Australian Competition Law

My competition law publications

Journal articles

Julie Clarke, 'Running a Cartel? Go Directly to Jail' (May 2010) Law Institute Journal 52
Overview of Australia's new criminal cartel laws.

Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2009) 1(2) Competition Law Reports 86-92 (India)
Critical look at the 2007 Birdsville Amendments (with 2009 updates)

Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2008) 1 Deakin Business Review 6
Critical look at the 2007 Birdsville Amendments

Julie Clarke, ‘Multi-jurisdictional merger review procedures: a better way’ (2006) 14 Trade Practices Law Journal 90-109
Corporate mergers whose effects transcend national borders have faced increasing regulation over the past few decades as more jurisdictions have developed merger laws and imposed pre-merger notification requirements. The level of regulatory response to multi-jurisdictional mergers is likely to continue to increase as even more jurisdictions contemplate the introduction of competition laws. This level of regulation now goes beyond that required to protect national economies from potentially harmful mergers and has seen burgeoning costs to business, regulators and, ultimately, the public. In recognition of this, the relatively newly formed International Competition Network has placed merger regulation at the forefront of its agenda for greater harmonisation and cooperation in competition law. This has seen, over the past three years, the development of a set of guiding principles and recommended practices for merger notification procedures designed to reduce the regulatory burden. This article evaluates these recommendations and discusses areas for further reform.

Julie Clarke, Criminal Penalties for Contraventions of Part IV of the Trade Practices Act (2005) 10 Deakin Law Review 141
In 2003 the Dawson Committee, commissioned by the Government, recommended that criminal penalties should be introduced for cartel conduct. The Government accepted this recommendation in principle and set up a working party to consider the implementation difficulties that had been identified in the Dawson Report. Nothing further was heard from the Government until February 2005 when the Government announced that it would introduce criminal penalties for serious cartel conduct. This paper evaluates the Government proposals and makes suggestions for their implementation.

Julie Clarke, 'The Dawson Report and Merger Regulation' (2003) 8(2) Deakin Law Review 245
The Dawson Report, released by the federal Government in April, recommended significant change to merger regulation in Australia. While retaining the substantial lessening of competition test, the Report calls for change to the merger clearance and authorisation processes. The recommendations have received the support of the Government and big business, but have attracted criticism from the ACCC, small business and consumer groups. This paper will critically discuss the recommendations in light of the public submissions made to the Review.

Julie Clarke and Mirko Bagaric, 'The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act' (2003) 31 Australian Business Law Review 192-209
Abstract: Following the introduction of criminal sanctions, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime.

Julie Brebner, ‘The Relevance of Import Competition to Merger Assessment in Australia’ (2002) 10(2) Competition and Consumer Law Journal 119-143
Abstract: The Australian Competition and Consumer Commission has been criticised for failing to take due account of the impact import competition has on domestic firms when assessing whether or not a proposed merger will be likely to substantially lessen competition. This paper reviews the approach taken by the Commission to import competition in its merger assessments. Consideration is given to both the policy adopted by the Commission and the statistical relevance that has, in fact, been placed on import competition in merger assessment. A conclusion is then drawn as to the appropriateness of the Commission’s current policy and practice.

Julie Brebner, 'Resale Price Maintenance - The Need for Further Reform' (2001) 9 Trade Practices Law Journal 18
Abstract: he Competition Policy Reform Act 1995 (Cth) extended the resale price maintenance provisions of the Trade Practices Act 1974 (Cth) to include services, and provide for authorisation where the conduct can be shown to benefit the public such that it should be allowed. This article explores the scope of these changes and their shortcomings. It also seeks to provide some guidance as to their likely application, and makes recommendations for further reform.

Conference Papers

Conference Paper: "Australian Merger Law Set For Change", Australasian Law Teachers' Association Annual Conference 2003, Novotel Hotel, Brisbane, 7 July 2003
Abstract: The way in which mergers are evaluated in Australia is set to undergo significant change in the coming year. The Review of the Competition Law Provisions of the Trade Practices Act (the Dawson Review) was released by the Government in April.1 While recommending the retention of the current substantial lessening of competition test, the Dawson Committee made a number of recommendations for change regarding the procedures to be applied in assessing potential mergers. These recommendations have received the support of the federal Government. This paper will critically discuss the recommendations of the Committee in light of the submissions made to the Review and will also consider the possible amendments to the TPA that may flow.

Submissions on inquiries/reviews

Submission to Senate Inquiry into Trade Practices Amendment (Material Lessening of Competition - Richmond Amendment) Bill 2009 (see Inquiry home page)

Submission on Government Discussion Paper: Creeping Acquisitions - The Way Forward, 11 June 2009 (see Treasury web site)

Submission on Government Discussion Paper: Creeping Acquisitions, 10 October 2008 (see Treasury web site)

Submission relating to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Exposure Draft Bill - see Treasury web site) 29 February 2008

Julie Brebner, Submission to the Trade Practices Act Review (Dawson Committee), July 2002 (link to TPA Review site)
Submission on merger regime

Competition Law Media

The World Today with Peter Cave, Radio Interview with Ashley Hall, Monday 29 June 2009 at 12.52pm (ACCC action against Cabcharge – pre-recorded)

'Review Misses Bill's Key Points', Australian Financial Review, Tuesday 21 April 2009, p 63

Suppresion of bank payments festers for eBay, The Sheet (article by Jason Bryce, 8 July 2008)

Australia the Testing Ground for eBay, The Sheet (article by Jason Bryce, 20 May 2008)

eBay's PayPal plan sparks user revolt, Courier Mail (article by Jason Bryce, 18 May 2008)

Media release, Radical predatory pricing reforms pose risk to discounters,19 September 2007

Media release, Trade practices reforms short change small business, 2 July 2007