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Competition Law News

December 2016

Christmas tree22 December 2016 - ACCC releases Statement of Issues on PMP-IPMG print merger

The ACCC 'has released a Statement of Issues expressing initial concerns about the proposed merger between print businesses PMP (ASX:PMP) and IPMG.' It has indicated that its 'preliminary view is that the merger may substantially lessen competition in the supply of heatset web offset printing, the main method for printing catalogues and magazines.' See media release. See merger register.

 

21 December 2016 - ACCC closes tertiary admissions centres investigation

The ACCC has announce that it has decided to discontinue its investigation into allegations by the ANU that certain tertiary admissions centres (TACs) had engaged in anti-competitive conduct.

The ANU had alleged that the centres had refused to supply admission services to it 'for the purpose of preventing or restricting ANU from attracting students based in WA and SA respectively, and competing with the local tertiary institutions in those States.' The ACCC, while recognising the alleged conduct had 'the potential to raise competition issues' nevertheless decided to 'discontinue its investigation in light of the recent Higher Education Standards Panel’s report, Improving the Transparency of Higher Education Admissions Processes'. the recommendations in the report, when implemented 'will improve the accessibility and comparability of information for prospective students' and 'minimise any lessening of competition arising from the alleged conduct in the future'.

See ACCC media release. See also John Ross, 'ACCC drops investigation into TACs’ ‘anti-competitive’ behaviour' (The Australian, 21 December 2016) and Katie Burgess, 'ACCC drops probe sparked by Australian National University's complaint of cartel conduct' (Canberra Times, 22 December 2016).

 

16 December 2016 - ACCC will not appeal Woolworths decision

The ACCC has announced it will not appeal the Federal Court's decision in the Woolworths case, in which it had alleged Woolworths engaged in unconscionable conduct in relation to its 'mind the gap' scheme.

For a good discussion of the issues and implications of the case see Alexandra Merrett, Woolworths case loss raises questions about the ACCC’s supermarket strategy (The Conversation, 13 December 2016).

See also Sarina Locke and Mazoe Ford, 'Mind the Gap: Woolworths scheme to hit suppliers for extra payments cleared in case against ACCC' (ABC, 8 December 2016).

 

15 December 2016 - ACCC proposes to deny authorisation for tobacco companies

The ACCC has ' issued a draft determination proposing to deny authorisation to British American Tobacco, Imperial Tobacco, and Philip Morris (the tobacco companies) to jointly stop supply to retailers or wholesalers they believe are supplying illicit tobacco.' See ACCC media release and authorisation register.

 

15 December 2016 - ACCC proposes to approve cane growers collective bargaining

The ACCC has announced has 'issued a draft determination proposing to grant authorisation to Queensland Cane Growers Organisation Ltd and its local organisations (Canegrowers) for growers to collectively bargain cane supply and related contracts with millers and sugar marketers.' See ACCC media release and authorisation register.

 

14 December 2016 - Success for ACCC in Flight Centre appeal

The High Court by majority (French CJ dissenting) has upheld the ACCC's appeal in the Flight Centre case. The Court has released a judgment summary, together with the full judgment. In its summary the Court notes:

'A majority of the High Court held that Flight Centre was in competition with the airlines when it attempted to induce each airline to agree not to discount the price at which that airline offered international airline tickets directly to customers. The competition was in a market for the supply, to customers, of contractual rights to international air carriage via the sale of airline tickets. Flight Centre and the airlines competed in that market'

The matter is being remitted to the Federal Court for penalty. Further details to follow. See also ACCC media release. See also my blog on this case for an overview of the findings and some comments.

 

 

14 December 2016 - Penalties imposed against ANZ and Macquirie for attempted cartel conduct

In November the ACCC commenced action against ANZ and Macquirie for attempted cartel conduct. The action was been taken by consent, with the parties agreeing on key facts and both banks making several admissions. Joint submissions on penalty were been made; it was proposed the ANZ should pay a penalty of $9m and Macquirie a penalty of $6m.

The proposed penalties were accepted and today, in addition to cost orders, Justice Wigney imposed the following penalties (from ACCC media release; judgment not yet available):

  • '$9 million against ANZ in respect of its admission that it engaged in ten instances of attempted cartel conduct in contravention of the Competition and Consumer Act 2010 (CCA); and
  • $6 million against Macquarie in respect of its admission that it engaged in eight instances of attempted cartel conduct in contravention of the CCA.'

See ACCC media release.

 

 

14 December 2016 - Senate Economics Committee receiving submissions on MMP bill

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was referred to the Senate Economics Committee on 1 December 2016. The Committee has called for submissions; these may be uploaded directly to the Committee review page until 9 January 2017. The Committee is due to report on 16 February 2017. View Senate Economics Committee report page.

 

9 December 2016 - High Court to deliver ruling in Flight Centre next Wednesday

The High Court has indicated it will deliver its judgment in the Flight Centre case next Wednesday at 10:15.

 

1 December 2016 - Misuse of market power bill with effects test introduced

The Government has introduced the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 into the House of Representatives. The Bill, if passed, would implement the Harper recommendations on section 46, including the introduction of an effects test.

For more details and links see my blog post.

 

November 2016

29 November 2016 - New High Court appointments

The Prime Minister today announced the appointment of the Honourable Justice Susan Mary Kiefel AC to become the next Chief Justice of the High Court of Australia, and the first female Chief Justice, on 30 January 2017. Justice Kiefel will replace the Honourable Justice Robert French AC (Chief Justice since 2008) following his retirement. The Prime Minister also announced the appointment of a new High Court judge, the Honourable Justice James Joshua Edelman, who will be sworn in on 30 January 2017. See my separate blog post on these appointments - New High Court Appointments and competition law.

 

29 November 2016 - ACCC proposes to deny banks' application to collectively bargain over Apple Pay

The ACCC has issued a draft determination proposing to deny authorisation to the Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank 'to collectively bargain with and boycott Apple on Apple Pay.' The ACCC have indicated the draft decision is 'finely balanced'.

In its media release the ACCC notes that the 'banks sought authorisation to bargain with Apple on two key issues: * access to the Near-Field Communication (NFC) controller in iPhones. Such access would enable the banks to offer their own integrated digital wallets to iPhone customers in competition with Apple’s digital wallet without using Apple Pay; * removing restrictions Apple imposes on banks preventing them from passing on fees that Apple charges the banks for the use of its digital wallet.

The banks' argument is that the conduct will 'increase the likelihood of being able to offer competing wallets on the iOS platform and pass through Apple fees, which would lead to a number of public benefits. However, the ACCC concluded the benefits claimed are 'uncertain and may be limited' and the 'proposed conduct could reduce or distort competition in a number of markets.'

See authorisation register. See also James Eyers, 'ACCC blocks banks' bid to collectively bargain over Apple Pay' (AFR, 29 November 2016); Clancy Yeats, 'ACCC rejects NAB, CBA, Westpac, Bendigo collective boycott of Apple Pay in draft ruling' (SMH, 29 November 2016) and and Daniel Palmer, 'ACCC leans toward blocking banks from teaming up over Apple Pay dispute' (The Australian, 29 November 2016).

 

 

25 November 2016 - ACCC takes action against ANZ and Macquirie for attempted cartel conduct

The ACCC has taken action against ANZ and Macquirie for attempted cartel conduct. The action has been taken by consent, with the parties agreeing on key facts and both banks making several admissions. Joint submissions on penalty have been made; it is proposed the ANZ should pay a penalty of $9m and Macquirie a penalty of $6m. It will be for the Court to determine if the penalties are appropriate.

See media release. See also, for example, 'ANZ, Macquirie Bank admit to cartel conduct' (Australian Financial Review, 25 November 2016).

 

 

24 November 2016 - ACCC will not oppose Qube's acquisition of AAT

The ACCCC has announced it will not oppose the 'proposed acquisition by Qube Holdings Limited ... of the remaining 50 per cent of Australian Amalgamated Terminals Pty Ltd ...' following court enforceable undertakings provided by Qube which have addressed the ACCC's competition concerns. See media release. See merger register.

 

 

22 November 2016 - ACCC completes first Regulator Performance Framework review

The ACCC has released its first Regulator Performance Framework Review, in which it self assesses against six KPI's. See media release. View report. Not everyone is impressed with the self assessment; see, for example, Michael Terceiro, 'Sour grapes and self-delusion: ACCC Regulator Performance Framework self-assessment report 2015-16' (21 November 2016). See also 'ACCC cops it from business leaders' (Australian Financial Review, 22 November 2016) and Business hates the ACCC. Good. (Macro Business, 22 November 2016).

 

15 November 2016 - Second criminal cartel case; charges laid against K-Line

The ACCC has announced that 'criminal charges have been laid against Japanese-based company Kawasaki Kisen Kaisha (K-Line) in relation to alleged cartel conduct concerning the international shipping of cars, trucks, and buses to Australia between July 2009 and September 2012.' This relates to the same alleged cartel conduct associated with ACCC's first cartel action in which NYK pleaded guilty in July this year (a sentencing hearing is scheduled for April 2017).

See ACCC press release. See also John Durie, 'ACCC faces contest over shipping cartel' (The Australian, 15 November 2016).

 

 

3 November 2016 - ACCC releases statement of issues on proposed Dow/Du-Pont merger

The ACCC has issued a Statement of Issues 'on the proposed merger of The Dow Chemical Company (Dow) and E.l. Du Pont de Nemours and Company (DuPont).' See media release. See merger register.

 

3 November 2016 - ACCC will not oppose Tabcorp's proposed acquisition of Intecq

The ACCC has announced it will not oppose Tabcorp's proposed acquisition of Intecq. See media release. See merger register.

 

2 November 2016 - Whistleblowers needed in cartel proceedings

The ACCC's Sarah Court has highlighted the importance of the immunity policy and whistleblowers for detecting cartel conduct. See Sarah Danckert, 'Whistleblowers crucial to cartel proceedings: ACCC' (SMH, 1 November 2016).

 

October 2016

31 October 2016 - ACCC investigating concerns about anti-competitive activity in the beef and cattle industry

The ACCC has today released the interim report for its Cattle and Beef market study, identifying key areas in which competitiveness of beef and cattle markets could be improved and highlighting concerns about anti-competitive conduct and market structures.

View ACCC media release. View market study interim report. See also my Cattle and Beef market studies page.

See also Brian Robins, 'ACCC investigates claims of anti-competitive activity in cattle yards' (SMH, 31 October 2016), John Durie, 'An ACCC bull enters the saleyard' (The Australian, 31 October 2016), Matthew Stevens, 'ACCC chases cowboy cartels' (AFR, 31 October 2016).

 

27 October 2016 - Sims on the concentration of the Australian economy

ACCC Chairman, Rod Sims, has discussed increasing concentration in the Australian Economy at the RBB Economics Conference in Sydney. He questioned the view that we need not be concerned with heavy concentration, instead preferring 'standard economic wisdom' that 'mergers resulting in high levels of concentration in markets with substantial barriers to entry will usually reduce competition and cause harm to consumers and our economy.' He then raised a series of questions, including whether we need to consider establishing a 'rebuttable presumption' that mergers should not proceed where they are likely to significantly increase competition in a defined market.

See ACCC media release. Read the speech.

For related media see, for example, Gareth Hutchens, 'Australians will pay the price for dominance of big companies, says ACCC Chief' (The Guardian, 27 October 2016), Jacob Greber, 'ACCC boss Rod Sims hits out at damaging mergers' (AFR, 27 October 2016), Peter Martin, 'ACCC chairman Rod Sims puts the case for a default 'no' to big mergers' (SMH, 27 October 2016), Phillip Lasker, 'ACCC's Rod Sims says big company domination is leaving Australian consumers 'worse off'' (ABC, 27 October 2016), David Uren, 'ACCC's Sims warns top firms tightening grip on economy' (The Australian, 27 October 2016), Robert Gottliebsen, 'Beware the concentration of corporate power' (The Australian, 27 October 2016), Daniel Palmer, 'ACCC warns of greater scrutiny amid rising levels of business concentration' (The Australian, 27 October 2016).

 

21 October 2016 - ACCC will not oppose Australian Paper's proposed acquisition of Edwards Dunlop Office Products

The ACCC has announced it 'will not oppose Australian Paper's proposed acquisition of the Edwards Dunlop Office Products division (EDOP) of BJ Ball.' See media release. See public register.

 

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 [2016] 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.

 

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:

 

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).

 

September 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.

 

 

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.

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:

 

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.

 

5 September 2016 - ACCC releases issues paper for communications sector market study

The ACCC today released an issues paper to begin seeking feedback as part of its market study on the communications sector. See ACCC media release. See consultation hub. Submissions close on 14 October. A draft report is expected July-August 2017 and a final report in November 2017.

 

5 September 2016 - ACCC commences inquiry into whether to declare a wholesale domestic mobile roaming service

The ACCC is today commencing 'an inquiry into whether or not to declare a wholesale domestic mobile roaming service. Access to a roaming service would enable mobile service providers to provide coverage for their customers in areas where they don’t have their own network.' See ACCC media release.

 

2 September 2016 - Expedia and Booking.com agree to amend contracts with Australian hotels

Following an investigation by the ACCC, Expedia and Booking.com have each agreed to amend 'price and availability parity clauses in their contracts with Australian hotels and accommodation providers.' In particular, from 1 September, both companies have removed the following contractual requirements for Australian accommodation providers to:

  • 'offer room rates that are equal to or lower than those offered on any other online travel agent
  • offer room rates that are equal to or lower than those offered on an accommodation provider’s offline channels
  • make all remaining room inventory available
  • offer the same number and same type of rooms offered to any other online travel agent.'

Consultation with the online accommodation sector, which took place in September 2015, generated more than 500 responses. See consultation hub.

See ACCC media release.

 

August 2016

26 August 2016 - ACCC seeks comments on draft media merger guidelines

The ACCC has released a draft version of its updated Media Merger Guidelines and is seeking comments before finalising the guidelines (due 14 October 2016). See ACCC media release.

 

25 August 2016 - ACCC proposes to deny authorisation of real estate advertising collective negotiations

The ACCC has issued a draft determination 'proposing to deny authorisation to Property Media Group Pty Ltd (PMG)' to 'collectively bargain and boycott suppliers of online and print real estate advertising, including realestate.com.au and domain.com.au.' See media release. See authorisation register.

 

23 August 2016 - Durie: Proposed Harper amendments expected to be released 'some time soon'

In his column today, John Durie notes that Scott Morrison has 'assumed the role as key minister for the ACCC in charge of competition policy matters' and that proposed Harper amendments were back with him 'late last week and will be issued publicly for comment some time soon' with the aim to have the law in parliament 'by year's end'. See John Durie, 'Paul O'Malley's BlueScope in fine form' (The Australian, 23 August 2016).

 

22 August 2016 - Glance on why the ACCC should not grant the banks' request to collectively bargain with Apple

David Glance, Director of UWA Centre for Software Practice, provides his take on why granting the banks authorisation to collectively negotiate with Apple would not be in the consumers' interests.

See David Glance, 'Why the ACCC siding with the banks against Apple will not be in consumers' interests' (The Conversation, 22 August 2016).

 

19 August 2016 - Banks denied interim authorisation to collectively bargain with Apple

The ACCC has denied the application by several banks for interim authorisation to collectively bargain with Apple. The ACCC will continue to assess the applications for authorisation. A draft decision is expected in October with a decision to follow within six months of the original application (made on 26 July 2016).

In its decision denying interim authorisation the ACCC briefly noted that, after considering factors relevant to granting interim authorisation (set out in its decision) it was not appropriate to grant interim authorisation at this time. In particular, the ACCC noted that 'the applications raise complex issues for consideration' which require further market consultation, with the result that at this time 'the ACCC does not have sufficient information to form a view on the likely public benefits and public detriments of the proposed conduct or the possible harm to consumers.'

The ACCC further noted that it did not 'see compelling reasons to support the urgency of the application' and expressed concern that 'the proposed conduct has the potential for continuing impacts on competition, even if any arrangements reached are later unwound.'

See ACCC media release. See authorisation register.

See my blog post for further details.

 

16 August 2016 - KWM on the new Access Undertakings Guidelines

KWM's Elouise Davis has an item on the ACCC's new Part IIIA Access Undertaking Guidelines. See Elouise Davis, ACCC Publishes Part IIIA Access Undertakigns Guidelines' (In Competition, 16 August 2016).

 

11 August 2016 - ACCC will not oppose proposals for Port of Melbourne Lease

The ACCC has announced it will not oppose two separate proposals to acquire the 50 year lease of the Port of Melbourne. See media release. See merger register for IFM, APF and MIRA consortium proposed acquisition and merger register for QIC, GIP and Borealis consortium proposed acquisition.

 

11 August 2016 - ACCC releases guidelines for Part IIIA Access undertakings and for Part XIC declaration provisions

The ACCC has released two new guidelines today. The first is the Part IIIA Access Undertaking Guidelines. The release of these followed a four week public consultation period on a draft in May-June 2016. The second is the ACCC's Guideline for Part XIC Declaration Provisions for Telecommunications Services. These update the previous 1999 Guidelines and reflect changes to legislation - they also follow a consultation period in June-July this year.

 

11 August 2016 - ACCC will not oppose JB Hi-Fi's proposed acquisition of the Good Guys

The ACCC has announced it will not oppose JB Hi-Fi's proposed acquisition of the Good Guys. See media release. See merger register for more details.

 

10 August 2016 - Apple versus the banks: Apple responds

Late last month several Australian banks (CBA, NAB, Westpac, Bendigo and Adelaide Bank) asked the ACCC for permission to collectively negotiate with Apple to get their digital wallets onto iPhones. Apple has recently responded with its own submission to the ACCC's review.

The submission notes that Apple will provide a 'separate and comprehensive submission' at a later date, but makes a number of key points, urging ACCC to reject the banks' application for interim authorisation. Apple claims that the banks seeking authorisation view Apple Pay as a 'competitive threat' and that this is based on their 'limited understanding of the offering' and a desire to 'maintain complete control over their customers' and that the application represents a tactic to 'blunt Apple's entry into the Australian market'.

The submission then notes that a collective boycott is a 'hard-core breach' of the Act and would 'slow innovation and reduce choice'. Apple suggests there are no public interest justifications supporting the application. In particular, it argues that giving the banks simple access to its NFC antenna would 'fundamentally diminish the high level of security Apple aims to have' on its devices. It suggests interim authorisation would be inappropriate in the circumstances and the normal six month statutory assessment period should apply.

See, James Eyers, 'Apple says Australia's banks pose a security threat to iPhones' (AFR, 10 August 2016) and Angus Kidman, 'The war over access to Apple Pay and NFC looks set to run and run' (Finder,com.au). See ACCC authorisation register, including Apples submissions and submissions by other interested parties.

 

5 August 2016 - Sims' update on ACCC activities

ACCC Chairman, Rod Sims, has delivered a speech at the Law Council's Competition and Consumer Workshop, providing an update on the ACCC's court actions, mergers and market studies. See media release, 'ACCC Chairman reports on key court actions, mergers and market studies' and speech (Chairman's address to the Law Council Workshop).

See also Rob Hirst, 'The Regulator's Net' (In Competition, 19 August 2016)

 

5 August 2016 - Woolley argues Sims was wrong to go cold on privatisation

Infrastructure Australia board member, Kerry Schott, has argued that ACCC Chairman, Rod Sims, rather thatn criticising privatisations, should be selling their economic benefits. See Mark Ludlow, 'Rod Sims wrong to go cold on privatisations' (AFR, 5 August 2016). See also ACCC, 'Privatisation needs smarter regulation' (Media release, 4 August 2016).

 

5 August 2016 - Peter Anderson on monopolists and exploiters

Former head of the ACCI, Peter Anderson, speaking at the Law Council workshop, has blamed business for lack of progress in market-opening reforms - see Ben Potter, 'Ex-ACCI chief slams monopolists and exploiters' (AFR, 4 August 2016).

 

4 August 2016 - ACCC to undertake market study of communications sector

The ACCC has announced that its next market study will focus on the communications sector. See media release. See communications sector market studies page. See also Max Mason, 'ACCC to undertake major telecommunications study' (AFR, 4 August 2016) and Supratim Adhikari, 'Watchdog looks to the post-NBN telecoms future' (The Australian, 5 August 2016).

 

4 August 2016 - ACCC releases SOI on proposed acquisition of Sunday Times and Perthnow by Seven West Media

The ACCC today released a Statement of Issues on the proposed acquisition of The Sunday Times and perthnow.com.au by West Australian Newspapers (wholly owned subsidiary of Seven West Media). The ACCC is investigating the impact on readers and advertisers. See ACCC Media Release - ACCC invites feedback on Seven West Media’s proposed acquisition of The Sunday Times and Perthnow and the ACCC Merger Register.

See also Max Mason and Julie-anne Sprague, 'ACCC analyses Seven West Media's Sunday Times acquisition' (AFR, 4 August 2016).

 

2 August 2016 - Sea Swift reasons available

The Tribunal's reasons for their authorisation decision in Sea Swift are now available (all 110 pages) on AustLII or Jade. See also Tribunal authorisation page for all relevant non-confidential documentation.


1 August 2016 - High Court transcript in Flight Centre

The 76 page High Court transcript in the Flight Centre appeal (heard last Wednesday) is now available (AustLII or JADE). See also the High Court case page or my case page for more details.

 

July 2016

31 July 2016 - Sims on government immunity from competition law

Ben Potter has an item in today's AFR, following on from ACCC Chairman, Rod Sims' comments on privatisation. See Ben Potter, 'Rod Sims wants to end government immunity from competition law' (AFR, 31 July 2016)

 

29 July 2016 - ACCC declares superfast broadband access service

The ACCC today declared a five year superfast broadband access service (SBAS) which 'allows retailers to access non-NBN network services with a downstream data rate normally more than 25 Mbps. This includes the fibre-to-the-basement (FTTB) network operated by TPG subsidiary AAPT, and Telstra’s fibre networks in South Brisbane and Velocity estates'.

See ACCC media release. See SBAS declaration inquiry page. See also, for example, Corinne Reichert, 'ACCC to regulate super-fast broadband for next five years' (ZDNet, 29 July 2016).

 

28 July 2016 - Harper on effects test

The effects test for misuse of market power (recommended in the Harper Report and accepted by the Government in March this year) has had a bit of a run in the media over the last week.

This was prompted the release of the Productivity Commission's draft report on the regulation of agriculture last Thursday, which suggested the effects test would do nothing to shield farmers from competition in the retail grocery market and that, even if it did, this would not be in the interest of consumers.

This generated a quick response from Treasurer Scott Morrison, reinforcing the Government's commitment to implementing the Harper Panel's proposed effects test.

In response to big business criticism of the test and suggestions that it was in any way 'protectionist', ACCC Chairman, Rod Sims, came out swinging, labelling any such suggestions 'bullshit'. Opposition Competition Spokesman, Andrew Leigh, was quick to respond, suggesting that Sims' critique of the critique was simply 'wrong' and would represent the end of the world (ok, he didn't go that far, but he did label it 'wrong', pointed to previous reviews rejecting an effects test and suggested it would somehow lead to higher grocery bills for regional consumers).

In response to to the response to the response, the Review's Chair, Prof Ian Harper, rejected Leigh's criticism of the reform and claimed those suggesting that the test was protectionist in any way were turning 'reality on its head' and 'almost' wilfully misinterpreting the proposal: see Michael Roddan, 'Ian Harper slams 'effects test' reform critics for distortion' (The Australian, 26 July 2016).

Abuse of power legislation and reform is controversial everywhere, but it's leading to some positively bizarre claims and commentary in Australia at the moment; let's just hope that Government introduces exposure draft legislation on so that we can move ...

 

28 July 2016 - ASEAN competition conference

The 6th annual ASEAN Competition Conference has been held in Bangkok over the last two days on the theme of 'Combating Cartels in ASEAN - Getting it Right'. The conference was organised under the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA) Economic Cooperation Work Programme (ECWP).

 

27 July 2016 - Apple versus the banks

Several Australian banks (CBA, NAB, Westpac, Bendigo and Adelaide Bank) have asked the ACCC for permission to collectivley negotiate with Apple to get their digital wallets onto iPhones. Apple has so far locked out third-party providers. ANZ has negotiated access to Apple Pay.

See ACCC authorisation register, including the 121 page authorisation application which states, in part:

[para 2] The applicants seek authorisation on behalf of themselves and potentially other credit and debit card issuers to engage in limited collective negotiation with providers of third-party mobile wallet services on conditions relating to competition, best practice standards, and efficiency and transparency. The applicants also seek authorisation to enter into a limited form of collective boycott in relation to a third-party mobile wallet provider while collective negotiations with that provider are ongoing.

See also, for example, James Eyers, 'Australian banks take on Apple over digital wallets' (AFR, 27 July 2016), Clancy Yeates, 'Banks team up in Apple Pay talks' (SMH, 27 July 2016), Richard Chirgwin, 'Australian Banks ask permission to form anti-Apple cartel' (The Register, 27 July 2016) ('You can't make it up'), James Eyers, 'Apple Pay deal could deliver accounts to ANZ Bank' (AFR, 28 April 2016), Stuart Condie, 'ANZ 'pulled fast one' on Apple Pay' (news.com.au, 27 July 2016).

 

 

27 July 2016 - High Court to hear ACCC v Flight Centre appeal

The High Court will hear the ACCC's appeal in the Flight Centre case from 10:15 this morning in Brisbane. See High Court case page for details. See my Flight Centre case page for details of earlier judgments and links to relevant commentary.

This hearing will follow the delivery of the much awaited judgment in Paciocco and ANZ (at 10am) on the issue of whether late bank fees constitute penalties and/or are unconscionable.

 

26 July 2016 - ACCC raids CFMEU headquarters as part of probe into allegations of price fixing

It has been reported that the ACCC raided the Canberra office of the Construction Forestry, Mining and Energy Union (CFMEU) this morning as part of its probe into an allegation of price fixing between union officials and employers. See, for example, Ewin Hannan, 'ACCC raid on CFMEU headquarters in Canberra' (AFR, 26 July 2016), Megan Gorrey, 'ACCC raids CFMEU offices in Canberra as part of price fixing inquiry' (The Canberra Times, 26 July 2016) and 'ACCC raiding CFMEU's Canberra headquarters, branch secretary says' (ABC News, 26 July 2016).

 

25 July 2016 - Effects test criticism 'bullshit': Sims

ACCC Chairman, Rod Sims, has labeled claims that the proposed reforms to s 46 are protectionist 'bullshit', claiming the only protectionism 'is that of large companies not wanting to face competition'. In response, opposition spokesman on competition, Andrew Leigh, criticised Sims' comments as simply 'wrong'.

See Michael Roddan, 'ACCC slams big business for effects test distortion' (The Australian, 25 July 2016) and Jared Owens, 'Andrew Leigh criticises Rod Sims over ‘effects test’ claims' (The Australian, 25 July 2016).

 

22 July 2016 - ACCC authoirses renewable energy joint purchasing group

The ACCC has granted 'authorisation to Melbourne City Council and 13 other parties to establish a joint renewable energy purchasing group, which they have called the Melbourne Renewable Energy Project' until 12 August 2031. The objective of the group is to 'jointly secure the construction of a new renewable-energy generation system, and to promote investment in renewable energy'

See ACCC Media Update and Authorisation register.

 

22 July 2016 - ACCC enjoys partial success in cable cartel case

On Wednesday Justice Besanco handed down his decision in ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 (20 July 2016) in which he found that Prysmian had engaged in price fixing conduct in relation to the supply of land cables in Australia. However, his Honour dismissed the ACCC's case against Nexans SA, finding that the ACCC had not established that Nexans SA had made an arrangement or arrived at an understanding in relation to the relevant project. The Federal Court had previously made orders against Viscas Corporation, who admitted their involvement in the relevant conduct.

See ACCC press release. See also useful summary from HSM: Peter Strickland and Tessa Spense, 'Mixed result for ACCC in high voltage cable cartel case' (Herbert Smith Freehills, 25 July 2016).

See my case page for further details and for links to the judgments.

 

22 July 2016 - Government committed to effects test

Following the Productivity Commission's draft report on the regulation of agriculture, released, Thursday, Treasurer Scott Morrison has reinforced the Government's commitment to implementing the 'effects test' for misuse of market power, as recommended in the Harper Report. See Fluer Anderson, 'Morrison back Nationals over Productivity Commission on farm red tape' (AFR, 21 July 2016).

 

21 July 2016 - Merger approval day (Asciano approved; Metcash undertaking accepted)

The ACCC has announced it will not oppose the acquisition of Asciano by Qube, Brookfield and others. See Asciano merger register page. See ACCC's media release on Asciano.

The ACCC also announced this morning that it would not oppose Metcash's bid to acquire Home Timber & Hardware after accepting enforceable undertakings from Metcash's. See ACCC media release on Metcash. See Metcash/HTH merger register page. See ACCC's Q&A page on Metcash/HTH.

For commentary on the Asciano deal see, for example, James Thomson, 'ACCC approves Asciano takeover' (AFR, 21 July 2016) and David Palmer, 'ACCC green lights Qube and Brookfield's takeover of Asciano' (The Australian, 21 July 2016).

For commentary on the Metcash approval see, for example, Sarah Thompson, Anthony Macdonald and Joyce Moulakis, 'Metcash secures ACCC approval for Home Timber and Hardware Group' (AFR, 21 July 2016) and David Palmer, 'ACCC clears path for Metcash's hardware extension' (The Australian, 21 July 2016).

 

21 July 2016 - PC draft report on the regulation of agriculture released

The Productivity Commission today released its regulation of agriculture draft report. Comments on the report are due by 18 August. Chapter 11 deals with competition regulation. Briefly, the draft report concludes that:

'Competition is a key driver of innovation, productivity and competitiveness in agriculture. However, there are longstanding concerns about small farm businesses being subject to anticompetitive behaviour from dominant market players in the supply chain....' (p 28)

'The existing competition regulation and oversight is adequate for managing concerns about abuse of market power by supermarkets and traders engaging with farm businesses. The current focus on the potential for the misuse of market power by wholesale merchants and supermarkets engaging with farmers is not well supported by evidence.' (p 29)

'Suggestions to amend section 45 of the Competition and Consumer Act 2010 (Cwlth) are unlikely to increase the adoption of collective bargaining because they do not address significant economic disincentives and a cultural aversion in the agricultural sector to participating in cooperatives. Introducing an ‘effects’ test to section 46 of the Act is also unlikely to shield farm businesses from intense competition in retail food markets.' (p 29)

Notwithstanding these draft conclusions, Nationals Senator Fiona Nash has reinforced the Nationals' commitment to the introduction of (amongst other things) an effects test: see 'The bold new face of the National Party', RN Breakfast, 21 July 2016 and Jared Owens, 'Fiona Nash rejects Productivity Commission on foreign investment, regulations' (The Australian, 21 July 2016).

See PC report page. See also my Regulation of Agriculture review page.

For media and commentary see, for example, Michelle Grattan, 'Productivity Commission attacks competition ‘effects test’ and farm foreign investment rules' (The Conversation, 21 July 2016), Phillip Coorey, 'Productivity Commission takes aim at rural protectionism' (AFR, 20 July 2016), Jacob Greber, 'Productivity Commission joins fight against 'effects test'' (AFR, 21 July 2016) and David Uren, 'No logic to red tape hobbling farms: Productivity Commission' (The Australian, 21 July 2016).

 

18 July 2016 - NYK Pleads Guilty to criminal cartel conduct

Nippon Yusen Kabushiki Kaisha today pleaded guilty to criminal cartel conduct in the Federal Court. This represents the first criminal cartel case in Australia since criminal penalties were introduced in 2009. See ACCC media release. See my NYK case page. See also hot topic - criminal cartel page.

 

17 July 2016 - First criminal cartel case launched

It appears we have our first criminal cartel case, with The Queen v Nippon Yusen Kabushiki Kaisha listed for a directions hearing before Justice Wigney at 10:15am on Monday. An indictment was filed by the Commonwealth Director of Public Prosecutions on Thursday, but further details are not yet known. The Australian reports that the ACCC is 'due to make public statements on the matter on Monday'.

See further John Durie and Ben Butler, 'ACCC launches criminal cartel case against Japanese shipper NYK' (The Australian, 15 July 2016) and John Durie, 'ACCC bares teeth with criminal case against Japan's NYK' (The Australian, 16 July 2016).

 

8 July 2016 - 'Testing the mettle of the ACCC's Rod Sims'

Anne Hyland has an article in the AFR's Boss magazine today about the role and challenges of the ACCC. See Anne Hyland, 'Testing the mettle of the ACCC's Rod Sims' (Australian Financial Review, Boss, 8 July 2016).

 

8 July 2016 - ACCC issues new collective bargaining guidance

The ACCC today released a brief new guide for small business and farmers on the benefits of collective bargaining. See ACCC, 'How collective bargaining can benefit farmers and small business' (Media Release, 8 July 2016) and ACCC, 'The benefits of working with other small businesses: collective bargaining and collective boycotts' (ACCC Guide, 8 July 2016).

 

7 July 2016 - ACCC flags competition concerns with Borg's proposed acquisition of Alpine's MDF manufacturing assets

The ACCC today issued a Statement of Issues detailing 'strong concerns' raised by Alpine and Borg customers about the proposed transaction. Submissions on the SoI are due by 21 July and a final decision is expected by 1 September. View media release. View merger register.

 

5 July 2016 - ACCC consultation on Metcash's proposed Home Timber Undertaking

The ACCC is inviting comments on Metcash's draft undertaking in relation to its proposed acquisition of Home Timber and Hardware. Submissions are due by 12 July. A decision is expected 21 July. View media release. View merger register.

 

5 July 2016 - Sea Swift determination

The Tribunal has now released its determination in the Sea Swift matter along with a background to determination document. The Statement of Reasons is not yet available. For full details see Australian Competition Tribunal authorisation page.

See also John Durie, 'Treasury Wine Estates: glass half full despite election chaos' (The Australian, 5 July 2016) (under heading 'Watchdog's bad record', mid-way down the page).

 

4 July 2016 - ACCC opens inquiry into ADSL regulation

The ACCC has commenced a public inquiry 'into whether the wholesale asymmetrical digital subscriber line (ADSL) service should continue to be regulated.' View discussion paper. View ACCC media release.

 

4 July 2016 - Sea Swift authorisation

Gilbert + Tobin have issued a Client Update on the Tribunal's Sea Swift decision. Gilbert+Tobin acted for Sea Swift in the matter. The Tribunal's reasons are not yet available. See Gilbert+Tobin, 'Australian Competition Tribunal authorises Sea Swift's acquisition of Toll's marine freight assets' (July 2016). See also Australian Competition Tribunal authorisation page for submissions and related resources.

 

2 July 2016 - Sea Swift acquisition authorised

The Australian Competition Tribunal has authorised Sea Swift's proposed acquisition of the NT and Far North Qld marine freight assets of Toll Marine Logistics Australia. This is:

'subject to conditions imposing a cap on future prices and requiring Sea Swift to continue to operate scheduled services to remote communities for up to 5 years, and providing for access by other marine freight firms to the roll-on roll-off ramp at Gove (Nhulunbuy)' (ACCC media release)

The proposed acquisition was previously opposed by the ACCC and the ACCC has expressed disappointment in the Tribunal's decision. The Tribunal's reasons are yet to be released.

See ACCC media release. See also Australian Competition Tribunal authorisation page.

See also John Durie, 'ACCC loses Toll freight merger decision' (The Australian, 1 July 2016).

 

1 July 2016 - Metcash news

More media today on the ACCC's deferral of its decision on Metcash's proposed purchase of Home Timber & Hardware. See, for example, Catie Low, 'Metcash bid fails to win over ACCC' (The Age, 1 July 2016, page 20). See merger register.

 

June 2016

30 June 2016 - ACCC defers Metcash decision

The ACCC has deferred its decision on Metcash's proposed purchase of Home Timber & Hardware after Metcash submitted an undertaking for consideration. The merger register states:

"Former proposed decision date of 30 June 2016 delayed to allow the ACCC to consider an undertaking submitted by Metcash and whether the undertaking is suitable to proceed to consultation. The ACCC will announce a new decision date in due course ..."

See also John Durie, 'ACCC defers decision on Metcash’s purchase of Home Timber & Hardware' (The Australian, 30 June 2016).

 

27 June 2016 - Latest Competition and Consumer Law Journal

The latest Competition & Consumer Law Journal features an article by Rob Nicholls and Jenny Buchan on local market analysis in merger clearance (Rob Nicholls and Jenny Buchan, 'Failing firm, failing franchisor: Local market analysis in Australian merger clearances' (2016) 23(3) Competition and Consumer Law Journal 247). The issue also features a number of articles on Australian consumer law.

 

24 June 2016 - Cartel fines

In today's Australian Leo Shanahan discusses a nifty comparison of Australian and global cartel fines for 2016 (sourced from Allen & Overy), noting a significant increase in cartel fines in Australia (currently $45.7m for 2016). See Leo Shanahan, 'Cartel fines up $45.7m as ACCC bares teeth' (The Australian, 24 June 2016). See also Lara Bullock, 'ACCC cracking down on cartel conduct' (Lawyers Weekly, 24 June 2016) and Allen & Overy, Global Cartel Enforcement 2016 (including video brief from John Terzaken).

 

23 June 2016 - ACCC allege cartel in polycarbonate roofing industry

The ACCC has 'instituted proceedings in the Federal Court against four companies and three individuals for alleged cartel conduct in relation to the supply of polycarbonate roof sheeting (‘polycarb’) to retailers in Australia.' See media release.

 

17 June 2016 - Car sales market study

The ACCC has launched a market study into the new car retailing industry, focusing on competition and consumer issues. See ACCC, 'ACCC launches market study into new car retailing industry' (MR 107/16, 17 June 2016). See also Daniel Palmer, 'ACCC to put new car sales under the microscope' (The Australian, 17 June 2016).

 

17 June 2016 - Authorisation news

The ACCC has authorised collective bargaining by Victorian chicken growers when dealing with processors (see ACCC chicken growers media release and authorisation register) and is proposing to authorise 'Melbourne City Council and 13 other parties to establish a joint renewable energy purchasing group', the Melbourne Renewable Energy Project (see draft determination, authorisation register ACCC media release).

 

16 June 2016 - ACCC accepts divestiture undertakings from Primary Health Care Ltd and Healthscope Ltd

The ACCC has accepted s 87B undertakings from primary Healthcare and Healthscope.

The undertakings arose from the ACCC's investigation of Primary's acquisition of Healthscope's pathology assets in Qld in 2015, which occurred without the parties notifing the ACCC.

View media release. View merger register (including the s 87B undertakings from both Healthscope and Primary Healthcare).

 

15 June 2016 - Labor promises increase in penalties and market studies power for the ACCC

Andrew Leigh MP announced today that Labor would:

  • increase civil penalties under the Australian Consumer Law from $1.1m to $10m;
  • adopt the EU's penalty system for anti-competitive conduct ('based on 30 per cent of the annual sales of the relevant product or service, multiplied by the number of years the infringement took place, limited to the greater of 10 per cent of annual turnover, or $10 million')
  • use some revenue from increased penalties to increase the ACCC's litigation budget 
  • amend the CCA to give the ACCC a market studies function 'so that it can explore public interest issues such as pricing discrepancies and increased market competition')

View Media Release. See also 'Reforming Competition Policy for Fairer Markets Fact Sheet' and Patrick Durkin, 'Election 2016: Labor to beef-up ACCC' (AFR, 15 June 2016).

 

8 June 2016 - Laundry detergent hearing commences

The ACCC's case against Cussons has commenced in the Federal Court. The ACCC has alleged Woolworths conspired with Colgate, Unilever and Cussons in relation to the introduction of a new detergent product in contravention of s 45 of the (then) Trade Practices Act (the conduct alleged to have contravened the Act took place prior to the introduction of the current cartel laws). The ACCC is seeking pecuniary penalties, declarations, injunctions, compliance programs and costs.

All other parties have admitted involvement: Woolworths admitted its involvement recently and was fined $9m earlier this month (see ACCC media release re Woolworths). Earlier Colgate made admissions and, on 28 April 2016, was ordered to pay penalties totalling $18m plus a contribution toward the ACCC's costs (see media release re: Colgate and reasons for judgment). Unilever was the first to admit its involvement and was granted immunity.

See also Misa Han, 'Woolworths-led cartel meant less consumer choice, court hears' (AFR, 8 June 2016).

 

6 June 2016 - ACCC appeals penalty in Cement Australia

The ACCC has appealed against the $17.1m penalty against Cement Australia ordered by the Federal Court on 29 April (originally penalties totallying $18.6 were ordered, but $1.5m of those penalties has been set aside). The ACCC had sought penalties of in excess of $90m. View ACCC media release.

The penalty judgment is not currently available for viewing online: see ACCC v Cement Australia Pty Ltd [2016] FCA 536 para 14 ('The Court orders that market sensitive data contained in the reasons for judgment published by the Court to the parties only on 29 April 2016 bearing the Medium Neutral Citation Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453 be removed from the reasons for judgment until further order.')

See also John Durie, 'ACCC appeals Cement Australia ruling' (The Australian, 6 June 2016).

 

3 June 2016 - Andrew Leigh on markets

The opposition competition spokesman, Andrew Leigh, has published another opinion piece on competition policy. See Andrew Leigh, 'Federal election 2016: markets can’t be allowed to victimise the vulnerable' (The Australian, 3 June 2016).

 

3 June 2016 - Woolworths admits accessorial role in laundry detergent cartel; ordered to pay $9m in penalties

The Federal Court has ordered Woolworths to pay penalties totalling $9m following admissions that it was 'knowingly concerned in the making of, and giving effect to, an understanding between Colgate-Palmolive Pty Ltd (Colgate), PZ Cussons Australia Pty Ltd (Cussons) and Unilever Australia Limited (Unilever) that they would each cease supplying standard concentrate laundry detergents to Woolworths in early 2009 and supply only ultra concentrates to Woolworths from that time.' The penalty was based on joint submissions as to penalty.

See ACCC media release. See also John Durie, 'Woolworths admits cartel behaviour' (The Australian, 3 June 2016).

 

2 June 2016 - ACCC does not oppose Metal Manufacturers' proposed acquisition of Cetnaj

The ACCC has announced it 'will not oppose the proposed acquisition of Cetnaj Pty Ltd by Metal Manufacturers Limited (MML).' See media release.

 

1 June 2016 - Tribunal rules on Port of Newcastle access

Glencore has succeeded in its application to the Australian Competition Tribunal to have the decision of the (then acting Treasurer), Mathias Cormann, not to declare the Port of Newcastle, set aside. The Tribunal yesterday announced it would set aside Mr Cormann's decision and declare the port. View judgment (Application by Glencore Coal Pty Ltd [2016] ACompT 6).

See also Tribunal documents relating to Glencore's application and original NCC application and the NCC's Final Recommendation (2 Nov 2015) and Minister's decision and statement of reasons (8 January 2016).

See further Editorial, 'Competition tribunal says Port of Newcastle a monopoly to be regulated' (Newcastle Herald, 31 May 2016), Ian Kirkwood, 'Federal government over-ruled on Port of Newcastle charges' (Newcastle Herald, 31 May 2016), and Matthew Stevens, 'Glencore wins Newcastle port war' (AFR, 1 June 2016).

 

May 2016

31 May 2016 - ACCC publishes NBN Co's proposed variation to SAU

The ACCC has 'published NBN Co’s proposed variation to its Special Access Undertaking (SAU) and is inviting feedback from interested parties on the proposed variation.' Submissions are due by 26 August 2016. See media release. See SAU variation and related documents.

 

31 May 2016 - ACCC authorises collective bargaining by chicken growers

The ACCC has 'issued a final decision allowing members of the WA Broiler Growers Association to collectively bargain with the chicken processor they supply. Authorisation is granted for ten years.' See media release. See authorisation register.

 

26 May 2016 - ACCC to commence excessive surcharge compliance role

The ACCC will 'begin enforcing the ban on excessive surcharges for large merchants on 1 September 2016'. Surcharges are excessive when the exceed the permitted cost of acceptance, which is defined in the Reserve Bank of Australia's Payments System Board Standard. See media release.

 

26 May 2016 - Statement of Issues released for proposed acquisition of Asciano

As expected, the ACCC has released a statement of issues on the proposed acquisition of Asciano by Qube, Brookfield and others. The ACCC has noted the following concerns (media release):

  • the post merger level of vertical integration will be significantly greater than that currently existing
  • 'that Patrick container terminals may provide preferential access to Qube and ACFS vehicles, and Qube regional export trains running into Port Botany, and raise rivals’ costs'
  • possible foreclosure of rival stevedores. 'Market participants have suggested that if Patrick gives favourable treatment to the container logistics operations of both Qube and ACFS, then Qube and ACFS may provide a superior service offering to importers and exporters on condition that they use shipping lines calling at Patrick container terminals. This may lessen competition in stevedoring.'

The ACCC also notes that it is 'considering whether stevedoring and empty container park services will be bundled together, in a way that forecloses rival stevedores'.

The closing date for submissions on the SoI is 10 June with a final decision due to be announced by 21 July. See merger register for more details.

See also John Durie, Spotlight on Qube in Asciano takeover' (The Australian, 24 May 2016) and Perry Williams, 'Asciano deal faces ACCC setback' (SMH, 25 May 2016).

 

25 May 2016 - Latest ABLR

There's a good (and certainly topical) article by Peter Armitage in this month's Australian Business Law Review - The evolution of the “substantial lessening of competition” test – a review of case law Peter Armitage (2016) 44(2) Australian Business Law Review 74 (subscription only or purchase individual article here)

 

25 May 2016 - Appointments to the Australian Competition Tribunal

Earlier this month Treasury announced four new appointments and two reapppointments to the Australian Competition Tribunal.

  • New part-time President: Justice Middleton
    The Hon Justice John Middleton will become the new part-time President for five years, following the retirement of Justice Mansfield in July
  • New part-time Deputy Presidents
    The Hon Justices Andrew Greenwood, David Yates and Alan Robertson will serve as part-time Deputy Presidents, each for a period of five years.
  • Part-time member re-appointments
    Prof Keven Davis and Dr Darryn Abraham were re-appointed as part-time members (5 years)

See Treasury media release.

 

22 May 2016 - Competition Law Conference

Another terrific Competition Law Conference put together by Chris (& Chris) Hodgekiss today. The keynote speech was delivered by current Australian Competition Tribunal President, Justice John Mansfield ('Every time I find the meaning of life, they change it!'), followed by John Kench's take on 'substantial lessening of competition' and the role of expert economists (later defended Dr Philip Williams in his commentary on the role of expert economists in SLC cases). The third session featured Brent Fisse speaking on 'Facilitating Practices, Vertical Restraints and Most Favoured Customers', with the final session dedicated to section 46, with Luke Woodward delivering a paper prepared by himself and Matt Rubinstein on 'The use and misuse of section 46'.

 

20 May 2016 - Andrew Leigh on Australia's concentrated markets

Labor's assistant treasurer and shadow competition minister, Andrew Leigh, delivered the John Freebairn Lecture in Public Policy at the University of Melbourne last night, highlighting levels of market concentration in Australia and outlining some of the steps labor would take in relation to competition and consumer policy should it win office. See Mark Ludlow, 'Election 2016 - Labor to toughen consumer laws' (AFR, 19 May 2016), Peter Martin, 'Election 2016: Competition law to target mergers that hurt the poor under Labor' (SMH, 19 May 2016). See also Andrew Leigh, 'Here's how Labor wants to tackle inequality and competition in modern markets' (Business Insider, 20 May 2016) containing an edited extract of the lecture.

 

17 May 2016 - Dahlson on the proposed Mitre 10 and Danks merger

John Dahlson, former Woolworths Chairman, now owner of the hardware chain JC Dahlsen, is supporting the proposed merger between Mitre 10 and Danks, claiming it would strengthen the ability of independents to compete with Bunnings. See Sue Mitchell, 'ACCC urged to approve 'anti-competitive' Mitre 10 and Danks merger' (SMH, 17 May 2016).

 

17 May 2016 - Durie on Coles' response to milk prices

John Durie has an item on Coles' response to the drop in farm gate milk prices - see John Durie, 'Coles seeks to avoid political fallout as milk deal turns sour' (The Australian, 17 May 2016)

 

16 May 2016 - ACCC examines milk price cuts

The ACCC is examining the latest milk price cuts from Fonterra and Murray Goulburn to consider whether the changes 'involved misleading conduct or whether there are elements of unconscionable conduct'. See also Tom Westbrook, 'ACCC examining Fonterra, Murray Goulburn milk price cuts' (SMH, 14 May 2016), Chris Pash, Fonterra gives struggling dairy farmers early cash as the ACCC investigates' (Business Insider Australia, 16 May 2016) and John Durie, 'Murray Goulburn is the real cause of dairy farmers' pain' (The Australian, 16 May 2016).

 

14 May 2016 - Durie on delays with Harper implementation

John Durie has a piece in today's Australian noting that it appears the government has abandoned plans to release an exposure draft of Harper-related changes before the election. See John Durie, 'Ian Harper reform on competition in cold storage' (The Australian, 14 May 2016).

 

12 May 2016 - Coles' petrol pricing under scrutiny ... again ...

Sue Mitchell reports that the ACCC is watching petrol prices at Coles Express following claims it is subsidising grocery discounts by charging higher petrol prices. It's not clear how this would be problematic under the Act - and ACCC Chairman, Rod Sims, noted that it would be 'very unlikely to be a breach of the act', but nevertheless suggested it was a 'concern if it leads to consumers paying more for fuel'. See Sue Mitchell, 'Coles' petrol pricing under ACCC scrutiny' (SMH, 12 May 2016).

 

9 May 2016 - ACCC seeks comment on access guidelines

The ACCC has released draft Part IIIA access undertaking guidelines for public comment. Public submissions are due by Tuesday 7 June 2016. View ACCC notice. View consultation hub.

 

6 May 2016 - Treasury releases consultation paper on improving consumer outcomes and enhancing competition in relation to credit card interest rates

The Treasurer, Scott Morrison MP, has released a consultation paper outlining 'reforms to provide greater legislative protection to vulnerable consumers, to exert more competitive pressure on credit card issuers and to provide consumers with the information they need to make the best choices about how they use their credit cards.'

The consultation paper is the Government's ' response to the Senate Economics References Committee Inquiry into matters relating to credit card interest rates.'

Interested parties may make a submission by 17 June 2016.

 

6 May 2016 - ACCC re-authorises refrigerant recovery scheme

The ACCC has re-authorised 're-authorised Refrigerant Reclaim Australia and participants in the refrigerants industry to continue to co-operate on a scheme to recover refrigerants that threaten the environment.'. See ACCC, 'ACCC re-authorises refrigerant recovery scheme' (Media Release). See also public register.

 

5 May 2016 - Cattle and Beef Market Studies Forums

The ACCC has invited people involved with cattle and beef markets to participate in regional forums. See media release. See Cattle and beef market study home page.

 

5 May 2016 - ACCC will not oppose AB InBev's acquisition of SABMIller

The ACCC has announced it will not oppose the proposed acquisition of SABMiller by Anheuser-Busch InBev. See media release. See merger register.

 

3 May 2016 - Budget day

The Budget and related speech is available on the government's budget site. See, for example:

The budget papers include reference to the Harper Review; under Jobs and Growth the Government notes it is 'advancing the recommendations of the Harper Competition Policy Review and (in bold print no less) notes that the government is 'strengthening Australian's competition law to prevent big businesses from misusing their market power or seeking to dominate markets.' (see full PDF segment)

For media, see for example Alan Mitchell, 'Budget 2016: More like pre-election pussy footing than an economic plan' (AFR, 3 May 2016), Tim Leslie, Paul Donoughue and Simon Elvery, 'Budget 2016: Winner and losers' (ABC, 3 May 2016).

 

2 May 2016 - Halliburton terminates proposed deal with Baker Hughes

The ACCC has discontinued its informal review of Halliburton's proposed acquisition of Baker Hughes Inc after Halliburton advised the proposed acquisition would not be proceeding. The ACCC had issued a statement of issues in relation to the proposed acquisition in October last year.

See merger register.

See also Aoife White, 'Halliburton-Baker Hughes Deal Collapses Amid Global Opposition' (Bloombert, 2 May 2016), Amie Tsang, 'Morning Agenda: Halliburton and Baker Hughes Call Off Merger' (New York Times, 2 May 2016) and 'Oilfiled services provider Halliburton terminates $28b merger with Baker Hughes' (EBR, 2 May 2016)

 

2 May 2016 - Budget eve

On budget-eve 2016 Peter Martin reports on how the budgets of ACCC and other regulates have fared under the current government - he notes that the ACCC has lost 10% of staff over the past three years

See Peter Martin, 'ASIC, ACCC and Tax Office budgets slashed in Coalition's first three years' (SMH, 1 May 2016)

 

April 2016

30 April 2016 - Australian Egg Corp

The Federal Court (Justice White) has declared that in 2012 Zelko Lendich 'attempted to encourage certain egg producers in Australia to enter into an arrangement or arrive at an understanding containing a provision to limit the production for supply and the supply of eggs in Australia' and that the agreement or understanding, if entered into, 'would have had the purpose of directly or indirectly preventing, restricting or limiting the production for supply and the supply, or the likely production for supply and the likely supply, of eggs by any or all of the egg producers' in contravention of s 44ZZRJ of the Act. See judgment: ACCC v Australian Egg Corporation Limited [2016] FCA 447 (29 April 2016)

Mr Lendich was ordered to pay $120,000 in respect of the declaration, as well as engage in a training session about the cartel laws. He was also ordered to pay ACCC costs in the amount of $10,000 as well as a contribution to costs of the other respondents. These orders follow admissions made by Mr Lendich.

This decision follows dismissal of the ACCC's proceedings against the other respondents to the proceeding, including the Australian Egg Corporation Ltd, on 10 February, against which the ACCC has appealed.

 

29 April 2016 - $18.6m penalties ordered against Cement Australia companies for competition law contravention

The Federal Court has ordered penalties totalling $18.6m against Cement Australia and related companies for contravening s 45 of the (then) Trade Practices Act. So far the judgment has been made available to the parties on a 'restricted basis pending resolution of confidentiality issues'.

See ACCC press release. See also Anna MacDonald, 'Cement companies fined $18.62m for anti-competitive conduct (ABC News, 29 April 2016).

 

29 April 2016 - First report on NBN wholesale market released

The ACCC had released NBN Co's wholesale market indicators report, required to be provided pursuant to a disclosure direction issued by the ACCC on 21 March. The next report will be published in late July 2016. See ACCC press release for overview and key findings. See also NBN Wholesale Market Indicators Report page.

 

29 April 2016 - Egg news

The Federal Court (Justice White) has declared that in 2012 Zelko Lendich 'attempted to encourage certain egg producers in Australia to enter into an arrangement or arrive at an understanding containing a provision to limit the production for supply and the supply of eggs in Australia' and that the agreement or understanding, if entered into, 'would have had the purpose of directly or indirectly preventing, restricting or limiting the production for supply and the supply, or the likely production for supply and the likely supply, of eggs by any or all of the egg producers' in contravention of s 44ZZRJ of the Act. See judgment: ACCC v Australian Egg Corporation Limited [2016] FCA 447 (29 April 2016)

Mr Lendich was ordered to pay $120,000 in respect of the declaration, as well as engage in a training session about the cartel laws. He was also ordered to pay ACCC costs in the amount of $10,000 as well as a contribution to costs of the other respondents. These orders follow admissions made by Mr Lendich.

This decision follows dismissal of the ACCC's proceedings against the other respondents to the proceeding, including the Australian Egg Corporation Ltd, on 10 February, against which the ACCC has appealed.

See ACCC media release, 'Federal Court orders Zelko Lendich to pay $120,000 penalty for attempt to induce cartel arrangement between egg producers' (2 May 2016)

 

29 April 2016 - Productivity Commission's Draft IP report released

The Draft Productivity Commission Report on Intellectual Property Arrangements, released today, is consistent with the recommendations made by the Harper Panel in relation to IP. In particular, it recommends removal of parallel import restrictions on books by no later than the end of 2017 (draft rec's 5.2). It further recommends that the Government make clear that it is not an infringement of the Copyright Act for consumers to circumvent geoblocking technology (draft recommendation 5.1)

The Draft Report also acknowledges that a 'well-functioning IP system must take account of the longer run effects on competition that exclusivity of ideas can create' (p 386). It considers current competition law exemptions relating to licensing or assignment of IP property and exemptions form the National Access Regime. In relation to the former it recommends repeal of the s 51(3) exemption and that the ACCC issue guidance on the application of the competition law provisions of the CCA to intellectual property (draft rec 14.1). In relation to access, the PC does not reach a concluded view, but requests further information (p 399).

The Draft Report also considers pharmaceutical pay for delay schemes (ch 9). It recommends, in part, that the Government should 'introduce a transparent reporting and monitoring system to detect any pay-for-delay settlements between originator and generic pharmaceutical companies' and that this should be administered by the ACCC (draft rec 9.4).

There is plenty more in the report of interest. Submissions on the draft report can be made until 3 June. A final report is expected in August. View Public Inquiry home page.

See, for example, Bruce Baer Arnold, 'Productivity Commission’s recommendations on IP reform likely to be lost in election haze' (The Conversation, 29 April 2016)

 

29 April 2016 - Penalty judgment in Cement Australia scheduled for today at 4:15pm

Justice Greenwood is expected to hand down his formal orders inACCC v Cement Australia Pty Ltd today (4:15pm). This follows the hearing on these matters in December 2014, which followed publication of the judgment (accompanied by interim declarations) in the principal proceedings (ACCC v Cement Australia Pty Ltd [2013] FCA 909) on 10 September 2013 (running to 940 pages!).

In that judgment, Cement Australia (and other respondents) were found to have contravened section 45 (the ACCC's claim that they had also contravened s 46 did not succeed). The interim declarations were discharged and dissolved in February 2014 (Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148); in that judgment Justice Greenwood dismissed proceedings insofar as they related to a claimed contravention of s 46 and made various orders declaring contravention of s 45. Costs and final orders, including those relating to pecuniary penalty, were reserved for later determination. The hearing on these matters took place in December 2014. Following the judgment, expected today, the parties will have 21 days to file an appeal.

 

28 April 2016 - Court orders Colgate to pay $18m penalties as a result of ACCC cartel proceedings

Following admissions by Colgate that it entered into understandings which limited the supply - and controlled the price - of laundry detergents, the Federal Court has ordered Colgate pay penalties totaling $18m for contraventions of the TPA (as it was when the contraventions took place). Proceedings are continuing against Cussons and Woolworths, which the ACCC also alleges gave effect to cartel and other anti-competitive arrangements. View ACCC press release. See also: Michael Janda, 'Colgate-Palmolive to pay $18m penalty for laundry detergent cartel' (ABC News, 28 April 2016); John Rolfe, 'ACCC extracts $18m fine from Colgate-Palmolive for cartel to shrink laundry powders' (Herald Sun, 28 April 2016).

 

28 April 2016 - Sims on proposed new-car import changes

ACCC Chairman, Rod Sims, has an opinion piece in today's The Australian, discussing proposed new-car importation changes recently announced by the Government. See Rod Sims, 'Rod Sims: new-car importation changes can increase competition' (The Australian, 28 April 2016)

 

27 April 2016 - Membership of new Agriculture Consultative Committee announced

The ACCC has announced the membership of its new Agriculture Consultative Committee, which will provide a 'forum for the discussion of competition and fair trading concerns related to the agriculture sector'. The Committee will be Chaired by the ACCC's agricultural Commissioner, Mick Keogh. View media release. View Committee details.

 

27 April 2016 - ACCC sets new proposed date for ruling on beer merger

The ACCC last week delayed its decision (originally due 21 April) about the proposed acquisition by Ahnheuser-Busch InBev of SABMIller, at the request of the brewers. I received further information from the parties today and has set a revised proposed date for announcement of its decision - next Thursday, 5 May 2016. View merger register. See Simon Evans, 'ACCC again delays ruling on beer mega-merger of Anheuser-Busch InBev, SABMiller' (SMH, 20 April 2012).

 

27 April 2016 - ACCC releases East Coast Gas Inquiry Report

The ACCC released its report on the 'competitiveness of wholesale gas prices in eastern and southern Australia' last week. View media release. View project page (including report and key findings). This was followed by plenty of media - see, for example, Stephen Letts, 'Gas supplier monopoly pricing hits domestic users hard: ACCC' (ABC News, 22 April 2016), Stephen Bartholemeusz, 'Pipelines under pressure as ACCC inquiry misses the mark on gas' (The Australian, 22 April 2016), Matthew Stevens, 'Big Mick fumes as gas regulation looms' (AFR, 22 April 2016).

 

21 April 2016 - SOI released on proposed acquisition of Jennmar Australia by DSI

The ACCC has issued a Statement of Issues on the proposed acquisition of Jenmar Australia by DYWIDAG-Systems International Group (DSI), both suppliers of 'ground support products to mining and civil construction customers'. Submissions due by 12 May with proposed announcement on 16 June. See media release. See merger register.

 

21 April 2016 - Xenophon's MMP bill restored to Senate Notice Paper

The Competition and Consumer (Misuse of Market Power) Bill 2014, which lapsed due to prorogation of parliament, has now been restored to the Senate Notice Paper (moved by Senator Xenophon on Tuesday). The private member's bill, introduced by Senator Xenophon in 2014, would give the Court divestiture powers over companies found to have contravened s 46. It is inconsistent with recommendations made in the Harper Report (which considered current remedies sufficient and a divestiture remedy inappropriate) and which have been accepted by the Government. It is, therefore, not expected to pass ... but it is still alive for the moment.

 

18 April 2016 - Competition bills lapse at prorogation

Two competition bills, which were before parliament, have now lapsed by reason of prorogation. The first was the Competition and Consumer (Misuse of Market Power) Bill 2014, a private member's bill introduced by Senator Xenophon and which the Senate Economics Legislation Committee recommended against passing back in February 2015. The second was the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015. This bill had been introduced by then Minister for Small Business, the Hon Bruce Billson MP. Although it focused on amendments relating to the Australian Consumer Law, if passed, it would also have introduced amendments to s 5 of the Act relating to the requirement for private parties to obtain ministerial consent. In particular, it would have removed the requirement for private parties to seek Ministerial consent when bringing an action for a breach that takes place overseas. Unlike the Xenophon bill, the Senate Economics Legislation Committee had recommended that this bill be passed.

 

18 April 2016 - Telstra's CRM breached competition undertaking

The ACCC's annual report on Telstra's compliance with its SSU during 2014-2015, tabled in Parliament Friday, reveals that, although the ACCC considered that 'Telstra continued to demonstrate a commitment to improving its level of compliance with its' SSU, they nevertheless identified some compliance issues , particularly in relation to safeguarding Protected Information. View report. See ANU media release ('ANU seeks ACCC intervention on admissions, 14 April 2016). See also Richard Chirgwin, 'Telstra's CRM system breached competition undertaking: ACCC' (The Register, 17 April 2016).

 

15 April 2016 - ANU lodges complaint with the ACCC over conduct of state-based university admission centres

The ANU has lodged a complaint with the ACCC over the decision by three state based tertiary admission centres to reject ANU's application for membership. The ACCC is said to be assessing the complaint. See, eg, Katherine Towers, 'ACCC probes ANU’s cartel complaint against tertiary admissions centres' (The Australian, 13 April 2016), Emma Macdonald, 'ANU alerts ACCC to anti-competitive admissions centres' (The Canberra Times, 13 April 2016).

 

15 April 2016 - ACCC's annual report on Telstra's compliance with Structural Separation Undertaking tabled in Parliament

The ACCC's annual report on Telstra's compliance with its SSU during 2014-2015 has been tabled in Parliament. See media release.

 

14 April 2016 - ACCC authorises Qld LNG producers to coordinate maintenance schedules

The ACCC has granted a five year, conditional authorisation to 'Australia Pacific LNG Pty Ltd, Gladstone LNG, and the Queensland Curtis LNG Project to discuss their maintenance schedules, maintenance providers, and maintenance techniques.' See media release. See authorisation.

 

13 April 2016 - ACCC issues draft decision on WaterNSW's charges in the Murray-Darling basin

The ACCC has 'released its draft decision on proposed charges for WaterNSW’s infrastructure services in the Murray-Darling Basin (MDB) during 2016-17.' See media release. See draft decision.

 

11 April 2016 - ACCC continuing to examine competition implications of NBN/Telstra HFC delivery agreement

The ACCC has 'expressed concerns around the competition implications of Telstra’s involvement in the rollout of the NBN network.' See full media release. See also John Durie, 'ACCC tested by Telstra’s latest NBN deal' (The Australian, 11 April 2016).

 

7 April 2016 - Issues paper released for ACCC cattle and beef market study

The ACCC has today released an issues paper for its cattle and beef market study announced Tuesday. See media release. See issues paper. Submissions are due by 6 May. See also separate cattle and beef market study page.

 

6 April 2016 - ACCC launches market study into cattle and beef industry

The ACCC has announced it will commence a market study into the cattle and beef industry in Australia. This study will 'examine competition, efficiency, transparency and trading issues in the beef and cattle supply chain.' See media release. The issues paper and further information will be available tomorrow from the ACCC's agriculture page, with draft findings expected in September and a final report expected late November. See, for example, Kylar Loussikian, 'ACCC to probe cattle market' (The Australian, 6 April 2016) and John Durie, 'ACCC wanders into fresh pastures' (Business Spectator, 5 April 2016).

 

5 April 2016 - Loyal Coal Pty Ltd admits competition law breach

Loyal Coal Pty Ltd has agreed to resolve proceedings instituted against it by the ACCC, admitting that in 2009 it entered into and gave effect to an understanding to withdraw from a tender process in contravention of the Competition and Consumer Act 2010 (as an exclusionary provision). See media release. Proceedings are continuing against ten other respondents. See also Anthony Klan, 'Obeid-linked firm admits cartel conduct' (The Australian, 6 April 2016) and Michaela Whitbourn, 'Witness disappears in cartel conduct case against Obeids and Sydney businessmen' (SMH, 4 April 2016).

 

5 April 2016 - Norton Rose Fulbright on merger control

Norton Rose Fulbright has published a short piece on merger control in Australia and elsewhere, including a three-step guide to managing merger control. See Norton Rose Fulbright, 'Merger control ubiquitous in Australia and abroad' (4 April 2016)

 

4 April 2016 - ACCC commences review of Asciano deal

The ACCC has released a market inquiries letter on the $9billion Qube and Brookfield led takeover bid for Asciano, with a provisional date for an announcement on the bid of 26 May 2016. This follows discontinuation of two separate ACCC merger reviews following Asciano's announcement that it had entered into a new binding agreement with the consortium: See ACCC Merger Register. see also Jenny Wiggins, 'ACCC raises fresh questions over $9 billion Asciano deal' (SMH, 4 April 2016).

 

March 2016

29 March 2016 - Sims responds to Durkin's attack on effects test

ACCC Chairman, Rod Sims, has spoken on ABC, The Business, responding to questions about the proposed effects test for s 46. See Ticky Fillerton, 'Effects test: ACCC's Rod Sims slams mistruths from big corporates' (ABC News, 29 March 2016). See also Jacob Greber, 'Rod Sims criticises Coles boss on effects test claims' (AFR, 28 March 2016).

 

24 March 2016 - Sims outlines agenda for new term

ACCC Chairman, Rod Sims, yesterday nominated by Treasurer Scott Morrison for a further three-year term, has spoken to the AFR about his plans for his next term. See Patrick Durkin, 'Rod Sims outlines tough agenda for new term' (AFR, 24 March 2016).

 

23 March 2016 - Government nominates Sims for re-appointment as ACCC Chair

The Government has nominated Rod Sims for reappointment as Chairman of the Australian Competition and Consumer Commission for a period of three years, commencing 1 August 2016. See media release.

 

23 March 2016 - High airport profit margins facilitated by lack of competitive pressure

The ACCC's annual Airport Monitoring Report has been released, finding that monitored airports 'continue to enjoy high profit margins in both aeronautical and car parking activities' suggesting 'they do not face much competitive pressure'. See ACCC media release.

 

22 March 2016 - Conditional authorisation granted for ihail taxi booking app

The ACCC has granted authorisation (with conditions) to a joint venture between taxi networks and others (inc Cabcharge) 'to launch and operate a new smartphone taxi booking app'. See media release. See authorisation.

 

21 March 2016 - ACCC wins air cargo appeal

The ACCC has succeeded in its air cargo appeal against the decision in ACCC v Air New Zealand Limited [2014] FCA 1157 . On the importance of the decision, ACCC Chairman, Rod Sims, stated: 'Although it is no longer a requirement of our cartel laws that it be established that price fixing occurred in a market in Australia, this decision is significant because it confirms the ACCC’s view that the conduct by the airlines in fixing air cargo surcharges to be paid by Australian importers and ultimately passed on to Australian consumers, were caught by Australian competition laws'. See media release. View decision (ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42). For more details see case page.

 

 

16 March 2016 - Government media release on effects test

The Government has published a media release on its decision to adopt an effects test for s 46 (misuse of market power) of the Competition and Consumer Act. It states: "The Turnbull Government will legislate to fix competition policy in Australia through implementation of the Harper Review’s recommendation to amend Section 46 of the Competition and Consumer Act - the misuse of market power provision." The Government will 'consult on Exposure Draft legislation before introducing it to Parliament later in 2016'. See 'Joint Media Statement - Prime Minister, Treasurer and Assistant Treasurer - Competition Policy' (16 March 2016).

 

16 March 2016 - Misuse of market power: current versus proposed tests

In light of today's news that the Government proposes to implement an effects test in line with the Harper recommendations, visit my Harper misuse of market power page to compare the current law with that now proposed.

 

 

16 March 2016 - Turnbull Government approves implementation of effects test

Breaking news: The Turnbull government has adopted the Harper panel's recommendation for an effects test for misuse of market power, labelling it 'vital economic reform'. Mr Turbull said:

"... Last night, the Cabinet has agreed that we will move to amend s.46 in line with the recommendations of the Harper review."

"What this will do is ensure that our competition law works better to enable competition, to enable smaller businesses, emerging businesses, to be better able to compete. We know that while larger firms are often very innovative and very often very competitive, they are more innovative if the hot breath of competition is coming down their neck."

"It is subtly different from the existing one because it seeks to protect competition. When you protect the competitive process, when you protect competition, you are not protecting one firm or another, you're protecting consumers overall."

See Gareth Hutchens, 'Turnbull government sides with small business, agrees to implement controversial 'effects test' (SMH, 16 March 2016); Lenore Taylor and Gabrielle Chan, 'Competition law: Malcolm Turnbull abandons opposition to proposed changes' (The Guardian, 16 March 2016) and 'Live: Coalition heads into partyroom meeting as battle over 'effects test' draws to close' (ABC, 16 March 2016).

 

16 March 2016 - Small business open letter on effects test

Peter Strong, Chief Executive of the Council of Small Business of Australia, has penned an open letter calling for the implementation of the Harper Panel's recommended changes to s 46. See Peter Strong, 'An open letter to the Prime Minister: The risk of not having an effects test' (SMH, 15 March 2016).

 

16 March 2016 - Labor's plans for dealing with anti-competitive behaviour

Labor has announced its plan to assist small business to sue big companies for competition law breaches. The plan includes additional funding for the Small Business and Family Enterprise Ombudsman and giving judges the power to waive liability for opposition costs in relation to Part IV CCA proceedings. This, they claim, is a better approach to anti-competitive conduct than the introduction of an effects test: see Broede Carmody, 'Labor plans to make it easier for small business to sue big companies' (SmartCompany, 15 March 2016); Phillip Coorey, 'Labor to make it easier for small business to sue (AFR, 14 March 2016); Michelle Rowland, 'Michelle Rowland: Small business needs practical solutions to confront anti-competitive behaviour' (SmartCompany, 15 March 2016).

The Business Council of Australia has endorsed Labor's policy as superior to the introduction of an effects test: see Joe Kelly, 'BCA backs Labor’s leg-up for small business' (The Australian, 15 March 2016). Conversely, the National Farmers Federation has argued that Labor's proposal should complement - not replace - the proposed effects test: Anna Vidot, 'Labor proposal should complement effects test, not replace it: NFF CEO' (ABC Rural, 16 March 2016).

 

11 March 2016 - ACCC granted special leave to appeal in Flight Centre case

The High Court has granted the ACCC special leave to appeal the Full Federal Court's decision in Flight Centre. See ACCC press release.

 

11 March 2016 - Durie on the ACCC and proposed changes to s 46

In his column today, John Durie discusses a number of competition law/policy issues, including proposed changes to section 46, the ACCC's special leave to appeal application in Flight Centre and the ACCC's recent merger decisions. See John Durie, 'ACCC in pursuit of competition' (The Australian, 11 March 2016).

 

10 March 2016 - Durie on the Coles/Supabarn deal

John Durie takes aim at the ACCC for taking 'too long' to announce its decision on the Coles/Supabarn deal, claiming that the 'ACCC needs to take a tougher stance on what is meant to be an informal process': see John Durie, 'ACCC gives go-ahead for Coles deal with Supabarn, but approval took too long' (The Australian, 10 March 2016).

 

10 March 2016 - ACCC will not oppose Coles' proposed acquisition of five Supabarn supermarkets

The ACCC has announced that it will not oppose Coles' proposed acquisition of five Supabarn supermarkets. The original proposal was for Coles to acquire nine Supabarn supermarkets, but Coles restructured their transaction following concerns raised by the ACCC, removing the 'most problematic stores'. See ACCC media release. See merger register.

 

7 March 2016 - ACCC rate rigging probe

In the wake of ASIC's initiation of civil proceedings against the ANZ, the ACCC has also confirmed it is investigating alleged market manipulation by some Australian banks. See Richard Gluyas, 'ACCC rate rigging probe well advanced' (The Australian, 7 March 2016).

 

7 March 2016 - ACCC to announce decision on Coles/Supabarn deal on Thursday

The ACCC is expected to announce its decision on Coles' proposed acquisition of nine Supabarn supermarkets on Thursday. See John Durie, 'ACCC tipped to block sale of some key Supabarn stores to Coles' (The Australian, 7 March 2016) and John Thistleton, 'ACCC will say on Thursday if Coles can buy nine Supabarn stores' (The Canberra Times, 7 March 2016). See also merger register.

 

3 March 2016 - Public competition assessment

The ACCC has released its Public Competition Assessment on its October 2015 decision not to oppose proposed acquisitions by Foxtel and Ten Network. View Foxtel/Ten Public Competition Assessment.

 

2 March 2016 - Egg appeal

The ACCC today filed a Notice of Appeal from the Federal Court's decision dismissing the ACCC's proceedings against the Australian Egg Corporation Ltd and others, which commenced in May 2014. See ACCC press release. See also Alex Sampson, 'Competition watchdog, ACCC, appeals egg cartel decision' (The Weekly Times, 2 March 2016).

 

February 2016

26 February 2016 - The State of Competition kicks off for 2016

The latest The State of Competition has hit the virtual shelves. With the spotlight (still) on misuse of market power, the authors have tackled the issue of 'take advantage' and its application via the counterfactual. View this issue of The State of Competition or head over to their website for full access to all back-issues (but be warned if you have dogs; after reading this issue I can no longer look at my dogs without picturing them wearing pants!)

 

24 February 2016 - What does 2016 bring for competition law?

Dr Martyn Taylor, Andrew Willekes and Louie Liu at Norton Rose Fulbright have published their thoughts on what we might expect for competition regulation in Australia this year. It set out (among many other things) their thoughts on the likelihood of certain Harper Reforms being implemented within the Turnbull Government's next term (if returned to office) (s 46 reforms are considered 'low' on this scale). This is a must read update on the state of competition law and regulation in Australia - see 'Australian competition regulation – What should we expect during 2016?' (Norton Rose Fulbright, February 2016)

 

24 February 2016 - New ACCC Commissioner appointed

The ACCC has welcomed the appointment of Mick Keogh as the newest ACCC Commissioner. Mr Keogh is the first agricultural commissioner appointed to the ACCC. View ACCC media release. See media release from the Hon Barnaby Joyce MP announcing the appointment. See also Anna Vidot, 'Mick Keogh appointed as competition watchdog's first ever agricultural commissioner' (ABC, 24 February 2016).

 

23 February 2016 - ACCC suspends review timelines on proposed acquisitions of Asciano Ltd

ACCC ACCC has suspended review timelines for both proposed acquisitions (Qube and Brookfield consortiums) of Asciano Ltd as a result of this morning's announcement 'of a potential transaction under which the Brookfield Consortium and the Qube Consortium would together facilitate the acquisition of 100% of the issued capital of Asciano.' View media release.

 

23 February 2016 - ACCC priorities

ACCC Chairman, Rod Sims, outlined the ACCC's compliance and enforcement priorities at a CEDA event in Sydney today. He indicated that the ACCC would 'continue to take a strong line on cartel conduct, anti-competitive conduct and practices, and where we can, misuse of market power' and stated that he expected one or two criminal cartel prosecutions this year. View media release. View speech. View Compliance and Enforcement Policy (23 Feb 2016).

 

 

21 February 2016 - Joyce expects government to 'deliver' on effects test

The new deputy PM, Barnaby Joyce, has stated that he expects the government to deliver on the inclusion of an effects test, noting that it is 'imperative that the government resist the threat and the pressure from the BCA and Wesfarmers and one or two other companies and sends a message that they are here for the whole economy and not just a small part of the economy': Joe Kelly, '"We'll deliver betterment for small business": Barnaby Joyce' (The Australian, 21 February 2016).

 

18 February 2016 - Clayton Utz updated on proposed competition amendments

Clayton Utz has published an update on the proposed competition amendments, focussing on the issue of an effects test and noting the government's decision on misuse of market power provisions is expected by the end of March. See Michael Corrigan and Sunita Kenny, 'Uncertain effects: An update on proposed competition law amendments' (Clayton Utz Insights, 18 February 2016). See also Kirsten Webb and Mihkel Wilding, 'Misuse of market power: will 2016 be the year for a new law?' (Clayton Utz Insights, 24 December 2015).

 

18 February 2016 - ACCC will not oppose Pact's proposed acquisition of Power Plastics

The ACCC has announced that it 'will not oppose the proposed acquisition of Power Plastics Pty Ltd (Power Plastics) by a subsidiary of Pact Group Holdings Limited (Pact) (ASX: PGH).' View media release. View merger register.

 

17 February 2016 - Overview of submissions on Treasury's Misuse of Market Power discussion paper

I've provided an overview of the non-confidential submissions to Treasury's Misuse of Market Power Discussion Paper on my submissions page. Although numbers don't tell the full story, broadly 36 submissions supported options E or F (essentially the Harper Recommendation) or the introduction of an effects test generally; 15 opposed any change to the current provision and 13 submissions either proposed an alternative option to the six presented in the discussion paper or made general observations without identifying a preferred reform option. Full submissions can be downloaded from the Treasury submission page.

 

16 February 2016 - Submissions on Treasury's Misuse of Market Power provision now available

Treasury has now published the non-confidential submissions to its Discussion Paper on the Harper Panel's proposed changes to s 46. There were 70 submissions received; 7 were confidential. View Treasury submission page.

 

16 February 2016 - ACCC releases 'Small business in focus' report

The ACCC has released its July-December 2015 Report on Small business, franchising and industry codes. The majority of complaints received by small business for that period relate to misleading conduct/false representations, consumer guarantees and product safety. Next on the list are competition issues, topped by misuse of market power, with 262 complaints from small business (up 30 on 2014 figures), exclusive dealing, with 212 complaints received and other competition issues generating 165 complaints. See also ACCC, 'Protecting small businesses remains high on ACCC's agenda' (Press Release, 16 February 2016).

 

16 February 2016 - ABL opposes misuse of market power changes

Lawyers Weekly reports that, in its submission on Treasury's Misuse of Market Power Discussion Paper, Arnold Bloch Leibler has opposed recommendations of the Harper Panel to reform section 46 of the Act. Submissions closed on Friday 12 February; they have not yet been published on the Treasury site. See Stephanie Garber, 'Firm opposes Harper Review reform to 'misuse of market power' (Lawyers Weekly, 16 February 2016).

 

12 February 2016 - What does figure skating and misuse of market power have in common? Alexandra Merrett explains

Alexandra Merrett has published a note critiquing the view that the existing 'proscribed purposes' in section 46 are about protecting individuals and not the competitive process, drawing an analogy with the 1994 Harding/Kerrigan debacle - as always, well worth reading. See Alexandra Merrett, 'Misuse of market power: how figure skating explains the role of purpose' (LinkedIN Pulse, 2 February 2016).

 

12 February 2016 - Submissions on misuse of market power due today

Submissions on Treasury's discussion paper - 'Options to Strengthen the Misuse of Market Power Law' are due today. See Treasury website.

 

10 February 2016 - Misuse of Market Power campaigning

IGA has joined the small business campaign - 'Let's Compete: Change the Law' - to introduce an effects test for misuse of market power. See also Patrick Durkin, 'IGA takes 'effects test' campaign to the streets' (AFR, 10 February 2016). The Harper Report recommended an effects test; the Government is currently engaged in consultation on the misuse of market power provision, with submissions on Treasury's discussion paper - 'Options to Strengthen the Misuse of Market Power Law' due Friday.

 

10 February 2016 - Australian Egg Corporation Ltd did not attempt to induce cartel arrangement: Federal Court

The Federal Court (Justice White) has found that Australian Egg Corp Ltd, Farm Pride Foods Ltd and Ironside Management Services Pty Ltd did not attempt to induce a cartel arrangement, as had been alleged by the ACCC. See ACCC media release. View judgment: Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 69. See also Clint Jasper, 'Federal Court rules ACCC claims of egg cartel activity "not proven"' (ABC Rural, 10 February 2016)

 

5 February 2016 - Woolworths v Mitre 10

SMH reports that Woolworths has written to Mitre 10 reminding it of its competition law obligations after Mitre 10 invited several Home Timber & Hardware franchisees to its annual summit. See 'Woolworths threatens Mitre 10 with ACCC action' (SMH, 5 February 2015). See also Sue Mitchell, 'Former Woolworths chairman backs Mitre 10, Home merger' (SHM, 22 January 2016) and Sue Mitchell, 'Bunnings beats Masters in home war but it won't get any easier for independents' (AFR, 22 January 2016).

 

5 February 2016 - New deadlines for ACCC assessment of proposed Asciano Ltd acquisitions

The ACCC today set new indicative decision dates of 24 March for its consideration of the two proposed acquisitions of Asciano. The original proposed decision date for both proposed acquisitions was 18 February. See ACCC media release. See merger register (Qube consortium proposal) and merger register (Brookfield consortium proposal). See also Jenny Wiggins, 'ACCC delays ruling on Brookfield's, Qube's Asciano takeover bids until late March' (SMH, 5 February 2016) and Andrew White, 'ACCC delays decision on Asciano takeover' (The Australian, 5 February 2016).

 

3 February 2016 - Australia's 'love affair with oligopolies'

Peter Strong (Executive Director of the Council of Small Business of Australia) has a piece in today's Smart Company arguing that Australia's 'love affair with oligopolies needs to end'. The item includes discussion of the misuse of market power provision, arguing that the 'big business lobby's' demands to retain the words take advantage in the provision suggest that 'the biggest businesses Australia has ever seen want to be protected from the law by making the law impossible to prosecute'. Strong calls for implementation of the Harper Review's recommendations. See Peter Strong, 'Why Australia’s love affair with oligopolies needs to end' (Smart Company, 3 February 2016).

 

1 February 2016 - Unconscionable conduct case under way

The ACCC's case against Woolworths' alleging unconscionable conduct is now underway in the Federal Court in Sydney. See Sue Mitchell, 'Woolworths' unconscionable conduct case kicks off in Federal Court' (SMH, 31 January 2016).

 

January 2016

28 January 2016 - ACCC light on cartel conduct?

Today's Australian compares cartel penalties in Australia with a number of other jurisdictions. This follows the release of Allen & Overy's Global Cartel Enforcement Report. ACCC Chairman, Rod Sims, points to fines being lower in Australia and renewed hopes that 'this year would see Australia's first conviction in a case of criminal cartel conduct'. See Leo Shanahan, 'Competition regulator ACCC "light on cartel conduct"' (The Australian, 28 January 2016). See also Felicity Nelson, 'A&O predicts growth in cartel prosecutions' (Lawyers Weekly, 27 January 2016).

 

24 January 2016 - ACCC reviewing Anheuser Busch InBev, SABMiller merger

The ACCC has launched a formal review of the proposed multi-billion dollar merger between these Anheuser Busch InBev and SABMiller. Submissions are due by 15 February. See merger register. See eg, John Durie, 'ACCC to formally investigate Anheuser Busch InBev, SABMiller merger' (The Australian, Business Review, 25 January 2016), Eli Greenblat, 'Inquiries brewing over beer merger (The Australian, Business REview, 26 January 2016) and Simon Evans, 'Froth around Corona to top ACCC's beer mega-merger review' (SMH, 25 January 2016).

 

18 January 2016 - Politics and the effects test

Former Labor competition minister, Craig Emerson has an opinion piece in today's AFR about the effects test: Craig Emerson, 'Effects test is all about the politics' (AFR, 18 January 2016).

 

18 January 2016 - King: Informed Sources settlement will 'empower petrol consumers'

Stephen King has an item in today's The Conversation on the Informed Sources settlement. See Stephen King, 'ACCC settlement will empower petrol consumers' (The Conversation, 18 January 2016).

 

12 January 2016 - More on the effects test

The AFR reports ACCC Chairman, Rod Sims, pushing for an effects test again (Misa Han, 'ACCC wants to curb oligopoly power' (AFR, 11 January 2016)) and former ACCC Chairman, Graeme Samuel and Wesfarmers chief executive, Richard Goyder, pushing against any change (Misa Han, 'Sims power push runs into trouble' (AFR, 12 January 2016) and Patrick Durkin, 'Goyder joins war over ACCC powers' (AFR, 13 January 2016)). See also 'Double-edged competition law' (AFR, 13 January 2016). Nothing new, but heating up with the latest consultation on misuse of market power laws currently underway (see Treasury consultation page)

 

11 January 2016 - Sims seeks second term

The AFR reports today that Rod Sims is seeking a second term as ACCC Chairman. See Misa Han, 'Busy Sims seeks second term' (AFR, 11 January 2016).

 

4 January 2016 - More on resolution of Informed Sources proceedings

Broede Carmody has an item on the resolution of the Informed Sources proceedings in today's Smart Company - see Broede Carmody, 'ACCC drops proceedings against petrol retailers for using price comparison site Informed Solutions' (Smart Company, 4 January 2016).

 

2 January 2016 - Petrol prices

Lots of media on petrol prices at the start of the year - see, for example, Gareth Hutchens, 'Consistency needed on petrol prices across our cities' (SMH, 2 January 2016).