Welcome to Australian Competition Law
Latest Australian Competition Law News and Commentary
26 May 2016 - Statement of Issues released for proposed acquisition of Asciano
- the post merger level of vertical integration will be significantly greater than that currently existing
- 'that Patrick container terminals may provide preferential access to Qube and ACFS vehicles, and Qube regional export trains running into Port Botany, and raise rivals’ costs'
- possible foreclosure of rival stevedores. 'Market participants have suggested that if Patrick gives favourable treatment to the container logistics operations of both Qube and ACFS, then Qube and ACFS may provide a superior service offering to importers and exporters on condition that they use shipping lines calling at Patrick container terminals. This may lessen competition in stevedoring.'
The ACCC also notes that it is 'considering whether stevedoring and empty container park services will be bundled together, in a way that forecloses rival stevedores'.
The closing date for submissions on the SoI is 10 June with a final decision due to be announced by 21 July. See merger register for more details.
25 May 2016 - Latest ABLR
There's a good (and certainly topical) article by Peter Armitage in this month's Australian Business Law Review - The evolution of the “substantial lessening of competition” test – a review of case law Peter Armitage (2016) 44(2) Australian Business Law Review 74 (subscription only or purchase individual article here)
25 May 2016 - Appointments to the Australian Competition Tribunal
Earlier this month Treasury announced four new appointments and two reapppointments to the Australian Competition Tribunal.
- New part-time President: Justice Middleton
The Hon Justice John Middleton will become the new part-time President for five years, following the retirement of Justice Mansfield in July
- New part-time Deputy Presidents
The Hon Justices Andrew Greenwood, David Yates and Alan Robertson will serve as part-time Deputy Presidents, each for a period of five years.
- Part-time member re-appointments
Prof Keven Davis and Dr Darryn Abraham were re-appointed as part-time members (5 years)
22 May 2016 - Competition Law Conference
Another terrific Competition Law Conference put together by Chris (& Chris) Hodgekiss today. The keynote speech was delivered by current Australian Competition Tribunal President, Justice John Mansfield ('Every time I find the meaning of life, they change it!'), followed by John Kench's take on 'substantial lessening of competition' and the role of expert economists (later defended Dr Philip Williams in his commentary on the role of expert economists in SLC cases). The third session featured Brent Fisse speaking on 'Facilitating Practices, Vertical Restraints and Most Favoured Customers', with the final session dedicated to section 46, with Luke Woodward delivering a paper prepared by himself and Matt Rubinstein on 'The use and misuse of section 46'.
20 May 2016 - The evolution of the SLC test
Peter Armitage has a timely article in the latest ABLR on the evolution of the 'substantial lessening of competition test' in Australian competition law, particularly as it relates to the proposed adoption of this test for misuse of market power: Peter Armitage, 'The evolutoin of the 'substantial lessening of competition' test - a review of case law' (2016) 44(2) ABLR 74 (subscription only)
20 May 2016 - Andrew Leigh on Australia's concentrated markets
Labor's assistant treasurer and shadow competition minister, Andrew Leigh, delivered the John Freebairn Lecture in Public Policy at the University of Melbourne last night, highlighting levels of market concentration in Australia and outlining some of the steps labor would take in relation to competition and consumer policy should it win office. See Mark Ludlow, 'Election 2016 - Labor to toughen consumer laws' (AFR, 19 May 2016), Peter Martin, 'Election 2016: Competition law to target mergers that hurt the poor under Labor' (SMH, 19 May 2016). See also Andrew Leigh, 'Here's how Labor wants to tackle inequality and competition in modern markets' (Business Insider, 20 May 2016) containing an edited extract of the lecture.
17 May 2016 - Dahlson on the proposed Mitre 10 and Danks merger
John Dahlson, former Woolworths Chairman, now owner of the hardware chain JC Dahlsen, is supporting the proposed merger between Mitre 10 and Danks, claiming it would strengthen the ability of independents to compete with Bunnings. See Sue Mitchell, 'ACCC urged to approve 'anti-competitive' Mitre 10 and Danks merger' (SMH, 17 May 2016).
17 May 2016 - Durie on Coles' response to milk prices
John Durie has an item on Coles' response to the drop in farm gate milk prices - see John Durie, 'Coles seeks to avoid political fallout as milk deal turns sour' (The Australian, 17 May 2016)
16 May 2016 - ACCC examines milk price cuts
The ACCC is examining the latest milk price cuts from Fonterra and Murray Goulburn to consider whether the changes 'involved misleading conduct or whether there are elements of unconscionable conduct'. See also Tom Westbrook, 'ACCC examining Fonterra, Murray Goulburn milk price cuts' (SMH, 14 May 2016), Chris Pash, Fonterra gives struggling dairy farmers early cash as the ACCC investigates' (Business Insider Australia, 16 May 2016) and John Durie, 'Murray Goulburn is the real cause of dairy farmers' pain' (The Australian, 16 May 2016).
14 May 2016 - Durie on delays with Harper implementation
John Durie has a piece in today's Australian noting that it appears the government has abandoned plans to release an exposure draft of Harper-related changes before the election. See John Durie, 'Ian Harper reform on competition in cold storage' (The Australian, 14 May 2016).
12 May 2016 - Coles' petrol pricing under scrutiny ... again ...
Sue Mitchell reports that the ACCC is watching petrol prices at Coles Express following claims it is subsidising grocery discounts by charging higher petrol prices. It's not clear how this would be problematic under the Act - and ACCC Chairman, Rod Sims, noted that it would be 'very unlikely to be a breach of the act', but nevertheless suggested it was a 'concern if it leads to consumers paying more for fuel'. See Sue Mitchell, 'Coles' petrol pricing under ACCC scrutiny' (SMH, 12 May 2016).
9 May 2016 - ACCC seeks comment on access guidelines
6 May 2016 - Treasury releases consultation paper on improving consumer outcomes and enhancing competition in relation to credit card interest rates
The Treasurer, Scott Morrison MP, has released a consultation paper outlining 'reforms to provide greater legislative protection to vulnerable consumers, to exert more competitive pressure on credit card issuers and to provide consumers with the information they need to make the best choices about how they use their credit cards.'
The consultation paper is the Government's ' response to the Senate Economics References Committee Inquiry into matters relating to credit card interest rates.'
Interested parties may make a submission by 17 June 2016.
6 May 2016 - ACCC re-authorises refrigerant recovery scheme
The ACCC has re-authorised 're-authorised Refrigerant Reclaim Australia and participants in the refrigerants industry to continue to co-operate on a scheme to recover refrigerants that threaten the environment.'. See ACCC, 'ACCC re-authorises refrigerant recovery scheme' (Media Release). See also public register.
5 May 2016 - Cattle and Beef Market Studies Forums
5 May 2016 - ACCC will not oppose AB InBev's acquisition of SABMIller
The ACCC has announced it will not oppose the proposed acquisition of SABMiller by Anheuser-Busch InBev. See media release. See merger register. See also Eli Greenblat, 'Lion loses Corona as AB InBev to merge with SABMiller' (The Australian, 6 May 2016).
3 May 2016 - Budget day
The Budget and related speech is available on the government's budget site. See, for example:
The budget papers include reference to the Harper Review; under Jobs and Growth the Government notes it is 'advancing the recommendations of the Harper Competition Policy Review and (in bold print no less) notes that the government is 'strengthening Australian's competition law to prevent big businesses from misusing their market power or seeking to dominate markets.' (see full PDF segment)
For media, see for example Alan Mitchell, 'Budget 2016: More like pre-election pussy footing than an economic plan' (AFR, 3 May 2016), Tim Leslie, Paul Donoughue and Simon Elvery, 'Budget 2016: Winner and losers' (ABC, 3 May 2016).
2 May 2016 - Halliburton terminates proposed deal with Baker Hughes
The ACCC has discontinued its informal review of Halliburton's proposed acquisition of Baker Hughes Inc after Halliburton advised the proposed acquisition would not be proceeding. The ACCC had issued a statement of issues in relation to the proposed acquisition in October last year. See merger register. See also Aoife White, 'Halliburton-Baker Hughes Deal Collapses Amid Global Opposition' (Bloombert, 2 May 2016), Amie Tsang, 'Morning Agenda: Halliburton and Baker Hughes Call Off Merger' (New York Times, 2 May 2016) and 'Oilfiled services provider Halliburton terminates $28b merger with Baker Hughes' (EBR, 2 May 2016)
2 May 2016 - Budget eve
On budget-eve 2016 Peter Martin reports on how the budgets of ACCC and other regulates have fared under the current government - he notes that the ACCC has lost 10% of staff over the past three years.
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 draft legislation is expected later in 2016.
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.
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.
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 has been granted special leave to appeal the Flight Centre decision to the High Court.
Resale Price Maintenance
ACCC and Informed Sources
In 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45. In December 2016 the ACCC announced it had resolved these proceedings after Informed Sources and the retailers agreed to make pricing information available to consumers at the same time the retailers receive it.
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,