Welcome to Australian Competition Law
This site is designed to provide resources relating to Australia's competition laws. In addition to the key sections highlighted above, it includes a blog, links to legislative history, information about relevant guidelines, expert and judicial profiles, a chronology of Australian competition law, key links to further resources and more. For comments, suggestions or notification of dead links please contact Julie Clarke.
For the latest news and information on the Competition Policy Review (Harper Review) visit my review page (including overviews of the first set of submissions to the Review) or head straight to the official Competition Policy Review website.
Latest Competition Law
News and Commentary
3 September 2014 - BCA supplementary submission
There has been much talk about the BCA's supplementary submission to the Competition Policy Review - it's not yet made its way to the Harper Review submission's page, but is available on the BCA's website. The submission focuses on three things: proposed changes to section 46, calls for the ACCC power to initiate its own market studies and the extension of the price signalling provisions. View Supplementary submission to the Competition Policy Review.
3 September 2014 - King: Words Matter
In response to the ACCC's most recent submission to the Harper Review, Prof Stephen King has an item in today's 'The Conversation' addressing (again) his concerns about the ACCC's proposal to change our misuse of market power provision. See Stephen King, 'Words matter. That's why the ACCC has got it wrong' (The Conversation, 3 September 2014).
2 September 2014 - More Harper submissions
Three more submissions were released late yesterday, including submission 4 from the ACCC focussing on section 46 and the recent op ed by Graeme Samuel (although they somehow manage to spell his name incorrectly - 'Graham') and Stephen King and comments made by Richard Goyder.
2 September 2014 - Business concern about effects test
The front page of today's Australian Financial Review features an article by Fleur Anderson ('Business fights tough ACCC rule' (AFR, 2 September 2014, pages 1 and 6)) discussing concerns expressed about the ACCC to introduce an effects test. See also ABC, 'Business Council takes on ACCC over competition rules' (Pat McGrath, The World Today)
28 August 2014 - Authorisation news day
The ACCC proposes to authorise joint tendering for organic waste processing services by Metro Waste Management Group (MWMG) on behalf of itself and five metro Melbourne councils, has issued a draft determination proposing to authorise Tabcorp and TAB's international pooling arrangement, proposes to re-authorise certification, suspension and termination of membership provisions Consumer Electronic Clearing System (CECS) rules and has re-authorised current and future FeeSmart Network members to agree not to directly charge each other's cardholders for certain ATM transactions.
27 August 2014 - 'Fixing the fixers' - petrol pricing
The Conversation has just published an item by Caron Beaton-Wells and David Byrne on the ACCC's latest action against the petrol giants - see Caron Beaton-Wells, David Byrne, 'Fixing the fixers of petrol prices is no easy task' (The Conversation, 27 August 2014)
26 August 2014 - Mobil swears of Informed Sources
Mobil Oil has pledged entered into an enforceable undertaking with the ACCC not to subscribe to Informed Sources (or any other similar service) for the next five years. Informed Sources has noted that Mobil does not currently retail petrol in Australia and has no stated objective to do so; Mobil has not subscribed to Informed Sources since 2010 when it sold its retailing assets in Australia (7-Eleven currently runs Mobil branded stores - they are not operated by Mobil). The undertaking states, in part:
"While Mobil Oil Australia does not accept that its previous subscription, or the subscription of others, to the Oil PriceWatch service had any adverse effect on competition n any relevant market in Australia, Mobil Oil Australia has voluntarily and without admission offered to provide this Undertaking to address the concerns raised by the ACCC."
See 'Mobil swears off petrol information service Informed Sources as ACCC Federal Court action looms' (news.com.au 26 August 2014) and ACCC press release.
22 August 2014 - Another six Harper Review submissions released
An additional six Harper Review submissions have been released today. They include a third submission from the ACCC, a second submission from the LCA (SME Committee), NewsCorp and a submission from the Qld Competition Authority. See also my my review page (including overviews of the first set of submissions to the Review.
21 August 2014 - ACCC will not opose Aquis' proposed acquisition of Reef Hotel Casino
The ACCC has announced that it will not oppose the proposed acquisition by Aquis of the Reef Hotel Casino in Cairns. The informal review of the proposal commenced 9 April 2014 and a Statement of Issues was released on 3 July - in the end the ACCC 'was satisfied that, if developed, the Aquis Resort will focus primarily on international VIP customers because the size of its proposed investment would require a much higher return than could be obtained from non-VIP customers'. See press release. See merger register.
21 August 2014 - Informed Sources media
Plenty of media on the ACCC's action against Informed Sources. See, for example, Lucille Keen, 'ACCC sues petrol retailers, Informed Sources' (Financial Review, 20 August 2014), Ben Butler, 'ACCC takes action on petrol pricing' (Sydney Morning Herald, 21 August 2014), Annabel Hepworth, 'Petrol giants face legal test on prices' (The Australian, 21 August 2014) ACCC takes BP, Caltex, Woolworths, Coles Express, 7-Eleven and Informed Sources to Federal Court' (news.com.au, 20 August 2014), Michael Janda, 'ACCC launches legal action against Informed Sources and retailers over alleged petrol price sharing' (ABC News, 21 August 2014) and Simon Thomsen, 'Competition Watchdog Takes Fuel Big Boys To Court Over Alleged Price Fixing' (20 August 2014).
Several press releases have also been issued by the respondents to the ACCC proceedings: see, for example, Informed Sources, 'The ACCC action against Informed Sources is unjustified' (Media release, 20 August 2014), Woolworths Ltd, 'ACCC and Informed Sources' (20 August 2014) and Caltex, 'Caltex response to ACCC proceedings on fuel price data' (20 August 2014)
21 August 2014 - ACCC draft decision on GrainCorp's wheat port access undertaking
20 August 2014 - ACCC takes action against Informed Sources
The ACCC has instituted proceedings against Informed Sources and several petrol retailers (BP, Caltex, Eureka (t/a Coles Express), Woolworths and 7-Eleven) alleging they contravened s 45 of the Act by entering into arrangements involving communication about prices which had the 'effect or likely effect of substantially lessening competition in markets for the sale of petrol in Melbourne'. The matter is listed for a directions hearing on 26 September 2014 before Justice Murphy. See ACCC press release.
20 August 2014 - More Harper submissions
19 August 2014 - Misuse of market power 'effects test' debate continues
Former treasurer, Peter Costello, has weighed in on the public debate about an 'effects test' for section 46. At an Australian Retailers Association function Costello said he opposed an effects test 'designed to protect competitors, particularly less efficient ones, from a competitive challenge' (see 'Costello backs Goyder against ACCC' (The Australian, 18 August 2014) and Bridget Carter, '"Effects test" will hurt competition' (The Australian, 19 August 2014, p 25 Business) and Sue Mitchell, 'Peter Costello buys into retail debate' (The Age, 18 August 2014)).
See also Lucy Barbour, 'Competition watchdog ACCC head Rod Simms (sic) denies claims an 'effects test' would be 'economically dangerous' (ABC Rural, 18 August 2014), in which the ACCC Chairman defends the ACCC's proposed effects test (and is also reported as saying that the current case against Coles was brought under the unconscionable conduct provisions rather than under s 46 because the misuse of market power prohibitions is a law that exists only between competitors ...)
14 August 2014 - ACCC initiates price fixing action
The ACCC has instituted proceedings against OmniBlend Australia alleging it attempted to price fix with a competitor and that it 'induced a supplier to direct Omniblend's key competitor not to discount its prices for blenders' (RPM) - see press release. A scheduling conference as been set for 10 October before Justice Gordon.
14 August 2014 - Section 46 in news again
Jill Walker and Roger Featherston have hit backs at comments by former ACCC Chairman, Prof Graeme Samuel, who opposes a proposed 'effects test' for s 46, calling for 'real debate' on the issue, not 'scare mongering'. See Jill Walker and Roger Featherston, 'ACCC's section 46 change is not anti-competitive' (The Australian Financial Review, 14 August 2014) (or for the paper version, Jill Walker and Roger Featherston, 'ACCC suggestion is far from novel and not anti-competitive' (AFR, 14 August 2014, page 55) (reproduced on ACCC website). See also Graeme Samuel and Stephen King, 'The effect of the ACCC's ambitions is dangerous' (AFR, 12 August 2014, page 47).
14 August 2014 - ACCC allows Catholic health providers to collectively bargain
The ACCC 'has granted authorisation to the Catholic Negotiating Alliance (CNA), a network of nine hospital and aged care service providers, to collectively negotiate with Funding Organisations (including private health funds) and suppliers of various goods and services.' See press release.
14 August 2014 - ACCC proposes to re-authorise Qld liquor accord framework
The ACCC has issued a 'draft determination proposing to grant conditional authorisation for local liquor accords operating in Queensland to adopt a pro-forma liquor accord developed by the Queensland Office of Liquor and Gaming (OLGR)' for five years. View press release.
14 August 2014 - ACCC grants interim authorisation to 'combat oyster mortality syndrome'
The ACCC 'has granted interim authorisation for Australian Seafood Industries (ASI) to collect a levy, in conjunction with hatcheries, on the purchase of Pacific oyster spat' which will enable ASI to undertake 'research into developing spat with resistance to the Pacific Oyster Mortality Syndrome (POMS)'. See press release.
14 August 2014 - More Harper review submissions
It appears the Competition Policy Review secretariat has stopped providing notice of new submissions to the review; since the last notice of 21 July there have been 12 more public submissions posted on the submission website (bringing the total to 301 public submissions). The site has also removed any reference to the date submissions were released (previously indicated with asterisks), other than to shade the very last batch released; the last batch were posted on 8 August and involved four submissions from from Anonymous childcare, Asciano, the AER and a second submission from Jones Day.
The other 8 submissions posted since 21 July were from eBay, Global Shippers' Forum, NSW Taxi Council, Recruitment and Consulting Services Association, Sigma Pharmaceuticals Ltd, The Industry Group, The Infrastructure Group and the United States Federal Trade Commission (focus on misuse of market power, price signaling, and merger notification and review procedures).
13 August 2014 - ACCC releases June 2014 quarterly report
The ACCC has released its latest quarterly report. The report notes that in the June 2014 quarter the ACCC was involved in 14 competition enforcement proceedings (13 carried over from previous quarter and one new action initiated against Aust Egg Corp Ltd). One court enforceable undertaking was accepted in the quarter relating to RPM. In relation to mergers 93 were pre-assessed, 10 were reviewed (four confidentially) and of these three were not opposed, two were opposed outright, three resolved through undertakings and in two confidential matters the ACCC has expressed concerns. One Statement of Issues (Elgas) was issued in the quarter. Some significant merger matters, including AGL, are highlighted in the report. In relation to authorisation and notification, the report notes that 16 final authorisation determinations were made in the quarter, 117 exclusive dealing notifications were lodged (none revoked) and one collective bargaining notification was received. The ACCC received 584 complaints relating to alleged anti-competitive practices (of these 125 related to allegations of misuse of market power). View ACCC press release for an overview.
13 August 2014 - More 'effects test' discussion
Lucy Barbour has an item in today's ABC Rural discussing concerns expressed by economists over the possible introduction of an effects test into s 46 of the Act. See Lucy Barbour, 'Push by farm lobby groups for 'effects test' in competition review leaves economists worried' (ABC Rural, 13 August 2014). The article focusses on concerns raised by Prof Graeme Samuel over the National Farmers Federation's proposed hybrid effects test.
12 August 2014 - Martyn Taylor on the competition review
Dr Martyn Taylor from Norton Rose Fulbright has an item discussing the current competition policy review. See Martyn Taylor, 'Australia: the country may lead the world on competition reform - in Australia, a comprehensive reform of competition policy is taking place' (Lexology, 11 August 2014)
Son of Hilmer - Competition Policy Review (Harper Review)
The final terms of reference and panel for the Competition Policy Review (or 'Harper Review') are now available. The Issues Paper (which runs to 59 pages) for the Harper Review was released on 14 April and was open for submissions until 10 June 2014. See my Competition Policy Review Page for more details.
ACCC takes on Informed Sources
On 19 August 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers (BP, Caltex, Eureka (t/a Coles Express), Woolworths and 7-Eleven) alleging they contravened s 45 of the Act by entering into arrangements involving communication about prices which had the 'effect or likely effect of substantially lessening competition in markets for the sale of petrol in Melbourne'. The matter is listed for a directions hearing on 26 September 2014 before Justice Murphy. See ACCC press release. For more details see the current cases page.
ACCC alleges Omniblend attempted to fix prices
On 13 August 2014 the ACCC instituted proceedings in the Federal Court against OmniBlend , alleging it attempted to engage in price fixing with a competitor and that it induced a supplier to engage in RPM by directing its s key competitor not to discount its prices for blenders. See ACCC press release. For more details see the current cases page.
First Tribunal merger authorisation
On 25 June 2014 the Australian Competition Tribunal granted its first direct merger authorisation to AGL in relation to its proposed acquisition of Macquarie Generation. See case page.
ACCC alleges egg cartel
On 28 May 2014 the ACCC instituted proceedings in the Federal Court alleging that Australian Egg Corporation Limited (AECL) (and its managing director and two directors) and two egg producing companies attempted to induce egg producers who were members of AECL 'to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia'. See the ACCC's press release. The first directions hearing is scheduled for 26 June.
Cartel immunity policy - consultation on draft immunity and cooperation policy
In May 2013 the ACCC announced on that it was commencing a review of the Immunity Policy. A public consultation followed from 30 September 2013 to 28 October 2013. On 9 April 2014 the ACCC released a draft of its new Immunity and Cooperation Policy for Cartel Conduct together with a new 'Draft Frequently Asked Questions'. See press release. See consultation hub.
To promote the existing immunity policy, in late August 2012 the ACCC released THE MARKER.
Supermarkets and shopper dockets
The ACCC has been investigating the competitive effects of shopper dockets since the middle of 2012. At the end of July Chairman Rod Sims announced that the investigation will be finalised in the latter half of 2013 and expressed the view that the ACCC believes the escalating shopper docket petrol discounts 'is likely to have a negative impact on competition in the petrol industry'. Coles and Woolworths have now provided undertakings to the ACCC in relation to their shopper docket discounts. In February the ACCC commenced Federal Court action alleging both Coles and Woolworths breached their undertakings. On 14 April 2014 Justice Robertson handed down his judgments; his Honour found that Woolworths, but not Coles, had breached their undertakings. The judgments of Justice Robertson are available from AustLII: