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Competition law news15 February 2018 - Criminal cartel proceedings commenced

Criminal cartel charges have been laid against The County Care Group Pty Ltd, its Managing Director and a former employee.

The charges against County Care Group represent the first criminal prosecution of an Australian corporation and the second criminal prosecution of a cartel (the first being NYK) under the criminal cartel provisions of the Competition and Consumer Act.

The charges against County Care Group's Managing Director and a former employee represent the first time individuals have been prosecuted under thse provisions.

The charges are listed for mention in the Victorian Magistrates' Court in Mildura on 14 March 2018.

See ACCC, 'Criminal cartel proceedings commenced against Country Care and its managers' (Media Release, 15 February 2018)

See also Misa Han, 'ACCC launches first criminal cartel case against an Australian company' (AFR, 15 February 2018)


Piggy bank7 February 2018 - Productivity Commission issues draft report on Competition in the Australian Financial System

The Productivity Commission has released its draft report on Competition in the Australian Financial System.

The report argues that competition in the financial system 'is without a champion among the existing regulators'. When considering who should promote financial system competition the PC considered two options: (1) the ACCC to have expanded role as proactive competition advocate or (2) that ASIC's focus be expanded to include advancement of competition. Draft recommendation 17.1 states:

'To address gaps in the regulatory architecture related to lack of effective consideration of competitive outcomes in financial markets, an existing regulator must be given a mandate to take the lead on matters related to competition in the financial system. To minimise cost and disruption, this role should be implemented in substantial part through the Council of Financial Regulators (CFR).

There would be no change under this recommendation to the current legislated responsibilities of the regulators. Rather, the Australian Government should include in its Statement of Expectations for all members of the CFR the practice of reviewing, before they are implemented, regulator actions that may have material effects on competition.

The competition-related functions of the designated Council member would include:

  • transparent analysis of competition impacts tabled in advance of measures proposed by regulators
  • testing of the impacts of competition and community outcomes of additional provider integration.'

This is followed by an 'information request', seeking feedback on the merits of each option (ACCC or ASIC as regulator responsible for advancing competition)

Various other draft findings (inculcating that the 'Four Pillars policy is a redundant convention') and recommendations are made in relation to competition in the financial system.

The final report is expected to be completed by 1 July 2018

Plenty of media: Peter Ryan, '"Four pillars" banking policy is "ad hoc" and "redundant", Productivity Commission warns' (ABC News, 7 February 2018), Joanna Mather and James Eyers, 'APRA delivers banks $1b windfall: Productivity Commission' (AFR, 7 February 2018), Jennifer Jennings, 'Productivity Commission call for new competition watchdog' (Daily Telegraph, 7 February 2018), Clancy Yeates, '"Four pillars" policy under fire from Productivity Commission' (The Age, 7 February 2018), Simon Benson, 'Banking's four-pillars policy redundant, claims watchdog' (The Australian, 7 February 2018).


Image of film strip

2 February 2018 - Media mergers and the ACCC's role in merger authorisations

Michael Corrigon and Simon Ellis at Clayton Utz provide some thoughts on the ACCC's new role in merger authorisation and discuss media mergers by reference to the New Zealand High Court's decision in NZME Limited v Fairfax Media Limited [2017] NSHC 3186 (recently appealed) and Australia's new Media Merger Guidelines.

See Michael Corrigan and Simon Ellis, 'What's the big deal? Media mergers and the ACCC's new role in merger authorisations' (Clayton Utz, Knowledge, 1 Feb 2018)


Agreement - shake hands24 January 2018 - Competition Law Symposium

The symposium, Cartels, Optimal Enforcement and Theories in Competition Law, will be held in Brisbane on 27 March 2018. The symposium has been organised by the TC Beirne School of Law at the University of Queensland in memory of the research of former PhD student, Laura Guttuso.

The program, which can be downloaded here, features keynote speakers from around the world.

Various registration options are available. To find out more visit the symposium website.


Corporate handshake16 January 2018 - ACCC merger reviews

The ACCC has initiated a few informal merger reviews to kick of the year.

The first is Cleanaway Waste Management's proposed acquisition of Tox Free Solutions. A market inquiries letter was sent on 11 January and submissions are due 9 Feb, with a provisional announcement date of 29 March 2018.

The second is MYOB's proposed acquisition of Reckon Limited's Practice Management Group; an informal review commenced on 12 January accompanied by a market inquiries letter. Submissions are due by 1 Feb with a provisional announcement date of 22 March 2018. See John Durie, 'ACCC to probe MYOB's Reckon acquisition' (The Australian, 15 January 2018) and Brendon Foye, 'ACCC to investigate MYOB's $180 million acquisition of Reckon' (CRN, 15 January 2018).

Yesterday the ACCC commenced a review of Qube Logistics' completed acquisition of Maritime Container Services Pty Ltd. Qube has provided the ACCC with an undertaking to keep the MCS business separate and independent until at least 14 March 2018. Submissions on a market inquiries letter are due by 1 February. As this is a completed acquisition the ACCC have not provided a provisional announcement date. See John Durie, 'ACCC queries Qube's MCS acquisition' (The Australian, 16 January 2018).


Laundry12 January 2018 - Decision published in ACCC's detergent cartel case

The decision in the ACCC's case against PZ Cussons alleging participation in a laundry detergent cartel was handed down late last year, with Justice Wigney dismissing the ACCC's claim; the reasons for judgment have now been published.

In 2013 the ACCC commenced actions against Colgate, Cussons, Unilever and Woolworths alleging price fixing conduct contrary to s 45 of the Trade Practices Act 1974 as it was at the relevant time. Both Colgate and Woolworths made admissions in 2016 (Unilever was the Immunity applicant) and were ordered to pay penalties totalling $18m and $9m respectively.

Cussons challenged the claims and the hearing commenced 7 June 2016, running over several days. Justice Wigney handed down his decision on 22 December, finding that the ACCC had not discharged its burden of proving, on the balance of probabilities, that the respondent had entered into the claimed arrangement or understanding. The reasons for judgment have now been released and show that Justice Wigney preferred the economic evidence suggesting the conduct resulted from oligopoly behaviour rather than agreement.

View case page for more details.

See also:




Jump from 2017-20189 January 2018 - Criminal cartel cases loom

In an interview with the AFR, ACCC Chairman, Rod Sims, claims 2018 will be a 'big turning point for cartel enforceement', with 'three to four domestic-based criminal cartel actions' expected.

See Patrick Durkin, 'ACCC's criminal cartel cases seek jail time, big fines from companies (AFR, 8 January 2018). See also Glenda Korporaal, 'ACCC to launch criminal cartel cases' (The Australian, 9 January 2018).


19 December 2017 - Supermarket Power in Australia - Public Symposium highlights

A video of highlights from the Melbourne Law School's public symposium, 'Supermarket Power in Australia: Looking Back and Ahead' (27 October 2017) is now available.

The symposium was inspired by a major ARC funded research project being conducted by the University (the Supermarket Power Project) and led by Prof Caron Beaton-Wells.


18 December 2017 - BHP and Esso undertake to separately market gas produced under Gippsland Basin Joint Venture

The ACCC have accepted court enforceable undertakings from BHP Billiton Petroleum (Bass Strait) and Esso Resources Australia to 'separately market their share of gas produced under the Gippsland Basin Joint Venture' from 1 January 2019. 

ACCC Chairman, Rod Sims, said that the 'ACCC was concerned that the joint marketing arrangements were likely to have resulted in a substantial lessening of competition in the market for the supply of gas to buyers in the southern states' and that the ACCC believed 'that competition in this market was negatively affected by the elimination of independent rivalry between BHP and Esso.'

BHP and Esso have, without admission, 'each provided the ACCC with a court enforceable undertaking that requires them to separately market GBJV gas from 1 January 2019 so that buyers will have the benefit of competing and potentially different offers from Esso and BHP in the future.'

See ACCC media release.

View undertakings:

BHP Billiton Petroleum (Bass Strait) Pty Ltd undertaking (18 Dec 2017)

Esso Australia Resources Pty Ltd undertaking (18 Dec 2017)

See also, Matthew Stevens, 'ACCC drives Bass Strait marketing divorce' (AFR, 18 December 2017), 'Victorian gas prices may fall as BHP and Esso split gas sales' (SMH, 18 December 2017), Andrew White, 'Gas deal eases fears over east coast supply' (The Australian, 19 December 2017).


Fuel empty image14 December 2017 - BP to fight ACCC's opposition of proposed acquisition fo Woolworths service stations

In a press release issued by BP following the ACCC announcing its opposition to BP's proposed acquisition of Woolworths service stations, BP Australia President Andy Holmes said:

'We are disappointed by the news today from the ACCC. We remain confident that, with appropriate divestments as offered by BP, this transaction would not substantially lessen competition. In light of this, we are currently consulting with our lawyers to determine our next steps'

See BP media release ('BP to consider ACCC's decision) (14 December 2017).

Media reports suggest that the ACCC's opposition will not be the end of BP's bid for the Woolworths service stations, citing Holmes as saying: 'This deal is very much alive and on foot ... My plan is that we will present our case strongly again ...'


Petrol pumps14 December 2017 - ACCC will oppose BP's proposed acquisition of Woolworths service stations

The ACCC has announced today that it will oppose the proposed acquisition by BP Australia Pty Ltd of Woolworths Limited's network of retail service station sites.

The ACCC considers that the acquisition would be likely to 'substantially lessen competition in the retail supply of fuel', noting that 'BP prices are significantly higher on average than Woolworths prices in the major capital cities'.

See ACCC media release.

See merger register.

For media see, eg, Eli Greenblat, 'ACCC to oppose Woolworths’ sale of service stations to BP' (The Australian, 14 December 2017).


Sawmill - wood14 December 2017 - ACCC will not oppose proposed acquisition of the Jubilee Highway Sawmill

The ACCC has announced it will not oppose OneFortyOne Plantations' proposed acquisition of the Jubilee Highway Sawmill in Mt Gambier.

The ACCC concluded the merger was not likely to substantially lessen competition; in particular, it considered that notwithstanding increased vertical integration, OneFortyOne would 'continue to have incentives to supply sawlogs to other sawmills and to acquire woodchips'.

See ACCC media release.

See merger register.


13 December 2017 - ACCC releases second interim report as part of Gas Inquiry

The ACCC has released its 'second iterim report as part of its inquiry in Australia's wholesale gas supply arrangements. This follows an earlier report released in September.

When releasing the report, ACCC Chair, Rod Sims, observed that:

'Despite increased supply providing important short-term improvements in conditions, the market is still not operating as well as it could. Prices remain higher than they would be in a well-functioning and competitive market'.

View ACCC press release: 'Some improvements in gas market, but prices still too high' (12 December 2017).

View Report: ACCC Gas Inquiry 2017-20 Interim Report (13 December 2017).

See also Gas Inquiry 2017-2020 website.



4 December 2017 - ACCC commences digital platform inquiry

As part of the deal to get the media law reforms through through the Senate in September, the government agreed to an inquiry into Google and Facebook and other digital platforms.

The Government has now directed the ACCC to commence this inquiry, which will look at the effect 'digital search engines, social media platforms and other digital content aggregation platforms are having on competition in media and advertising services markets'.

An issues paper will be distributed early in 2018. A preliminary report is expected in twelve months with a final report due six months later, in June 2019.

See my report page for further details, including links to media surrounding the inquiry. See also:

ACCC media release

Digital Inquiry page (including terms of reference)


Shopping mall4 December 2017 - Grattan Report: Competition in Australia: Too little of a good thing?

The Grattan Institute has released a new report - Competition in Australia: Too little of a good thing?

The press release accompanying the report notes:

'The widely held belief that powerful firms control the Australian economy is a myth.

The market shares of large firms in concentrated sectors are not much higher in Australia than in other countries, and they have they not grown much lately.

But where a few firms dominate markets, they earn higher profits.'

The report also observes that governments and regulators could do more to ensure consumers get a good deal - and that constraints on competition in retail pharmacy be removed.

View report (associated chart data can also be separately downloaded).

Listen to associated podcast.

The release of the report follows a Grattan Institute Policy Pitch event in November, featuring Prof Caron Beaton-Wells and Dr Stephen King, with Jim Minifie as moderator. That event can be viewed here:

Vimeo page: Competition in the Australian economy: too little of a good thing? – Melbourne from Grattan Institute on Vimeo.


Image of horse race1 December 2017 - ACCC will not appeal Tabcorp merger authorisation

The ACCC has announced it will not appeal the Tribunal's decision to authorise the Tabcorp/Tatts merger, observing that although it takes a different view from the Tribunal about public benefits/detriments in this case, it does 'not consider there is any error of law that needs to be corrected'.

See ACCC, 'ACCC won't seek review of Tabcorp-Tatts determination' (1 December 2017)

The public reasons for decision are also available from the Federal Court site (at just over 350 pages they're about 100 pages longer than the original authorisation): Applications by Tabcorp Holdings Limited [2017] ACompT 5


30 November 2017 - Sims on populism and the CCA

ACCC Chairman, Rod Sims, delivered a speech at the RBB Economics conference today, explaining how recent changes to the Act, 'help protect the competitive process, and why 2018 will be a great year for competition'.

In his speech Sims observes that under Australian competition law 'fairness is not, and never will be, a theory of harm', but that despite this, the CCA does 'more for actual and perceived fairness than any other Act'.

Sims also notes that the ACCC currently has five referrals to the CDPP for alleged criminal cartel conduct, which will be heard (either criminally if the CDPP decides to prosecute, or civilly) by the end of 2018. Related to this, Sim highlights the need to impose fines sufficient to deter anti-competitive conduct.



Smiley face30 November 2017 - New CCA consolidation

The latest consolidation of the Competition and Consumer Act was published today and this time it does include the Harper Reforms.


CCA 2010, Federal Register of Legislation (Compilation No 112)


Cow30 November 2017 - Dairy Inquiry Interim Report released

The ACCC has issued its interim report into the dairy industry, making several recommendations, including consideration of a a mandatory code of conduct for the industry 'to address problems caused by bargaining power imbalances between processors and farmers'.

See media release. View Interim Report. View main inquiry page.

See also, eg, John Durie, 'Rod Sims puts dairy players on notice over lack of competition' (The Australian, 30 November 2017) and Simone Smith and Peter Hemphill, 'Australian Competition and Consumer Commission Dairy Inquiry interim report released' (The Weekly Times, 30 November 2017).


Steel balls30 November 2017 - ACCC concerned about Moly-Cop's proposed acquisition of Donhad

The ACCC has issued a Statement of Issues in relation to Moly-Cop's proposed acquisition of Donhad. The ACCC's preliminary concerns centre on the extent of competition that currently exists between the two companies and it is investigating 'the extent to which customers would be able to switch to using imports in response to any attempt to increase prices'.

View media release. View merger register.


Stationary - pens30 November 2017 - ACCC won't oppose proposed acquisition of OfficeMax by Platinum Equity

The ACCC has announced it will not oppose the proposed acquisition of OfficeMax Australia by Platinum Equity. Although the ACCC considers the merger will lessen competition it does not believe competition will be 'substantially' lessened, describing the decision as 'finely balanced'.

See ACCC media release. See merger register.


Amazon phone shopping30 November 2017 - ACCC warns against anti-competitive conduct in response to Amazon entry

The Australian Financial Review reports on the ACCC's concerns about potential anti-competitive conduct from retailers designed to limit the impact of Amazon's entry.

See Sue Mitchell, 'ACCC warns against anti-competitive behaviour as Amazon looms' (AFR, 29 November 2017)


Jetstar plane24 November 2017 - ACCC proposes to re-authorise coordination between Jetstar's Asian brands

The ACCC has issued a draft determination proposing to 're-authorise, for a further five years, coordination involving three Asian based Jetstar branded joint ventures: Jetstar Asia, Jetstar Pacific, and Jetstar Japan.'

ACCC commissioner, Roger Featherston, said that the ACCC considers that the coordination, which allows Jetstar branded airlines to operate as a single fully integrated organisation in relation to things like scheduling, sales, marketing and pricing, is likely to result in public benefits and is likely to result in 'little, if any' detriment due to a lessening of competition.

The ACCC has invited submissions on the draft determination (no deadline is given).

See authorisation register. See media release.


Image of truck23 November 2017 - TWU authorisations for collective bargaining with Toll

The ACCC has granted authorisations to the SA/NT Branch of the Transport Workers Union of Australia 'to allow owner drivers contracted to Toll Transport Pty Ltd (Toll) in metropolitan Adelaide, and in the Whyalla region, to engage in voluntary collective bargaining with Toll until 15 December 2022.'

This follows a draft determination in September in which the ACCC announced the proposed to authorise the collective bargaining conduct.

Details about the two separate authorisations can be found on the ACCC's public register

Apparently it wasn't exciting enough for a media release, so you can find the announcement on the ACCC's 'Updates' page.



Busy23 November 2017 - ACCC has busy week ahead

In his regular column, The Australian's John Durie highlights the busy week ahead for the ACCC, including:

See John Durie, 'Busy week ahead for consumer watchdog ACCC' (The Australian, 23 November 2017)


Authorised22 November 2017 - ACCC authorises establishment of joint energy purchasing group

The ACCC will allow businesses in the Eastern Energy Buying Group to establish a joint energy purchasing group and run joint tender processes for electricity and gas for 11 years

View ACCC media release.

View authorisation register.


Red meat22 November 2017 - Information the key to read meat competition

ACCC Commissioner, Mick Keogh, spoke to the MLA Red Meat Industry Forum in Alice Springs today. He highlighted concerns about transparency and future competitiveness of the cattle industry and referenced the ACCC's Cattle and Beef Market Study which recommended improving market information in order to improve competitiveness.

View ACCC media release.

View speech.


Image of horse race17 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)


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