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Latest Australian Competition Law News and Commentary
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.
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,