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Latest Competition Law News and Commentary
7 October 2015 - Online hotel price parity requirements under scrutiny
In response to the ACCC's industry consultation on price parity requirements in the industry, Expedia CFO, Mark Okerstrom, has claimed that the arrangements help to boost sales. See Jamie Freed, 'Expedia defends hotel contracts being scrutinised by ACCC' (The Age, 7 October 2015) . See also Jamie Freed, 'Hotels urge ACCC to take action against Expedia and Priceline' (SMH, 6 October 2015) and Jamie Freed, 'Expedia and Priceline pricing practices under ACCC scrutiny' (SMH, 10 September 2015).
6 October 2015 - Vertical integration ACCC's main concern in Brookfield/Asciano deal
ACCC Chair, Rod Sims, has indicated that the main concern raised in submissions on Brookfield's proposed takeover of Asciano relate to vertical integration. The ACCC is expected to indicate whether it has any concerns about the merger by 15 October. See Jenny Wiggins, 'Vertical integration 'the main issue' in Brookfield bid for Asciano, says ACCC chair' (SMH, 6 October 2015). See merger register.
3 October 2015 - Harper Review at top of agenda for next meeting of Australian treasurers
The Australian reports that new Treasurer, Scott Morrison, has put the Harper recommendations 'at the top of the agenda for the next meeting of Australian treasurers' on October 16. See Dennis Shanahan, 'Scott Morrison puts states on notice over health, education savings' (The Australian, 3 October 2015).
2 October 2015 - ACCC releases statement of issues on proposed acquisition of Energy Australia's Iona Gas Plant by APA Group
30 September 2015 - IPA calls for competition reform
The Institute of Public Accountants has 'called on the government to get on with the job of competition policy reform via the Harper Review' - see Mitchell Turner, 'IPA urges govt to "get on with it"' (Accountants Daily, 30 September 2015)
29 September 2015 - BCA warning on effects test
BCA president, Catherine Livingstone, has warned that the introduction of an effects test would threaten state-based pricing and technological innovation. See Joe Kelly, 'BCA’s Catherine Livingstone warns effects tests may curb innovation' (The Australian, 29 September 2015)
24 September 2015 - Food and Grocery code
The ACCC has issued a press release indicating concerns over the implementation of the Food and Grocery Code of Conduct. See ACCC, 'ACCC concerned over implementation of the Food and Grocery code' (ACCC Media Release, 24 September 2015).
22 September 2015 - Harris on competition reform: speech available
22 September 2015 - Harris on competition reform
Productivity Commission chairman, Peter Harris, will speak at the Australian Competition Policy Summit today, calling for action on the Harper competition policy reforms. He will claim the disproportionate focus on s 46 'as a totem for competition policy reform' is 'absurd', noting the significant scope for gains amongst the other proposed reforms. See Alan Mitchell, 'Peter Harris calls for action on competition reform' (AFR, 21 September 2015). See also, Mark Kenny and Peter Martin, 'Turbulent times ahead despite Malcolm Turnbull's strong start' (SMH, 22 September 2015), quoting Mr Harris as saying: "For too long now, under governments of both political persuasions, major reports seem to be left to languish if they no longer suit the immediate political agenda".
22 September 2015 - Rod Sims on the importance of effective competition
21 September 2015 - Durie: "Harper on Hold ..."
John Durie's piece in today's Australian discusses the appointment of new Assistant Treasurer, Kelly O'Dwyer, who will take over the small business portfolio, including the response to the Harper Report. He notes that the change in minister 'puts the Harper review on the backburner' for now, and speculates that the new Treasurer, Scott Morrison, may take control of competition policy. See John Durie, 'Harper Review decision on hold but watch this space' (The Australian, 21 September 2015).
21 September 2015 - Kelly O'Dwyer MP to replace Bruce Billson MP as small business minister
Malcolm Turnbull's cabinet reshuffle sees Kelly O'Dwyer MP take over from Bruce Billson MP as small business minister (with responsibility for the Harper Review). O'Dwyer also takes on the role of Assistant Treasurer. O'Dwyer (a lawyer who previously practised in corporate law) has been Parliamentary Secretary to the Treasurer since December last year and is Chairman of the House of Rep's Standing Committee on Economics, amongst other things. As economic policy adviser to the former Treasurer, Peter Costello, her responsibilities included competition law and policy and consumer protection. See, eg, Robert Gottliebsen, 'Turnbull’s reshuffle is an opportunity for good government' (The Australian, Business Spectator, 21 September 2015) (optimistic about the change) and cf Peter Switzer, 'Has Malcolm made a small business mistake already?' (Switzer Daily, 21 September 2015) (lamenting the loss of Bruce Billson from this role). See also Jacob Greber, 'Malcolm Turnbull's cabinet: Kelly O'Dwyer 'minister for revenue'' (AFR, 20 September 2015) and David Crowe, 'Malcolm Turnbull's reshuffle is a game changer' (The Australian, 21 September 2015).
18 September 2015 - The ACCC v Visa settlement
Gilbert + Tobin's latest update in competition and regulation looks at the ACCC v Visa settlement - see Simon Snow, Matt Rubintein, Alexandra Lazar, 'Strange currencies: looking for meaning in the ACCC v Visa settlement' (Gilbert + Tobin, September 2015)
18 September 2015 - Billson rejects claims from anti-effects test lobby
Small Busines Minister, Bruce Billson, has again rejected claims by the BCA that the proposed s 46 effects test would threaten competition. See Catie Low, 'Bruce Billson rejects anti-effects test lobby's claims of voter backlash' (SMH, 17 September 2015).
17 September 2015 - Uren: 'Give healthy competition a chance'
David Uren has a piece in the Australian today calling on the new PM to follow through with the Harper competition reforms. See David Uren, 'Give healthy competition a chance' (The Australian, 17 September 2015)
17 September 2015 - ACCC will not oppose Macquarie's bid for Esanda
The ACCC has announced it will not oppose Macquarie's bid for the Esanda Dealer finance business from the ANZ, concluding that 'the possible acquisition was not likely to substantially lessen competition in the market for the supply of bailment finance and point-of-sale (POS) finance facilities to motor vehicle dealerships.' See ACCC media release. See merger register.
17 September 2015 - Statement of Issues released on proposed Shell acquisition of BG
The ACCC has released another Statement of Issues today - this time in relation to Royal Dutch Shell's proposed acquisition of BG Group. The ACCC has expressed concern that 'by aligning Shell’s interest in Arrow Energy with BG’s LNG facilities in Queensland, the proposed acquisition may change Shell’s incentives such that it will prioritise supply to BG’s LNG facilities over competing gas users. As a result, Shell could choose to direct more (and possibly all) of Arrow’s large gas reserves towards meeting BG’s contracts to supply LNG export markets. This would remove some or all of Arrow’s gas from the domestic market'. Submissions on the SOI are invited until 8 October 2015 with a final decision expected 12 November 2015. See ACCC Press Release. See merger register.
17 September 2015 - Sims on the 'importance of adequate competition for the east coast gas market
ACCC Chairman, Rod Sims, spoke at the Eastern Australia's Energy Markets Outlook conference in Sydney today, sharing some preliminary observations from the ACCC's inquiry into the east coast gas market. See speech. See ACCC media release.
16 September 2015 - Effects test back on the table as part of Nationals' coalition agreement with the new PM
Cabinet will seriously consider the 'effects test' as part of the new PM's deal with the Nationals. See, for example, Laura Tingle, 'Malcolm Turnbull woos Nationals with competition backflip, up to $4b deal' (AFR, 16 September 2015), AAP, 'Cabinet to consider 'effects test'' (Business Spectator, 15 September 2015), Nick Grimm, 'Why is the 'Effects Test' causing so much heartburn for businesses large and small?' (ABC News (3min audio), 16 September 2015) (featuring Allan Fels), Joe Kelly, 'Malcolm Turnbull: Nats win concessions as senators cross floor' (The Australian, 16 September 2015) and Phillip Coorey, 'Malcolm Turnbull unites Coalition, business hopes surge' (AFR, 15 September 2015)
15 September 2015 - Nationals cross floor on effects test
Three National party senators crossed the floor in support of a motion by the Greens advocating an effects test. Senator Whish-Wilson moved that the Senate note the call for the introduction of an effects test by the Harper Review, the support for it by a number of organisations and that the 'National Party unanimously passed a motion at its National Conference calling for the introduction of an effects test' and called on the Government to bring forward legislation to amend section 46. Statements were then made by Senator Whish-Wilson, Senator Fifield and Senator Canavan. The question was negatives by a vote of 33-17. See 'Nationals senators cross floor to back Greens on competition law changes' (The Guardian, 15 September 2015). See also Hansard.
14 September 2015 - ACCC releases Statement of Issues in relation to Foxtel/Ten deal
The ACCC has released a Statement of Issues in relation to Foxtel's proposed acquisition arrangements with the Ten Network. The ACCC has indicated it is concerned that the 'proposed acquisitions have the potential to substantially lessen competition for the supply of free-to-air television services in Australia, particularly in the broadcasting of sports content' and 'may increase the likelihood of Ten and Foxtel entering into joint bids and other commercial arrangements for acquisition of sports rights, to the exclusion of other free-to-air networks.' The ACCC has also expressed concern that 'the proposed acquisitions may reduce competition in the sale of advertising, including by further consolidation in this market, and by removing or reducing competition between Ten and Foxtel for advertising sales'. See media release and merger register for further details.
11 September 2015 - New The State of Competition out now
Issue 23 of The State of Competition was published today. In it, the authors (Alexandra Merrett, Rachel Trindade and Rhonda Smith) discuss 'competition policy for the oligopoly economy', focussing on the research conducted by Michal Gal on competition policy for small business.
11 September 2015 - Statement of Issues for Coles' proposed acquisition of Supabarn supermarkets
The ACCC today released a statement of issues in relation to Coles' proposed acquisition of 9 Supabarn supermarkets. See ACCC, 'ACCC calls for comment on Coles’ proposed acquisition of nine Supabarn supermarkets' (ACCC Media Release, 11 September 2015) and ACCC merger register.
9 September 2015 - ACCC delays Foxtel-Ten decision
The ACCC has delayed its announcement in relation to the proposed acquisition by Foxtel of a stake in the Ten Network. The announcement was due tomorrow, but will be deferred until Monday. See Darren Davidson, 'ACCC delays Foxtel-Ten decision to next week' (The Australian, 9 September 2015). See also merger register.
8 September 2015 - More on effects test
Another item today in SMH on the push by some coalition MP's to introduce the proposed effects test into s 46. See James Massola and Matthew Knott, 'Liberal MPs urge government rethink on effects test to help small business' (SMH, 8 September 2015)
4 September 2015 - Visa to pay $18m penalty for CCA breaches (but not s 46)
As foreshadowed on Tuesday, Visa has been ordered to pay a pecuniary penalty of $18m for anti-competitive conduct. However, the ACCC points out that, contrary to earlier reports, the matter was not resolved on the basis of admitted contraventions of s 46 of the Act; rather Visa admitted contravention of s 47 (exclusive dealing) and, to facilitate resolution, the ACCC did not press the section 46 claim. See ACCC media release.
4 September 2015 - 'Wesfarmers misreading review of competition law': Durie
John Durie had an item in the Austrlaian Wednesday on cabinet's decision to defer consideration of misuse of market power reforms. See John Durie, 'Wesfarmers misreading review of competition law' (The Australian Business Review, 2 September 2015)
4 September 2015 - 'Competition key to restoring Australia's productivity': Sims
ACCC Chairman, Rod Sims, addressed the Infrastructure Partnerships Australia Conference in Sydney today, pressing the case for implementation of key Harper Review reforms: see Sims, 'Competition key to restoring Australia's productivity' (Infrastructure Partnerships Australia Conference, Sydney, 4 September 2015). See also ACCC, 'Infrastructure reforms can help restore productivity' (ACCC media release, 4 September 2015). For media on this see, for example, Annabel Hepworth, 'ACCC head Rod Sims wants user fees put back into managing roads' (Friday 4 September 2015).
4 September 2015 - Part X of the CCA
Paddy Crumlin has an opinion piece in today's Australian on the Hutchison ports dispute. In it, he notes failed attempts to repeal Part X of the Act following the recommendations of several successive inquiries (including Harper): see Paddy Crumlin, 'Misguided competition policy behind Hutchison ports dispute' (The Australian, 4 September 2015)
4 September 2015 - ACCC draft final access determination for transmission services
The ACCC has issued a draft final access determination for the declared domestic transmission capacity service. Submissions are invited until 2 October 2015. See ACCC, 'ACCC releases its draft decision for regulated transmission services' (ACCC media release, 4 September 2015). See also Domestic transmission capacity service final access determination inquiry page.
3 September 2015 - Harper on the need for competition reform
Patrick Durkin has an item in the AFR this afternoon on the need for competition reform: see Patrick Durkin, 'Face up to 'tough' reform or risk recession, says Ian Harper' (The AFR, 3 September 2015).
3 September 2015 - ACCC delays decision on Shell's proposed acquisition of BG Group
The ACCC has delayed its decision on Shell's proposed acquisition of BG Group: see merger register. See also Robb M Stewart, 'ACCC defers decision on Shell's takeover of BG' (The Australian Business Review, 3 September 2015).
3 September 2015 - Fels: Reform incapacity?
The AFR has an opinion piece by former ACCC Chairman, Alan Fels: Alan Fels, 'Tony Abbott's Harper Review 'effects test' rejection shows reform incapacity' (AFR, 3 September 2015).
Competition Policy Review (Harper)
Misuse of market power
The decision in CFMEU has cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA. Special leave to appeal to the High Court has been granted.
Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 have 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.
Resale Price Maintenance
ACCC takes on Informed Sources
The ACCC has instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45.
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