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Latest Australian Competition Law News and Commentary

17 November 2017 - Tribunal approves Tabcorp merger ... again

The Tribunal has granted authorisation to Tabcorp again, after the first authorisation was successfully challenged on judicial review earlier this year.

Justice Middleton said that the propsoed merger was likely to result in a substantial benefit.

Reasons are expected to be published next week (22 November).

See ACCC media release: Australian Competition Tribunal decision on Tabcorp-Tatts merger (17 November 2017)

See also John Stensholt and Patrick Durkin, 'Tabcorp $11b deal for Tatts given green light again' (AFR, 17 November 2017) and Matthew Dunckley, 'Tabcorp, Tatts deal clears competition hurdle ... again' (Brisbane Times, 17 November 2017).

 

AI16 November 2017 - e-Collusion and the ACCC's approach to colluding robots!

ACCC Chairman, Rod Sims, has delivered a speech at the conference, 'Can robots collude?', discussing the threats and opportunities posed by algorithms and big data.

Sims observes that current laws, particularly with the Harper amendments relating to misuse of market power and concerted practices, can deal with the 'predictable agent' and 'autonomous machine' scenarios identified by Stucke and Ezrachi involving robot collusion where the substantially lessen competition. In particular:

 the new concerted practices prohibition should help shift the focus away from a requirement to establish a “meeting of the minds” to consider whether there has been cooperation between competing businesses that substantially lessens competition.

If robots are colluding, this provision will help us stop this conduct.

View speech: The ACCC's approach to colluding robots

View media release: 'New competition lass a protection against big data e-collusion'

If video is your thing, you may also be interested in: 'Virtual Competition: The Promise and Perils of the Algorithm-Driven Economy' (Maurice Stucke, speech to The Berkman Klein Center for Internet & Society', March 2017)

 

Stationary - pens16 November 2017 - ACCC won't oppose proposed acquisition of OfficeMax by Complete Office Supplies

The ACCC has announced it will not oppose the proposed acquisition of OfficeMax by Complete Office Supplies.

See media release.

See Office Supplies Pty Ltd merger register.

 

8 November 2017 - ACCC releases its latest ACCCount and self-assessment report and updates its website to reflect the Harper Reforms

The ACCC has released its second self-assessment report (2016-2017) measuring the agency against the Government's Regulator Performance Framework (including six outcome-based KPIs)

When releasing the report ACCC Chairman, Rod Sims, noted that the report highlighted areas for continued improvement, including 'clearer guidance for businesses on our processes for regulatory actions and investigations' and noted that a key challenge is to communicate the limits of the ACCC's role. Notwithstanding the challenges, Sims noted that most stakeholders had a 'positive view' of the ACCC's performance and perceptions had generally 'improved since last financial year'.

See media release

See ACCC Regulator Performance Framework self-assessment report 2016-17

The ACCC has also published its latest 'ACCCount' detailing the ACCC's recent activities.

See ACCount 1 July to 30 September 2017

The ACCC's website has also had a bit of a face lift which is freaking me out a little ... I was just adapting the logo change! The face lift (which is not too drastic) coincides with a significant update to the site to reflect the Harper reforms. For example, there are now new pages, like the 'Resale Price Maintenance notifications register' (pretty boring at this stage though with no notifications), the misuse of market power page has been updated and the anti-competitive page now incorporates reference the concerted practices prohibition.

 

Go for Harper button7 November 2017 - Harper Reforms overview

For an overview of the Harper Reforms now in force, see my Harper Reforms page.

The website is being progressively updated to account for the reforms.

For more detail see the two Acts introducing the changes with associated links and commentary:

 

Infographic7 November 2017 - Harper Reforms

Law firms have started posting their updates on the Harper reforms following their commencement yesterday.

Leading the charge is Allens >< Linklaters which has a very neat infographic, setting out the key reforms and their implications (as well as other more detailed information)

There's also a media release from Treasurer Scott Morrison announcing the commencement: 'Aussie small business and consumers the winners as strengthened competition laws commence' (6 November 2017).

 

Change time6 November 2017 - Harper Reforms commence

A date for commencement has been proclaimed and the Acts Competition and Consumer Amendment (Competition Policy Review ) Act 2017 and Competition and Consumer Amendment (Competition Policy Review ) Act 2017 commence on 6 November 2017 - TODAY!

The main Harper Reforms were set to commence on a date fixed by proclamation or (if no earlier date is fixed) the day after six months from the date the Competition and Consumer Amendment (Competition Policy Review ) Act 2017 passed (which would have been 28 April 2018). But, on Thursday the Governor-General proclaimed 6 November 2017 as the commencement date.

Fun fact: Part 3 of the Competition Policy Reform Act 1995 was proclaimed to commence this day 22 years ago; 6 November 1995. That included commencement of the ACCC (replacing the TPC). Happy Birthday ACCC.

 

3 November 2017 - New regulations

New Competition and Consumer Amendment (Competition Policy Review) Regulations 2017 have now been made and registered.

The amendments follow the passage of the main Harper Reforms last month.

 

5G1 November 2017 - Sims on the upcoming 5G auction

ACCC Chairman, Rod Sims, has welcomed the upcoming auction of 5G, but has also flagged some competition concerns in a speech delivered at the RadComms conference today. Sims concluded his speech with:

“... we want the full benefits of 5G to be realised, and we want these benefits to be realised by all Australians through a competitive market.”

See media release.

View speech: Sims, 'Evolution or revolution? Why competition matters for 5G' (Speech at RadComms 2017, 1 November 2017)

See also: Supratim Adhikari, 'ACCC urges cap on 5G spectrum' (The Australian, 1 November 2017), Corinne Reichert, 'ACCC pushes 'holistic' spectrum ownership ahead of 5G' (ZD Net, 1 November 2017) and Tony Ibrahim, 'ACCC warns 5G could substitute NBN connections' (Choice, 31 October 2017).

 

Digital image1 November 2017 - New Media Merger Guidelines

The ACCC today released updated Media Merger Guidelines which take account of recent reforms to media ownership laws. These replace the 2006 guidelines. See MMG Media Release. View Guidelines.

This follows a speech yesterday to the Communications and Media Law Association (CAMLA) delivered by ACCC Chairman, Rod Sims, on the 'ACCC's role in the changing media landscape' (see media release | the speech has not been published)

 

Shipping port1 November 2017 - Container Stevedoring monitoring report released

The ACCC has released its annual Container stevedoring monitoring report 2016-2017.

ACCC Chairman, Rod Sims, stated:

“Competition has significantly increased in recent years with the introduction of a third stevedore in Sydney and Brisbane, and now we can add Melbourne to that list. As such, we expect to see greater levels of price competition as new entrants and incumbents compete for market share,” ACCC Chairman Rod Sims said.

See media release.

 

Halloween pumpkin31 October 2017 - Acts receive Royal Assent

The main Harper Bill - the Competition and Consumer (Competition Policy Reform) Bill 2017 received Royal Assent last Friday, 27 October 2017. The main provisions come into operation the day after six months from receiving Royal Assent, unless an earlier date is proclaimed. Subject to the fixing of an earlier date it will come into operation on 28 April 2018.

On 30 October the Competition and Consumer Amendment (Abolition of Limited Merits) Act 2017 also received Royal Assent.

 

Shopping centre30 October 2017 - ACCC seeks comment on voluntary code for pop-up shops

The ACCC has released a draft determination 'proposing to grant re-authorisation to the Shopping Centre Council of Australia Ltd (SCCA) for its Casual Mall Licensing Code of Practice'.

See media release.

See authorisation register.

 

Communications30 October 2017 - Communications sector market study: draft report

The ACCC today published its draft report on its market study of the communications sector.

The ACCC is seeking comments until 8 December 2017. A final report is expected early 2018.

See media release.

See report.

 

Fresh fruit30 October 2017 - Report on Australia's Food and Grocery Code of Conduct

A report on Australia's Food and Grocery Code of Conduct has been published by Caron Beaton-Wells and Jo Paul-Taylor. The report follows research conducted over two years, funded by an ARC grant. Two key questions guided the research:

  1. What were the problems to which the FGCC was responding and why and how was the FGCC responsive to or seen as likely to address them?
  2. To what extent has the FGCC been effective to date or is it likely to be effective in the future in addressing such problems?

The release of the report coincided with a public symposium, 'Supermarket Power in Australia: Looking Back and Ahead', organised by Melbourne Law School and hosted at the State Library of Victoria on Friday.

The 248 page report can be downloaded from the Competition Law and Economics Network's website, here:

More information about the Supermarket Project can be found on its website.

 

 

Image of blue lake, Mount Gambier25 October 2017 - ACCC will not oppose Borg's proposed acquisition of CCH Panel's plants

The ACCC had announced that it will not oppose Borg Group's proposed acquisition of CCH Panels' Mount Gambier and Oberon particleboard plants.

Borg manufactures and supplies value-added particleboard products; CCH Panels manufactures 'raw particleboard, particleboard flooring and value-added particleboard products' at four plants - the proposed acquisition relates to two of these plants.

See ACCC's Borg media release | Borg merger register

 

Image of sunglasses25 October 2017 - ACCC will not oppose proposed Essilor/Luxottica merger

The ACCC had announced that it will not oppose the proposed merger between Essilor International and Luxottica Group SpA.

In Australia Essilor predominantly supplies 'wholesale finished opthalmic lenses', while Luxottica 'largely supplies wholesale prescription frames and sunglasses' and has retail outlets like OPSM and Laubman & Pank.

The ACCC notes that these companies mainly supply products at different states in the supply chain and there is 'minimal direct competitive overlap between the two parties'. The ACCC considered on whether the increased vertical integration would substantially lessen competition and, after speaking with market participants, concluded the merged entity would 'likely continue to face competition at every level of the supply chain, including from other vertically integrated suppliers'.

See ACCC's Essilor/Luxottica media release | see ACCC's Essilor/Luxottica merger register

 

Image of whiteboard guide25 October 2017 - ACCC releases interim guidance on Harper reforms

The ACCC has issued the following three 'interim' guidelines addressing some of the key changes that will be brought about by the Harper Reforms

The ACCC is consulting on these guidelines, with submissions due by 24 November 2017.

The two interim guidelines follow 'draft frameworks' (concerted practices | mmp) released in October 2016 for consultation. Submissions on those consultations have not been made public.

The section 46 document has been re-ordered a bit, but it is otherwise remarkably similar to the 2016 draft framework. The key change is the addition of 'restricting access to an essential input' and 'loyalty rebates' as types of conduct likely to have a greater potential to involve mmp. Concentration levels in some of the examples have changed and, in the section detailing the ACCC's approach to investigating alleged MMP, consideration of the 'nature and extent of competitive constraints' has moved from being listed as the fourth factor to the first factor. Not too earth shattering.

The concerted practices guidance has had a more significant overhaul. There is more detail (beyond just examples) of what might constitute a concerted practice and 'engaging in a concerted practice'. There's also more information and what might constitute having the purpose, effect or likely effect of substantially lessening competition.' Some of the 'examples' of risky conduct from the framework remain, but there are also new examples. The 'priority' factors for ACCC investigation and enforcement are the same, but some additional guidance about issues that may impact on the likelihood of enforcement action have been inserted; they include concerted practices 'considered as part of broader ACCC investigations', evidence 'beyond independent behaviour' and the information recipient's 'response to the receipt of information'.

See further the ACCC media release.

 

Annaul report23 October 2017 - ACCC releases annual report

The ACCC's 2016-2017 annual report was tabled in Parliament today.

In relation to competition law and policy, the report highlights:

  • the first criminal cartel case, describing it as a 'watershed moment in Australia's competition law history'
  • The Ramsey Health care proceedings alleging misuse of market power and exclusive dealing
  • High Court success in Flight Centre and the Air NZ/Garuda Indonesia cases.
  • Consideration of 288 merger matters (33 publicly reviewed; 16 going on to second phase and half of those not proceeding)
  • Twenty-three authorisations granted; four denied (including Apple Pay)
  • Market studies into 'sectors including new car retailing, dairy, regional petrol prices, and gas and electricity affordability.'

See media release. View full copy of the report.

 

Not complicated at all23 October 2017 - Overview of the Harper reforms

Following yesterday's passage of Competition Policy Reform Bill (Harper Bill) last week, I thought it worth re-capping the key changes, including:

  • introduction of an effects test for misuse of market power
  • introduction of a new concerted practices law
  • first instance merger authorisation power reverting to the ACCC and introduction of new dual SLC/public interest authorisation test
  • extending joint venture exception to cartels
  • allowing notification for resale price maintenance
  • removing per se prohibition of third line forcing
  • simplification and extension of authorisation provisions and introduction of new class exemption power
  • modification of the access regime test (including reversion to natural monopoly test)

And there's plenty more. For more detail see my blog: 'Harper Competition Reforms Now Passed' (24 October 2017)

 

Image of cell tower 23 October 2017 - ACCC does not declare domestic mobile roaming

The ACCC has decided not to declare domestic mobile roaming. ACCC Chairman, Rod Sims, noted that the ACCC's inquiry 'found that declaration would likely not lead to lower prices or better coverage or quality of services for regional Australians'. In addition, he observed that declaration could 'harm the interests of consumers by undermining the incentives of mobile operators to make investments to compete with each other in regional areas'.

Sims did, however, identify areas where improvements could be made to better deliver outcomes for regional consumers, including better transparency about coverage and more accountability. [without commenting on the merits of the decision, this regional consumer observes that she has received transparent information about coverage - it's really bad! Unfortunately knowing that doesn't help her answer the phone indoors.]

For more, see:

For media see, for example:

 

Medicine - pills19 October 2017 - Pharmacists to continue to receive competition protection

The government may have accepted the majority of the Harper law reforms, but when it comes to policy reform, they appear have rejected the Harper recommendation (14) to remove current restrictions on ownership and location. This recommendation was 'noted' by the Government in their response to the Harper Report.

For more see Andrew Tillett, 'Bitter pill for consumers as pharmacists win protection from competition' (AFR, 19 October 2017).

See also: National Health Amendment (Pharmaceutical Benefits - Budget and Other Measures) Bill 2017.

 

19 October 2017 - Harper law reforms pass; time to move on Harper policy recommendations

Following yesterday's passage of the reforms to competition law recommended in the 2015 Harper Report, John Durie reports that Treasurer Scott Morrison is set to unveil a productivity reform package next week which will include many of the broader policy recommendations set out in the Harper Report.

See John Durie, 'Individuals to be target of productivity reforms' (The Australian, 18 October 2017)

 

18 October 2017 - ACCC welcomes 'new era in competition law'

Following the passage of the Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 (Harper Bill) the ACCC has issued a press release welcoming a 'new era in competition law.

The passage of this bill also means that the misuse of market power changes, which passed in August but were contingent on the passage of the Harper bill, will also come into operation.

ACCC Chairman, Rod Sims, stated:

'I am pleased to see these important reforms pass through the Parliament. The reforms to the misuse of market power prohibition and the new prohibition of anti-competitive concerted practices will improve our ability to target conduct harming the Australian economy.'

Chairman Sims also welcomes the reforms to merger authorisation and clearance, particularly topical in light of the Tabcorp authorisation sage.

The media release goes on to state that the ACCC has established a 'Substantial Lessening of Competition Unit (SLC Unit), which will be responsible for misuse of market power and concerted practices investigations and litigation within the ACCC' and that this unit will soon release Guidance on the MMP and concerted practices provisions (draft guidance on each has previously been released for comment).

View media release.

 

Australian Parliament18 October 2017 - House agrees to Senate Harper amendment

Well that was quick!

The House of Representatives this morning considered the Senate's amendment to the Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 (Harper Bill) (removal of schedule 6 relating to secondary boycott penalties).

Senator Morrison moved that the amendment be passed moved that the amendment be agreed to. Dr Leigh spoke briefly, following which the motion was agreed.

The Harper bill has now passed both Houses.

 

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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.

 

View Harper Bills

View Harper Report page