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
31 July 2014 - State of Competition and private enforcement
The latest The State of Competition has hit the virtual shelves today focussing on 'the public benefits of private litigation'. In this issue Alexandra Merrett and Rhonda Smith note the ACCC's apparent reluctance to litigate cases involving conduct subject to a competition test (providing some useful statistics). The authors go on to detail private actions in the past ten years, noting cases, outcomes and legal representation, before considering the reasons for such limited private enforcement (most notably cost and the absence of the s 155 powers enjoyed by the ACCC). The authors then consider the position in other jurisdictions (such as the US, where the prospect of treble damages has encouraged much more significant private litigation) before making some suggestions for improving the rate of private litigation. I particularly enjoyed this issue and commend it to you; see also The State of Competition archives.
28 July 2014 - Sims addresses Sydney Business Chamber CEO's Leadership Roundtable
ACCC Chairman, Rod Sims, addressed the Sydney Business Chamber CEO's Leadership Roundtable today detailing current ACCC priorities and noting (again) that a high number of 'in-depth' investigations are underway, most of which are confidential. The speech itself is not yet available. See press release.
24 July 2014 - ACCC consultation on access prices for Telstra's fixed line and transmission services
The ACCC has released a discussion paper seeking views on 'setting primary prices for the regulated fixed line services supplied using Telstra’s copper network'. Unusually, the government has urged the ACCC not to take Telstra's $11 billion NBN deal into account when making this determination (letter from the Minister for Communications and Minister for Finance received by ACCC on 17 July 2014). See press release. See ACCC project page. See also Supratim Adhikari, 'ACCC pushed to take Telstra's NBN payments off table' (The Australian, 25 July 2014) and David Ramli, 'Government urges ACCC to ignore Telstra's NBN deal' (Australian Financial Review, 24 July 2014)
24 July 2014 - ACCC will not appeal AGL Tribunal decision
The ACCC has announced it will not apply for judicial review of the Tribunal's decision to grant conditional authorisation for AGL's proposed acquisition of Macquarie generation. View press release. See also John Durie, 'ACCC unlikely to block AGL purchase' (The Australian, 21 July 2014) and 'ACCC won't appeal AGL-Macquarie Generation decision' (The Australian, 24 July 2014).
22 July 2014 - ACCC investigates Expedia, Wotif deal
The ACCC has sent out market inquiry letters in relation to Expedia's proposed acquisition of Wotif.com Holdings Ltd. The closing date for submissions is 6 August with a provision decision date of 4 September. The main area of competitive overlap identified in the letters is the 'retail supply of online accommodation booking services to consumers'. Overlap also includes online booking services for flights and other travel products. Specific issues for consideration relate to the relevant markets (eg, is there 'a market for the retail supply of accommodation which is separate from the supply of multiple travel products?' and the substitutability of bricks and mortar agents and direct booking channels) and competitive dynamics in the market (including how closely Expedia and Wotif compete with other online distributors of accommodation and barriers to entry). View merger register for further details. See also Jamie Freed, 'ACCC puts Wotif, Expedia deal under the microscope' (Sydney Morning Herald, 21 July 2014)
22 July 2014 - ACCC proposes to authorise owner driver collective bargaining with Toll
The ACCC has issued a draft determination 'proposing to grant authorisation to owner driver members of the Transport Workers’ Union in Queensland to engage in collective bargaining with Toll for air freight courier transport services.' See press release. See authorisation register.
21 July 2014 - Even more Harper submissions
Six more submissions released today - see official Competition Policy Review submissions page. This brings the total number of non-confidential submissions published to 289. See also my submissions overview page.
17 July 2014 - Senate extension on s 46 divestiture bill
The Senate Economics Committee Inquiry into Competition and Consumer Amendment (Misuse of Market Power) Bill 2014 has been given an extra six months to report (the original report date was 24 June, which was extended until 17 June - on Tuesday this was further extended to 4 December 2014). The inquiry relates to a bill introduced by Senator Nick Xenophon which would provide the Court with the power to order a corporation to reduce its market share, where the corporation has been found to have contravened subsections 46(1) or 46(1AA) of the Act. A total of four submissions were received by the Committee (the Treasury submission is well worth reading to provide an overview of the issues relating to MMP divestiture and its application in other jurisdictions - often significantly misrepresented by those proposing divestiture powers in Australia).
17 July 2014 - ACCC proposes to authorise collective bargaining by TAB Agents
The ACCC is proposing to 're-authorise the TAB Agents Association of NSW (Association) to collectively bargain on behalf of its members with TAB Limited (Tabcorp) for ten years'. See press release. See authorisation register.
16 July 2014 - ACCC re-authorises collective bargaining by Victorian Newsagents
16 July 2014 - NBN - Vertigan panel report
The Vertigan panel's first report, tabled in Parliament today, concludes that
'the broad framework should be retained largely unchanged for the time being but with some important modifications. The recommended modifications deal mostly with NBN Co's non-discrimination obligations, regulatory recourse to the Australian Competition and Consumer Commission (ACCC) in relation to an NBN Co access agreement and oversight of regulatory decision-making' (page 6).
The report ('Independent cost-benefit analysis of broadband and review of regulation'), which runs to 97 pages and makes 34 recommendations, deals with terms of reference item 2a which satisfies the statutory review required by section 152EOA of the CCA. A separate report will be produced dealing with the other terms of reference.
See The Hon Malcolm Turnbull MP, 'Vertigan Panel's First Report Released' (Press Release, 16 July 2014) See further David Ramli, 'Regulate the ACCC, says NBN review panel' (Australian Financial Review, 16 July 2014) and Supratim Adhikari, 'ACCC needs to be regulated: Vertigan panel' (Business Spectator, 16 July 2014). See also my review home page.
14 July 2014 - Merrett on Competitive Neutrality
Alexandra Merrett has a pice in today's The Conversation on competitive neutrality. See Alexandra Merrett, 'Government Inc: time to revisit competitive neutrality' (The Conversation, 14 July 2014)
11 July 2014 - More Harper submissions
11 more submissions released today - see official Competition Policy Review submissions page. This brings the total number of non-confidential submissions published to 283. See also my submissions overview page.
11 July 2014 - Cartel laws and whistleblowers
There is an item in today's Financial Review on cartels and the immunity process: see Hannah Low, 'Cartel laws 'fail whistleblowers' (Australian Financial Review, 11 July 2014, page 32)
10 July 2014 - Statement of Issues on Coles' proposed acquisition of IGA stores
The ACCC has released a Statement of Issues highlighting concerns about Coles' proposed acquisition of four Progressive Supa IGA stores in WA. See press release. See merger register. Closing date for submissions is 17 July. See also Chris Kohler, 'ACCC warns on Coles' IGA purchases' (Business Spectator, 10 July 2014) and Stuart McKinnon, 'ACCC worried by IGA store sale' (The West Australian, 10 July 2014)
10 July 2014 - Competition concerns in online property sector
The Australian reports that the ACCC is assessing competition complaints relating to the online property sector. See Darren Davidson, 'ACCC eyeing property site row' (The Australian, 10 July 2014)
4 July 2014 - More Harper submissions
A further 36 submissions to the Harper Review have been released today. They include submissions from the, the American bar Association, the Australian Chamber of Commerce and Industry, the Australian Corporate Lawyers Association, the Business Council of Australia, Prof Allan Fels, Foxtel, the IBA (Antitrust Committee) and the Law Council of Australia (Business Law Section). The Chair of the Review, Prof Harper, has also released a video about what the Competition Policy Review has heard from stakeholders.
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.
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 now available from AustLII: