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Latest Australian Competition Law News and Commentary
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.
28 March 2017 - MMP debate resumed; further Harper bill 'imminent'
Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday with a further 13 second reading speeches before it was agreed that the bill be read a second time.
Treasurer Scott Morrison's amendment (changing the commencement date and removing mandatory factors for Court to consider) also passed before an adjournment. A brief supplementary explanatory memo was also tabled in relation to the amendment. It explains the change to the mandatory factors follows the Senate Economics Legislation Committee recommendation and was designed to reduce complexity and uncertainty and 'reduce the risk that "substantially lessening competition" would unintentionally take on a different meaning in the context of section 46 compared to other provision ...'. It is not intended to 'change the objective of the new section 46'.
The supplementary EM also indicates that the introduction of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 is 'imminent' and that the proposed change in commencement date is designed to ensure that the new MMP provision will not be introduced unless and until authorisation is made available (in the new bill) for section 46 conduct.
24 March 2017 - More Harper reforms on their way
The Australian's John Durie reports today that the next suite of Harper Reforms are expected to be tabled in Parliament next week: John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').
24 March 2017 - Debate on MMP bill adjourned
Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday, with Andrew Leigh MP (ALP), Ted O'Brien (LNP) and Tim Watts MP (ALP) all delivering speeches. Debate was adjourned in the late afternoon; the House next sits on Monday 27 March.
See also Eli Greenblat, 'BCA's Grant King: effects test will lead to lawsuits' (The Australian, 24 March 2017); Jacob Greber, 'BCA unleashes on Malcolm Turnbull's 'supposed free-market government (AFR, 23 March 2017); Michael Smith, 'BCA's King talks tough as government relations sour' (AFR, 23 March 2017) and John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').
23 March 2017 - Debate to resume on Misuse of Market Power Bill
Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 is set to resume in the House of Representatives today, with Treasurer Scott Morrison set to move the amendment to the bill proposed by the Senate Economics Committee. This amendment can be found on the Bill's homepage and removes the mandatory factors originally provided for in s 46(2).
The proposed amendment also changes the commencement date of the bill from the date of Royal Assent to the date that Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences. That bill has not yet been introduced, but presumably contains the other reforms outlined in the Exposure Draft Legislation released late last year. This change would delay the commencement of the MMP changes but would also overcome the problem associated with the authorisation provisions for misuse of market power not being included in the separate MMP Bill.
See further Emma Koehn, 'Scott Morrison to amend effects test legislation to remove hurdles for proving misuse of market power' (Smart Company, 23 March 2017) and Jacob Greber, 'Morrison to kill off 'lawyer's picnic' in competition effects test' (Australian Financial Review, 22 March 2017) and John Durie, 'Business to lament competition law changes' (The Australian, 23 March 2017).
23 March 2017 - ACCC wins competition advocacy award
The ACCC received an award by the World Bank and International Competition Network 'for its advocacy work in promoting pro-competition measures when governments are privatising public assets'. The award fell under the category 'Levelling the playing field through competitive neutrality or by elevating competition policy to the economic policy agenda'. See media release. See ICN-WBC Winners page.
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. 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
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; a bill was introduced on 1 December 2016 and has (with amendment) passed the House. It is before the Senate.
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 successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)
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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