Welcome to Australian Competition Law
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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
13 May 2013 - Mergers: A 20 year retrospective
The presentation made by ACCC Commissioner, Jill Walker and ACCC Executive General Manager (Legal Group), Tim Grimwade, at the recent Competition Law Conference is now available to view online (PDF) - well worth a look. View presentation.
8 May 2013 - ACT dumps controversial supermarket competition policy
The ACT government has dumped the supermarket competition policy it released in 2010 following a review of the existing policy by former ACCC commissioner John Martin. See, for example, Lisa Moley, 'ACT slashes supermarket competition policy' (ABC News, 7 May 2013)
6 May 2013 - Draft authorisation guidelines
The ACCC has issued Draft Authorisation Guidelines 2013 for comment. Submissions are due by Friday 31 May 2013. View press release.
4 May 2013 - Competition Law Conference
The Hodgekiss' put on another terrific Competition Law Conference in Sydney today, featuring, amongst others, The Honourable Dyson Heydon AC (Is the Competition and Consumer Act 2010 (Cth) in competition with itself?), Dr Jill Walker and Tim Grimwade from the ACCC (Mergers - A 20 Year Retrospective), Luke Woodward (Current Issues in Merger Reviews), Professor Stephen Corones and Carolyn Oddie (The Pitfalls of Public Announcements) and Professor Caron Beaton-Wells and Marcus Bezzi (The ACCC Immunity Policy for Cartel Conduct: Due for Review?). Look out for the 25th Anniversary of the conference in May 2014.
2 May 2013 - ACCC proposes to allow RACQ and approved retailers to set labour rate for warranty repairs
The ACCC has issued a draft determination proposing to allow the 'RACQ and its Approved Repairers to set the labour rate for warranty repairs undertaken by another Approved Repairer. “Under the proposed repair warranty scheme, any defects in an original repair can be fixed by any RACQ Approved Repairer at no cost to the member.”'. The ACCC considers taht any detriment associated with the agreement would be 'limited by the competitive nature of the automotive repair industry in Queensland'. View press release. View authorisation register.
30 April 2013 - ACCC's Airport report card
The ACCC has released its annual report on the major airports (Airport Monitoring Report 2011-2012), finding that airports remain profitable but service has dropped. See ACCC Press release. See, eg, Steve Creedy, 'Airports in profit, but service suffers, ACCC report finds' (30 April 2013)
29 April 2013 - ACCC monitoring Archer Daniels possible takeover of Graincorp
The ACCC is now monitoring Archer Daniels Midland Company's possible takeover of GrainCorp Limited. View merger register. Plenty of interest in this. See, for example, ABC News, 'VFF keen for ACCC view of GrainCorp takeover' (29 April 2013), Sue Neales and Andrew White, 'ACCC to probe $3.4bn foreign GrainCorp sale' (The Australian, 27 April 27), 'ADM's GrainCorp bid under fire' (Business Spectator, 29 April 2013) and Blair Speedy and Sue Neales, 'Analysts await details of financing for ADM's GrainCorp bid' (The Australian, 29 April 2013).
29 April 2013 - ICN 12th annual meeting
The International Competition Network (ICN) held its 12th annual meeting on 24-26 April 2013, in Warsaw, Poland. See ACCC Press Release. View program and documents (including Statement of Achievements 2001-2013 and, of particular interest, the Report on the OECD/ICN Survey on International Enforcement Co-operation (all 251 pages)).
24 April 2013 - Abbott's proposed competition review
The AFR had an item on Abbott's planned competition law review yesterday: Fleur Anderson, 'Abbott plans laws inquiry' (Australian Financial Review, 23 April 2013, page 8). The article claims the Coalition is planning a 'Henry reviewstyle inquiry into competition laws, including an investigation into the market dominance of supermarket chains, within the first 100 days of an Abbott government'. It claims the inquiry will be the first since Hilmer in 1993 (apparently they overlooked the Dawson Inquiry). The article notes opposition small business spokesman, Bruce Billson, is drafting the terms of reference for the review. If you don't have an AFR subscription, you can also find the article on 'The Land'.
24 April 2013 - Sims speeks to World Bank Forum on Australian competition policy
ACCC Chairman, Rod Sims, has delivered a speech to a World Bank Forum in Poland entitled 'Making markets work for development: A reform agenda on competition'. View press release.
24 April 2013 - Tribunal releases reasons for decision re: CBH notification
The Tribunal has now published its reasons for decision in Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3, redacted in respect of commercially confidentail information (it still runs to 88 pages, so make sure you brew a decent cup of coffee before settling down for a read).
23 April 2013 - ACCC not to oppose Virgin/Tiger deal
The ACCC has announced it will not oppose Virgin Australia’s proposed acquisition of 60% of Tiger Australia. ACCC Chairman, Rod Sims, stated that the ACCC's view was that 'this acquisition is unlikely to lead to a substantial lessening of competition in the Australian market for domestic air passenger transport services'. This was based largely on their assessment that 'Tiger Australia would be highly unlikely to remain in the local market if the proposed acquisition didn’t proceed'. The ACCC's review commenced on 2 November 2012; the timeline for review was suspended twice. View ACCC press release. View merger register. See also plenty of commentary on this - for example, Matt O'Sullivan, 'Green light for Virgin-Tiger deal' and 'Virgin-Tiger deal: short-term pain, long-term gain' (The Age, 23 April 2013), Samantha Donovan, 'ACCC Clears Virgin-Tiger merger' (ABC news (transcript of interview with Rod Sims), 23 April 2013) 'Matthew Smith, 'Back to a duopoly: ACCC removes chocks on Virgin-Tiger deal' (BRW, 23 April 2013), Steve Creedy, 'Jobs and aircraft saved as watchdog approves Virgin Australia-Tiger deal' (The Australian, 24 April 2013) and plenty more.
23 April 2013 - Alexandra Merrett on Coles' New Milk Deal
Alexadnra Merrett has an opinion piece in The Conversation: 'Coles' milk deal gives supermarket suppliers a reason to be sour'. Well worth a read, as always.
22 April 2013 - ICC releases Antitrust Compliance Toolkit
The ICC has released an Antitrust Compliance Toolkit designed for business and focussing on 'practical steps companies can take internally to embed a successful compliance culture'. View press release with link to free downloadable PDF toolkit.
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5 April 2013 - New State of Competition Out Now
TGIF - a new TSOC to brighten up our inboxes. This time Rachel Trindade and Alexandra Merrett discuss 'A road map to statutory immunity in Australia', looking at Australia's authorisation and notification processes. Read it now at The State of Competition.
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27 March 2013 - ACCC grants conditional authorisation for Qantas/Emirates alliance
The ACCC has granted authorisation for the proposed Qantas/Emirates alliance until 31 March 2018. The authorisation is conditional on the airlines maintaiing 'at least their pre-alliance aggregate capacity on the four overlapping trans-Tasman routes, subject to a review to consider whether increases in the minimum required capacity are warranted'. View press release. View authorisation register (on transition site). View Qantas/Emirates press release. See also 'ACCC approves Qantas-Emirates deal: the experts respond' (The Conversation, 27 March 2013) (authored by Sunanda Creagh and involving interviews with David Beirman, Tony Webber and Hamza Bendemra).
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Hot topics
Virgin and Tiger
On 23 April the ACCC announced it will not oppose Virgin Australia’s proposed acquisition of 60% of Tiger Australia. The ACCC's finding that the acquisition would be unlikely to substantially lessen competition in the relevant market was based largely on their assessment that Tiger was a failing firm and unlikely to remain in the local market absent the acquisition. View ACCC press release and the merger register.
Qantas and Emirates
The ACCC has granted authorisation for the proposed Qantas/Emirates alliance until 31 March 2018. The authorisation is conditional on the airlines maintaiing 'at least their pre-alliance aggregate capacity on the four overlapping trans-Tasman routes, subject to a review to consider whether increases in the minimum required capacity are warranted'. View press release. View authorisation register (on transition site). View Qantas/Emirates press release.
Access / Essential Facilities
Following the High Court decision in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] 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 [2013] 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 is due to release a draft report in May. 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.
