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
Latest Competition Law
News and Commentary
4 December 2013 - Competition Review Announced
The Government has announced that it will undertake a comprehensive review of competition laws and policy - referred to again as a 'root and branch reivew' that will 'examine not only the current laws but the broader competition framework'. The press release indicates that the government has provided states and territories with a draft terms of reference and that a review panel will be established shortly with final report to be produced within 12 months. View press release.
29 November 2013 - Alex Merrett's new book on Market Power
Alexandra Merrett's book 'The Assessment and Regulation of Market Power in Australia: An Institutional Approach' has just been published by LAP Lambert Academic Publishing.
29 November 2013 - New State of Competition
In the latest issue of The State of Competition, Rachael Trindade, Alexandra Merrett and Rhonda Smith tackle the effects vs purpose debate in relation to misuse of market power. See 'The Grass is always greener? The effects vs purpose debate resumes' (The State of Competition, Issue 14 (Nov 2013). This is a bumper 8 page double issue - not to be missed!
29 November 2013 - Hockey rejects ADM acquisition of GrainCorp
Treasurer, Joe Hockey, has determined that the proposed acquisition of GrainCorp by ADM would 'not be in our national interest'. In rejecting the application Hockey talked a lot about the insufficiency of competition in the sector as a justification for refusing approval. The ACCC had previously indicated it would not oppose the proposed acquisition, finding that it would be 'unlikely to result in a substantial lessening of competition in any market'. See, for example, Ben Packham and Sue Neales, 'Joe Hockey rejects proposed takeover of GrainCorp by US company Archer Daniels Midland' (The Australian, 29 November 2013) and Judith Ireland and Brian Robins, 'Treasurer Joe Hockey rejects GrainCorp takeover bid by ADM' (SMH, 29 November 2013)
29 November 2013 - Sims on addressing market failure
29 November 2013 - ACCC to launch cartel case before end of year
The AFR reports that the ACCC is likely to launch a major cartel case before the end of the year, believed to be the largest since the 2005 Visy case. See 'ACCC to launch cartel case: report' (Business Spectator, 29 November 2013). See also Rod Sims' speech to the RBB Economics Conference in which he indicates he expects 'to be able to announce the commencement of another domestic cartel case before the end of the year.'
28 November 2013 - ACCC released two new PCA's
The ACCC has released its public competition assessments for Westfield's proposed acquisition of Karrinyup Shopping Centre (not opposed subject to divestiture) and Baxter's proposed acquisition of Gambro (not opposed subject to divestiture).
27 November 2013 - Supermarket codes
Professor Caron Beaton-Wells has an item in today's Conversation about the proposed supermarket code of conduct. See 'Toughen up: what Australia's supermarket code could learn from the UK' (The Conversation, 27 November 2013)
22 November 2013 - Qantas under ACCC investigation
The AFR reports that Qantas is under ACCC investigation for potential misuse of market power in its fight with Virgin. See 'ACCC lines up Qantas for inquiry' (AFR, 21 November 2013) See also Joe Aston and James Chessell, 'Qantas under ACCC investigation over price war' (SMH, 22 November 2013)
21 November 2013 - ACCC alleges RPM by Mitsubishi
The ACCC has taken action against Mitsubishi Electric Australia alleging it engaged in reale price maintenance. See Steven Raeburn, 'ACCC targets Mitsubishi over price fixing concerns' (The Drum, 21 November 2013). See also John Durie, 'ACCC files against Mitsubishi over air conditioner pricing' (The Australian, 20 November 2013) and ACCC press release.
20 November 2013 - King on supermarket code
Prof Stephen King has an item in today's Conversation about the draft supermarket industry code of conduct. See 'Coles and Woolworths code useful, but beware disputes' (The Conversation, 20 November 2013)
20 November 2013 - ACCC funding issues
ACCC chairman, Rod Sims, claims the ACCC has run at a loss for the past through years as a result of increasing demands and decreased funding. See David Uren, 'Sims says Labor caused ACCC harm with demands for efficiency dividends' (The Australian, 20 November 2013)
19 November 2013 - ACCC finds no evidence of cartel contravention by Crown
The ACCC has announced that it has concluded an investigation into Crown finding there was 'insufficient evidence to support a contravention of the cartel provisions'. View ACCC press release.
18 November 2013 - Federal Court dismisses proceedings against ANZ
The Federal Court has dismissed proceedings brought by the ACCC alleging ANZ breached the price fixing provisions of the TPA (now CCA; alleged conduct occurred in 2004). In particular, the Court considered whether ANZ 'engaged in conduct that had purpose or effect, or was likely to have purpose or effect, of fixing a rebate' and also whether the relevant conduct substantially lessened competition contrary to s 45. See Federal Court decision (200+ pages). See ACCC press release.
17 November 2013 - 11th Competition and Consumer Workshop
The 11th Annual University of South Australia Competition and Consumer Workshop was held over the weekend discussing a variety of matters likely to feature in next year's 'root and branch' review.
14 November 2013 - Monash Business Forum releases paper proposing issues for root and branch review
The Monash Business Forum today released its 'Agenda for National Competition Policy Inquiry' in which it explores key areas the authors think should be covered in the review. In particular, it makes twelve recommendations for issues that it considers should form the basis for the Review's Terms of Reference. See also John Durie and Annabel Hepworth, 'Break up bid to put watchdog on leash' (The Australian, 14 November 2013, P19) and Matthew Drummond, 'Samuel calls for break-up of ACCC' (The Financial Review, 14 November 2013)
14 November 2013 - ACCC not to oppose NBN Co's proposed acquisition of TransACT's fibre to the premises network
The ACCC has announced it 'will not oppose the proposed acquisition of TransACT Capital Communications Pty Ltd’s (TransACT) fibre to the premises network (TransACT FTTP network) by NBN Co Limited (NBN Co)'. See press release. See public register.
8 November 2013 - Online education units for tertiary institutions
8 November 2013 - Bradken and Norcast settle
Bradken has settled its federal court case appealing the judgement of Justice Gordon handed down earlier this year. As a result Bradken's appeal has been discontinued (Notice of Discontinuance of Appeal or Cross-Appeal filed on 4 November). See Richard Gluyas, 'Bradken case settled on confidential terms' (The Australian, 5 November 2013) and 'Bradken, Norcast reach deal' (Business Spectator, 4 November 2013)
7 November 2013 - Samuel calls for re-introduction of competition payments
The AFR reports taht former ACCC Chairman, Craeme Samuel, has called for the re-introduction fo competition payments 'to kick-start the reform agenda', noting that competition policy hs 'slipped off' the COAG reform agenda. See Mark Ludlow, Fluer Anderson and Laura Tingle, 'Competition payments required to boost reform' (AFR, 7 November 2013, page 7)
1 November 2013 - ACCC investigating allegations of predatory pricing against Geelong Advertiser
The Age reports that the ACCC is investigating allegations News Corp's Geelong Advertiser has engaged in predatory pricing since the arrival of The Weekly Review, a free real estate and lifestyle magazine (owned by Metro Media Publishing - a JV between Fairfax and Antony Catalano). See Dominic White, 'ACCC steps in to probe predatory pricing claims' (The Age, 1 November 2013). See also Dominic White, 'ACCC probes News Corp's Geelong paper' (AFR, 1 November 2013, page 6) and Noel Murphy, 'ACCC probing News' ad rates' (Geelong Independent, 31 October 2013).
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'.
First cartel case
The first case involving the cartel provisions of the CCA (introduced in 2009) was decided in March. This was a civil action, initiated by Norcast, which alleged that Bradken (and others) had entered into a bid rigging agreement in relation to the purchase of its subsidiary, NWS. Justice Gordon held that the cartel claim was made out and awarded damages in the amount of US$22.4 million. On 18 April Bradken filed a notice of appeal (No VID291/2013, Victoria Registry) and on 12 July Justice Marshall ordered the appeal be listed for hearing commencing 4 November 2013. The case raised a number of interesting issues surrounding the interpretation of bid rigging prohibition, the scope of the anti-overlap provisions and the extraterritorial application of the Act. See Norcast S.ár.L v Bradken Limited (No 2)  FCA 235 (19 March 2013).
Merger process guidelines
The ACCC released revised Informal Merger Review Process Guidelines 2013 in September. These replace the 2006 process guidelines. The ACCC released its draft Merger Review Process Guidelines on 1 July with public consultation running from 1 July - 19 July. See press release. There is some useful firm commentary on this. See, for example, Allens><Linklaters and Clayton Utz.
Access / Essential Facilities
Following the High Court decision in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal  HCA 3, which remitted determination of the Robe and Hamersley lines access declarations back to the Tribunal, the Tribunal has now set aside the Treasurer's 2008 declaration of these rail lines (Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd  ACompT 2). The High Court rejected the 'net social benefit' and 'natural monopoly' approaches to criterion (b) (the requirement that 'it would be uneconomical for anyone to develop another facility to provide the service'), instead adopting the 'private profitability' test. The Tribunal concluded there was not sufficient evidence available to satisfy the this test.
It is now 20 years since the Hilmer Report, which provided the genesis for the current access regime. In October last year the government announced an Inquiry into the National Access Regime to be conducted by the Productivity Commission; that inquiry is currently underway and will consider, among other factors, 'whether the criteria for declaration strike an appropriate balance between promoting efficient investment in infrastructure and ensuring its efficient operation and use'. Submissions are now in (31 of them) and the PC released a draft report in May. The final report is due in October. See further the access page.
ACCC's new Compliance and Enforcement Policy
The ACCC's new Compliance and Enforcement Policy was released in February, outlining 'the ACCC's priority areas for the year and sets out the factors to be taken into account when deciding whether to pursue matters.' The document itself runs to only 5 pages (including a cover page). View press release. View Sims' speech, launching the new policy, at a CEDA function in Sydney. There is nothing much new on the competition law front, other than Sims' repeated promise that we can expect 'an increase its rate of intervention in competition matters' by the ACCC. Reference to prioritising concentrated sectors, particularly supermarkets and fuel also came as no surprise.
Cartel enforcement: 'The Marker'
In late August 2012 the ACCC released a video promoting its immunity policy for cartel conduct - THE MARKER.