Australian Competition Law | Exposure draft Bill

Treasury is conducting a consultation on the Exposure Draft Bill relating to the recommendations made by the Harper Panel in 2015. The Exposure Draft bill was released on 5 September 2016 and consultation closes on 30 September 2016 (note consultation was extended until 28 October for all aspects of the bill other than those relating to misuse of market power).

Note: the content the Exposure Draft Bill (with some modification) has been introduced in the form of the following two bills:

Competition and Consumer Amendment (Misuse of Market Power) Bill 2016

Competition and Consumer Amendment (Competition Policy Review) Bill 2017

I have prepared a mark-up (both clean and with mark-up showing) of the proposed amendments:

The Exposure Draft Bill is broken down into the following schedules:

Definition of competition
Cartels
Price signalling and concerted practices
Exclusionary provisions
Covenants affecting competition
Secondary boycotts
Misuse of market power
Third line forcing
Resale price maintenance
Authorisations, notifications and class exemptions
Admissions of fact
Power to obtain information, documents and evidence
Access to services

Detail on each forthcoming - further detail about how the proposed changes align with the Harper recommendations can be found on the report/consultation page.

The exposure draft proposes repealing the current provision and replacing it with the following:

(1) A corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in that or any other market.

(2) Without limiting the matters to which regard may be had in determining for the purposes of subsection (1) whether conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market, regard must be had to the extent to which:

(a) the conduct has the purpose of, or has or would be likely to have the effect of, increasing competition in that market, including by enhancing efficiency, innovation, product quality or price competiveness in that market; and

(b) the conduct has the purpose of, or has or would be likely to have the effect of, lessening competition in that market, including by preventing, restricting, or deterring the potential for competitive conduct or new entry into that market.

...

Consultation on the Bill will take place until 30 September 2016 for proposed changes to misuse of market power laws and until 28 October 2016 for other aspects of the bill.

See report/consultation page.

Scott Morrison MP, 'Release of Exposure Draft for Consultation: Strengthening Australia’s Competition Law' (5 September 2016)

Baker & McKenzie, 'New laws to introduce "effects test" for misuse of market power' (Client Alert, 6 September 2016)

Barton/Deakin, 'Competition Law Exposure Draft release' (5 September 2016) (PDF)

Clayton Utz, 'Harper Bill and related competition law reforms released for consultation' (5 September 2016)

Clifford Chance, 'Australian Government releases exposure draft legislation amending Australia's Competition Laws and provides businesses the opportunity to make their final comments and suggestions' (September 2016)

FTI Consulting, 'Federal Government’s Exposure Draft of Competition and Consumer Amendment (Competition Policy Review) Bill 2016' (6 September 2016)

Gilbert+Tobin, 'Rethinking the Competition and Consumer Act: Exposure draft legislation lays groundwork for the most significant change in a generation' (September 2016)

HopgoodGanim, 'Treasurer's full bench press on misuse of market power' (6 September 2016)

King&Wood Mallesons, 'Draft Harper legislation to redefine competition law in Australia' (5 Sept 2016)

King&Wood Mallesons, 'Reforming the cartel provisions post-Harper – a litigation and enforcement perspective' (5 September 2016)

Minter Ellison: 'Exposure draft of Harper Legislation released' (Australian Competitive Edge) (5 Sept 2016) (PDF)