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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.


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30 September 2014 - More Harper news

There has been plenty of media on the Harper Review's draft report released last Monday - including two items in today's AFR: Kate Walsh, 'Lawyers see green light for mergers in Harper review' (The Australian Financial Review, 30 September 2014, page 15) and an opinion piece by former Competition Minister, Craig Emerson: 'There are ill-effects in an effects test' (The Australian Financial Review, 30 September 2014, p 58). For more links to media following the report, see my Harper media page.

26 September 2014 - Petrol retailers deny use of Informed Sources enabled them to engage in price fixing

In a directions hearing before Justice Bernard Murphy on Friday, petrol retailers denied that sharing of historical information via the Informed Sources website constituted price fixing or that it substantially lessened competiition. See AAP, 'Petrol pumps deny website allows fixing' (Business Spectator, 26 September 2014)

25 September 2014 - ACCC will not oppose Wilmar and First Pacific's proposed acquisition of Goodman Fielder

The ACCC 'has announced that it will not oppose Wilmar and First Pacific’s proposed acquisition of Goodman Fielder Limited.' See press release. See public register.

24 September 2014 - Authorisation day

The ACCC has granted interim authorisatins to Tabcorp Wagering Manager & Ors and Racing and Wagering Western Australia and has authorised Melbourne councils to undertake joint tendering for organic waste processing services. See the ACCC's exemptions media page.

23 September 2014 - Media on Harper Draft Report

There are plenty of media reports discussing the Harper Panel's Draft Report - I am collating them on my Harper Media Page. They include a couple of useful pieces by Alexandra Merrett - 'Big business, market power and why we need more test cases' (The Conversation, 23 September 2014) and 'Harper's booster shot for competition' (Business Spectator, 23 September 2014) - and a set of brief expert reactions on different aspects of the Report in The Conversation (Harper competition review seeks widespread change: experts react (The Conversation, 22 September 2014))

22 September 2014 - Plenty of recommendations

There are plenty of recommendations in the Draft Harper Report on policy and law. In relation to Part IV, key recommendations include:

  • simplify cartel provisions plus additional exemptions (rec 22)
  • remove prohibition of exclusionary provisions in s 45/4D (rec 23)
  • repeal price signalling provisions; extend s 45 to capture concerted practices (rec 24)
  • effects test for s 46 (misuse of market power)
  • no specific price discrimination provisions (general or international) (rec 26)
  • simplify s 47 (exclusive dealing) and remove per se ban on third line forcing (rec's 27 and 28)
  • resale price maintenance to remain per se prohibited but with notification option
  • no change to merger law (inc no creeping acquisition law) (rec 30)
  • improve formal merger exemption process and combine with authorisation process with ACCC decision-maker at first instance (rec 30)
  • retain secondary boycott prohibition but require ACCC to report on enforcement and extend jurisdiction to state and territory supreme courts (rec's 31 and 32)
  • simplify authorisation and notification provisions (inc allow ACCC to grant exemption if satisfied either the conduct is unlikely to SLC or it will result in a net public benefit) (rec 34) and introduce block exemption power (rec 35)
  • qualify obligations under s 155 (rec 36)
  • extend s 83 to apply to admissions of fact (facilitate private actions) (rec 37)
  • extend CCA so that competition law provisions apply to Crown 'insofar as they undertake activity in trade or commerce' (rec 19)
  • retain access regime but with modification - including that criterion (b) require it be uneconomical for anyone to develop another facility (rec 38 - further comment invited on aspects of Part IIIA)

Commentary in the lead-up to the release of draft report suggested we wouldn't see much attention paid to the detail of the provisions in Part IV - the report is a pleasant surprise in that respect. Discussion of the legal provisions has not come at the expense of policy discussion or discussion about institutions and governance, which are also covered extensively in the report. See further the draft report.

22 September 2014 - Who said there would be no effects test recommendation?

Reports over the last week that the Harper Draft Report would be unlikely to recommend an effects test for s 46 were about as far off the mark as you could get - recommendation calls for removal of 'taking advantage' and adding effect of SLC to the provision. See draft report.

22 September 2014 - Harper Draft Report Released

The draft report has now been released. Each of the Panel members has also made a statement on the draft report. Submissions on the report are due 17 November 2014.

22 September 2014 - Harper draft report to recommend opening up health and education to business

The AFR reports this morning that the draft Harper report, to be released today, will recommend opening more health and education to business, to relax local planning rules and to propose the ACC report on secondary boycott investigations. See Fluer Anderson, 'Competition review to open up health, education' (AFR, 22 September 2014, page 4)

22 September 2014 - Samuel - back seat for effects test

Former ACCC Chairman, Graeme Samuel, has indicated that detailed legal debate - including whether or not to introduce an effects test - is likely to take a back seat to broader economic reforms - see Jared Lynch, 'Competition effects test to take a back seat, says Samuel' (SMH, 22 September 2014). The Panel's draft report is expected today.

18 September 2014 - No effects test recommendation likely

Fairfax is reporting today that the introduction of an effects test will not be among the draft Harper recommendations expected on Monday. See Fleur Anderson, '"Effects test" for competition law put on hold' (Australian Financial Review, 18 September 2014) (in paper version, Fluer Anderson, 'Competition law: 'effects test' on hold' (AFR, 18 September 2014, page 3))

18 September 2014 - ACCC will not oppose Coles' acquisition of three Supa IGA stores in WA

The ACCC has announced it will not oppose the proposed acquisition of three Supa IGA supermarkets by Coles. The ACCC noted that in each of the relevant local markets 'there is at least one large competitive independent offer, in addition to Woolworths' supermarkets' and it was likely Aldi would enter some of the relevant markets in coming years. The ACCC also noted the potential for the Supa IGA stores to be closed without the acquisition. See press release. See public register.

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