Newspapers2008

 

11 December 2008 - Qantas fined $20m for price fixing
Qantas has been ordered to pay $20m in pecuniary penalties for price fixing in relation to air cargo fuel surcharges between 2002 and 2006. The amount of the penalty takes into account the "high cooperation" by Qantas during the ACCC's investigation. Qantas were also ordered to pay $200,000 toward the costs of the ACCC. Reasons will be published by Justice Lindgren in January. See ACCC press release.

4 December 2008 - Cartel bill referred to Senate Committee
The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 has been referred to the Senate Standing Committee on Economics for report by 20 February 2009. Submissions to the Committee are due on 20 January 2009. View the Inquiry home page.

4 December 2008 - Collective Bargaining for wagering and racing broadcasts
The ACCC has not objected to a collective bargaining notice given by ClubsNSW to negotiate with Tabcorp and Sky Channel on behalf ot its 332 members for purposes of determining 'terms and conditions, including fees, for the supply of wagering and racing broadcast services'. See Press Release

3 December 2008 - Skins penalised $120 000 for RPM
Skins Compression Garments Pty Ltd (Skins), which supplies "Skins" sports compression garments, has been penalised $120,000 for engaging in resale price maintenance contrary to s 48 of the TPA. The RPM consisted of one of its agents inducing an Adelaide retailer not to advertise Skins products at a discount and, on other occassions, attempting to induce that retailer not to advertise Skins products at a discount. See further Press Release. See also news item of 10 September.

3 December 2008 - EU Publishes Guidance on abuse of dominance (Art 82)
The EU has published the much anticipated guidance on Article 82, emphasising a focus on protecting consumers, and of protecting competition and not individual competitors, and providing for an 'effects-based' approach to assessing exclusionary conduct. The guidance can be viewed here.

3 December 2008 - Criminal Cartel laws introduced
Chris Bowen MP today introduced into Parliament the long anticipated criminal cartel laws which will, if passed, see cartel participants facing jail terms of up to 10 year. See Press Release. The Bill and EM can be viewed here.

1 December 2008 - ACCC and CDPP released revised MOU for cartel matters
The ACCC and CDPP have released a revised MOU for the investigationa nd prosecution of criminal cartel matters (see ACCC Press Release or CDPP Press Release). The CDPP has also released an Annexure to the Prosecution Policy of the Commonwealth, outlining its policy in considering immunity applications for persons implicated in a serious cartel offence; they will adopt the same criteria as the ACCC in determining applications. The ACCC also released revised immunity guidelines which will come into operation if and when the criminal cartel laws come into force. The revised guidelines, CDPP annexure and MOU can all be viewed here.

26 November 2008 - NZ Merger Guidelines
The NZ Commerce Commission has issued Mergers and Acquisitions Clearance Process Guidelines. View Guidelines here. View the NZCC Media Release.

26 November 2008 - UK Merger Remedy Guidelines
The Commerce Commission (UK) has published new Merger Remedy Guidelines (CC8)

25 November 2008 - BHP drops takeover bid for Rio Tinto
BHP has dropped its bid to takeover Rio Tinto. BHP had earlier received clearance from the ACCC and US DOJ to proceed with the merger. See Rio Tinto Offers No Longer In The Best Interests Of BHP Billiton Shareholders

22 November 2008 - Misuse of market power amendments come into operation
The Trade Practices Legislation Amendment Act 2008 (Cth) was assented to on 21 November and came into operation on 22 November. You can view the changes to s 46 on the misuse of market power page.

21 November 2008 - New Merger Guidelines Released
Today the Chairman of the ACCC released the final version fo the Guidelines which now officially replace the 1999 Guidelines. Click here for more.

20 November 2008 - ACCC proposes to deny authorisation for cooperation agreement between Air New Zealand and Air Canada
The ACCC believes the agreement (which would include the joint promotion and selling of direct flights between Sydney and Vancouver and Auckland and Vancouver) would reduce competition for flights between Australia and Canada; Air NZ and Air Canada are currently two of four main carriers on that route. The agreement would also involve the pooling and sharing of revenue from specified flights and harmonisation of sales policies (including setting specific fares). The ACCC does not consider there is sufficient public benefit to outweight this anti-competitive detriment. See ACCC Press Release and the authorisation application and draft determination.

10 November 2008 - (Amended) Trade Practices Legislation Amendment Bill passes through Senate
The Trade Practices Legislatin Amendment Bill 2008 - originally containing significant amendments to the predatory pricing regime which were defeated in the Senate on 16 September - has now passed through the Senate in revised form. The bill is currently waiting assent. For more on this bill click here.

28 October 2008 - New air cartel case launched by ACCC
The ACCC has instituted separate proceedings against Qantas and British Airways seeking penalties for alleged price fixing. It is alleged the conduct, relating to fuel surcharges applied to the carriage of air cargo, took place between 2002 and early 2006.  Both airlines have made admissions under the ACCC's cooperation policy. Other airlines are also being investigated. A directions hearing is scheduled for 30 October 2008 before Justice Jacobson. Both parties have agreed with the ACCC as to recommended penalties (these have not yet been disclosed). See ACCC Press Release.

27 October 2008 - New Criminal Cartel Bill released
Chris Bowen MP released the Exposure Draft Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. The bill provides for up to 10 years imprisonment from cartel conduct and omits the 'dishonesty' requirement that was included in the intial exposure draft bill to distinguish 'serious' from other cartel conduct. Click here for the press release.

1 October 2008 - BHP takeover of Rio given green light by ACCC
The ACCC has raised no objections to BHP's proposed hostile takeover of Rio Tinto. See ACCC Press Release. Full reasons are available from the ACCC's Public Assessment page.

16 September 2008 - Predatory Pricing changes defeated in Senate
Proposed changes to s 46(1AA) which would bring about a more sensible test requiring market power and a taking advantage of that power before the provision would be contravened (rather than the existing market share only test) have been defeated in the senate. The Trade Practices Legislation Amendment Bill 2008 will now return to the House and it is likely (and unfortunate) that we will see substantial amendments made to ensure passage through the upper house.

15 September 2008 - New s 46 proceedings against Cement Australia
The ACCC has launched a s 46 action against Cement Australia and Pozzolanic Enterprises (related companies) alleging two breaches of s 46 relating to a contract to acquire flyash (a by-product of burning black coal which can be used as a partial substitute for cement) from Millmerran Power Station. It is alleged that the companies had no need for the flyash and took advantage of their market power 'for the purpsoe of preventing entry and competitive conduct in the relevant concrete-grade flyash market'. A directions hearing has been set for 31 October. Read ACCC Press Release.

2 September 2008 - RPM by Oobi
The Federal Court has ordered Oobi Baby to pay penalties of $40,000 after they admitted to engaging in resale price maintenance in respect of infant toy and clothing products. In particular, it made known to internet-based retailers it would not supply them with products unless they agreed not to discount and, in some cases, did refuse to supply products because they had been discounted. It was accepted that the director and owner of Oobi was unaware that her actions were illegal. View the ACCC Press Release.

1 September 2008 - Creeping acqusitions
The Government has released its Discussion Paper on Creeping Acquisitions which is open for comment until 10 October - there are plenty of controversial suggestions for reform here.

27 August 2008 - Senate Economics Committee Report on Trade Practices legislation Amendment Bill 2008 released
This report has now been released and the Government is unlikely to be thrilled with it - even its majority Senators recommend that 'the government reconsider the implications of changing 'market share' to 'market power' in section 46(1AA) but supported the other provisions of the bill relating to s 46 (defining take advantage and the recoupment provision) and the other amendments (including extending jurisdiction to the Federal Magistrates Court to hear s 46 matters - a mind-boggling prospect!). View the Report.

27 August 2008 - Senate Economics Committee Report on Trade Practices (Creeping Acquisitions) Amendment Bill 2007 [2008] released
This report has now been released. View the Report.

25 August 2008 - Plan to block amendment to Birdsville Amendment
Opposition plans to block the passage of the Trade Practices Legislation Amendment Bill 2008 through the Senate.

22 August 2008 - BHP/Rio Tinto
ACCC has called for comment on the proposed acquisition of Rio Tinto by BHP and has released a Statement of Issues. The proposed date for the ACCC announcing their findings is 1 October 2008.

13 August 2008 - St George-Westpac merger approved by ACCC
The ACCC will not challenge a merger between St George and Westpac (see Press Release) concluding it is unlikely to substantially lessen competition, despite raising some competition concerns in their Statement of Issues.

13 August 2008 - ACCC alleges White Top Taxi's (Shepparton) and its directors and drivers engaged in anti-competitive conduct
In Federal Court action instituted today, the ACCC alleges the company and its directors and one of its drivers ‘made and gave effect to a series of anti-competitive rostering arrangements in contravention of section 45(2) of the Competition Code of Victoria and sought to induce other taxi drivers and operators to abide by the rostering arrangements.’ They are seeking declarations, injunctions, compliance training and pecuniary penalties.. See Press Release.

13 August 2008 - Plastic Bag Levy trial authorised
The ACCC granted final authorisation to the Australian National retailers Association for a four week plastic bag levy (of 10c) trial (see Press Release). The trial will involve Coles, Safeway and IGA in Narre Warren, Wangaratta and Warrnambool. See Authorisation register for more details, including full decision.

13 August 2008 - Medibank acquisition
The ACCC will not challenge Medibank’s proposed acquisition of the Australian Health Management Group Ltd (see Press Release) concluding that there are ‘likely to be alternative providers of health services currently operating or capable of expanding their operations to form an alternative to the merged entity for small to medium PHI providers.’

11 August 2008 - ACCC v Baxter Healthcare
The full Federal Court has just handed down its decision in ACCC v Baxter Healthcare (available at AustLII). The majority concluded there was a breach of s 46 and s 47. This case was initially instigated by the ACCC in 2002 but failed primarily on grounds of Crown immunity - the High Court overturned the Crown Immunity finding and sent the matter back to the full Federal Court. The matter has now been stood over so that parties can make submissions on appropriate relief. See also ACCC Press Release dated 15 August.

5 August 2008 - Grocery Report Released
The Government released the ACCC's grocery report today. See Government Press Release and Preliminary Response. See full report. See grocery report page for more details.

31 July 2008 - Government Receives ACCC's Grocery Report. The Report will be released to the public next week. See Press Release.

30 July 2008 - Justice French named Australia's next Chief Justice of the High Court. See Press Conference Trasncript.

23 July 2008 - ACCC releases Statement of Issues in proposed St George-Westpac merger
The ACCC has raised some competition concerns in relation to the wealth management operations of these parties about the merger and is now calling for comment. ACCC's final view on the merger expected by 20 August. See Press Release.

23 July 2008 - ACCC alleges RPM by Oobi Baby Pty Ltd
ACCC alleges that Oobi Bay engaged in various forms of RPM in relation to its internet-based retailers. See Press Release.

22 July 2008 - Justice French appointed President Australian Competition Tribunal
Justice French will replace Justice Alan Goldberg at the expiration of his term on 29 July 2008. See Press Release. [one day into his term (on 30 July) Justice French was appointed Australia's next Chief Justice of the High Court]

17 July 2008 - ACCC proposes to authorise plastic bag levy trial
ACCC has issued draft determination proposing to trail plastic bag levy collectively imposed by 'Coles Supermarkets, Woolworths Supermarkets and IGA retailers in Narre Warren, Wangaratta and Warrnambool in Victoria'. Submissions in relation to the determination are due by 28 July. Click here for ACCC press release and draft determination.

17 July 2008 - Collective bargaining authorisation likely for AMA in NSW
The ACCC issued a 'draft determination proposing to authorise a collective bargaining arrangement put forward by the Australian Medical Association (NSW).' The AMA NSW wishes to collectively negotiate the terms of contracts 'for visiting medical officers in the NSW public hospital system' with NSW Health and public health organisations. The ACCC believes the proposal may result in a public benefit with limited risk of public detriment. Click here for ACCC press release and draft determination.

17 July 2008 - Proposed authorisation - joint tender for waste and recyclables
ACCC issued a draft determination 'proposing to grant authorisation to the Rockhampton, Gladstone, Central Highlands and Isaac Regional Councils to allow them to conduct a joint tender for provision of waste, recyclables and ancillary waste services'. It is hoped the joint tender will 'provide better services and lower costs to rural residents' Click here for ACCC press release

11 July 2008 - ACCC Appointments
Minister for Competition Policy and Consumer Affairs, Chris Bowen, announces that Graeme Samuel will be recommended for appointment as Chairman of the ACCC for a further term of 3 years. In addition, Peter Kell will be appointed Deputy Chairperson for five years to replace outgoing Deputy Chairperson, Ms Louise Sylvan. A second Depty Chairperson, Professor Michael Schaper, has also been appoitned to the ACCC for a five year term. Professor Schaper will be responsible for small business. Click here for Treasury press release.

11 July 2008 - Telecommunications Access Dispute
ACCC received notification of telecommunications access dispute from NEC Australia relating to Telstra's supply of the LIne Sharing Service. ACCC has commenced arbitration process. See ACCC press release.

3 July 2008 - eBay/PayPal
eBay withdraws plans to force sellers to use PayPal exclusively (see ACCC notification register for full details of the proposal and eBay press release for details of the withdrawal). This follows a draft notice by the ACCC indicating they would revoke eBay's exclusive dealing notification, hundreds of public submissions, threats by competitors to bring private actions and general unhappiness among sellers. eBay sellers are still required (and have been since 21 May) to offer PayPal as a method of payment, but they may also offer other payment options.

26 June 2008 - ACCC refuses clearance of Woolworths takeover of Karabar Supabarn supermarket
The first time the ACCC has blocked an acquisition by Woolworths or Safeway in six years. Click here for the ACCC's reasons

New Predatory Pricing Bill introduced (26 June 2008)
On 26 June 2008 the government introduced the Trade Practices Legislation Amendment Bill 2008. Chris Bowen, Minister for Competition Policy and Consumer Affairs, claimed it was the biggest reform to the Act in 22 years. The amendments include modifying s 46 (particularly in relation to predatory pricing but also to 'clarify' the meaning of 'taking advantage') and to extend the powers of the ACCC under s 155. Click here for more details and links to the legislation and EM

 

January 2008
Exposure Draft Bill released - the new cartel provisions!

 

2007

 

10 December - Criminal penalties on the way
Criminal penalties for certain cartels (including 5 year jail terms) will be introduced in the first half of next year according to the Minister for Competition Policy and Consumer Affairs (Chris Bowen); it appears they may, however, be limited to certain industries (petrol, grocery etc ... details are hazy).

5 December - Amcor Immunity unconditional
Amcor's 'conditional' immunity (from ACCC-initiated action) for whistleblowing on the cardboard box cartel with Visy became 'unconditional' today.  Of course, they are still defending a $300 civil class action from customers.

4 December - Samuel calls for quick action on cartels & Chris Bowen
See Herald Sun article, ACCC tells government to get tough quickly on cartels, discussing speech by Samuel at the Chartered Secretaries Australia conference on 3 December urging quick action to criminalise cartels and noting that the Rudd Government has indicated in would introduce legislation within 12 months.

Another interesting news items on this topic appeared in the Sydney Morning Herald etc (Labor eyes time for cartel crime) discussing moves by Chris Bowen to introduce criminal penalties shortly

Another cartel news item by Paul Kerin calls on reform of the AFL's anti-competitive rules, with a focu on their draft rules - Busting the AFL cartel a worthy goal

28 November - Qantas fined for price fixing
Qantas has agreed to pay a criminal fine of $70million (US$61m) for price fixing in relation to cargo-carriage between January 2000 and February 2006. The charges were filed in the US District Court in the District of Columbia in Washington DC today. Qantas pleaded guilty and co-operated and got off more lightly than two of its co-conspirators, British Airways and Korean Airlines, who were each fined US$300m. Qantas now face a class action from its customers. See the USDOJ Press Release.

28 November - Penalties of $190,000 on TEAC and Sales Manager for RPM
The Federal Court imposed $190k penalties against TEAC ($175k) and it's National Sales Manager ($15k) for RPM today. TEAC had endeavoured to stop an independent retailer advertising prices below those specified by TEAC. TEAC agreed to the penalty and cooperated with the ACCC at an early stage, for which they received a discount in penalties.

28 November - Statement of Issues on propsed acquisition of Borders by A&R
ACCC has released statement of issues which is available here.

26 November - Victorian Abalone fishermen fined for price fixing
Penalties of almost $1m were imposed on companies and individuals involved in this cartel regarding pricing of abalone harvested in Victoria. Click here for ACCC media release. Click here for case at AustLII.

23 November - New Zealand goes after Pratt
The NZ Commerce Commission have commenced proceedings against Visy/Pratt for price fixing. See Commerce Commission Media release here

2 November – Visy fined $36 million
No big surprises in the Federal Court this morning; Justice Heerey handed down his judgment in the Visy cartel case and accepted the penalties agreed by the parties ($36m).  He did, however, made clear that he considered the case the worst cartel case ever brought before the Court.  The judgment is available here: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1617.html

31 October – ACCC will oppose Pact Group acquisition of Brickwood Holdings
Pact Group has been denied informal clearance following a market review by the ACCC which resulted in them forming the view that the proposed acquisition will SLC competition ‘for the manufacture and supply of PET bottles’ in Qld, NSW and Vic.  Visy and Brickwood are the biggest suppliers of PET bottles (used predominantly by large beverage suppliers) and the ACCC was concerned about the ‘commercial and family relationships between Pact Group and Visy’ and the potential impact this would have on competition between Visy and Pact Group post-acquisition.  While there are other ‘smaller’ PET bottle suppliers, they are unable to supply large scale orders and would not impose effective competitive restraint on the merged entity and Visy.  ACCC also noted significant barriers to entry for the supply of ‘large scale manufacture and supply of PET bottles’.

30 October – ACCC not to intervene in Google acquisition of DoubleClick
The ACCC considered the proposed merger unlikely to SLC in an Australian market, noting in particular that the corporations were not in close competition in the provision of ad services and that there were other competitors likely to constrained the merged entity.

29 October – Cycling company guilty of RPM
Bike importer, Netti Atom, and its general manager, were fined a total of $121,250 for RPM in relation to the distribution of its bicycle products.

26 October – Visy CEO quits
Visy CEO, Harry Debney, resigned yesterday following the recent price fixing admissions and accepted responsibility for his breaches (for which he is expected to face a fine of $1.5m – which is also expected to be paid for by Visy)

18 October – Family First Price Fixing Plan
Family First releases plan to make price fixing a criminal offence with jail terms of up to 10 years by introducing legislation when Parliament next sits (http://www.stevefielding.com.au/html/media/SF210_Oct182007.pdf).

17 October – Labor calls for criminal penalties for price fixing
Rudd re-iterated Labor’s policy in relation to price fixing, stating that Labor has ‘long advocated criminalisation’.

17 October – ACCC opposes Kmart/Woolworths Merger
The ACCC has indicated it would oppose any attempt by Woolworths to acquire Kmart and Officeworks.  While they would not oppose an acquisition of Officeworks by itself (because of limited competitive overlap), the proposal to also acquire Kmart would, in the opinion of the ACCC, substantially lessen competition.

16 October – Federal Court for Visy - $36m fine proposed
The Visy settlement came before the Federal Court today.  The parties (ACCC/Visy) have agreed to penalties of $36m for Visy.  Pratt will escape a personal penalty (based in part on the fact that he will be bankrolling the corporate fine but the CEO and former general manager are expected to face fines of $1.5m and $500,000 respectively.  Justice Heerey can accept or reject the agreed penalties and has reserved his decision in this respect.

12 October – No collective bargaining for Dr’s
The ACCC has lodged a draft objection to the collective bargaining notification lodged by AMA Victoria to negotiate on behalf of certain Visiting Medical Officers at LaTrobe Regional hospital.  Negotiation would include fees.  The ACCC has expressed concern that, as the notification covered 39 doctors and they represented a significant proportion of the specialists providing Visiting services the hospital, this could have an impact on competition and that there was only a marginal public interest justification for the arrangement.

8 October – Pratt/Visy admit price fixing
Richard Pratt has admitted illegal cartel activity with Amcor in relation to the market for cardboard boxes.  It is expected penalties (not to mention private damages claims) in the order of $30 will follow for Visy; Amcor has previously received ACCC immunity for its cooperation but is being sued in a class action for damages – the same can be expected for Visy.

27 September – ACCC allows collective licencing for rights in sound recordings
The ACCC has re-authorised the Phonographic Performance Company of Australia’s (PPCA) collective licencing arrangements for public performance or broadcast of sound recordings and music videos.  Licensors include Sony BMG, EMI, Universal and Warner.  This authorisation is subject to some conditions which the ACCC considers necessary to ensure a ‘net public benefit’ – as required for authorisation.  The public benefit is said to include cost savings in administration, monitoring and negotiation – both for copyright holders and users – and that it would facilitate compliance with copyright laws.  On the flip-side, it removes the competition that would otherwise exist if copyright owners competed to licence music rights and may give PPCA market power because of limited alternatives open to copyright holders.  The conditions imposed by the ACCC include requiring PPCA to make public a list of sound recordings distributed and the fees attached, and recordings it did not distribute licence fees for, which could assist users in determining whether to deal with individual copyright holders or the PPCA and provide greater transparency about the blanket licences.  Other conditions include requiring PPCA to include alternative dispute resolution procedures in its complaints handling policy, requiring record companies to develop guidelines setting out the circumstances in which they (individually) would consider entering into direct licences and providing written notice to licencees of proposed fee increases and other material changes to the licences.

24 September – Bill receives assent
The Trade Practices Legislation Amendment Bill (No 1) 2007 received assent today – it enters into force the day after assent (25 Sept) so the modified s 46 plus the new predatory pricing provisions will now be law.

19 September – Bill passes House
Just before 6pm today the Trade Practices Legislation Amendment Bill (No 1) 2007, with the Senate predatory pricing amendments, passed through the House.  It will now become law one day after receiving Royal Assent.  This represents the most radical change to s 46 since 1974; and has some potentially serious flaws.

18 September – Bill passes Senate
The Trade Practices Legislation Amendment Bill (No 1) 2007 passed through the Senate today with the predatory pricing amendments.

18 September – Microsoft v the EU
Microsoft has lost its EU appeal against a decision that it has abused its monopoly power (the EU's equivalent to our s 46 ... just a tad more effective) and fined nearly half a billion Euro's - plus costs (largest some ever in EU history). The conduct involved a bundling of its media software player with its Windows product said to be designed to lock out competition in the market for media players. It also involved the use of Windows to lock out competition in the market for workgroup servers. Microsoft has previously faced similar adverse judgments in the US. I will try to provide more details shortly

17 September – Predatory Pricing in the Senate
The amendment to the amendment bill was formally introduced into the Senate today.

10 September – ACCC alleges RPM against SKINS
The ACCC has instituted proceedings in the Federal Court against Skins Compression Garments Pty Ltd alleging, amongst other things, that Skins engaged in RPM by inducing and attempting to induce a sporting retailer in Melbourne not to advertise a 20% discount off the RRP of the goods and that Skins withheld supply to the retailer because they did advertise the 20% discount.

30 August – ACCC authorises ‘Casual Mall Licensing Code of Practice’
The Code places restrictions on when a ‘shopping centre proprietor can grant a casual mall license to a competitor of an existing tenant’.  The ACCC considered the restrictions minimal (relating only to competing premises opposite to or adjacent to an existing tenant) and then only in limited circumstances.  The ACCC also considered a public benefit would result from the code by ‘balancing the reasonable and consistent treatment of permanent retail tenants with the introduction of casual mall licences’ which was, amongst other things, better for business certainty.

30 August – ACCC High Court victory on government immunity
The ACCC has won a High Court case, successfully arguing that private-sector companies are not immune from competition policy when dealing with government departments (note that government departments carrying on business are not immune from competition policy, but if not carrying on a business they are).  The case involved Baxter Healthcare and arose from a Full Federal Court decision that ‘if the State health purchasing authorities with which Baxter was dealing were entitled to Crown immunity, Baxter was entitled to “derivative” Crown immunity’ and was protected from ACCC proceedings (ACCC News Release 9 Feb).  Baxter was alleged to have engaged in misuse of market power and exclusive dealing and at first instance Justice Allsop indicated he would have found them guilty of this conduct absent the immunity.  The case now returns to the Federal Court … it will be an interesting one to watch …

24 August – ACCC brings price-fixing action against stevedores
The ACCC has instituted proceedings against former Patricks companies and senior executives alleging contraventions of s 45, including price fixing.  The alleged agreements involved acquiring and sharing various stevedoring facilities.

24 August – ACCC allows citris growers to collectively bargain
Last month three citrus growers lodged the first collective bargaining notification under new notification provisions which came into effect 1 January 2007. On Friday the ACCC indicated that it would not object to the notification and protection from prohibition begins tomorrow (28 August). On 20 August the Australian Newsagents Federation lodged the second collective bargaining notification, proposing to negotiate contracts on behalf of its members in WA with publisher, Western Australian Newspaper.  The ACCC subsequently indicated it would not object to the notification

21 August – ACCC brings price-fixing action against ANZ
The ACCC has instituted proceedings in the Federal Court against ANZ alleging engaged in unlawful price fixing.  According to today’s ACCC Press Release: Mortgage Refunds was a mortgage broker which refunded its customers a part of the commission it received from lending institutions. The ACCC alleges that the ANZ Bank sought to reach an agreement with Mortgage Refunds to limit its refunds to customers as a condition of it continuing to deal with the bank. The ACCC seeks a declaration that ANZ engaged in price fixing in contravention of the TPA, an injunction restraining ANZ entering into similar arrangements and penalties for the alleged contravention.

21 August – Petrol Inquiry
 The public inquiry into petrol prices opened today.  Michael Delaney, CEO of Motor Traders Association, gave evidence that he believed Shell and Caltex were working with supermarket partners Coles and Woolworths to force BP and Mobil out of the market.  Note that these arrangements would (arguably – if the parties were not related) constituted third line forcing absent notification (we’ll discuss this soon).

15 August – Merger knocked back by ACCC
It’s not often a merger is knocked back by the ACCC so it’s noteworthy when it is.  PMP and McPherson’s book printing businesses proposed a joint venture (involving share acquisitions between the companies which brought it within the merger provisions of the TPA) to operate a combined book printing business.  Using its informal merger clearance process the ACCC knocked back the merger (this does not prevent the parties merging (or trying to) – but if they choose to merge they can be pretty confident the ACCC will bring an action challenging it) out of concern it would substantially lessen competition ‘for the supply of mono (black and white) offset book printing.’

15 August – Trade Practices Amendment (Small Business Protection) Bill 2007
The Trade Practices Amendment (Small Business Protection) Bill 2007 was introduced into the House by Peter Costello today.  If passed, the bill will permit the ACCC to take action on behalf of person who have suffered, or are likely to suffer, loss as a result of a secondary boycott (this is not the same as simply bringing an action against the offending party (which they can do) but bringing representative action to recover loss on behalf of those who have suffered). The ACCC can already do this in relation to the other forms of anti-competitive conduct we discuss in this unit.   We are not studying secondary boycotts as part of the unit, so you are not required to be familiar with this bill - but it's useful to have a general idea of what it's about (it’s politically divisive legislation given that secondary boycotts crop up primarily in relation to industrial disputes – some have argued the provisions should be moved out of Part IV of the TPA and into industrial legislation (the Treasurer rejects this approach in his second reading speech)).

13 August – Funeral price fixing!
Penalties have been awarded against the ‘International College of Celebrancy’ and its director for attempting (unsuccessfully) to fix prices of funeral ceremonies by funeral celebrants in the Melbourne metropolitan area!  The action was brought under the Competition Code of Victoria

10 August - Criminal Cartels ... just around the corner?
In the ‘proposed legislation’ for the Spring Sitting (which run until 6 December) on the Prime Minister’s website, we see legislation introducing criminal penalties for serious cartel conduct. The key legislation includes:

  • Trade Practices Amendment (Cartel Conduct and Other Measures) Bill
    This will ‘implement recommendations from the Dawson Review to introduce criminal penalties for serious cartel conduct’ [we still don’t know how]
  • Federal Court Amendment (Criminal Jurisdiction) Bill
    This will ‘facilitate the effective exercise by the Federal Court of new indictable criminal jurisdiction in relation to serious cartel conduct which will be granted by proposed amendments to the Trade Practices Act 1974’

The introduction of these bills was also flagged by Fran Bailey (Minister for Small Business and Tourism) in Parliament on Wednesday when she said that the ‘government will shortly be moving to introduce legislation imposing criminal penalties for serious cartel conduct’ (p 80 Hansard).

9 August 2007 - Amendment Bill in the Senate
The Trade Practices Legislation Amendment (No 1) Bill 2007 was introduced into the Senate and Senator Coonan delivered the second reading speech – debate was adjourned

8 August 2007 - Amendment Bill in the House
The Trade Practices Legislation Amendment (No 1) Bill 2007 had its second and third readings in the House on Wednesday 8 August - proposed amendments by Labor were defeated and they otherwise supported the bill while labelling it 'cosmetic'. For details see the main discussion or this site: http://parlinfoweb.aph.gov.au/piweb/browse.aspx?NodeID=217

3 August 2007 - Alcohol Price Fixing
ACCC accepts court-enforceable undertakings from hotelier in Ayr'
The ACCC accepted court-enforceable undertakings (we'll learn more about these later) from a hotelier in Ayr who attempted to fix the price of alcoholic beverages with other hoteliers. Some of you - Geelong-based students in particular - will remember similar proposals among Geelong night-clubs a couple of years ago (although this might have been motivated by a sense of community benefit rather than profit - in an attempt to reduce public drunkenness and its negative side-effects it is price-fixing nonetheless and (absent authorisation) prohibited by the Act). For the press release see: http://www.accc.gov.au/content/index.phtml/itemId/794254/fromItemId/2332

27 July 2007 - C7 loses
No doubt most of you will now be aware that C7 lost its case against News Ltd, PBL, Telstra and others regarding its claim that anti-competitive conduct by those parties had led to the failure of the C7 business (which produced and distributed sports channels for Australian pay television). Justice Sackville in the Federal Court dismissed claims that there was an anti-competitive agreement in contravention of s 45 or that there was a misuse of market power in contravention of s 46.


5 July 2007 - Anti-competitive conduct by surgeons
The Federal Court imposed penalties of $110,000 on two Adelaide surgeons as a result of anti-competitive conduct designed to prevent a newly qualified surgeon supplying services in the market (action was taken under the SA competition code equivalent to s 45 which permits action against individuals and not just corporations)

29 June 2007 - Resale Price Maintenance alleged
The ACCC has instituted legal proceedings against TEAC, alleging RPM in relation to a number of its goods, including televisions. We will be discussing RPM in detail in topic 11.

27 June 2007 - Collective Bargaining Authorisation for Potatoes!
The ACCC granted a final authorisation allowing Victorian Potato Grower Council members to collectively bargain the terms of their contracts with potato buyers (inc processors and wholesalers) on the basis it would produce public benefits such as more efficient outcomes and would have only a minor (if any) effect on competition. This decision was made pursuant to the new streamlined collective bargaining authorisation system - we will discuss this later in the unit.

15 June 2007 - ACCC to Inquire into Petrol Prices
The ACCC announced it would commence and inquiry into petrol pricing - this will consider, amongst other things, the extent of competition in the industry.