Competition Law News 2017

7 November 2017 - Harper Reforms

Law firms have started posting their updates on the Harper reforms following their commencement yesterday.

Leading the charge is Allens >< Linklaters which has a very neat infographic, setting out the key reforms and their implications (as well as other more detailed information)

There's also a media release from Treasurer Scott Morrison announcing the commencement: 'Aussie small business and consumers the winners as strengthened competition laws commence' (6 November 2017).

7 October 2017 - ACCC wants more information on Esso-BHP drop in gas output

ACCC Chairman, Rod Sims, has indictated the ACCC will be looking into Esso and BHP's drop in gas output from its Bass Straight joint venture.

See Peter Hannam, '"Held to ransom": Esso-BHP gas production drop to be examined by ACCC' (SMH, 7 October 2017)

See also Angela Macdonald-Smith, 'AGL Energy in the firing line again as ACCC widens crackdown on gas' (AFR, 5 October 2017)

25 September 2017 - Grattan Institute event in Melbourne next week: Competition in the Australian economy: too little of a good thing

The Grattan Institute is holding a Policy Pitch event on 3 October, featuring Prof Caron Beaton-Wells and Dr Stephen King, with Jim Minifie as moderator. The panel discussion will include consideration of the following questions:

• 'How valid are concerns about competition and market power in Australia?
• Where is competition working less well than it could, and what are its limits as a policy tool?
• What else should policymakers do to ensure competition benefits the community?'

The event will be held on 3 October at the State Library from 6-7:15pm; it is free to register.

For details and to register visit the Grattan Institute event page.

25 September 2017 - ACCC moves offices in Melbourne

The ACCC's Melbourne office has begun relocating from 360 Elizabeth Street to 2 Lonsdale St (level 17). There will be staff at both offices until 2pm on 6 October.

See 'ACCC Melbourne office is moving to Lonsdale St' (ACCC Update, 22 September 2017)

23 September 2017 - Michael Schaper to stand down as small business commissioner next year

Michael Schaper, the ACCC's Small Business Commissioner, will step down from the role in 2018 after nine years in the position.

John Durie takes a look at quick look at the role: John Durie, 'Michael Schaper, the champion of small business, to step down' (The Australian, 23 September 2017)

20 September 2017 - ACCC conducting local market screening re: BP's proposed acquisition of Woolworths' retail service station sites

The ACCC has published a Local market screening letter inviting submissions from interested parties by 28 September 2017.

The ACCC issued a Statement of Issues outlining preliminary competition concerns on 10 August 2017. The proposed day for the announcement of the ACCC's findings is 26 October 2017.

See ACCC merger register.

See also Sue Mitchell, 'BP, Woolworths fuel deal under spotlight' (AFR, 19 September 2017)

20 September 2017 - Sims's speech to National Press Club on energy affordability

ACCC Chairman, Rod Sims, address the National Press Club at lunchtime today on the issue of gas and electricity affordability.

The speech is now available:

• ACCC Media Release, 'Keeping the lights on: Australia’s energy affordability crisis' (20 September 2017)
• Rod Sims, 'Keeping the lights on: Australia’s energy affordability crisis' (Speech to National Press Club, 20 September 2017)
  • Video version at ABC

20 September 2017 - Tabcorp listed for judgment in Federal Court today

The Federal Court Registry lists the ACCC and Crownbet appeals against the decision of the Australian Competition Tribunal for judgment at 2:15pm today.

The matter was heard by Justice Besanko, Justice Perram and Justice Robertson.

See further

• My Tatts/Tabcorp merger page for background and links to the Tribunal decision.
• Ben Butler, 'Federal Court ruling on Tabcorp-Tatts tie-up looms' (The Australian, 19 September 2017)

20 September 2017 - Sims to address National Press Club on energy affordability today

ACCC Chairman, Rod Sims, will address the National Press Club at lunchtime today. His topic: 'Shining a light: Australia's gas and electricity affordability problem'.

For some media ahead of the speech, see:

• John Durie, 'Integrated energy retailers get shock treatment from Sims' (The Australian, 20 September 2017)
• Katharine Murphy, 'Rod Sims contradicts Coalition MPs' claims AGL is abusing market power (The Guardian, 13 September 2017)

20 September 2017 - ACCC wants four pillars bank policy reviewed

In a submission to the Productivity Commission's Inquiry into the Australian Financial System, the ACCC has suggested that the PC consider the impact of the four pillars policy on competition (para 3.2). The policy prevents mergers between the four major banks. The submission states, in part:

... the “four pillars” policy provides clarity and certainty that any mergers between the large banks would not be permitted. In that sense, the policy reflects a decision by the government to prevent further consolidation in an otherwise concentrated market rather than leaving this decision potentially with the Court, should a merger be challenged on competition grounds.

Conversely, it could be argued that the policy insulates the large banks from competition. Arguably the effect of the “four pillars” policy in addition to the implicit guarantee and prudential measures entrenches the large banks’ strong position in relevant markets and reinforces their “too big to fail” status. Whether this limits the ability of new entrants and smaller banks to constrain the large banks is a question we consider warrants further consideration. ...

The ACCC indicates it has not formed a final view on the issue. Its submission sets out in more detail the divergent views about the policy. The submission also sets out a number of initiatives the ACCC considers may reduce barriers to competition in retail banking, including reducing restrictions on the use of the term 'bank'.

See further:

• Productivity Commission's Inquiry into the Australian Financial System (including terms of reference and the 29 initial submissions to the Inquiry)
• ACCC submission to PC inquiry (PDF) (also available from ACCC submissions website)
• Media: Clancy Yeates, 'Big bank mergers: ACCC wants 'four pillars' policy examined' (SMH, 20 September 2017) and Richard Gluyas, 'Competition probe shakes Four Pillars banking policy' (The Australian, 20 September 2017)

14 September 2017 - Sims: AGL's ownership of Liddell and Bayswater anticompetitive

In an interview with the Australian Financial Review, ACCC Chairman, Rod Sims, described AGL's ownership of the Liddell and Bayswater powerplants as anticompetitive.

Sims points to the ACCC's opposition to AGL's deal to buy MacGen from the NSW government, which was approved by the Australian Competition Tribunal in 2014 after the ACCC refuse to grant informal clearance. Sims told the AFR that the ACCC thinks the merger 'is having an effect on increasing power prices right now'.

See Angela Macdonald-Smith, 'AGL Energy's Liddell ownership 'anti-competitive': Sims' (AFR, 13 September 2017)

See also 'ACCC sys AGL behaviour 'anti-competitive' (Sky News, 14 September 2017) (includes video)

14 September 2017 - Harper Bill listed again in today's Senate Red

The Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 (Harper Bill) was listed in the Senate yesterday, but lengthy debate on the Marriage Law Survey (Additional Safeguards) Bill 2017 and Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 prevented the Senate reaching the Harper Bill before adjourning.

The Bill is back on the Red today. Broadcasting Reform bill still up first, but debate not expected to last long this morning. It's possible that may be followed by introduction of the Higher Education Support Legislation Amendment (A More Sustainable, Responsive and Transparent Higher Education System) Bill 2017. Then follows second reading debate on the Australian Border Force Amendment (Protected Information) Bill 2017 before the Harper Bill. If it doesn't make it today we'll have to wait until the next sitting in mid-October.

13 September 2017 - Sims: Fuel price data can benefit motorists and retailers

ACCC Chair, Rod Sims, has delivered a speech at the Asia Pacific Fuel Industry Forum, outlining how 'fuel price data from websites and apps empower price-sensitive customers'.

The speech sets out the ACCC's role and activity in petrol, including quarterly reporting, market studies in regional markets, investigating of shopper dockets and merger review. Sims also discusses the ACCC's investigation into Informed Sources and the resulting undertaking that Informed Sources makes the same fuel price information it provides to subscribers available to consumers (which has happened since May 2016). Sims then goes on to discuss international evidence around the benefits of petrol price transparency and the recent increase in availability of price information to customers in Australia.

See ACCC media release.

View speech.

7 September 2017 - ACCC launches first business to business unfair contracts term case

The ACCC has instituted proceedings against waste management company, JJ Richardss & Sons Pty Ltd, alleging eight clauses in its standard form small business contract are void because they are 'unfair' under the Australian Consumer Law. See ACCC media release for details.

The unfair terms law has applied to consumer transactions for a number of years, but only extended to small business contracts in November 2016. See also ACCC report discussing unfair terms in small business contracts, published 10 November 2016.

See also Cara Waters, 'ACCC launches first small business unfair contracts court action' (SMH, 7 September 2017), Stephen Letts, 'ACCC accuses JJ Richards over rubbish contracts with small businesses' (ABC, 7 September 2017), Michael Roddon, 'ACCC sues waste firm for unfair contracts' (The Australian, 8 September 2017), John Durie, 'Test case for new small business contracts law' (The Australian, 7 September 2017).

7 September 2017 - Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 off to Committee

The Selection of Bills Committee reported (report 10 of 2017) in the Senate today that it was unable to reach agreement about whether to refer the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 to Committee.

Senator Gallagher then moved that the bill be referred to the Environment and Communications Legislation Committee for report by 16 October 2017. The Senate divided. The motion to adopt the report was agreed to as amendmed by Senator Gallagher (Ayes 33, Noes 24).

7 September 2017 - Senate debate on competition reform bills

Three competition bills were before the Senate yesterday.

The Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017, while listed (after being introduced Tuesday afternoon), was not debated yesterday; it is scheduled for resumption of debate today.

The Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 was introduced and read for the first time. Second reading speeches commenced, with Senator Ruston's reading speech incorporated in Hansard (in substantially the same form as the Treasurer's second reading speech in the House earlier this year). Debate was adjourned.

Finally, the Legislation Committee's Report on the Telecommunications Legislation Amendment (Competition and Consumer) Bill 2017 was tabled by Senator Fawcett. Two related bills were considered as part of this inquiry. They relate to regulatory arrangements for the NBN and follow the Vertigan Panel report. The Committee recommended some amendment to the related bill, but otherwise recommended passage of both bills.

6 September 2017 - Competition reform bills in the Senate

Two competition reforms bills passed the House yesterday.

The first, the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 is listed for second reading debate this morning.

The second, the Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 - is simply noted on today's order of business as a bill for concurrence.

5 September 2017 - Competition and Consumer Amendment (Abolition of Merits Review) Bill passes House

The Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 passed the House this morning.

The EM explains that the Bill is designed to 'prevent the Australian Competition Tribunal ... from reviewing certain decisions made under the national energy laws and to ensure that decisions made by the Australian Energy Regulator (AER) under those laws are not subject to merits review by any other State or Territory body'.

For some commentary on the bill and its implications see, eg, Brendan Lyon, 'Scrapping the 'Limited Merits Review' will cost consumers long term' (AFR, 29 June 2017) and Matthew Peckham, 'Uncooperative federalism and the abolition of limited merits review' (CommBar Matters Blog, The Commercial Bar Association of Victoria)

4 September 2017 - Debate on AER limited merits review bill has resumed

Debate on the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 resumed in the House late this afternoon.

The EM explains that the Bill is designed to 'prevent the Australian Competition Tribunal ... from reviewing certain decisions made under the national energy laws and to ensure that decisions made by the Australian Energy Regulator (AER) under those laws are not subject to merits review by any other State or Territory body'.

In a press release accompanying the introduction of the Act last month, Josh Frydenberg MP claimed the bill will 'remove the ability of regulated energy network companies to game the system at the expense of consumers'

4 September 2017 - Labor supports all but one change in the Harper Bill; it will oppose proposed changes to secondary boycott penalties

Debate is set to resume in the House on the Harper Bill (Competition and Consumer Amendment (Competition Policy Review) Bill 2017) tomorrow.

In a joint media release issued today, Brendan O'Connor MP (Shadow Minister for Employment and Workplace Relations) and Andrew Leigh MP (Shadow Assistant Treasurer) have announced that Labor supports 13 of the 14 schedules contained in the Bill, labeling them 'largely uncontroversial'.

However, Labor will oppose the proposed increase in maximum penalties for breaches of secondary boycott provisions form $750,000 to $10m, designed to bring them into line with the penalties available for other competition law contraventions. Labor argues that international law permits 'sympathy strikes' and higher penalties would for secondary boycotts would 'move Australia even further away from international best practice'. Labor will, therefore, move amendments to remove Schedule 6 (dealing with secondary boycotts) form the Bill.

4 September 2017 - Parliament resumes and competition bills set to be debated

Debate is set to resume in the House on two competition bills this week.

The first, the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017), is due to be debated this afternoon.

The second and more significant is the Harper Bill (Competition and Consumer Amendment (Competition Policy Review) Bill 2017), scheduled to be debated in the House tomorrow.

1 September 2017 - In brief: Katherine Kemp explains Australia's New Misuse of Market Power Law

Dr Katherine Kemp has issued a brief guide on Australia's new misuse of market power law. The law received Royal Assent last week but the provisions will not commence until after the passage of Competition and Consumer Amendment (Competition Policy Review) Bill 2017.

Kemp usefully outlines key changes, myths about the amendment and weaknesses in the new law.

See Australia’s New Misuse of Market Power Law: In Brief (UNSW, CLMR, 31 August 2017).

1 September 2017 - Tough week for the ACCC on the consumer front

It's not been a great week for the ACCC on the consumer front, with the Federal Court dismissing two high profile proceedings alleging misleading conduct.

On Wednesday The Federal Court (Justice O'Callaghan) dismissed proceedings brought by the ACCC against Medibank alleging it had:

'made false, misleading or deceptive representations and engaged in unconscionable conduct in relation to its failure to notify Medibank members and members of its subsidiary brand, ahm, of its decision to limit benefits for in-hospital pathology and radiology services, despite representing across a number of its communication and marketing materials that it would.'

Today the Federal Court (Justice Middleton) dismissed proceedings the ACCC brought against LG Electronics Australia Ltd alleging that it had made 'false or misleading representations to consumers about their rights in relation to faulty LG products'.

The ACCC has indicated that it is 'carefully considering' both judgments.

See ACCC media releases:

• ACCC, 'Court dismisses ACCC action against Medibank' (MR 146/17, 30 August 2017)
• ACCC, 'Court dismisses ACCC action against LG' (MR 150/17, 1 September 2017)

See judgments:

• ACCC v Medibank Private Limited [2017] FCA 1006 (via Jade)
• ACCC v LG Electronics Australia Pty Ltd [2017] FCA 1047 (via Federal Court)

1 September 2017 - Excessive payment surcharge ban now in force

All businesses are now banned from charging excessive surcharges for using certain types of EFTPOS/credit carts to make payments.

Although the ban has been in place for large businesses since September last year, it now applies to all businesses based in Australia or which use an Australian bank.

See ACCC media release. See ACCC online guide.

31 August 2017 - Updated compilation of Competition and Consumer Act 2010

Compilation No 108 of the Competition and Consumer Act 2010 was published on the Federal Register of Legislation today.

This compilation is dated 23 August 2017 and replaces compilation 107 dated 23 February 2017.

View current compilation of CCA at Federal Register of Legislation.

31 August 2017 - ACCC report shows petrol retail margins remain high despite price drop for June quarter

The ACCC's most recent report on the petrol industry for the June quarter 2007 shows that average petrol prices in the five largest cities dropped by almost 4c per litre, but gross retail margins remain high and are the highest (on an annual average basis) than at any time since the ACCC began monitoring in 2002.

See media release. See report for June quarter. See all quarterly reports on Australian petroleum industry. See also, for example, Matt Chambers, 'Petrol costs down but prices still too high, says ACCC' (The Australian, 1 September 2017).

31 August 2017 - ACCC re-authorises eRx Script Exchange to continue revenue sharing agreement

The ACCC has issued a draft determination proposing to authorise eRx Script Exchange Pty Ltd to 'continue to give effect to an interoperability arrangement that involves some revenue sharing with IP MDS Pty Ltd until 30 June 2020.'

See media release. See authorisation register.

31 August 2017 - ACCC won't oppose Tronox's proposed acquisition of Cristal's titanium dioxide business

The ACCC has announced it will not oppose Tronox's proposed acquisition of Cristal's titanium dioxide business, finding that 'a combined Tronox-Cristal is likely to continue to face competition from imported titanium dioxide pigments'.

See media release. See merger register.

24 August 2017 - Sims' address to CEDA WA

ACCC Chairman, Rod Sims, has spoken at the CEDA WA conference today, outlining the role of the ACCC in a changing economy. The speech covers (among other things):

• the ACCC's inquiry into the financial sector
• the approach to broadband advertising
• the banking inquiry
• the ACCC's separate inquiries into gas and electricity (including the east coast energy affordability crisis)
• the ACCC's approach to cartel behaviour

See media release.

View speech.

24 August 2017 - ACCC issues SOI on proposed acquisition of OfficeMax

The ACCC has issued a Statement of Issues in relation to Platinum Equity's proposed acquisition of OfficeMax Australia. It has indicated its 'primary concern is that the loss of competition between Staples and OfficeMax could result in higher prices and lower levels of service'. Interested parties have until 7 September to make submissions; a final decision is expected on 16 November 2017.

See ACCC media release. See merger register.

22 August 2017 - Concerted Practices and Algorithmic Collusion

A copy of the presentation by Rob Nicholls and Brent Fisse, delivered by Brent Fisse at this year's Competition and Consumer Law Workshop, is now available online:

'Concerted Practices and Algorithmic Coordination: Does the Proposed CP Prohibition Compute?' (Presentation at LCA Competition and Consumer Law Workshop, Melbourne, 5 August 2017).

17 August 2017 - Advance copy of 'Regulating Supermarkets: The Competition for Space' now available

The University of New South Wales Law Journal has released an advance copy of an article by Christopher Arup, Caron Beaton-Wells and Jo Paul-Taylor entitled 'Regulating Supermarkets: The Competition for Space'. The focus is planning restrictions and begins:

'... The purpose of this article is to evaluate the case for a proposed competition policy law reform. If implemented, the reform would roll back land-use planning regulation, so that supermarket businesses have greater freedom to regulate privately where and with what format they site their stores. ...'

16 August 2017 - ACCC proposed to approve collective bargaining between Licensed Post Offices and Australia Post

The ACCC has issued a 'draft determination proposing to grant authorisation to Licensed Post Office Group Ltd (LPO Group) and its current and future licensed post office members to collectively negotiate with Australia Post.'

The ACCC indicated it did not consider 'that the proposed conduct is likely to result in significant public detriment given that competition between licensed post offices is limited, negotiations are entirely voluntary in nature, and authorisation does not extend to any collective boycott of products or services supplied by LPOs'

Submissions on the draft determination may be made until 6 September; a final decision is expected by November 2017

View ACCC media release. View authorisation register.

15 August 2017 - Misuse of market power bill amendment agreed to by House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 returned to the House today after the Senate yesterday voted to pass the bill with amendment. The House agreed to the amended bill just after 7pm this evening.

The Treasurer was quick to issue a press release celebrating the bill's passage: Treasurer: Strengthened competition law to benefit Aussie small businesses and consumers (15 August 2017).

15 August 2017 - 'Weighty week' for competition law: Durie

John Durie's column today hightlights the various developments in competition law taking place this week; among them parliamentary debate on the Harper amendments.

See John Durie, 'A weighty week for competition law' (The Australian, 15 August 2017).

14 August 2017 - Effects test passes Senate with amendment

Debate resumed in the senate today on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017, including consideration of two amendments - one from the Greens and one from the Nick Xenophon team.

The Xenophon amendment (which included substantial changes to the proposed law, including introduction of divestiture powers for breaches of s 46) did not succeed. The Greens' amendment, which related to the telecommunications industry provisions in Schedule 2, was supported.

The bill then passed comfortably (22 vote majority) despite opposition from the Labor Senators.

See eg, AAP, 'Competition laws clear the Senate: New laws designed to protect small businesses from big competitors like Coles and Woolworths have cleared the Senate' (SBS, 14 August 2017)

13 August 2017 - Greens warn Labor on effects test

Despite the Greens supporting passage of the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 (now befor ethe House), they have warned Labor not to use this as an excuse to oppose the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 due to be debated next week.

See Belinda Merhab, 'Greens warn Labor over competition law' (The Weekend Australian, 10 August 2017).

10 August 2017 - Small Business Access to Justice Bill passes Senate

Debate resumed in the Senate today on the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 - a private members' bill introduced by Senator Katy Gallagher in February. Several speeches were made in relation to the Bill and the bill passed by 36-22.

The Bill was then introduced and read a first time in the House. If passed by the House the Bill will amend the Competition and Consumer Act to allow judges to waive liability for adverse costs to small bsuiness litigants in misuse of market power cases.

10 August 2017 - Delia Rickard reappointed to ACCC

The Federal Government has reappointed Delia Rickard as Deputy Chair of the ACCC for five years. ACCC Chairman, Rod Sims, said of the re-appintment:

'Delia has made an outstanding contribution to the work of the ACCC over the past five years, particularly in relation to consumer protection ... Delia is a tireless advocate for consumer rights and leads the Commission’s product safety and scam disruption work. ... Delia’s reappointment reaffirms the Government’s commitment to consumer protection and welfare amongst its broader market performance-enhancing initiatives across the economy. We look forward to Delia’s continued leadership in these important areas at the ACCC ...'

View media release.

10 August 2017 - ACCC authorises airline alliance

The ACCC has today 'granted authorisation to coordinate airline services for five years to Virgin Australia Airlines, the HNA Aviation Group, Hong Kong Airlines and Hong Kong Express Airways.' The ACCC believes the alliance 'will likely realise significant public benefits, primarily through supporting the introduction of new services between Australia and mainland China and Hong Kong including by Virgin'. Interim authorisation has been in place since March.

View media release. See authorisation register.

10 August 2017 - ACCC releases Statement of Issues on BP's proposed acquisition of Woolworths' petrol sites

The ACCC has released a Statement of Issues on BP's proposed acquisition of Woolworths' petrol sites, identifying some preliminary concerns that the proposed acquisition 'may substantially lessen competition for the retail supply of fuel across metropolitan areas.'

Submissions on the SOI are due by 7 September. A final decision is expected by 26 October 2017.

View media release. View merger register.

See also Eli Greenblat, 'ACCC flags concerns with BP-Woolworths service station deal' (The Australian, 10 August 2017), Stephen Bartholomeusz, 'A lot riding on ACCC ruling on Woolworths’ sale of service stations to BP' (The Australian, 10 August 2017), Patrick Hatch, 'ACCC holds up Woolworths-BP $1.8b service station deal' (SMH, 10 August 2017)

10 August 2017 - ACCC raises concerns with Camp Australia Junior Adventures proposed merger

The ACCC has issued a Statement of Issues raising preliminary concerns about the proposed merger between Camp Australia and Junior Adventures. The primary concern is that:

... the loss of competition between Camp Australia and JAG for the supply of before and after school care could result in higher prices for parents and lower quality care for students in some states ...

The ACCC has invited further submissions which are due by 25 August; a final decision is expected by 26 October 2017.

View media release. View merger register.

10 August 2017 - Misuse of market power not debated but small business bill now being debated

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 was listed on the Senate's Order of Business yesterday, but time defeated resumption of second reading debate. This morning debate on the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017 resumed; the MMP bill is not currently listed for debate.

10 August 2017 - New competition bill introduced

Josh Frydenberg MP (Minister for the Environment and Energy) introduced a new bill - the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 into the House today.

The Explanatory Memorandum states that the Bill amends the CCA to

'prevent the Australian Competition Tribunal ... from reviewing certain decisions made under the national energy laws and to ensure that decisions made by the Australian Energy Regulator (AER) under those laws are not subject to merits review by any other State or Territory body'

9 August 2017 - Treasury releases Exposure Draft Regulations

In a sign that the Government has not forgotten about competition policy reform, Treasury today released Exposure Draft amendments to the Competition and Consumer Regulations which will follow from proposed amendments to the Act in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 and the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, both currently before Parliament.

Submissions may be made until 22 August.

7 August 2017 - Beaton-Wells: Cartel case shows not all corporate misbehaviour goes unpunished

Professor Caron Beaton-Wells has penned an opinion piece for The Conversation on last week's criminal conviction of NYK for cartel conduct.

See Caron Beaton-Wells, 'Cartel case shows not all corporate misbehaviour goes unpunished' (The Conversation, 7 August 2017).

See also NYK case page for further details.

4 August 2017 - Initial thoughts on the criminal cartel fine

I've posted a blog with some initial thoughts on the cartel fine handed down yesterday against NYK: see NYK blog.

31 July 2017 - Cartel penalty of $3.5m imposed against Prysmian

The Federal Court has ordered that Prysmian Cavi E Sistemi SRL pay a pecuniary penalty of $3.5 m for cartel conduct in relation to the supply of high voltage land cables. This follows the Court's finding of contravention in July last year.

See ACCC media release.

See penalty decision: ACCC v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 (28 July 2017).

27 July 2017 - Lawyers Weekly: report predicts ACCC will 'up the ante' against cartels

Lawyers weekly has an item discussing Allen & Overy's Global Cartel Enforcement report which predicts the ACCC will be more active in cartel enforcement in the second half of 2017. See Tom Lodewyke, 'ACCC to ‘up the ante’ against cartels: report' (Lawyers Weekly, 27 July 2017).

See also Allen & Overy Global Cartel Enforcement 2017 Mid-Year report. The report notes that in the past six months the ACCC has issued only one cartel fine, but that increased activity is expected in the second half of 2017 as the ACCC awaits judgments and penalty outcomes in a number of proceedings (including the Flight Centre case).

27 July 2017 - Sims on electricity affordability

The ACCC Chairman, Rod Sims, delivered the welcome address at the ACCC & AER Regulatory conference, focusing on electricity affordability. See speech. See also opinion piece in the Courier Mail: Rod Sims, 'Opinion: It's time to get real on electricity prices' (The Courier-Mail, 27 July 2017).

See also John Durie, 'Rod Sims and ACCC takes on power affordability' (The Australian, 27 July 2017) and Ben Potter, 'ACCC's Rod Sims wants cheaper energy, more competition' (AFR, 26 July 2017).

25 July 2017 - ACCC to hold first public hearing into power prices

The ACCC will hold its first public hearing into power prices in Brisbane today as part of its inquiry into national electricity prices, ordered by the Treasurer in March. Several other forums are scheduled over the coming months. The ACCC has also released an overview of the submissions made in response to the issues paper.

See, eg, Cameron Atfield, 'ACCC to hold first public hearing into power prices in Brisbane on Tuesday' (SMH, 23 July 2017).

21 July 2017 - ACCC withdraws injunction application in Tabcorp/Tatts case

The ACCC has withdrawn its application for an injunction to prevent the Tabcorp/Tatts deal proceeding while its application for judicial review is considered. The injunction application was due to be considered by the Federal Court next Thursday.

See Sarah-Jane Tasker, 'ACCC withdraws injunction to stop Tabcorp completing Tatts takeover' (The Australian, 21 July 2017).

See further Tabcorp case page.

21 July 2017 - Sims: Open markets must benefit consumers or distrust will grow ('Competition is King')

ACCC Chairman, Rod Sims, addressed the 2017 Australian Conference of Economists in Sydney today. In his speech he referenced increasing public disillusionment with the market economy and disappointment that the economics profession had not 'been more influential in public policy debates in recent time'. He observed that economists 'who ground their contributions in the facts of everyday life and relax the often abstract assumptions of theory will find an audience more willing to listen'.

See media release. View speech ('Ceteris Paribus, Competition is King' (2017 Annual Conference of Economists, 21 July 2017)).

20 July 2017 - Sims on telco competition

ACCC Chairman, Rod Sims, addressed the Communications Day Unwired Revolution Conference in Sydney today. He claimed there were 'encouraging signs that competition in the sector was healthy' and welcomed the entrance of new participants. See media release. View speech.

13 July 2017 - ACCC releases findings of beer tap investigation

The ACCC has released its findings into an investigation of the contracts of CUB and Lion, following allegations from some craft brewers that they were being locked out of beer taps in certain venues as a result of exclusivity provisions and volume requirements.

The ACCC concluded that the contracts were unlikely to result in a substantial lessening of competition in the markets investigated. However, it notes that it will continue to monitor developments in the market.

See ACCC media release.

Plenty of media interest in this one. See, for example, Eli Greenblat, 'ACCC clears CUB, Lion beer contracts with NSW, Victorian venues' (The Australian, 13 July 2017), Misa Han, 'Craft brewers not locked out of taps: ACCC' (AFR, 13 July 2017), Clare Blumer, 'Why craft beer brands are struggling to find a place at the taps' (ABC, 14 July 2017), Patrick Keneally, 'Craft brewers say ACCC's lack of action over tap contracts a 'body blow' to industry' (The Guardian, 13 July 2017), Christian Edwards, 'ACCC dons beer goggles to monitor brewers' (news.com.au, 13 July 2017), Deborah Jackson, '"Underfunded Toothless Tigers": Brewers react to ACCC taps ruling' (beer & brewer, 13 July 2017), Matt Kirkegaard, 'ACCC explains contract decision in diverse market' (Australian Brews News, 13 July 2017) and Jeff Whalley, 'Little evidence big brewers stifle craft beer competitors: ACCC investigation' (Herald Sun, 13 July 2017).

12 July 2017 - CrownBet applies for Judicial Review of Tabcorp Ruling

CrownBet, one of the interveners Tabcorp's application for merger authorisation, has filed for judicial review of the Tribunal's decision. This follows the ACCC's application for judicial review on Monday. See Sarah-Jane Tasker, 'CrownBet joins battle against Tabcorp-Tatts merger' (The Australian, 13 July 2017)

The Federal Court has scheduled a case management hearing for both applications for 9:30am Friday.

10 July 2017 - ACCC appeals Tribunal's Tabcorp ruling

The ACCC has applied to the Federal Court for a judicial review of the Australian Competition Tribunal’s recent Tabcorp/Tatts merger authorisation decision. An appeal on the merits is not available for Tribunal merger authorisation decisions, but the ACCC is seeking judicial review, alleging three reviewable errors, including that the Tribunal erred in its reasoning that 'it could only conclude that the proposed acquisition was likely to result in a detriment if the Tribunal concluded that there would be a substantial lessening of competition’.  

See ACCC Media Release, 10 July 2017. See also my blog piece for further details and links to news and commentary.

7 July 2017 - ACCC/Canadian CB staff exchange

The ACCC has announced that Ms Jeanne Pratt of the Canadian Competition Bureau will be 'acting Executive General Manager of its Merger and Authorisation Review Branch as part of a 12-month interchange' with Mr Rami Greiss taking up the position of Senior Deputy Commissioner, Cartels and Deceptive Marketing Practices Branch at the Canadian Competition Bureau.

The ACCC press release notes that this exchange will 'provide ACCC staff the opportunity to expand their knowledge of international competition regimes and best practices, share their experiences of the Australian regime and for both countries to continue to build their expertise in various areas of competition.'

See ACCC media release. See Canadian Competition Bureau News Release.

4 July 2017 - ACCC to examine Murdoch and Gordon's proposed acquisition of Ten

The ACCC will examine the proposed acquisition of Ten Network by Lachlan Murdoch and Bruce Gordon, which will be contingent on changes to media ownership law. See merger register.

See, eg, Max Mason, 'ACCC to look at Lachlan Murdoch and Bruce Gordon's Ten bid' (AFR, 4 July 2017), Andrew White and John Durie, 'ACCC reviews proposed joint bid for Ten Network' (The Australian, 4 July 2017), Christian Edwards, ''Outflanked': 'Outflanked': Murdoch and Gordon face a race for control of Ten, analyst says' (SMH, 5 July 2017), and AAP, 'ACCC confirms takeover bid for Network Ten by Lachlan Murdoch and Bruce Gordon' (news.com.au, 5 July 2017).

3 July 2017 - ACCC urges small business to review payment surcharges

The ACCC has urged small business owners to prepare for the ban on excessive payment surcharges that will come into operation on 1 September 2017. The law limiting the amount business can charge for the use of certain payment methods (eg, EFTPOS, Visa) came into operation for large businesses last year, but will apply to all business from 1 September 2017. Under the new laws business can only pass on the cost of processing payments (anything exceeding this is considered 'excessive').

The new laws were introduced through the Competition and Consumer Amendment (Payment Surcharges) Act 2016, which inserted a new Part IVC of the CCA, including s55B which provides that a 'corporation must not, in trade or commerce, charge a payment surcharge that is excessive'.

See ACCC media release 'Small business urged to review their payment surcharges' (3 July 2017) and ACCC payment surcharges page.

30 June 2017 - ACCC grants interim authorisation fo collective bargaining with Australia Post

The ACCC has granted interim authorisation for the LPO Group 'and its current and future licensed post office members to  collectively negotiate, enter into and give effect to agreements with Australia Post.' The authorisation is limited to 'licensee payments and commissions as part of the annual payment review, as well as remuneration for any new services introduced by Australia Post'.

The ACCC does not consider that the granting of interim authorisation will harm the competitive process or interested parties while full consideration of the application continues.

See ACCC media release. See authorisation register.

22 June 2017 - Tribunal publishes judgment in Tabcorp

The Australian Competition Tribunal has published its reasons for decision in the Tabcorp merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1). The reasons run to 255 pages.

See my case page for further details.

The ACCC has also provided an initial response indicating that it 'will now consider the reasons for decision published by the Tribunal.'

22 June 2017 - ACCC will not oppose Cabcharge's proposed acquisition of Yellow Cabs in Queensland

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Yellow Cabs (Qld), concluding that the acquisition was unlikely to 'result in Cabcharge foreclosing competition from alternative non-cash payment system providers, as there are a number of alternative systems available and it is drivers who choose which system to use' and that the taxi business is also being 'constrained by the popularity of ridesharing services such as Uber'. View media release. View merger register.

21 June 2017 - Baxt Lecture on Designing Cartel Sanctions

Judge Douglas Ginsburg (Federal US judge on the Court of Appeals for the District of Columbia and Professor of law, George Mason University) delivered the 8th Annual Baxt Lecture at the Melbourne Law School this evening, speaking on 'Designing Cartel Sanctions: A Continuing Debate'.

Judge Ginsburg's address focussed on the importance of directing sanctions to the individuals involved in the contraventions, rather than continuing to increase corporate sanctions; the latter, it was argued, both fails to increase deterrence and imposes penalties on shareholders who were not involved in the misconduct and cannot be deterred.

21 June 2017 - Tribunal authorises Tabcorp's proposed acquisition of Tatts Group Ltd

The Australian Competition Tribunal Tribunal has authorised the proposed acquisition of Tatts Group ltd by Tabcorp; reasons for this decision are expected to be published on Thursday. Tabcorp has issues a press release welcoming the decision. See also John Durie, 'Tabcorp’s high-risk strategy pays off as tribunal approves Tatts merger' (The Australian, 20 June 2017) and John Stensholt, 'Tabcorp-Tatts $11b merger gets green light from Competition Tribunal' (AFR, 20 June 2017). See my case page for further details an links.

14 June 2017 - High Court unanimously dismisses air cargo appeals

The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The appeals focus on the meaning of a market 'in Australia'. The High Court's judgment summary states that:

'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia'

View judgment. See High Court case page. See also my case page for links to ealier judgments and commentary. Details to follow.

13 June 2017 - ACCC will not oppose GE's proposed acquisition of Baker Hughes

The ACCC has announced it will not oppose the acquisition of Baker Hughes by GE. The acquisition will result in the formation of a new listed company 'combining the oil and gas business of GE and the whole business of Baker Hughes' and is valued at approximately US$32 billion. The ACCC's announcement follows an announcement by the US DOJ that it filed a consent decree requiring certain divestitures as a condition of the acquisition which, the ACCC indicated, would resolve any potential competition concerns. See ACCC media release. See merger register.

9 June 2017 - High Court to deliver judgment in air cargo case

The High Court has announced it will deliver its judgment in the Air New Zealand/PT Garuda Indonesia Ltd appeals on Wednesday 14 June at 10:15am. The appeals focus on the meaning of a market 'in Australia'.

See High Court case page. See also my case page for links to ealier judgments and commentary.

8 June 2017 - ACCC will not oppose proposed merger of Dow and DuPont

The ACCC has announced it will not oppose the proposed merger of The Dow Chemical Company and EI Du Pont de Nemours and Company in Australia.

The merger was previously cleared by other agencies; in the EU approval was subject to divestiture of certain assets. The ACCC considers that their earlier competition concerns regarding the merger will be addressed by those global divestments.

See ACCC media release. See merger register.

7 June 2017 - McCowan: 'A Trust-Busting wind is blowing'

Mark McCowan, Parnter at Corrs Chambers Westgarth, has published an opinion piece entitled 'A Trust-Busting Wind is Blowing', warning against populist reforms to Australian competition laws.

See Mark McCowan, 'A Trust-Busting Wind is Blowing' (Corrs Chambers Westgarth Insights, 7 June 2017).

7 June 2017 - Andrew Leigh MP's on competition: A Few Big Firms

Assistant Treasurer, Andrew Leigh MP's, speech at Murdoch University today, entitled 'A Few Big Firms', is now available online. See Andrew Leigh, 'A Few Big Firms' (Sir Walter Murdoch School Policy Seminar, Murdoch University, 7 June 2017).

In the speech Leigh sums up 'the problem', as he sees it, as follows: 'more than half of Australia’s markets are concentrated, some of our biggest industries are very concentrated and the problem is getting worse because fewer new businesses are being created and more existing businesses are merging. We are seeing a rise in firms using their market power for anti-competitive purposes to the detriment of small businesses, workers and consumers. And we are seeing too much anti-consumer conduct which is reducing the incentive of firms to compete on the price, quality and effectiveness of their goods and services.'

Leigh then considers possible solutions, including making non-compete clauses unenforceable, giving the ACCC market studies powers, increasing penalties, both for consumer and competition breaches (in the case of competition breaches Leigh advocates linking anti-competitive penalties to total sales) and increasing the ACCC's budget.

7 June 2017 - Shadow Assistant Treasurer wants crack down on non-compete clauses

Shadow Assistant Treasurer, Andrew Leigh MP, will call for more to be done about Australia's 'growing competition problem' in a seminar to be delivered at Murdoch University today. Amongst other things, he will argue something needs to be done about the increasing use of non-compete clauses which, he will argue, 'make it harder for employees to switch to a better job and stifle start-ups'.

See Gareth Hutchens, 'Labor flags plan to crack down on non-compete clauses for employees' (The Guardian, 7 June 2017). See also, AAP, 'Industry concentration worsening: Labor' (7 June 2017).

7 June 2017 - Andreas Stephan on the normative justifications for cartel criminalisation

Although not Australian specific, UK Prof (and frequent visitor to Aus) Andreas Stephan's new paper examining the normative justifications for cartel criminalisation is nevetheless highly relevant to Australian competition law enforcement. Australia has criminalised cartels since 2009 but has yet to charge any individuals for cartel conduct.

The paper (Andreas Stephan, 'An empirical evaluation of the normative justifications for cartel criminalisation' (2017) Legal Studies) also references an Australian empirical study on cartel criminal sanctions conducted by the University of Melbourne and published in 2013 (Beaton-Wells and Parker ‘Justifying criminal sanctions for cartel conduct: a hard case’ (2013) 1(1) J Antitrust Enforcement 198)

2 June 2017 - Beaton-Wells: Bigger fines needed for cartel conduct

Professor Caron Beaton-Wells has an item in today's The Conversation calling for bigger penalties for companies found to have engaged in cartel conduct that causes harm to Australian consumers.

Current fines are described as 'woefully below international benchmarks'. The ACCC's appeal against the Court's decision to fine Yazaki only A$9.5 million for cartel conduct is discussed.

See Caron Beaton-Wells, 'Cartels caught ripping off Australian consumers should be hit with bigger fines' (The Conversation, 2 June 2017).

2 June 2017 - ACCC on the Tabcorp authorisation application

There's plenty of media about the Tabcorp merger authorisation application currently before the Tribunal. The ACCC made submissions to the Tribunal today arguing that the proposed merger would not reap the public benefits claimed. A decision is expected from the Tribunal (comprising Justice Middleton, Grant Latta and Darryn Abraham) later this month. See, eg, John Durie, 'ACCC off leash over Tabcorp-Tatts' (The Australian, 1 June 2017), John Stensholt, 'ACCC "not satisfied" Tabcorp Tatts merger in public interest' (AFR, 2 June 2017) and Richard Gluyas, 'ACCC leaves $11bn Tabcorp-Tatts merger hopes in tatters' (The Australian, 2 June 2017). See further John Durie, 'Tabcorp's bet could sour' (The Australian, 2 June 2017, p 38).

30 May 2017 - Poddar on ACCC's oOh!media opposition

Following release of a statement of issues by the ACCC on 4 May, the proposed merger between APN Outdoor Group Ltd and oOh!media was terminated. Clifford Chance's Dave Poddar has published a client briefing on the proposed merger, noting the importance of 'market definition and dynamics in media mergers'.

See Dave Poddar, 'The ACCC says Ooh No! to the oOh!media - APN Outdoor merger' (Clifford Chance Client Briefing, 30 May 2017). See also Patrick Hatch, 'oOh!Media and APN drop $1.6 billion merger after competition concerns' (SMY, 19 May 2017), Simon Canning, 'ACCC boss hits out at Ooh Media and warns outdoor merger failure offers lessons for media consolidation' (Mumbrella, 22 May 2017) and Bridget Carter & Scott Murdoch, 'Future foggy as APN Outdoor, oOh!media deal fails' (The Australian, 22 May 2017).

30 May 2017 - ACCC appeals Yazaki Corporation penalty decision

The ACCC has appealed the decision of the Federal Court to impose a penalty of $9.5 million against Yazaki Corporation for collusion; the ACCC had sought a penalty between $42-$55 million.

View media release. View case page.

23 May 2017 - In Competition: 'A Tale of Two Authorisations'

James Gould has a post in King&Wood Mallesons' 'In Competition' blog discussing two recent South Australian authorisation decisions.

See James Gould, 'South Australia: A Tale of Two Authorisations' (In Competition, 23 May 2017).

18 May 2017 - Fly-in fly-out airline alliance authorised

The ACCC has authorised a Charter Alliance Agreement between Virgin and Alliance Aviation Services, pursuant to which the Virgin Australia Regional Airlines and Alliance Aviation Services will 'jointly bid for and contract with corporate charter customers in relation to the provision of fly-in fly-out (FIFO) services.' This follows the ACCC's initial proposal to deny authorisation in December 2016; subsequent market inquiries led the ACCC to conclude there were a 'number of factors that mitigate the risk to competition' so that likely public benefits will outweigh likely detriments. View media release. View authorisation register.

16 May 2017 - Tabcorp merger hearings begin in the Tribunal

The Australian Competition Tribunal commenced its hearing of Tabcorp's merger authorisation application today. The matter is listed in the Victorian Fedearl Court Registry from 16 May - 2 June 2017 before Justice Middleton (President), Mr Grant Latta AM (Member) and Dr Darryn Abraham (Member). See, eg, John Stensholt, 'ACCC hits out at Tabcorp as merger hearings begin' (AFR, 16 May 2017) and Ben Butler and Sarah-Jane Tasker, 'Tatts, Tabcorp merger will produce a behemoth, says ACCC' (The Australian, 17 May 2017).

11 May 2017 - Private members' bill debated

The Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017, introduced by on 16 February by Senator Gallagher, was debated in the Senate on 11 May 2017. Several speeches were made by ALP and LP Senators and by Senator Xenophon, who noted during the course of his speech that he and his colleagues support, 'with some amendments' the 'effects test' contained in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016. In this respect, Senator Xenophon indicated he would move 'a whole range of amendments based on this bill to the government's effects test bill, because we think that is the right thing to do in order to make that piece of legislation work much more effectively'. All speeches can be viewed on the Second Reading speeches page for the bill.

9 May 2017 - Yazaki ordered to pay $9.5m in penalties for collusion

The Federal Court today imposed penalties against Yazaki for 'engaging in collusive conduct with a competitor when supplying wire harnesses to Toyota Motor Corporation (Toyota) in Australia.' The ACCC sought significantly higher penalties (between $42-$55m) and is carefully considering the judgment.

See ACCC press release. See case page.

9 May 2017 - Kemp on Misuse of Market Power

Katharine's Kemp's new article on misuse of market power is now available as an advance copy from the UNSW Law Journal.

See Katharine Kemp, ‘“The Big Chill”? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power’ (2017) 40(2) University of New South Wales Law Journal.

6 May 2017 - Sims: Restoring Faith in Free Markets

The Chairman's speech at today's Competition Law Conference addressed the role of the ACCC in 'restoring faith in free markets'. View speech.

This followed a keynote address by former Chief Justice of the High Court, The Hon Robert French AC, who discussed the 'Role of the Regulator as Competition Advocate'.

5 May 2017 - ACCC proposes not to declare wholesale domestic mobile

The ACCC has released its draft decision 'proposing to not declare a wholesale domestic mobile roaming service', observing that theres is 'insufficient evidence that declaration will improve the current state of competition.'

See ACCC media release. See draft decision on Domestic Mobile Roaming Declaration Inquiry 2016 page.

4 May 2017 - ACCC releases SOI in relation to proposed APN Outdoor Group Ltd and oOh!media Ltd merger

The ACCC has released a Statement of Issues 'expressing preliminary concerns about the proposed merger between APN Outdoor Group Limited ... and oOh!media Limited'. The concerns arise from the fact that the merger will 'combine the two largest providers of out-of-home advertising in Australia, creating a market leader with over 50 per cent of all out-of-home advertising, and an even higher share in some segments ...' See media release. See merger register.

4 May 2017 - ACCC will not oppose Caltex's proposed acquisition of Milemaker

The ACCC today announced that it has decided not to oppose the proposed acquisition by Caltex of a 'chain of Victorian service stations from Milemaker Petroleum'. This decision followed a Statement of Issues released in March and was described by the ACCC Chairman as a 'difficult decision' because 'competition will be reduced'; the ACCC concluded, however, that that reduction would not be substantial. See media release. See merger register.

1 May 2017 - ACCC alleges Ramsay Health Care engaged in anti-competitive conduct

The ACCC has 'instituted proceedings in the Federal Court against Ramsay Health Care Australia Pty Limited (Ramsay) for alleged anti-competitive conduct involving misuse of market power and exclusive dealing in the Coffs Harbour region.'

See ACCC media release. The matter is listed for its first case management hearing on 13 June.

1 May 2017 - Sims claims misuse of market power laws 'almost unusable'

ACCC Chairman, Rod Sims, has described the current misuse of market power laws as 'almost unusable' according to SMH. The SMH article also notes that in order to pass the proposed changes to the MMP law the Government will need the support of at least one crossbencher.

See Madeleine Heffernan, 'Misuse of market power laws "almost unusable', ACCC chairman Rod Sims says' (SMH, 30 April 2017).

26 April 2017 - Former ACCC Chairman claims nothing to fear from Amazon

Former ACCC Chairman, Graeme Samuel, has dismissed claims that Amazon's entry into the Australian market would result in higher prices for Australian consumers, noting the entry of major international competitors into other markets in Australia has not driven out local competition.

See Jackson Stiles, 'Nothing to fear from Amazon: former ACCC boss' (The New Daily, 26 April 2017)

20 April 2017 - ACCC issues draft decision on Hunter Valley rail network access undertaking

The ACCC has 'issued a draft decision not to accept the proposed Hunter Valley rail network access undertaking lodged by the Australian Rail Track Corporation'. See ACCC media release.

See Hunter Valley access undertaking 2017 page.

13 April 2017 - ACCC proposes to authorise joint purchase of electricity

The ACCC has 'issued a draft determination proposing to allow the South Australian Chamber of Mines and Energy, along with 24 other South Australian businesses, to establish a joint electricity purchasing group.'

See ACCC media release. See authorisation register.

13 April 2017 - Cane growers collective bargaining approved

The ACCC has 'authorised members of the Canegrowers Organisation to collectively bargain cane supply and related contracts with mill owners and sugar marketers for ten years.'

See media release. See authorisation register.

13 April 2017 - Update on CCA Amendment Bill

Gilbert + Tobin's Elizabeth Avery has published her 'Insights' on the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, noting the changes from the exposure draft legislation.

See 'Competition and Consumer Act Amendment Bills introduced into Parliament, but with further changes' (G+T, Insights, 12 April 2017).

3 April 2017 - Durie warns of reputation risk to ACCC

In his column today, John Durie's warns that the ACCC's new 'dual role' as a 'point person' for the Government on 'key market issues' poses a risk to its reputation.

See John Durie, 'ACCC's new dual role could pose a risk to its reputation' (The Australian, 3 April 2017).

1 April 2017 - Mergers 2016

Richard L'Estrange at King&Wood Mallesons has published a blog piece reviewing '2016: The Year in Mergers' - it includes some commentary on the 33 public ACCC merger reviews as well as a tabular summary of their outcomes. See Richard L'Estrange, '2016: The Year in Mergers' (In Competition,King & Wood Mallesons, 28 March 2017)

31 March 2017 - ACCC denies authorisation for banks to collectively bargain with and boycott Apple Pay

The ACCC has issued its final determination denying authorisation to the CBA, Westpac, NAB and Bendigo and Adelaide Bank to collectively bargain with and boycott Apple Pay. Chairman Rod Sims indicated that the ACCC was 'not satisfied, on balance, that the likely benefits from the proposed conduct outweigh the likely detriments. We are concerned that the proposed conduct is likely to reduce or distort competition in a number of markets'.

See ACCC media release and authorisation register. See also my earlier blogs on the authorisation application ('Apple versus the banks' (20 August 2016); 'Banks Denied Interim Authorisation for Cartel Conduct' (19 August 2016); 'Apple goes on the attack' (8 Feb 2017)).

30 March 2017 - Harper Reforms before the House

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 has been introduced into the House. Second reading debate has been ajourned until the next sitting of Parliament.

29 March 2017 - MMP bill read in the Senate; adjourned until next sitting

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was read for a first time in the Senate and second reading speeches commenced but were then adjourned until the first day of the next sitting period.

28 March 2017 - MMP bill passes the House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 passed the House of Representatives today, incorporating the Government's amendments (changing the commencement date and removing mandatory factors for court to consider).

The Bill is listed for debate in the Senate tomorrow.

28 March 2017 - MMP debate resumed; further Harper bill 'imminent'

Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday with a further 13 second reading speeches before it was agreed that the bill be read a second time.

Treasurer Scott Morrison's amendment (changing the commencement date and removing mandatory factors for Court to consider) also passed before an adjournment. A brief supplementary explanatory memo was also tabled in relation to the amendment. It explains the change to the mandatory factors follows the Senate Economics Legislation Committee recommendation and was designed to reduce complexity and uncertainty and 'reduce the risk that "substantially lessening competition" would unintentionally take on a different meaning in the context of section 46 compared to other provision ...'. It is not intended to 'change the objective of the new section 46'.

The supplementary EM also indicates that the introduction of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 is 'imminent' and that the proposed change in commencement date is designed to ensure that the new MMP provision will not be introduced unless and until authorisation is made available (in the new bill) for section 46 conduct.

24 March 2017 - More Harper reforms on their way

The Australian's John Durie reports today that the next suite of Harper Reforms are expected to be tabled in Parliament next week.

See John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').

24 March 2017 - Debate on MMP bill adjourned

Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday, with Andrew Leigh MP (ALP), Ted O'Brien (LNP) and Tim Watts MP (ALP) all delivering speeches. Debate was adjourned in the late afternoon; the House next sits on Monday 27 March.

See also Eli Greenblat, 'BCA's Grant King: effects test will lead to lawsuits' (The Australian, 24 March 2017); Jacob Greber, 'BCA unleashes on Malcolm Turnbull's 'supposed free-market government (AFR, 23 March 2017); Michael Smith, 'BCA's King talks tough as government relations sour' (AFR, 23 March 2017) and John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').

23 March 2017 - Debate to resume on Misuse of Market Power Bill

Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 is set to resume in the House of Representatives today, with Treasurer Scott Morrison set to move the amendment to the bill proposed by the Senate Economics Committee. This amendment can be found on the Bill's homepage and removes the mandatory factors originally provided for in s 46(2).

The proposed amendment also changes the commencement date of the bill from the date of Royal Assent to the date that Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences. That bill has not yet been introduced, but presumably contains the other reforms outlined in the Exposure Draft Legislation released late last year. This change would delay the commencement of the MMP changes but would also overcome the problem associated with the authorisation provisions for misuse of market power not being included in the separate MMP Bill.

See further Emma Koehn, 'Scott Morrison to amend effects test legislation to remove hurdles for proving misuse of market power' (Smart Company, 23 March 2017) and Jacob Greber, 'Morrison to kill off 'lawyer's picnic' in competition effects test' (Australian Financial Review, 22 March 2017) and John Durie, 'Business to lament competition law changes' (The Australian, 23 March 2017).

23 March 2017 - ACCC wins competition advocacy award

The ACCC received an award by the World Bank and International Competition Network 'for its advocacy work in promoting pro-competition measures when governments are privatising public assets'. The award fell under the category 'Levelling the playing field through competitive neutrality or by elevating competition policy to the economic policy agenda'.

See media release. See ICN-WBC Winners page.

23 March 2017 - ACCC will not oppose Healthe Care's proposed acquisition of Pulse Health

The ACCC has announced it will not oppose the proposed acquisition of Pulse Health by Healthe Care (both private hospital operators). See media release. See public register.

20 March 2017 - ACCC grants interim authorisation for airline Alliance

The ACCC has granted interim authorisation to Virgin Australia, HNA Group, Hong Kong Airlines, HK Express and their subsidiaries in relation to a proposed Alliance for the coordination of international passenger tarnsport between Australia and China. See authorisation register.

16 March 2017 - ACCC releases statement of issues on Caltex's proposed acquisition of Milemaker

The ACCC this morning released a Statement of Issues in relation to the proposed acquisition by Caltex of a chain of Victorian service stations from Milemaker Petroleum: 'The ACCC's preliminary view is that the acquisition may substantially lessen competition for the retail supply of petrol in Melbourne'.

View media release. View merger register.

14 March 2017 - Tabcorp's authorisation filing now available on Tribunal website

The Tribunal has now published Tabcorp's merger authorisation application on its website. View Australian Competition Tribunal current listings page. See also my case page.

For additional media on the Tribunal move see: Sarah-Jane Tasker, 'Tatts deal: Tabcorp ditches ACCC review, goes to tribunal' (The Australian, 14 March 2017) and Paul Gilder, 'Tabcorp cracking the whip in push to get merger past the post' (Herald Sun, 14 March 2017).

13 March 2017 - Tabcorp heads to Tribunal for ruling on merger deal

Following the ACCC's release of a statement of issues on the proposed merger of Tabcorp and Tatts last week (see media release and merger register) Tabcorp is heading to the Tribunal seeking authorisation fo the deal. See Tabcorp media release.

See further John Durie, 'Tabcorp decision to switch regulators mid-race is being led by lawyers' (The Australian, 13 March 2017), James Thomson and John Stenshold, 'Tabcorp takes Tatts Group merger case straight to Competition Tribunal' (Australian Financial Review, 13 March 2017) and AAP, 'Tabcorp takes Tatts bid to tribunal' (SBS, 13 March 2017).

10 March 2017 - Cartel proceedings dismissed

The Federal Court yesterday dismissed cartel proceedings brought by the ACCC against electrical cable manufacturers and wholesalers.

See ACCC press release.

View judgment (ACCC v Olex Australia Pty Ltd [2017] FCA 222).

See further my case page.

9 March 2017 - ACCC releases SOI on proposed Tabcorp-Tatts merger

The ACCC has issued a statement of issues on the proposed merger of Tabcorp and Tatts. See media release. See merger register. See also John Durie, 'ACCC reaction shortens odds of a Tass-Tabcorp tie-up' (The Australian, 9 March 2017).

9 March 2017 - Authorisation denied

The ACCC has denied authorisation for 16 insurance companies to agree to a cap on commissions paid to car dealers who sell their insurance products.

See media release.

See authorisation register.

3 March 2017 - PT Garuda Indonesia / Air NZ High Court appeal

The High Court has heard appeals in PT Garuda Indonesia v ACCC and Air NZ v ACCC. A key issue revolves around the meaning of market 'in Australia'. The appeal documents as well as audio-visual recordings of the appeal can be found on the High Court website.

24 February 2017 - ACCC Compliance and Enforcement Policy

ACCC Chairman, Rod Sims, outlined the ACCC's 2017 Compliance and Enforcement Policy at his annual CEDA address today. See transcript: 'CCA compliance in interesting times' (24 February 2017). See ACCC media release. See also Gilbert+Tobin Insights, 'The ACCC’s 2017 Compliance and Enforcement Policy – Prioritising the busy year ahead!' (24 February 2017).

23 February 2017 - ACCC concerns on Wollongong coal acquisition

The ACCC has published a Statement of Issues raising concerns about South32's proposed acquisition of Peabody's Metropolitan coking coal mine near Wollongong.

See ACCC media release. See merger register.

See Matt Chambers, 'ACCC raises flag on South32 Wollongong coal acquisition' (The Australian, 23 February 2017).

20 February 2017 - Maddocks - ACCC 2016 Year in Review

Maddocks has published its ACCC-2016 in Review. It introduces the review as follows:

'Each year, the Australian Competition and Consumer Commission (ACCC) releases their Compliance and Enforcement Policy highlighting the areas they will be focusing on in the coming year. With the ACCC Chairman, Rod Sims, due to reveal the 2017 Compliance and Enforcement Policy on 24 February 2017, we take a look back on the ACCC enforcement priorities and some key cases of 2016. Overall, it was a successful year for the ACCC with some significant wins and record penalties: the only real exception being the result in ACCC v Woolworths.'

19 February 2017 - COSBOA confirms support for effects test

The Council of Small Business Australia (COSBOA) has issued a media release confirming that it supports an effects test for misuse of market power. This was released in response to comments by the ALP 'insinuating that COSBOA does not support an effects test', which COSBOA has labelled wrong and 'fake news'. See COSBOA Media, 'ALP must support an effects test to have any competition credibility – and stop the fake facts' (17 February 2017)

17 February 2017 - Allens client update on MMP

Allens >< Linklaters have issued a client update on the Senate Committee's support for an effects test for MMP.

See 'Client Update: Senate Committee Supports Proposal to Broaden the Misuse of Market Power Prohibition' (17 February 2017)'

16 February 2017 - Senate Economics Committee gives green light to effects test

I've posted a blog piece providing an overview and some commentary on today's Senate Economics Committee report on the misuse of market power bill.

See Julie Clarke, 'Senate Committee Gives Green Light to Effects Test' (Australian Competition Law Blog, 16 February 2017).

16 February 2017 - Senate Economics Committee recommends passage of misuse of market power bill

The Senate Economics Committee today released its report on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016which will, amongst other things, introduce an effects test into Australia's abuse of power laws.

Labor senators dissented, claiming the effects test is 'a particularly dangerous economic policy'. Nick Xenophon, while 'broadly' supporting the committee recommendations, offered some additional comments, including once again calling for introduction of divestiture powers for breaching the misuse of market power provision. Further details to follow on my report page.

13 February 2017 - Banks' submission in ApplePay authorisation claim published

John Durie's latest column discusses the banks' submission responding to the ACCC's draft decision denying it authorisation to collectively negotiate with Apple over ApplePay.

See John Durie, 'Banks stake out Apple Pay battleground in ACCC submission' (The Australian, 13 February 2017). See generally authorisation register.

9 February 2017 - Sims confirms its review of the BP's takeover of Woolworths petrol station will be a long one

In an interview with the Australian, ACCC Chairman Rod Sims, has confirmed that the upcoming review of BP’s $1.8b acquisition of 527 Woolworths petrol station and convenience sites (announced in late December 2016) will be lengthy, with local competition issues to be assessed for all of the stations stations will need to be assessed. For more details see Matt Chambers, 'ACCC’s Sims: review of BP stations deal will be long' (The Australian, 9 February 2017).

9 February 2017 - ACCC will not oppose Ruralco’s proposed acquisition of TP Jones

The ACCC has announced it will not oppose Ruralco’s proposed acquisition of TP Jones, both 'rural merchandise retailers based in Tasmania'.

See ACCC media release. See merger register.

8 February 2017 - Apple versus the banks ... Apple goes on the attack

Plenty of media this week generated by Apple's latest submission in response to the application by Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank's for authorisation to collectively bargain with and boycott Apple in relation to Apple Pay.

In November last year the ACCC issued a draft determination proposing to deny authorisation to the banks; however, it also noted that its draft decision was 'finely balanced'.

Apple's latest submission is in response to the draft determination. It concludes bluntly that it is Apple's view that the application by the banks 'is not primarily about NFC access' but rather is 'fundamentally about the applicant banks avoiding paying Apple fees for use of Apple Pay ... or specifically charging their cardholders for that use to discourage consumer use of Apple Pay and thereby reduce competition with their own proprietary wallets.' Authorisation would, Apple argues, produce no public benefit but only private benefit to the banks by allowing them to 'continue to free-ride on the significant investments made by Apple ... specifically in this case on the underlying technology installed on Apple devices to facilitate NFC payments without paying any fees for transactions processed via Apple Pay's secure element infrastructure ...'

For some more detail see my blog post. For a sample of recent media on this see, for example, James Eyers, 'Apple claims banks want digital wallets as a new revenue source' (AFR, 5 February 2017); Ariel Bogle, 'Apple's fight with big banks is getting even nastier, and it was already nasty' (MashableUK, 6 February 2017); Asha McLean, 'Apple argues Australian bank bargaining cartel is centred on fee avoidance' (ZDNet, 6 February 2017).

8 February 2015 - Dairy Inquiry

The ACCC is holding public inquiries in relation to the Dairy Inquiry from 6 February to 22 March 2017. It has been reported that up to 330 dairy farmers have given evidence in the first two days of ACCC hearings in Queensland and NSW.

There is likely to be ongoing media on this - for a sample see:

• Simone Smith, 'ACCC dairy inquiry: Hundreds of dairy farmers give evidence' (The Weekly Times, 7 February 2017)
• 'ACCC investigating claims milk processors threatening farmers' (Radio National (audio), 7 February 2017)
• Shan Goodwin, 'No power to bargain for dairy farmers, ACCC told' (North Qld Register, 7 February 2017)
• Shan Goodwin, 'ACCC dairy inquiry has teeth' (The Australian Dairy Farmer, 27 January 2017).

5 February 2015 - Sims: ACCC too soft on penalties

The Chairman of the ACCC, Rod Sims, has argued that the ACCC has been too soft on penalties in the past. The ACCC will, in future, seek higher penalties. In addition, in response to the decision in Flight Centre, which Sims claims has 'profound implications' for business, the ACCC will launch a review across the e-commerce sector. See Patrick Durkin, 'Rod Sims says ACCC 'too cautious' on penalties in the past' (AFR, 5 February 2017).

24 January 2017 - ACCC invites dairy farmers to air competition complaints

The ACCC has announced it is 'inviting dairy farmers to share any concerns they may have about competition and fair trading at a series of public forums around the country' as part of the ACCC's Dairy Inquiry. See media release.

20 January 2017 - Senate committee submissions available

Submissions were added progressively to the Commitee website and are available here. The Commitee is due to report on 16 February. For more information see my report page.

14 January 2017 - Durie on the Woolworths decision

John Durie has an item today discussing the Woolworths unconscionable conduct decision. It includes discussion of some of the submissions to the misuse of market power Senate review which have identified the decision as problematic for small business as well as more general discussion on some of the submissions.

See John Durie, 'Woolies decision weakens watchdog the ACCC' (The Australian, 14 January 2017).

9 January 2017 - Flight Centre blog

I have a blog piece on the Centre for Competition Policy's blog today discussing the recent High Court decision in Flight Centre.

See 'Flight Centre: Australian High Court finds agent competed with principal and breached cartel laws' (Centre for Competition Policy Blog, 9 January 2017)

6 January 2017 - Pharmaceutical competition

Terry Barnes has an opinion piece in today's AFR discussing the PBS, lobbying from the Pharmacy Guild of Australia and current protections from normal market competition. See Terry Barnes, 'A taste of their own medicine' (Australian Financial Review, 5 January 2017) (behind pay-wall)

3 January 2017 - Petrol probe

Michael Smith has an item in today's AFR discussing the ACCC's examination of BP's proposed acquisition of Woolworths' petrol station network. See Michael Smith, 'ACCC's petrol probe a long haul' (Australian Financial Review, 3 January 2017, p 28) (online version behind pay-wall).

See also Brian Robins, 'BP snaps up Woolworths servos for $1.8 billion' (SMH, 28 December 2016), Stephen Bartholomeusz, 'Woolworths, BP deal a marriage of convenience' (The Australian, 28 December 2016) and Thuy Ong, 'Woolworths sells fuel business to BP for nearly $1.8b' (ABC, 28 December 2016).

1 January 2017 - MMP Bill submissions due soon

Reminder that submissions on the Senate Economics Committee's review of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 are due by 9 January 2017 with the Report expected on 16 February. 

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