew Leigh, 'Federal election 2016: markets can’t be allowed to victimise the vulnerable' (The Australian, 3 June 2016).
3 June 2016 - Woolworths admits accessorial role in laundry detergent cartel; ordered to pay $9m in penalties
The Federal Court has ordered Woolworths to pay penalties totalling $9m following admissions that it was 'knowingly concerned in the making of, and giving effect to, an understanding between Colgate-Palmolive Pty Ltd (Colgate), PZ Cussons Australia Pty Ltd (Cussons) and Unilever Australia Limited (Unilever) that they would each cease supplying standard concentrate laundry detergents to Woolworths in early 2009 and supply only ultra concentrates to Woolworths from that time.' The penalty was based on joint submissions as to penalty.
2 June 2016 - ACCC does not oppose Metal Manufacturers' proposed acquisition of Cetnaj
The ACCC has announced it 'will not oppose the proposed acquisition of Cetnaj Pty Ltd by Metal Manufacturers Limited (MML).' See media release.
1 June 2016 - Tribunal rules on Port of Newcastle access
Glencore has succeeded in its application to the Australian Competition Tribunal to have the decision of the (then acting Treasurer), Mathias Cormann, not to declare the Port of Newcastle, set aside. The Tribunal yesterday announced it would set aside Mr Cormann's decision and declare the port. View judgment (Application by Glencore Coal Pty Ltd  ACompT 6).
See also Tribunal documents relating to Glencore's application and original NCC application and the NCC's Final Recommendation (2 Nov 2015) and Minister's decision and statement of reasons (8 January 2016).
See further Editorial, 'Competition tribunal says Port of Newcastle a monopoly to be regulated' (Newcastle Herald, 31 May 2016), Ian Kirkwood, 'Federal government over-ruled on Port of Newcastle charges' (Newcastle Herald, 31 May 2016), and Matthew Stevens, 'Glencore wins Newcastle port war' (AFR, 1 June 2016).
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 draft legislation is expected later in 2016.
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 consistent with the Harper Panel's recommendation.
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.
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 has been granted special leave to appeal the Flight Centre decision to the High Court.
Resale Price Maintenance
ACCC and Informed Sources
In 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45. In December 2016 the ACCC announced it had resolved these proceedings after Informed Sources and the retailers agreed to make pricing information available to consumers at the same time the retailers receive it.
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