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18 May 2017 - Fly-in fly-out airline alliance authorised

The ACCC has authorised a Charter Alliance Agreement between Virgin and Alliance Aviation Services, pursuant to which the Virgin Australia Regional Airlines and Alliance Aviation Services will 'jointly bid for and contract with corporate charter customers in relation to the provision of fly-in fly-out (FIFO) services.' This follows the ACCC's initial proposal to deny authorisation in December 2016; subsequent market inquiries led the ACCC to conclude there were a 'number of factors that mitigate the risk to competition' so that likely public benefits will outweigh likely detriments.. View media release. View authorisation register.

16 May 2017 - Tabcorp merger hearings begin in the Tribunal

The Australian Competition Tribunal commenced its hearing of Tabcorp's merger authorisation application today. The matter is listed in the Victorian Fedearl Court Registry from 16 May - 2 June 2017 before Justice Middleton (President), Mr Grant Latta AM (Member) and Dr Darryn Abraham (Member). See, eg, John Stensholt, 'ACCC hits out at Tabcorp as merger hearings begin' (AFR, 16 May 2017) and Ben Butler and Sarah-Jane Tasker, 'Tatts, Tabcorp merger will produce a behemoth, says ACCC' (The Australian, 17 May 2017).

11 May 2017 - Private members' bill debated

The Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017, introduced by on 16 February by Senator Gallagher, was debated in the Senate on 11 May 2017. Several speeches were made by ALP and LP Senators and by Senator Xenophon, who noted during the course of his speech that he and his colleagues support, 'with some amendments' the 'effects test' contained in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016. In this respect, Senator Xenophon indicated he would move 'a whole range of amendments based on this bill to the government's effects test bill, because we think that is the right thing to do in order to make that piece of legislation work much more effectively'. All speeches can be viewed on the Second Reading speeches page for the bill.

9 May 2017 - Yazaki ordered to pay $9.5m in penalties for collusion

The Federal Court today imposed penalties against Yazaki for 'engaging in collusive conduct with a competitor when supplying wire harnesses to Toyota Motor Corporation (Toyota) in Australia.' The ACCC sought significantly higher penalties (between $42-$55m) and is carefully considering the judgment. See ACCC press release. See case page.

9 May 2017 - Kemp on Misuse of Market Power

Katharine's Kemp's new article on misuse of market power is now available as an advance copy from the UNSW Law Journal. See Katharine Kemp, ‘“The Big Chill”? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power’ (2017) 40(2) University of New South Wales Law Journal.

6 May 2017 - Sims: Restoring Faith in Free Markets

The Chairman's speech at today's Competition Law Conference addressed the role of the ACCC in 'restoring faith in free markets'. View speech. This followed a keynote address by former Chief Justice of the High Court, The Hon Robert French AC, who discussed the 'Role of the Regulator as Competition Advocate'.

5 May 2017 - ACCC proposes not to declare wholesale domestic mobile

The ACCC has released its draft decision 'proposing to not declare a wholesale domestic mobile roaming service', observing that theres is 'insufficient evidence that declaration will improve the current state of competition.' See ACCC media release. See draft decision on Domestic Mobile Roaming Declaration Inquiry 2016 page.

4 May 2017 - ACCC releases SOI in relation to proposed APN Outdoor Group Ltd and oOh!media Ltd merger

The ACCC has released a Statement of Issues 'expressing preliminary concerns about the proposed merger between APN Outdoor Group Limited ... and oOh!media Limited'. The concerns arise from the fact that the merger will 'combine the two largest providers of out-of-home advertising in Australia, creating a market leader with over 50 per cent of all out-of-home advertising, and an even higher share in some segments ...' See media release. See merger register.

4 May 2017 - ACCC will not oppose Caltex's proposed acquisition of Milemaker

The ACCC today announced that it has decided not to oppose the proposed acquisition by Caltex of a 'chain of Victorian service stations from Milemaker Petroleum'. This decision followed a Statement of Issues released in March and was described by the ACCC Chairman as a 'difficult decision' because 'competition will be reduced'; the ACCC concluded, however, that that reduction would not be substantial. See media release. See merger register.

1 May 2017 - ACCC alleges Ramsay Health Care engaged in anti-competitive conduct

The ACCC has 'instituted proceedings in the Federal Court against Ramsay Health Care Australia Pty Limited (Ramsay) for alleged anti-competitive conduct involving misuse of market power and exclusive dealing in the Coffs Harbour region.' See ACCC media release. For further details and media on this case see my current case page.

1 May 2017 - Sims claims misuse of market power laws 'almost unusable'

ACCC Chairman, Rod Sims, has described the current misuse of market power laws as 'almost unusable' according to SMH. The SMH article also notes that in order to pass the proposed changes to the MMP law the Government will need the support of at least one crossbencher. See Madeleine Heffernan, 'Misuse of market power laws "almost unusable', ACCC chairman Rod Sims says' (SMH, 30 April 2017).

26 April 2017 - Former ACCC Chairman claims nothing to fear from Amazon

Former ACCC Chairman, Graeme Samuel, has dismissed claims that Amazon's entry into the Australian market would result in higher prices for Australian consumers, noting the entry of major international competitors into other markets in Australia has not driven out local competition. See Jackson Stiles, 'Nothing to fear from Amazon: former ACCC boss' (The New Daily, 26 April 2017)

20 April 2017 - ACCC issues draft decision on Hunter Valley rail network access undertaking

The ACCC has 'issued a draft decision not to accept the proposed Hunter Valley rail network access undertaking lodged by the Australian Rail Track Corporation'. See ACCC media release. See Hunter VBalley ccess undertaking 2017 page.

13 April 2017 - ACCC proposes to authorise joint purchase of electricity

The ACCC has 'issued a draft determination proposing to allow the South Australian Chamber of Mines and Energy, along with 24 other South Australian businesses, to establish a joint electricity purchasing group.' See ACCC media release. See authorisation register.

13 April 2017 - Cane growers collective bargaining approved

The ACCC has 'authorised members of the Canegrowers Organisation to collectively bargain cane supply and related contracts with mill owners and sugar marketers for ten years.' See media release. See authorisation register.

13 April 2017 - Update on CCA Amendment Bill

Gilbert + Tobin's Elizabeth Avery has published her 'Insights' on the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, noting the changes from the exposure draft legislation. See 'Competition and Consumer Act Amendment Bills introduced into Parliament, but with further changes' (G+T, Insights, 12 April 2017).

1 April 2017 - Mergers 2016

Richard L'Estrange at King&Wood Mallesons has published a blog piece reviewing '2016: The Year in Mergers' - it includes some commentary on the 33 public ACCC merger reviews as well as a tabular summary of their outcomes. See Richard L'Estrange, '2016: The Year in Mergers' (In Competition,King & Wood Mallesons, 28 March 2017)

31 March 2017 - ACCC denies authorisation for banks to collectively bargain with and boycott Apple Pay

The ACCC has issued its final determination denying authorisation to the CBA, Westpac, NAB and Bendigo and Adelaide Bank to collectively bargain with and boycott Apple Pay. Chairman Rod Sims indicated that the ACCC was 'not satisfied, on balance, that the likely benefits from the proposed conduct outweigh the likely detriments. We are concerned that the proposed conduct is likely to reduce or distort competition in a number of markets'. See ACCC media release and authorisation register. See also my earlier blogs on the authorisation application ('Apple versus the banks' (20 August 2016); 'Banks Denied Interim Authorisation for Cartel Conduct' (19 August 2016); 'Apple goes on the attack' (8 Feb 2017)).

30 March 2017 - Harper Reforms before the House

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 has been introduced into the House. Second reading debate has been ajourned until the next sitting of Parliament.

29 March 2017 - MMP bill read in the Senate; adjourned until next sitting

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was read for a first time in the Senate and second reading speeches commenced but were then adjourned until the first day of the next sitting period.

28 March 2017 - MMP bill passes the House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 passed the House of Representatives today, incorporating the Government's amendments (changing the commencement date and removing mandatory factors for court to consider).

The Bill is listed for debate in the Senate tomorrow.

 

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Hot topics

Competition Policy Review (Harper)

Harper Review

Read moreThe 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. A reform bill designed to implement these recommendations was introduced into the House on 30 March 2017; a separate MMP bill has passed the House and is before the Senate.

 

Misuse of market power

Image of market power

Read moreAlways 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; a bill was introduced on 1 December 2016 and has (with amendment) passed the House. It is before the Senate.

First criminal cartel case

Handshake image

Read moreOn 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

TPA cover

Read moreThe 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 successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)

Resale Price Maintenance

Merger authorisation

Read moreIn December 2014 the ACCC granted its first RPM authorisation. The Harper Review has recommended retaining the per se prohibition on RPM, but introducing a notification option.

 

Agreed Penalties

Handshake image

Read moreThe 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.

 

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,

 

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