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17 August 2017 - Advance copy of 'Regulating Supermarkets: The Competition for Space' now available

The University of New South Wales Law Journal has released an advance copy of an article by Christopher Arup, Caron Beaton-Wells and Jo Paul-Taylor entitled 'Regulating Supermarkets: The Competition for Space'.

16 August 2017 - Federal Court hands down Port of Newcastle decision

The Full Federal Court today unanimously dismissed Port of Newcastle Operations Pty Ltd's application for judicial review of an access decision made by the Australian Competition Tribunal in June 2016. The Tribunal (in Application by Glencore Coal Pty Ltd [2016] ACompT 6 and Application by Glencore Coal Pty Ltd [2016] ACompT 7) had set aside a decision of the Minister not to declare a service under s 44H and had declared the service pursuant to s 44K.

Plenty of media coverage. See, eg, Andrew White, 'Federal Court rules on Newcastle port charge regulation' (The Australian, 16 August 2017), Joanne McCarthy, 'Hunter mining interests have had a big win against the Port of Newcastle over future pricing' (Newcastle Herald, 16 August 2017), Joanne McCarthy, 'The Port of Newcastle introduced savage price hikes that led to Federal Court action' (Hewcastle Herald, 17 August 2017), John Durie, 'Court ruling on Newcastle port sounds alarm for monopolies' (The Australian, 17 August 2017), Jenny Wiggins, 'ACCC, Glencore win Port of Newcastle battle' (AFR, 16 August 2017).

16 August 2017 - ACCC proposed to approve collective bargaining between Licensed Post Offices and Australia Post

The ACCC has issued a 'draft determination proposing to grant authorisation to Licensed Post Office Group Ltd (LPO Group) and its current and future licensed post office members to collectively negotiate with Australia Post.'

The ACCC indicated it did not consider 'that the proposed conduct is likely to result in significant public detriment given that competition between licensed post offices is limited, negotiations are entirely voluntary in nature, and authorisation does not extend to any collective boycott of products or services supplied by LPOs'

Submissions on the draft determination may be made until 6 September; a final decision is expected by November 2017

View ACCC media release. View authorisation register.

15 August 2017 - Misuse of market power bill amendment agreed to by House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 returned to the House today after the Senate yesterday voted to pass the bill with amendment. The House agreed to the amended bill just after 7pm this evening.

The Treasurer was quick to issue a press release celebrating the bill's passage: Treasurer: Strengthened competition law to benefit Aussie small businesses and consumers (15 August 2017).

15 August 2017 - 'Weighty week' for competition law: Durie

John Durie's column today hightlights the various developments in competition law taking place this week; among them parliamentary debate on the Harper amendments.

See John Durie, 'A weighty week for competition law' (The Australian, 15 August 2017).

14 August 2017 - Effects test passes Senate with amendment

Debate resumed in the senate today on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017, including consideration of two amendments - one from the Greens and one from the Nick Xenophon team.

The Xenophon amendment (which included substantial changes to the proposed law, including introduction of divestiture powers for breaches of s 46) did not succeed. The Greens' amendment, which related to the telecommunications industry provisions in Schedule 2, was supported.

The bill then passed comfortably (22 vote majority) despite opposition from the Labor Senators.

See eg, AAP, 'Competition laws clear the Senate: New laws designed to protect small businesses from big competitors like Coles and Woolworths have cleared the Senate' (SBS, 14 August 2017)

13 August 2017 - Greens warn Labor on effects test

Despite the Greens supporting passage of the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 (now befor ethe House), they have warned Labor not to use this as an excuse to oppose the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 due to be debated next week.

See Belinda Merhab, 'Greens warn Labor over competition law' (The Weekend Australian, 10 August 2017).

10 August 2017 - Small Business Access to Justice Bill passes Senate

Debate resumed in the Senate today on the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 - a private members' bill introduced by Senator Katy Gallagher in February. Several speeches were made in relation to the Bill and the bill passed by 36-22.

The Bill was then introduced and read a first time in the House. If passed by the House the Bill will amend the Competition and Consumer Act to allow judges to waive liability for adverse costs to small bsuiness litigants in misuse of market power cases.

10 August 2017 - Delia Rickard reappointed to ACCC

The Federal Government has reappointed Delia Rickard as Deputy Chair of the ACCC for five years. ACCC Chairman, Rod Sims, said of the re-appintment:

'Delia has made an outstanding contribution to the work of the ACCC over the past five years, particularly in relation to consumer protection ... Delia is a tireless advocate for consumer rights and leads the Commission’s product safety and scam disruption work. ... Delia’s reappointment reaffirms the Government’s commitment to consumer protection and welfare amongst its broader market performance-enhancing initiatives across the economy. We look forward to Delia’s continued leadership in these important areas at the ACCC ...'

View media release.

10 August 2017 - ACCC authorises airline alliance

The ACCC has today 'granted authorisation to coordinate airline services for five years to Virgin Australia Airlines, the HNA Aviation Group, Hong Kong Airlines and Hong Kong Express Airways.' The ACCC believes the alliance 'will likely realise significant public benefits, primarily through supporting the introduction of new services between Australia and mainland China and Hong Kong including by Virgin'. Interim authorisation has been in place since March.

View media release. See authorisation register.

10 August 2017 - ACCC releases Statement of Issues on BP's proposed acquisition of Woolworths' petrol sites

The ACCC has released a Statement of Issues on BP's proposed acquisition of Woolworths' petrol sites, identifying some preliminary concerns that the proposed acquisition 'may substantially lessen competition for the retail supply of fuel across metropolitan areas.'

Submissions on the SOI are due by 7 September. A final decision is expected by 26 October 2017.

View media release. View merger register.

10 August 2017 - ACCC raises concerns with Camp Australia Junior Adventures proposed merger

The ACCC has issued a Statement of Issues raising preliminary concerns about the proposed merger between Camp Australia and Junior Adventures. The primary concern is that:

... the loss of competition between Camp Australia and JAG for the supply of before and after school care could result in higher prices for parents and lower quality care for students in some states ...

The ACCC has invited further submissions which are due by 25 August; a final decision is expected by 26 October 2017.

View media release. View merger register.

10 August 2017 - Misuse of market power not debated but small business bill now being debated

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 was listed on the Senate's Order of Business yesterday, but time defeated resumption of second reading debate. This morning debate on the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 resumed; the MMP bill is not currently listed for debate.

10 August 2017 - New competition bill introduced

Josh Frydenberg MP (Minister for the Environment and Energy) introduced a new bill - the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 into the House today.

The Explanatory Memorandum states that the Bill amends the CCA to

'prevent the Australian Competition Tribunal ... from reviewing certain decisions made under the national energy laws and to ensure that decisions made by the Australian Energy Regulator (AER) under those laws are not subject to merits review by any other State or Territory body'

9 August 2017 - Treasury releases Exposure Draft Regulations

In a sign that the Government has not forgotten about competition policy reform, Treasury today released Exposure Draft amendments to the Competition and Consumer Regulations which will follow from proposed amendments to the Act in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 and the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, both currently before Parliament.

Submissions may be made until 22 August.

...

3 August 2017 - First criminal cartel conviction

The Federal Court today convicted Nippon Yusen Kabushiki Kaisha (NYK) of criminal cartel conduct and ordered it to pay a fine of $25m. This was the first successful prosecution under Australia's criminal cartel provisions which have been in place since 2009. The fine includes a significant discount (50%) for an early guilty plea, cooperation and contrition). His Honour concluded his reasons for judgment as follows (para 300):

Cartel conduct of the sort engaged in by NYK warrants denunciation and condign punishment. It is inimical to and destructive of the competition that underpins Australia’s free market economy. It is ultimately detrimental to, or at least likely to be detrimental to, Australian businesses and consumers. The penalty imposed on NYK should send a powerful message to multinational corporations that conduct business in Australia that anti-competitive conduct will not be tolerated and will be dealt with harshly. That is so even where, as here, the decisions and conduct are engaged in overseas and as part of a global cartel. As has already been explained, but for NYK’s cooperation and willingness to facilitate the administration of justice, the penalty would have been substantially higher. That should serve as a clear and present warning to others who may have, or may be considering or planning to, engage in similar conduct.

See ACCC media release. See judgment. See also court summary of the case or my case page for further links and details.

...

21 June 2017 - Tribunal authorises Tabcorp's proposed acquisition of Tatts Group Ltd

The Australian Competition Tribunal Tribunal has authorised the proposed acquisition of Tatts Group ltd by Tabcorp; reasons for this decision are expected to be published on Thursday. Tabcorp has issues a press release welcoming the decision. See also John Durie, 'Tabcorp’s high-risk strategy pays off as tribunal approves Tatts merger' (The Australian, 20 June 2017) and John Stensholt, 'Tabcorp-Tatts $11b merger gets green light from Competition Tribunal' (AFR, 20 June 2017). See my case page for further details an links.

14 June 2017 - High Court unanimously dismisses air cargo appeals

The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The appeals focus on the meaning of a market 'in Australia'. The High Court's judgment summary states that:

'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia'

View judgment. See High Court case page. See also my case page for links to ealier judgments and commentary. Details to follow.

 

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Hot topics

Competition Policy Review (Harper)

Harper Review

Read moreThe 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. A reform bill designed to implement these recommendations was introduced into the House on 30 March 2017; a separate MMP bill has passed the House and Senate (with amendment) and will return to the House for approval of the amended bill.

 

Misuse of market power

Image of market power

Read moreAlways 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; a bill was introduced on 1 December 2016 and has (with amendment) passed the House and (with amendment) the Senate; it now must return to the House for approval of the amended bill.

Another merger authorisation

Handshake image

Read moreOn 22 June 2017 the Tribunal handed down its decision in Tabcorp's merger authorisation application; the merger was approved. This represents the third successful application for merger authorsation to the Tribunal since it became first instance decision maker in merger authorisation claims in 2007; there have been no unsuccessful applications. The ACCC and CrownBet have applied for judicial review of the Tribunal's decision.

 

Cartels and agency arrangements

TPA cover

Read moreThe 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)

First criminal cartel case

Handshake image

Read moreOn 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. NYK pleaded guilty to criminal cartel conduct on 18 July 2016 and on 3 August 2017 was convicted and fined $25m. This was the first criminal cartel conviction under Australia's (relatively) new cartel laws.

 

Market in Australia

Handshake image

Read moreIn June 2017 the High Court unanimously dismissed appeals from Air NZ and PT Garuda Indonesia relating to the air cargo cartel; the focus of the appeal was on whether the parties' conduct occurred in a 'market in Australia', as was then required in relation to price fixing. The High Court unanimously held that there was a market in Australia.

 

Images copyright: Images in the Hot Topic section (left column): male runner on starting blocks courtesy of stockimages at FreeDigitalPhotos.net; gas pump filling nozzles courtesy of Rawich at FreeDigitalPhotos.net and price magnifier definition means promotions and savings courtesy of Stuart Miles at FreeDigitalPhotos.net.(right column): business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; vacations computer key courtesy of Stuart Miles (Image ID: 10091676) at FreeDigitalPhotos.net; handshaking courtesy of Photokanok at FreeDigitalPhotos.net,

 

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