Welcome to Australian Competition Law
Latest Australian Competition Law News and Commentary
Please note that the website will not be updated between 10-25 January; any important news will be provided on the competitionlaw Twitter feed during this time.
6 January 2017 - Pharmaceutical competition
Terry Barnes has an opinion piece in today's AFR discussing the PBS, lobbying from the Pharmacy Guild of Australia and current protections from normal market competition. See Terry Barnes, 'A taste of their own medicine' (Australian Financial Review, 5 January 2017) (behind pay-wall)
3 January 2017 - Petrol probe
Michael Smith has an item in today's AFR discussing the ACCC's examination of BP's proposed acquisition of Woolworths' petrol station network. See Michael Smith, 'ACCC's petrol probe a long haul' (Australian Financial Review, 3 January 2017, p 28) (online version behind pay-wall). See also Brian Robins, 'BP snaps up Woolworths servos for $1.8 billion' (SMH, 28 December 2016), Stephen Bartholomeusz, 'Woolworths, BP deal a marriage of convenience' (The Australian, 28 December 2016) and Thuy Ong, 'Woolworths sells fuel business to BP for nearly $1.8b' (ABC, 28 December 2016).
1 January 2017 - MMP Bill submissions due soon
Reminder that submissions on the Senate Economics Committee's review of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 are due by 9 January 2017 with the Report expected on 16 February.
22 December 2016 - ACCC releases Statement of Issues on PMP-IPMG print merger
The ACCC 'has released a Statement of Issues expressing initial concerns about the proposed merger between print businesses PMP (ASX:PMP) and IPMG.' It has indicated that its 'preliminary view is that the merger may substantially lessen competition in the supply of heatset web offset printing, the main method for printing catalogues and magazines.' See media release. See merger register.
21 December 2016 - ACCC closes tertiary admissions centres investigation
The ACCC has announce that it has decided to discontinue its investigation into allegations by the ANU that certain tertiary admissions centres (TACs) had engaged in anti-competitive conduct.
The ANU had alleged that the centres had refused to supply admission services to it 'for the purpose of preventing or restricting ANU from attracting students based in WA and SA respectively, and competing with the local tertiary institutions in those States.' The ACCC, while recognising the alleged conduct had 'the potential to raise competition issues' nevertheless decided to 'discontinue its investigation in light of the recent Higher Education Standards Panel’s report, Improving the Transparency of Higher Education Admissions Processes'. the recommendations in the report, when implemented 'will improve the accessibility and comparability of information for prospective students' and 'minimise any lessening of competition arising from the alleged conduct in the future'.
See ACCC media release. See also John Ross, 'ACCC drops investigation into TACs’ ‘anti-competitive’ behaviour' (The Australian, 21 December 2016) and Katie Burgess, 'ACCC drops probe sparked by Australian National University's complaint of cartel conduct' (Canberra Times, 22 December 2016).
16 December 2016 - ACCC will not appeal Woolworths decision
The ACCC has announced it will not appeal the Federal Court's decision in the Woolworths case, in which it had alleged Woolworths engaged in unconscionable conduct in relation to its 'mind the gap' scheme.
For a good discussion of the issues and implications of the case see Alexandra Merrett, Woolworths case loss raises questions about the ACCC’s supermarket strategy (The Conversation, 13 December 2016).
15 December 2016 - ACCC proposes to deny authorisation for tobacco companies
The ACCC has ' issued a draft determination proposing to deny authorisation to British American Tobacco, Imperial Tobacco, and Philip Morris (the tobacco companies) to jointly stop supply to retailers or wholesalers they believe are supplying illicit tobacco.' See ACCC media release and authorisation register.
15 December 2016 - ACCC proposes to approve cane growers collective bargaining
The ACCC has announced has 'issued a draft determination proposing to grant authorisation to Queensland Cane Growers Organisation Ltd and its local organisations (Canegrowers) for growers to collectively bargain cane supply and related contracts with millers and sugar marketers.' See ACCC media release and authorisation register.
14 December 2016 - Success for ACCC in Flight Centre appeal
The High Court by majority (French CJ dissenting) has upheld the ACCC's appeal in the Flight Centre case. The Court has released a judgment summary, together with the full judgment. In its summary the Court notes:
'A majority of the High Court held that Flight Centre was in competition with the airlines when it attempted to induce each airline to agree not to discount the price at which that airline offered international airline tickets directly to customers. The competition was in a market for the supply, to customers, of contractual rights to international air carriage via the sale of airline tickets. Flight Centre and the airlines competed in that market'
14 December 2016 - Penalties imposed against ANZ and Macquirie for attempted cartel conduct
In November the ACCC commenced action against ANZ and Macquirie for attempted cartel conduct. The action was been taken by consent, with the parties agreeing on key facts and both banks making several admissions. Joint submissions on penalty were been made; it was proposed the ANZ should pay a penalty of $9m and Macquirie a penalty of $6m.
The proposed penalties were accepted and today, in addition to cost orders, Justice Wigney imposed the following penalties (from ACCC media release; judgment not yet available):
- '$9 million against ANZ in respect of its admission that it engaged in ten instances of attempted cartel conduct in contravention of the Competition and Consumer Act 2010 (CCA); and
- $6 million against Macquarie in respect of its admission that it engaged in eight instances of attempted cartel conduct in contravention of the CCA.'
See ACCC media release.
14 December 2016 - Senate Economics Committee receiving submissions on MMP bill
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was referred to the Senate Economics Committee on 1 December 2016. The Committee has called for submissions; these may be uploaded directly to the Committee review page until 9 January 2017. The Committee is due to report on 16 February 2017. View Senate Economics Committee report page.
9 December 2016 - High Court to deliver ruling in Flight Centre next Wednesday
The High Court has indicated it will deliver its judgment in the Flight Centre case next Wednesday at 10:15.
1 December 2016 - Misuse of market power bill with effects test introduced
The Government has introduced the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 into the House of Representatives. The Bill, if passed, would implement the Harper recommendations on section 46, including the introduction of an effects test.
For more details and links see my blog post.
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 exposure draft legislation was released on 5 September 2016. The MMP bill was released 1 December; remaining reforms are expected to appear in a separate bill early 2017.
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. A slightly modified version appears in a bill released 1 December 2016
First criminal cartel case
On 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.
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 successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)
Resale Price Maintenance
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.
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,