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Latest Australian Competition Law News and Commentary
1 December 2016 - Misuse of market power bill with effects test introduced
The Government has introdcued theCompetition 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.
29 November 2016 - New High Court appointments
The Prime Minister today announced the appointment of the Honourable Justice Susan Mary Kiefel AC to become the next Chief Justice of the High Court of Australia, and the first female Chief Justice, on 30 January 2017. Justice Kiefel will replace the Honourable Justice Robert French AC (Chief Justice since 2008) following his retirement. The Prime Minister also announced the appointment of a new High Court judge, the Honourable Justice James Joshua Edelman, who will be sworn in on 30 January 2017. See my separate blog post on these appointments - New High Court Appointments and competition law.
29 November 2016 - ACCC proposes to deny banks' application to collectively bargain over Apple Pay
The ACCC has issued a draft determination proposing to deny authorisation to the Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank 'to collectively bargain with and boycott Apple on Apple Pay.' More detail on news page.
See ACCC media release. See authorisation register. See also James Eyers, 'ACCC blocks banks' bid to collectively bargain over Apple Pay' (AFR, 29 November 2016); Clancy Yeats, 'ACCC rejects NAB, CBA, Westpac, Bendigo collective boycott of Apple Pay in draft ruling' (SMH, 29 November 2016) and Daniel Palmer, 'ACCC leans toward blocking banks from teaming up over Apple Pay dispute' (The Australian, 29 November 2016).
25 November 2016 - ACCC takes action against ANZ and Macquirie for attempted cartel conduct
The ACCC has taken action against ANZ and Macquirie for attempted cartel conduct. The action has been taken by consent, with the parties agreeing on key facts and both banks making several admissions. Joint submissions on penalty have been made; it is proposed the ANZ should pay a penalty of $9m and Macquirie a penalty of $6m. It will be for the Court to determine if the penalties are appropriate. See media release. See also, for example, 'ANZ, Macquirie Bank admit to cartel conduct' (Australian Financial Review, 25 November 2016).
24 November 2016 - ACCC will not oppose Qube's acquisition of AAT
The ACCCC has announced it will not oppose the 'proposed acquisition by Qube Holdings Limited ... of the remaining 50 per cent of Australian Amalgamated Terminals Pty Ltd ...' following court enforceable undertakings provided by Qube which have addressed the ACCC's competition concerns. See media release. See merger register.
22 November 2016 - ACCC completes first Regulator Performance Framework review
The ACCC has released its first Regulator Performance Framework Review, in which it self assesses against six KPI's. See media release. View report. Not everyone is impressed with the self assessment; see, for example, Michael Terceiro, 'Sour grapes and self-delusion: ACCC Regulator Performance Framework self-assessment report 2015-16' (21 November 2016). See also 'ACCC cops it from business leaders' (Australian Financial Review, 22 November 2016) and Business hates the ACCC. Good. (Macro Business, 22 November 2016).
15 November 2016 - Second criminal cartel case; charges laid against K-Line
The ACCC has announced that 'criminal charges have been laid against Japanese-based company Kawasaki Kisen Kaisha (K-Line) in relation to alleged cartel conduct concerning the international shipping of cars, trucks, and buses to Australia between July 2009 and September 2012.' This relates to the same alleged cartel conduct associated with ACCC's first cartel action in which NYK pleaded guilty in July this year (a sentencing hearing is scheduled for April 2017).
3 November 2016 - ACCC releases statement of issues on proposed Dow/Du-Pont merger
3 November 2016 - ACCC will not oppose Tabcorp's proposed acquisition of Intecq
2 November 2016 - Whistleblowers needed in cartel proceedings
The ACCC's Sarah Court has highlighted the importance of the immunity policy and whistleblowers for detecting cartel conduct. See Sarah Danckert, 'Whistleblowers crucial to cartel proceedings: ACCC' (SMH, 1 November 2016).
31 October 2016 - ACCC investigating concerns about anti-competitive activity in the beef and cattle industry
The ACCC has today released the interim report for its Cattle and Beef market study, identifying key areas in which competitiveness of beef and cattle markets could be improved and highlighting concerns about anti-competitive conduct and market structures. View ACCC media release. View market study interim report. See also Brian Robins, 'ACCC investigates claims of anti-competitive activity in cattle yards' (SMH, 31 October 2016), John Durie, 'An ACCC bull enters the saleyard' (The Australian, 31 October 2016), Matthew Stevens, 'ACCC chases cowboy cartels' (AFR, 31 October 2016).
27 October 2016 - Sims on the concentration of the Australian economy
ACCC Chairman, Rod Sims, has discussed increasing concentration in the Australian Economy at the RBB Economics Conference in Sydney. He questioned the view that we need not be concerned with heavy concentration, instead preferring 'standard economic wisdom' that 'mergers resulting in high levels of concentration in markets with substantial barriers to entry will usually reduce competition and cause harm to consumers and our economy.' He then raised a series of questions, including whether we need to consider establishing a 'rebuttable presumption' that mergers should not proceed where they are likely to significantly increase competition in a defined market.
See ACCC media release. Read the speech. For related media see, for example, Gareth Hutchens, 'Australians will pay the price for dominance of big companies, says ACCC Chief' (The Guardian, 27 October 2016), Jacob Greber, 'ACCC boss Rod Sims hits out at damaging mergers' (AFR, 27 October 2016), Peter Martin, 'ACCC chairman Rod Sims puts the case for a default 'no' to big mergers' (SMH, 27 October 2016), Phillip Lasker, 'ACCC's Rod Sims says big company domination is leaving Australian consumers 'worse off'' (ABC, 27 October 2016), David Uren, 'ACCC's Sims warns top firms tightening grip on economy' (The Australian, 27 October 2016), Robert Gottliebsen, 'Beware the concentration of corporate power' (The Australian, 27 October 2016), Daniel Palmer, 'ACCC warns of greater scrutiny amid rising levels of business concentration' (The Australian, 27 October 2016).
21 October 2016 - ACCC will not oppose Australian Paper's proposed acquisition of Edwards Dunlop Office Products
18 October 2016 - High Court grants leave to appeal in Air NZ/PT Garuda Indonesia cases
On 14 October the High Court granted Air New Zealand and PT Garuda Indonesia Ltd special leave to appeal the decision in ACCC v P T Garuda Indonesia Ltd  FCAFC 42. The central issue relates to the meaning of market in Australia (s 4E). Both matters will be heard together. View High Court transcript.
13 October 2016 - ACCC releases SoI on proposed acquisition of Pillar by Link
The ACCC has 'a Statement of Issues on the possible acquisition of the Superannuation Administration Corporation (trading as Pillar) by Link Administration Holdings Limited (ASX:LNK) (Link). Pillar is being privatised by the NSW Government.' See media release. See merger register.
12 October 2016 - Mardirossian and Lees on misuse of market power proposal
Arnold Bloch Leibler partners, Zaven Mardirossian and Matthew Lees, have an opinion piece in today's Australian criticising the breadth of the proposed misuse of market power law and proposing changes. See Zaven Mardirossian and Matthew Lees, 'Harper legislation must leave no room for doubt' (The Australian, 12 October 2016).
6 October 2016 - ACCC releases SoI on proposed acquisition of APNs regional media division from News Corp
The ACCC has released a Statement of Issues on the 'proposed acquisition of Australian Regional Media (ARM) from APN News and Media ... by News Corporation'. See ACCC media release. See merger register. See also Darren Davidson, 'Diversity key to APN-News deal, says ACCC boss Rod Sims' (The Australian, 7 October 2016)
6 October 2016 - ACCC will not oppose Graincorp's proposed acquisition of Cargill's Gilgandra grain storage and handling facility
The ACCC has announced it will not oppose 'GrainCorp Limited’s (GrainCorp) proposed acquisition of Cargill Australia Limited’s (Cargill) bulk grain storage and handling facility in Gilgandra, New South Wales.' See media release. See merger register.
6 October 2016 - SoI on proposed Glencore Rail acquisition
The ACCC has 'released a combined Statement of Issues on alternative proposals to acquire Glencore Coal’s rail business, GRail, by Aurizon ... and Pacific National.' See media release. See Pacific National merger register page. See Aurizon merger register page. See also John Durie, 'The ACCC stays on track with release of statements of issues' (The Australian, 6 October 2016).
4 October 2016 - Competition in retail banking
Rob Nicholls has an item in today's Conversation on the promotion of competition in retail banking. See Rob Nicholls, 'Simpler account switching would help keep our banks honest' (The Conversation, 4 October 2016).
4 October 2016 - Sims speaks at CommsDay Congress
In a speak at the CommsDay Congress in Melbourne today, ACCC Chairman, Rod Sims, outlined the ACCC's 'market study into the communications sector and the linked declaration inquiry into domestic mobile roaming' as well as discussing the need for better broadband speed information. See:
- speech to CommsDay Melbourne Congress
- market study into communications sector
- press release: 'ACCC invites industry comment on ‘complex, fascinating and vital’ telecommunications issues'
3 October 2016 - Resale price maintenance in Australia
Jones Day's Nick Taylor and Prudence Smith have a piece in the Kluwer Competition Law Blog today discussing proposed changes to Australia's resale price maintenance laws. See Nick Taylor and Prudence Smith, 'Australia experiments with a "third way" on resale price restrictions' (Kluwer Competition Law Blog, 3 October 2016).
30 September 2016 - Consultation time extended for some aspects of Exposure Draft Bill
Treasury has extended the deadline for submissions on all aspects of the Exposure Draft bill, other than those relating to misuse of market power, which are still due by 30 September. The extended deadline for other aspects of the bill is 28 October 2016. See also Treasury consultation page.
28 September 2016 - ACCC Chairman attacks criticism of proposed misuse of market power changes
The ACCC Chairman, Rod Sims, has again defended the proposed introduction of an 'effects test' for misuse of market power (s 46), claiming that criticisms offered by Woolworths, Coles and their supporters made no sense. See speech to AFR Retail Summit, Melbourne, 'Enhancing competition in retail'. See also Sarah Danckert, 'ACCC chairman Rod Sims takes swipe at Coles and Woolworths' (The Age, 28 September 2016).
22 September 2016 - ACCC will not oppose Vocus' proposed acquisition of Nextgen
The ACCC has announced 'it will not oppose the proposed acquisition by Vocus Communications ... of Nextgen Networks Group Pty Ltd and two development projects: the Australian Singapore Cable and the North West Cable System (together, Nextgen).' The ACCC found the services offered by each party were largely complementary and, where overlap existed, the competitive constraint from Telstra, Optus and TPG would likely limit any harm to competition. See media release. See merger register.
16 September 2016 - ACCC will not oppose Seven West Media's proposed acquisitions of The Sunday Times and perthnow.com.au
The ACCC has announced it will not oppose proposed acquisition. See media release. See public register. See also 'Sunday Times sale to The West Australian owner Seven West Media receives ACCC approval' (ABC News, 15 September 2016), Lucy Battersby, 'ACCC lets Seven West buy News Corp's Perth paper as readers, advertisers go online' (SMH, 15 September 2016), John Durie and Daniel Palmer, 'ACCC clears Seven West’s acquisition of West Australian media outlets' (The Australian, 15 September 2016), Jake Mitchell, 'Seven West ‘worthy custodians’ of Perth’s The Sunday Times' (The Australian, 16 September 2016).
8 September 2016 - ACCC updates guidance on use of mandatory information gathering powers
The ACCC has released updated Guidelines on the Use of section 155 powers, 'with particular focus on the use of s 155 powers in the ACCC's enforcement and merger activities'. Given proposed changes to s 155 powers in the Exposure Draft legislation - including in the form of a proposed reasonable search defence - the ACCC has indicated it will update the Guidance again to take account of those changes if and when passed. See media release.
7 September 2016 - Exposure Draft Legislation - markup version of CCA
I have prepared a mark-up version of the current Act incorporating the amendments proposed by the Exposure Draft legislation.
- CCA 2010 amended in accordance with Exposure Draft Bill (mark-up showing) (PDF)
- CCA 2010 amended in accordance with Exposure Draft Bill (clean) (PDF)
See also Competition and Consumer Amendment (Competition Policy Review) Bill 2016 (Exposure Draft) (report page).
5 September 2016 - Exposure Draft Legislation
The exposure draft legislation implementing the bulk of the Harper competition law reform recommendations was released today. I've provided an overview on my blog - Harper Exposure Draft Legislation Released - and the following pages will progressively add detail:
- Competition and Consumer Amendment (Competition Policy Review) Bill 2016 (Exposure Draft) (report page)
- ACCC consultation on ACCC Draft Framework for misuse of market power guidelines
- ACCC consultation on ACCC Draft Framework for concerted practices guidelines
5 September 2016 - Government releases exposure draft of Harper competition reform bill
The Government released an exposure draft of the Harper reform bill today. See Treasury page. Submissions are due by 30 September. See further my review page on the Competition and Consumer Amendment (Competition Policy Review) Bill 2016 (Exposure Draft). More details to follow.
5 September 2016 - ACCC seeks feedback on framework for guidance on competition law reforms
The Government released an exposure draft of the Harper reform bill today and the ACCC has released a framework for guidance on how it proposes to approach the proposed change to s 46 and the proposed creation of a prohibition against anti-competitive concerted practices. See media release.
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.
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.
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 has been granted special leave to appeal the Flight Centre decision to the High Court.
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.
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