Competition Policy Review

Australian Information Industry Association

Notes transformative impact of information technology to economy (enhancing competition) and recommend principles-based approach to competition policy - these principles should 'enhance innovation and investment'.

Australian Payments Clearing Association

Support competition but claim network industries (like payments) may require some collaboration between competitors. Notes difficulty in reconciling interests of different regulators when seeking to coordinate.

CHOICE

'A future competition policy reform agenda should prioritise consumer welfare as its overarching objective and build the capacity for informed voices to assist in the decision-making process on behalf of consumers' (recommendation 1)

'Any amendments to the CCA should be premised on a policy of universal application. Measures that favour one type of business over others – or that single out individual sectors - should be treated cautiously' (recommendation 10)

Community Employers WA

• Panel should keep broad perspective 'particularly in areas which relate to services provided to support the most vulnerable and marginalised in our community'
• 'Panel should also actively consider areas beyond the minimising of cost or price for goods or services'
• Should consider principles beyond 'traditional accounting and economic drivers, including:
  • The ongoing sustainability of services to support people in need
  • The critical importance of strengthening the sense of community connectedness and social cohesion
  • The benefits of supporting and promoting Civil Society
  • The risks of trying to create a market for services when it doesn’t exist and the potential consequences when there is market failure
  • The important contribution of values based organisations which operate outside the influence of a market simply because they see a need
  • The encouragement of volunteering and philanthropy.' (p 20)

Arnold Bloch Leibler

Highly codified law and associated problems ('tinkering' and failure to keep pace with international developments)

Australian Recording Industry Association

CCA is 'less than fully effective because it is too complicated and too prescriptive to be complied with readily by business organisations'; CCA should be simplified

CHOICE

Consideration should be given to simplifying competition laws and processes to ensure they are accessible to all market participants

Arnold Bloch Leibler

Australian Marketing Pty Ltd

Priority should be reform agenda 'to apply Australian Consumer Law (ACL) to small business specifically in relation to: Unilateral Conduct, Misuse of market power, unfair and unconscionable conduct and third-line forcing'

Australian Dental Association

'It is the ADA’s submission that current competition laws are too narrow in their focus and are unable to ensure a competitive process where small business dentists can compete on a level playing field with dental care provided by the PHI industry ... It is not appropriate to view dental care as a commodity thereby focusing on cost reduction rather than quality and continuity of care' (p 19)

Chamber of Commerce and Industry Queensland

• '... the Harper Report must focus its attention on designing competition policy that places small business in an enhanced competitive position' (p 3).
• Recommends the Harper Review Panel 'look deeply at these matters affecting the viability of small business across the country' (para 38)
• Hospitality licencing laws produce unequal playing field for small business (section 2.7)
• However, 'CCIQ believes the Harper Review is designed to focus on outcomes that create more equal competitive conditions for business, not the specific protection of a segment or class of competitors in the market.' (para 60) (but compare submission on MMP)

Agriculture, food, drink, fishing

Agforce

• Protection from agri-terrorism
• Establishing a Perishable Goods Commissioner

Australian Prawn Farmers Association

Concern about over-regulation of their industry and of approach taken by Great Barrier Reef Marine Park Authority. Claim aquaculture 'is being deliberately targeted in an anticompetitive manner and held to ransom'. Recommendations relate to industry specific regulation/monitoring

CBH Group

Discusses agricultural competitiveness 'as a means of providing a platform for enhancing the contribution of agriculture to economic growth, employment creation and national prosperity, through increased innovation, productivity, investment and trade'. Grain Terminal Access regulation.

Cider Australia

Product labelling obligations 'impact the ability of cider producers, particularly smaller operators, to compete in the market' (page 1) and 'Cider Australia considers the definition of cider under the food standards and, consequently, the range of products that can be labelled as ‘cider’ in Australia, to be too broad.' (p 2)

Foundation for Alcohol Research and Education

Alcohol - "competition policy has contributed to the rapid increase in the number of licensed premises and hours of sale, making alcohol more affordable and more widely available than ever before"

Wants to ensure that the 'Competition Policy Review does not further erode the restrictions that currently exist' in relation to alcohol marketing and sale (p 2)

Kagome

Agricultural production and processing - key recommendations

• 'transparency and consistency in the regulation of Australia's water resources';
• 'competitive energy pricing';
• 'consistency in transport regulation between states'
• 'consistency in food quality standards and "country of origin" labelling at point of sale'
• 'consistency in regulation along Australian industry value chains'
• 'modify taxation structures for R&D investment'
• 'policy initiatives to increase workforce skills'

NSW Business Chamber

Liquor restrictions - has created competitive disadvantage in some cases (p 5)

Airports and aviation

Regulatory control over airports (Australian Airports Association)

Lack of competition between jet fuel suppliers (BARA)

Increasing costs at major international airports (BARA)

Pricing and Airservices Australia (BARA)

Banking

Opportunities to strengthen competition in banking system (Bendigo and Adelaide Bank, BOQ, ME Bank and Suncorp Bank)

Cement

Discusses the 'increasingly regulatory environment' in which cement industry operates and impact on productivity and competitiveness

Construction

Lloyd, J

'Restrictions on ability of contractors to freely compete for work contracts'. Notes s 51(2)(a) exemption. Recommends CCA 'be amended to make unlawful the practice of imposing restrictions on the use of contracting and labour hire services through industrial agreements and associated arrangements' and that the exemption provided in s 51(2)(a) should be qualified so as not to apply to 'a contract, arrangement, understanding or industrial agreement between an employer, union and employees that restricts dealings or lessens competition through limiting the employer's capacity to engage contractors and labour hire firms.'

Master Builders Australia

Secondary boycott jurisdiction should be strengthened, inc 'vesting contemporaneous jurisdiction in the ABCC'

Cooperatives and mutuals

Should be subject to same regulatory requirements as companies (Business Council of Cooperatives and Mutuals)

Gas

Wholesale gas markets (Australian Pipeline Industry Association)

Insurance

Insurance Australia Group

Consider cost of any new regulation

Insurance Council of Australia

' ... there exists a strong case that statutory insurance schemes are well served by private insurance markets, and that the risk of injury, particularly arising from losses from employment or motor accidents, can be transferred from the public sector with the attendant allocative efficiency gains' (page 2)

Legal

Eqalex Underwriting Pty Ltd

• Lack of competition in legal services
• Identifies four areas of concern (page 1):
  • 'the Legal Profession Cartel and the lack of competitive pricing of legal services' (wants independent authority involved)
  • 'Legal Aid Tendering and competitive neutrality'
  • 'No Win No Fee Agreements'
  • 'Litigation Funding and a level playing field with insurers'

Post

Border, A

• Wants an 'inquiry into Australia's Postal services' and increased parcel costs

Tax

AusBiotech

• Wants tax incentives to help Australian business

C Collins

• Payroll tax should be abolished or indexed - makes it difficult for small-med business to compete

See generally industry specific concerns, above

Forthcoming

Australian Information Industry Association

Opposed to PD law

Australian Recording Industry Association

Opposed to PD law

Australasian Performing Right Association Ltd and Australasian Mechanical Copyright Owners' Society

'It is simply not the case that there should be a single global price for all products, and even if that were an aim of competition law, there is no obvious reason why that price should be the price set by copyright owners in the US market.' (page 9)

Australian Communications Consumer Action Network

Concern about geographic price discrimination - in particular, geoblocking and related measures. Recommends 'the Harper Review assesses the recommendations of the IT pricing inquiry and where appropriate adopt'

NSW Business Chamber

International price discrimination is problematic but no obvious solution - suggest consider/assess effectiveness of Canada's response before acting.

Australasian Performing Right Association Ltd and Australasian Mechanical Copyright Owners' Society

Mental health

• access to Medicare rebates (Australian Clinical Psychologists)

Dental

• power of private health insurance industry (Australian Dental Association)

Pharmacy

• remove restriction of pharmacy numbers and location (Jennifer Callaghan)

Complementary medicine

• 'overly burdensome regulatory requirements' - need to remove 'regulations and restrictions that currently prevent competition and stifle innovation' in complementary medicines industry.' (Complementary Healthcare Council of Australia)

Benefits

• setting of benefits on Prothesis list (Applied Medical)

Forthcoming

Trading hours

Chamber of Commerce and Industry Queensland

• Concern about restrictive regulatory framework governing trading hours in Qld.

General discussion

CHOICE

• 'Intellectual property laws should be reformed to provide Australians with greater access to competitively priced goods and services, including through a more flexible, fair-use copyright regime' (recommendation 6)
• 'The panel should investigate reforms to pharmaceutical patents consistent with the recommendations of the Pharmaceutical Patents Review' (recommendation 7)

Remove s 51(3) IP exemptions

Australian Communications Consumer Action Network

CHOICE

(recommendation 3)

Retain s 51(3) IP protection

Australian Recording Industry Association

• Opposes repeal of IP exemptions in 51(3). Suggest 'recommendations of the Ergas Committee and the Government's Response need to be revisited' re: s 51(3) and also notes that the phrase 'to the extent that the condition relates to' in s 51(3) requires clarification. Also claim statutory pricing caps in s 152(8) and (11) of the Copyright Act have an adverse impact on competition and 'create market distortions and reduce economic efficiency'. Refers to Ergas recommendation that s 152(8) of the Copyright Act be 'amended to remove the broadcast fee price cap'.
• Also opposes recommendation 10 by House Standing Committee 2013 (that Govt 'investigate feasibility of amending the [CCA] so that contracts or terms of service which seek to enforce geoblocking are considered void'

Australasian Performing Right Association Ltd and Australasian Mechanical Copyright Owners' Society

• Although IP laws do place regulatory impediments competition in many sectors, 'they are not unwarranted nor do they have an unduly adverse impact on competition' (p 2).
• APRA relies on s 51(3) but 'considers that the protection offered by these provisions is too narrow – or in any event, too uncertain – to cover its operations, and therefore applies for authorisation from the ACCC.' (generally happy with authorisation process: page 8)

Planning restrictions

Aldi stores

Landuse-zoning

NSW Business Chamber

Planning restrictions on retail competition ('planning and zoning regulation appears to be the root cause
of many of the problems that arise in retail tenancy') (page 4) Should remove unnecessary constraints

Australian Council of Trade Unions

ACTU 'does not agree that private firms can be assumed to be more efficient and effective providers of public services'

Electricity

Chamber of Commerce and Industry Queensland

Lack of competition in regional Qld energy market (para 20). Supports 'the transition to price monitoring, provided that there is sufficient competition within the retail market and adequate customer protection mechanisms in place' (para 25). Suggests broader powers of state regulatory authorities to monitor competition (para 29)

Clean Energy Council

Regulatory barriers for rooftop solar and 'behind the meter' storage, role of AER, tariff setting powers of distribution businesses, grid connection processes

NSW Business Chamber

Privatisation of state-owned electricity assets should enhance competition (p 6)

Support privatisation; scope of reform to tariff structure and consumer data provision (p 7)

Public transport

NSW Business Chamber

• opportunities for increased contestability (p 8)

Australian Information Industry Association

Competitive neutrality not functioning effectively in telecommunications sector

Beck, K

Limitations of the CCA to governments (re expressions of interest and tenders with government agencies) - competitive neutrality

Australian College of Theology

Restriction of access to Research Training Scheme to certain Higher Education providers. Claims 'continued lack of access by non-listed providers to the RTS undermines the principle of competitive neutrality ...'. Recommends all non-listed higher ed providers that deliver TEQSA-approved doctoral degrees and have 'capacity to satisfy the accountability requirements of participation in the RTS should be given immediate access to the RTS ...'

Chamber of Commerce and Industry Queensland

Claims 'some local governments have been operating in private markets to the disadvantage of SMEs in Queensland' (p 5) and argues for review of the effectiveness of the current competitive neutrality framework. Concern that 'small business is at an unfair disadvantage when they tender for public contracts or major projects.'

C Collins

Tender documents for government contracts 'are unnecessarily large and complex' making it difficult for small, rural and regional businesses to compete, even where they might be best suited for the project

Insurance Council of Australia

'the ICA strongly submits that governments providing insurance should do so in a competitive market - in accordance with the principles of competitive neutrality' (page 5)

Australian College of Theology

access to research training scheme

CHOICE

'The case for further reform in sectors such as health and education should assess whether the preconditions for genuine demand-side competition are achievable and whether increased competition will result in improvements to consumer welfare.' (recommendation 9)

Health reforms generally

• 'The case for further reform in sectors such as health and education should assess whether the preconditions for genuine demand-side competition are achievable and whether increased competition will result in improvements to consumer welfare.' (recommendation 9) (CHOICE)

Forthcoming

Forthcoming

Retain purpose test

American Bar Association

Separate effects test has potential to generate uncertainty; Australian courts already take into account effects in considering purpose and whether it is exclusionary.

Australian Airports Association

The 'fundamental character of section 46 should not be changed.'

Australian Food and Grocery Council

Australian National Retailers Association

Claims as a result of the court being able to infer purpose from anticompetitive effects there is already a 'virtual "effects test"' in s 46 (para 4.10).

However, note submission indicates that ANRA has commissioned work exploring introduction of effects test for s 46

Australian Subscription Television an Radio Association

Business Council of Australia

Insurance Australia Group

Introduction of 'effects test' is 'neither necessary nor appropriate'. 'An effects test would risk making strong but fair conduct by efficient businesses unlawful, thereby protecting competitors in a market, as opposed to protecting and promoting competition, and is thus not in the interests of consumers.' (page 3)

Law Council of Australia (Business Law Section)

National Seniors Australia

Raitt, G

Wesfarmers Ltd

Introduce effects test

ACCC

Recommends amending s 46 to capture unilateral conduct by a firm with substantial market power 'that has, or is likely to have, the effect of substantially lessening competition in a market'. (p 77) Purpose should also be retained (so it became a purpose or effect test) (p 78)

Agforce

AURL (FoodWorks)

'Sections 46(1) and s46(1AA) of the CCA should be amended to supplement the current purpose test for misuse of market power and below cost pricing with an effects test'. Specific recommendations:

'1. Section 46(1) should be amended as follows:

(1) A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of or with the effect or likely effect of:…

2. Section 46(1AA) should be amended as follows:

(1AA) A corporation that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying such goods or services, for the purpose of or with the effect or likely effect of:…'

Australian Dairy Farmers Ltd

Australian Newsagents' Federation

Supports effects test and removal of 'take advantage' element

Canegrowers

Chamber of Commerce and Industry Queensland

Calls for change 'to protect small business against the monopolistic actions of powerful market operators'. Supports calls to shift from purpose to effect test 'to offer greater protection to smaller operators from the predatory pricing practices of large companies to achieve anticompetitive results in the market.' (para 63)

Chi-X Australia

CHOICE

'The panel should examine the case for an effects test in relation to the misuse of market power' (recommendation 12)

Prof Allan Fels

Master Grocers Australia

Nehme, M and Laman, J

Terciero Legal Consulting

Predatory pricing - Birdsville

Arnold Bloch Leibler

Section 46(1AA)) 'replete with undefined, uncertain and confusing terminology such as "relevant cost", "sustained period" and "substantial share of a market" ...' and should be 'scrapped'.

Predatory pricing should be considered (if at all) under general MMP prohibition (46(1)

Divestiture power

See section on divestiture

General discussion

CHOICE

'The panel should consider a prohibition – analogous with attempted monopolisation in the United States – that captures unilateral conduct that is likely to give rise to substantial market power' (recommendation 13)

Agforce

Introduce 'administrative monetary penalties to give the ACCC greater power to regulate anti-competitive behaviour' (p 2)

Kemp, K

'The South African Example: A Legislated Effects-Based Test and Efficiency Defence for Misuse of Market Power' - provides some research without making specific recommendation

 

(Note, there was no specific question directed to this issue: see international price discrimination)

AURL (FoodWorks)

Argues for 'anticompetitive price discrimination legislation' - where a 'corporation has a substantial share of the market and where the conduct substantially lessens competition'; refers to clause 10.34 of the Blunt report noting when systematic price differentiation may produce anti-competitive effects. Specific provision proposed:

Section 46 (1AAB)
A corporation must not discriminate between purchasers of goods or services of like grade or quality in relation to prices charged for the goods or services, discounts, allowances, rebates or credits given or allowed in respect of the goods or services or the provision of or payment for services provided in respect of the goods if the discrimination has the purpose, or has the effect or is likely to have the effect, of substantially lessening competition in a market.

Extension to small business

Agforce

'recognition of the competitive disadvantage faced by producers (who are often small businesses) of perishable goods, such as slaughter-ready cattle, through the targeted and reasonable extension of the protections afforded to consumers' (page 2)

NSW Business Chamber

Supports 'introduction of unfair contract terms for small business, as a mechanism for limiting the use of market power in commercial negotiations.' (page 2)

Unfair trading generally

CHOICE

There should be a prohibition against unfair trading (recommendation 23) - while overlapping with unconscionable conduct it would be broader - CHOICE provide examples from the EU, UK and US (page 50)

Other discussion

Australian Chicken Growers' Council Ltd

'appropriate changes' - not specified

Chamber of Commerce and Industry Queensland

• Urges 'caution when contemplating the extension of unfair contracts terms protections to small business' (para 59)
• 'Any move to extend unfair contract provisions for business-to-business contracts runs counter to the objectives of effective competition policy, the principles of a free-market economy, and the longstanding doctrine of freedom to contract' (para 60)
• Extension of unfair terms provisions 'likely to increase the compliance burden on small business ...'

Agforce

Greater certainty through legislative definition of unconscionable conduct

Statutory 'recognition of disadvantage such as for those producers of perishable goods'

Australian Chicken Growers' Council Ltd

'improved measures regarding unconscionable conduct provisions'

Agforce

Australian Pipeline Industry Association

Ongoing competition issues in wholesale gas market and uncertainty regarding Access regime production process. Suggest adopt PC recommendations regarding coverage criteria for access and that production process exemption be clarified and 'recognise the value of certifying industry-specific access regimes and the importance of undertaking to certify the electricity and gas access regimes in the Australian Energy Market Agreement 2006'.

Board of Airline Representatives of Australia (BARA)

Discussed in relation to jet fuel supply infrastructure and associated NCC assessment

CBH Group

Discusses Grain Terminal Access regulation.

General discussion

Arnold Bloch Leibler

There is merit in abolishing the convoluted new cartel laws and reverting to the prior definition of price fixing under s 45A; alternatively there is a need for amendment and clarity. Since 2009 'cartel conduct is defined in such a complex and convoluted fashion that there is a serious risk that benign commercial arrangements, not anticompetitive at all, may constitute a serious criminal offence.'

Australian Recording Industry Association

'ARIA supports the much simpler and more effective cartel-related provisions proposed in the Commerce (Cartels and Other Matters) Amendment Bill 2011 as reported by the NZ Commerce Committee in May 2013'

Baker and McKenzie

• Current s 44ZZRD definition poorly drafted in places and do not provide business certainty.
• Broad application and complex and technical nature of exemptions problematic
• Exception for collective acquisitions (s 44ZZRV) requires clarification.

Caron Beaton-Wells and Brent Fisse

• Need to clearly distinguish civil from criminal - 'physical elements of the cartel offences could be defined more narrowly than the physical elements of the civil cartel prohibitions', 'fault elements of exceptions to cartel offences should be defined in terms of subjective fault', MOU between CDPP and ACCC 'should articulate more clearly and in greater detail the bases on which it will be decided to refer a matter for prosecution in the case of the ACCC and to prosecute in the case of the CDPP' and changes to titles of subdivisions
• Cartel rules 'should reflect the seriousness of the conduct from an economic perspective ...'. Current laws fall short - eg, definition of collusion (CAU), definitions of cartel provision and exclusionary provision, JV exemptions, anti-overlap exceptions and 'absence of a supply agreement exception'
• Definition of cartel provision over-reaching. Lacks 'economic rigour and sophistication' (p 9). Current definition involves 'bright line tests'. Section 44ZZRD definition should be repealed and redefined (suggested re-definition p 11; includes removing the notion of a 'purpose of a provision')
• Should be specific exception for supply agreements (based on proposed exception in NZ bill)
• 'Cartel offences should be fault-based'. Note weaknesses in current regime, including extending criminal liability on 'basis of vicarious responsibility'. Several recommendations made, including excluding vicarious responsibility (s 18).
• Liability rules 'need to be drafted in plain language' (pp 18-19). Cartel provisions fail in this respect. Recommendations made (p 19).
• Individual accountability important - current regime relies heavily on imprisonment sanction. Alternatives should be explored, including increasing level of civil penalties against individuals (p 20)
• Corporate accountability. Notes some gaps in coverage of liability (in unincorporated associations and Crown immunity). Recommendations p 22
• Enforcement policy (see below)

Contract, arrangement or understanding

Caron Beaton-Wells and Brent Fisse

Potentially under-inclusive - fails to address facilitating or concerted practices. Suggest introduce concept of 'concerted practice' as providing line between 'legal and illegal horizontal coordination'. However, note good argument that such practices (eg, information-sharing) should be subject to competition or rule of reason test. Committee should consider amending s 45(2) to add a prohibition against 'concerted practices'. Suggest provision along following terms (p 8):

A concerted practice is conduct engaged in by a corporation for the purpose of:

(a) coordinating the terms or conditions on which goods or services are supplied or acquired, to be supplied or acquired or likely to be supplied or acquired with a person who competes, is likely to compete or would, but for the concerted practice, compete with the corporation in relation to the supply or acquisition of those goods or services; and

(b) thereby substantially lessening competition between the corporation and that person in relation to the supply or acquisition of those goods or services.

 

Immunity and cooperation

Arnold Bloch Leibler

Need for certainty; abolish uncertain criteria, 'such as the disqualification for cartel parties who have 'coerced' others'; concern immunity policy has 'no proper legal basis' - requires legislative backing; concern about dual administration by ACCC and CDPP

Caron Beaton-Wells and Brent Fisse

Note proposed consolidated Immunity and Cooperation Policy for Cartel Conduct 'represents an advance on the existing ACCC policies, there remains considerable scope for further consolidation and improvement'. Suggest Canadian model as instructive. Several recommendations (pp 25-267)

 

Exclusionary provisions

Caron Beaton-Wells and Brent Fisse

Definition over-reaching. Recommend repeal of per se prohibition on exclusionary provisions under s 45(2)(a) and 45(2)(b)(i)

 

ACCC

Expand to whole economy

Arnold Bloch Leibler

'no warrant for specific bans on price signalling'

Australian Recording Industry Association

Should be repealed

Australian Institute of Petroleum

Laws are unnecessary and there is no case for extending to fuels sector

Caron Beaton-Wells and Brent Fisse

Current provisions 'ill-conceived and highly problematic.' Division 1A of Part IV should be repealed

CHOICE

'The price signalling laws should apply universally or be removed. If retained, the price signalling laws should not be so wide as to impede consumer access to information.' (recommendation 17)

Arnold Bloch Leibler

Lack of clarity around 'joint activity' and requirement for contract. JV exemption too limited - proposed collaborative activity exception in NZ is better.

Baker and McKenzie

• JV exceptions need to be made 'more certain'. 'Competition law should not erect unnecessary barriers to joint venture activity. The exceptions recognise this.' (para 2.8)

Caron Beaton-Wells and Brent Fisse

JV exceptions 'seriously flawed'. Exceptions under s 44ZZRO and s 44ZZRP should be repealed. Collaborative activity exception based on NZ Bill should be introduced.

Remove per se ban

Arnold Bloch Leibler

TLF should only be unlawful if it has anti-competitive effect

Baker and McKenzie

• Per se prohibition 'imposes significant pressures on businesses [and] creates additional red tape ... through the ACCC notification process'; should be subject to SLC test

General discussion of exclusive dealing and third line forcing

Baker and McKenzie

• Current prohibition inefficient and creates red tape; 'consideration should be given to making this prohibition more efficient by adopting a block exemption or outlining safe harbours ...' (para 4.5)

Remove per se ban

Arnold Bloch Leibler

RPM should only be unlawful if it has anti-competitive effect; notes free-rider concern

AMMA Workplace Consultancy (Australian Mines and Metal Association)

• Ensure 'that the existing prohibitions (and associated remedies and penalties) against secondary boycotts contained in the Competition and Consumer Act 2010 are effective in preventing trade unions from using this as an industrial tactic and weapon against target companies' (p 3)
• Consideration to be given to 'providing shared jurisdiction to Fair Work Building & Construction (and the proposed Australian Building and Construction Commission) to enforce secondary boycotts within the building and construction industry as previously recommended by the Cole Royal Commission in 2003' (p 3)

Australian Conservation Foundation

• Retain section 45ZDD(3) Environmental Exemption

Australian Council of Trade Unions

Claims breach of international obligations - exemptions to secondary boycott prohibitions should be 'widened to ensure protection of the specific right to engage in secondary/sympathetic industrial activity'

Australian Forest Products Association

Loopholes 'leading to adverse competition outcomes' for the forest, wood and paper products industry

CHOICE

'To ensure they cannot be used to impede consumer’s access to information, the secondary boycott provisions should be removed from the CCA altogether except in so far as they relate to unfair commercial actions by a competitor' (recommendation 18)

Forest Industries Federation (WA)

Wants secondary boycotts by environmental activists to be prohibited (remove s 45DD exemption)

Greenpeace Australia, Wilderness Society, OXFAM Australia, GetUp!, Voiceless, Friends of the Earth, AidWatch

Retain secondary boycott exemption for consumer and environmental boycotts.

ITS Global

Section 45DD(3)(a) not effective (inc poor definition) and should be removed or alternatively could establish effective authorisation process

Lloyd, J

Australian Building and Construction Commission (ABCC) should be re-established and given power to enforce secondary boycott provisions in relation to building and construction industry participants.

Master Builders Australia

Secondary boycott jurisdiction should be strengthened, inc 'vesting contemporaneous jurisdiction in the ABCC'

RSPCA

Maintain current exemptions for environmental and consumer protection and expand to include 'protection of animal welfare'

Generally

ACCC supplementary submission

Submissions focus on the ACCC's role in merger clearances: global markets, merger timelines, appeals on merger decisions and 'transparency and disclosure to merger parties of the record on which teh ACCC makes its informal clearance decisions.'

Mandatory notification

AURL (FoodWorks)

'in specific highly concentrated industries, including the supermarket industry'

Authorisation

ACCC

Creeping acquisitions

AURL (FoodWorks)

'Amendments should be made to s50 of the CCA to enable the cumulative effect of acquisitions to be taken into account in determining whether an acquisition has the effect or likely effect of substantially lessening competition'. Recommended provision:

Section 50
Prohibition of acquisitions that would result in a substantial lessening of competition

(1) A corporation must not directly or indirectly:

(a) acquire shares in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect or cumulative effect, or be likely to have the effect or cumulative effect, of substantially lessening competition in any market.

(2) A person must not directly or indirectly:

(a) acquire shares in the capital of a corporation; or

(b) acquire any assets of a corporation;

if the acquisition would have the effect or cumulative effect, or be likely to have the effect or cumulative effect, of substantially lessening competition in any market.

(3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect or cumulative effect, or be likely to have the effect or cumulative effect, of substantially lessening competition in a market, the following matters must be taken into account…

Chamber of Commerce and Industry Queensland

The 'legislation governing mergers does not go far enough in ensuring creeping acquisitions do not threaten small business competitiveness of Australia’s retail grocery sector in particular. At present, the legislative provisions that deal with mergers and creeping acquisitions undermine competition to the detriment of small business' (para 65)

Friends of Hawker Village

Concern at lack of effective creeping acquisition laws (focus on Woolworths acquisition f Hawker SupaIGA.

Act should deal directly with creeping acquisitions rather than indirectly through 'tinkering with the market definition provisions'.

Dominance test

Friends of Hawker Village

Dominance test 'may be more effective in dealing with creeping acquisitions than the current "substantial lessening of competition" test'.

Ex post review

CHOICE

'Independent reviews of ACCC merger decisions should be commissioned regularly to assess whether the objects of the law are being realised' (CHOICE, page 31)

See also ex post review generally

Australian International Movers Association

concern about rescinding exemption - clause 3.3.5

Australian Peak Shippers Association Inc

retain Part X with some amendment

Federation of National Associations of Ship Brokers and Agents

support retention (or extension) of exemptions under Part X

International Chamber of Shipping

retain Part X

International Container Lines Committee (New Zealand)

retain Part X

Forthcoming

See also third line forcing

Agforce

Raising threshold for primary production bargaining

Australian Chicken Growers' Council Ltd

Argues for changes to collective bargaining authorisation, including:

(1) where authorisation granted processor must negotiate with that group and should have no right to 'attempt to exclude any grower from joining the authorised negotiating group'

(2) Process for 'bringing a negotiation to finality' - either by right to boycott or compulsory arbitration

Agforce

Australian Forest Products Association

Support food and grocery prescribed code of conduct

CHOICE

'... there is a strong case for reforming current arrangements to promote and in some cases require best practice' (recommendation 19)

Insurance Australia Group

Supports 'the use of industry codes as opposed to the expansion of legislation and regulations in relation to protecting small business in commercial relationships where one party may have a more dominant or powerful position over the other and seek to exploit this' (page 4)

Insurance Council of Australia (discusses applicable codes)

Penalties and sanctions

Caron Beaton-Wells and Brent Fisse (pp 27-28)

• Note 'failure to exploit' available civil sanctions. Recommend less reliance on 'ACCC settlements to secure civil penalties' and 'ACCC should be less conservative' in negotiations re: agreed penalties.
• ACCC should adopt more 'structured and transparent approach to penalty calculations'
• Should make greater use of non-monetary sanctions
• Need 'publicly accessible bench book on federal sentencing law and procedure' and key recommendations of ALRC re: sentencing should be implemented
• Consolidated ACCC-CDPP policy on immunity, cooperation and sanctions in cartel cases needed

CHOICE

• 'The existing suite of powers, penalties and remedies available to the ACCC should be retained' (recommendation 20)
• ACCC should have access to cy pres remedies (recommendation 22)

Section 155 powers

Arnold Bloch Leibler

'propose that the Panel consider a requirement of reasonableness and proportionality in the issuing of section 155 notices'; also, s 155 notices should be 'measure of last resort' in voluntary clearance context

Prices surveillance/monitoring

Agforce

Arblaster

Agforce

CHOICE

'The panel should consider divestiture as a remedy for misuse of market power.' (recommendation 14)

Market studies power

CHOICE

• 'The panel should consider the merits of extending the powers ... available to the ACCC [to include a] market studies mechanism (utilising the UK model) [and the power' to make a market investigation reference to an appropriate body or group' and a super complaints mechanism (recommendation 22)

Ex post review

Caron Beaton-Wells

• Proposes that 'ACCC undertake regular rigorous ex post review and evaluation of its enforcement decisions and processes'

CHOICE

• 'Independent reviews of ACCC merger decisions should be commissioned regularly to assess whether the objects of the law are being realised' (recommendation 15)

Enforcement by small business

NSW Business Chamber

• cheaper forum for small business to resolve disputes, but must have expertise (specialized tribunal to be preferred over Fed Mag Crt) + consider fund to support action by small and medium business

CHOICE

• 'CHOICE urges the Review Panel to consider ways in which competition proceedings can be expedited and rendered less expensive; further means of encouraging private litigation should also be considered' (page 31)

Private enforcement generally

Caron Beaton-Wells and Brent Fisse

• Role of private enforcement in Australia 'has been inadequately recognised and supported' (p 29) - note substantial hurdles for private claimants, including difficulty accessing information from ACCC, 'apparent inability to rely on admissions made in ACCC proceedings' as a result of 'uncertain scope of s 83' and 'challenges in proving and quantifying loss', including as a result of uncertainty surrounding status of passthrough defence in Australia.
• Several recommendations (pp 31-32)

CHOICE

• 'Measures that encourage private litigation under the competition provisions of the CCA should be considered ...' (recommendation 11)

Other

Caron Beaton-Wells and Brent Fisse

Should be accessible, 'sufficiently detailed, clear and consistent so as to provide certainty and guidance to stakeholders, including those within an agency and external parties'. Note number and 'duplicity of policy documents and guidelines' that currently exist in relation to the cartel regime. Several recommendations made (pp 23-24)

AURL (FoodWorks)

Generally and 'Queensland liquor licensing laws should be amended to facilitate greater competition in the supermarket industry in that State'.

Australian Forest Products Association

Support food and grocery prescribed code of conduct

Beadman, B

Series of rhetorical questions

Border, A

Wants to break 'Coles and Woolworths supermarket power' and have an 'inquiry into shopping centres' and rental practices.

Chamber of Commerce and Industry Queensland

Notes dominance of major supermarkets as key issue for competition in Qld (section 2.3). Does not advocate market interference, but 'reinstatement of a level playing field for small business competitors'. ACCC should 'rigorously prosecute [major supermarkets' to the fullest extent of their resources' where contravention found. Concern ACCC lack resources to do this.

Kudis, R

Focus on impact on fuel prices

Australian Institute of Petroleum

Fuel market - 'fundamentally open, competitive, transparent and diverse'; current law strikes 'appropriate balance between promoting competition and protecting consumers'

Kudis, R

Coles and Woolworths and 'runaway fuel prices' (shopper dockets)

Australian Dental Association

• Considers ACCC ineffective, focusses 'on cost issues at the expense of a more holistic approach' and 'does not have sufficient expertise in the operation of PHI and the unfair advantage which it has in the dental services market'

Border, A

• Claims ACCC pathetic and needs more 'teeth'

CHOICE

• 'The Review should recommend an institutional framework for ongoing reform of protected industries, to oversee the exposure of these industries to competitive forces and monitor future reforms that may be harmful to consumer welfare' (recommendation 5)
• 'The panel should consider ways in which the ACCC might further enhance its reporting of enforcement outcomes, including clear separation of competition and consumer protection matters and reporting of litigation actions commenced and enforceable undertakes obtained each quarter' (recommendation 21)
• 'The panel should consider the merits of extending the powers ... available to the ACCC [to include a] market studies mechanism (utilising the UK model) [and the power' to make a market investigation reference to an appropriate body or group' and a super complaints mechanism (recommendation 22)
• 'Retain the current structure of the ACCC such that it maintains economy wide responsibility for both the competition and consumer protection provision of the CCA.' (recommendation 24)
• 'Maintain the connection between the ACCC and AER' (recommendation 25)
• 'Put in place a new institution with responsibility to:
  • Oversee work to address recommendations regarding protected industries
  • Maintain a watching brief on whether future reforms would result in anti-competitive outcomes; and
  • Receive references for and conduct market investigations' (recommendation 26)

CHOICE

'The panel should consider ways in which the ACCC might further enhance its reporting of enforcement outcomes, including clear separation of competition and consumer protection matters and reporting of litigation actions commenced and enforceable undertakes obtained each quarter' (recommendation 21)

Australian Dental Association

• Considers ACCC ineffective, focusses 'on cost issues at the expense of a more holistic approach' and 'does not have sufficient expertise in the operation of PHI and the unfair advantage which it has in the dental services market'

Consumption data

Consumers should be given 'secure and portable access to their own consumption data' (CHOICE recommendation 8)

Country accounting firms and auditing company accounts

(Accountants and more)

Statutory duty of good faith

Agforce

Strict foreign investment control and creation of export cartels

Birve

Franchise agreements

Bright, S

Insurance

Market failure in natural disaster-prone regions (Chamber of Commerce and Industry Queensland)

Industry regulators

• (Cabfare) - claims systematic flaws in regulatory frameworks. Urge Inquiry to focus on (1) 'merits of relying on industry regulators for competition reform and whether this can result in suboptimal policy outcomes', (2) problems of 'regulatory capture' when industry regulators are relied on for competition and (3) potential for gaps when regulatory functions for an industry are 'split across several agencies rather than relying on a single competition regulator'. Claims it is not possible to isolate a competition policy review from sectoral reviews.