Competition Law News 2010

16 December 2010 - ACCC not to oppose pharmaceutical acquisition

The ACCC 'will not oppose the proposed acquisition of Sigma Pharmaceuticals Limited's Pharmaceutical Division by Aspen Pharmacare Holdings Limited on the basis that Aspen is providing an undertaking to sell certain brands to address the ACCC's competition concerns.' View press release. View merger register.

16 December 2010 - Draft decision to authorise Virgin Blue-Eithad alliance

The ACCC has issued a draft determination proposing to authorise an alliance between Virgin Blue and Etihad. View press release. View authorisation register.

16 December 2010 - Conditional authorisation for Virgin Blue-Air NZ alliance

The ACCC has issued a determination granting conditional authorisation for three years for a Virgin Blue/Air NZ alliance in relation to flights between Australia and NZ. The 'conditions require the airlines to maintain and grow the number of seats flown on the routes where the ACCC has identified competition issues. The conditions are intended to restrict the ability of the Alliance to raise fares on these routes by limiting its capacity'.View press release. View authorisation register.

15 December 2010 - ACCC proposes to re-authorise Homeworkers Code of Practice

The ACCC proposes to re-authorise the Homeworkers Code of Practice (designed to ensure compliance with legislative requirements applying to homeworkers or outworkers) for two years. The code has been authorised since 2000. View press release. View authorisation register.

15 December 2010 - ACCC clears proposed acquisition of ASX Limited by Singapore Exchange Limited

The ACCC has announced it will not opposed the proposed acquisition of ASX by SGX. View press release. View merger register.

15 December 2010 - ACCC releases petrol report

The ACCC has issued its third report on the prices, costs and profits of unleaded petrol in Australia. It notes that "in 2009-10 Australia had the fourth cheapest retail petrol prices in the OECD." View report.

14 December 2010 - ACCC v Black & White Cabs Pty Ltd [2010] FCA 1399 (14 December 2010)

On 3 November Justice Finkelstein declared that Black and White Cabs had engaged in exclusive dealing as defined in s 47(6) and prohibited by s 47(1) by offering to supply and supplyint taxi operators taxi network services and the right to use taxi service licences on condition that taxi operators acquire electronic payment srevices from Cabcharge. His Honour's reasons for judgment are now available at AustLII.

14 December 2010 - Cartel project releases survey report

The Cartel Project team has released its extensive survey report. The survey of the Australian public related to the government’s decision to criminalise cartel conduct. The website notes that the "results of this survey are likely to be relevant to anyone interested in anti-cartel law enforcement, but will be of particular significance to policymakers, enforcement agencies, prosecutors, defence lawyers, judges and scholars researching this field." The full report runs to 374 pages with appendices (208 without) and is a 7.5MB download, but well worth it - for those wanting a quick overview, a 5 page executive summary is available for download.

14 December 2010 - Name Changes and fiddling

Neat little article in The New Lawyer by Michael Bradley, managing partner at Marque Lawyers, on some of the absurdities of the TPA/CCA.

14 December 2010 - ACCC releases Competition and consumer law - an overview for small business

The ACCC has released (dated 9 December 2010) a booklet outlining competition and consumer law for small business.

12 December 2010 - New price signalling law proposal

As part of the 'Competitive and Sustainable Banking System package', the Government has released an Exposure Draft Competition and Consumer Amendment Bill (No.1) 2011. Submissions are invited and are due on 14 January 2011.

12 December 2010 - Wayne Swan announces Bank Competition Reform

The Treasurer, Wayne Swan, has announced the Government's banking reform package. It includes a number of measures, including banning exit fees and introducing price signalling laws. View press release. View the 'Competitive and Sustainable Banking System package'.

11 December 2010 - Wayne Swan to announce Bank Competition Reform plan tomorrow

Treasurer Wayne Swan called a press conference today to announce that he would be announcing the Government's banking competition reform plan tomorrow. View transcript. View my blog post.

10 December 2010 - Working Party Report on Criminal Penalties for Cartel Behaviour released

As a result of a second FOI request by Brent Fisse, made possible by changes in FOI laws, the Working Party Report on Criminal Penalties for Cartel Behaviour is now publicly available for the first time. With the permission of the Commonwealth, the Report has been posted on Brent Fisse's web site. A link to the report and some further information is also available on my working party report page.

9 December 2010 - ACCC initiates proceedings against Metcash

The ACCC has initiated proceedings against Metcash, seeking an injunction from the Federal Court against the proposed Franklins acquisition, allegint that the acquisition would substantially lessen competition in the NSW wholesale grocery sector. See, for example, Blair Speedy, 'ACCC in bid to block purchase of Franklins' (The Australian, 9 December 2010) and Sikonathi Mantshantsha, 'Australia starts process to Stop Sale by Pick n Pay' (Bloomberg, 9 December 2010).

9 December 2010 - ACCC clears potential acquisitions under NSW Energy Privatisation

The ACCC will not oppose a number of potential acquisitions by Origin Energy Limited and AGL Energy Limited of assets being sold as part of the New South Wales Energy Privatisation. View press release.

6 December 2010 - ACCC proposes to introduce competition in transport in WA grain supply chain

The ACCC is proposing to revoke a notification by Cooperative Bulk Handling Ltd (CBH) allowing it to require growers who store grain in its 'up-country' storage facilities to also use its transport services. Comment is invited on the ACCC's draft revocation. View press release. View notification.

3 December 2010 - ACCC denies authorisation for exclusive pilotage agreement

The ACCC today denied authorisation for an exclusive pilotage services agreement at the Port of Brisbane, stating that it was "not convinced that the ... agreement delivers the public benefits [Brisbane Marine Pilots] claimed". View press release. View authorisation register.

2 December 2010 - ACCC authorises Wiggins Island coal producers to collectively bargain

The ACCC has allowed various coal producers to collectively bargain with QR Network for access to its Moura and Blackwater rail systems which is necessary to transport coal to the new Wiggins Island Coal Export Terminal. The authorisation has been granted for 15 years. View press release. View authorisation register.

2 December 2010 - ACCC calls for comment on proposed acquisition of P&N Beverages by Asahi

The ACCC has issued a statement of issues on the proposed acquisition of P&N Beverages by Asahi Holdings (Australia) Pty Ltd. Submissions are due by 20 December with final decision expected by 3 February. View press release. View statement of issues.

2 December 2010 - ACCC calls for comment on proposed acquisition of Mobil assets

The ACCC has issued a Statement of Issues on the proposed acquisition by Caltex of the Mobil assets at the Caltex-Mobil joint fuel terminal in Gladstone. Submissions are due by 23 December and the ACCC's final decision is expected by 27 January 2011. View press release. View statement of issues.

30 November 2010 - ACCC v IGC Dorel Pty Ltd [2010] FCA 1303

Resale Price Maintenance - consent orders - penalties totalling $100,000 plus costs, orders not to engage in specified conduct and establishment of Trade Practices Compliance and training program. View judgment.

27 November 2010 - Metcash agrees not to proceed until ACCC files full proceedings

SMH reports that Metcash has agreed not to proceed with its proposed takeover of the Franklins grocery group on the basis that the ACCC will file full proceedings on or before 8 December. This will avoid the need for the ACCC to obtain an injunction. See 'Metcash, ACCC truce' (SMH, 27/11/2010). See also Blair Speedy, 'ACCC threat pushes Metcash to delay Franklins bid' (The Australian, 27/11/2010).

26 November 2010 - New TPLJ out

The latest issue of the Trade Practices Law Journal is now available. It includes a neat article by Melbourne Barrister, Cam Truong, on 'Transnational commerce and the problem of market definition'. The author usefully examines the limitations of the market definition in s 4E of the Act and the difficulties it gives rise to in pleadings. He refers to a number of recent decisions (particularly Auskay v Qantas Airways) that have considered the issue in a 'global' context and identifies.

26 November 2010 - Samuel - Competition with compassion

On Wednesday night Graeme Samuel delivered the 2010 Costello Lecture, 'Competition with Compassion- Australia's Economic Success', in Melbourne - it is now available online.

26 November 2010 - Ergas on public policy

Henry Ergas has a fun little op-ed in the Australian today, highlighting his nominations for the 2010 'Dodgie' awards 'for
confused economics in the service of poor public policy' with several competition-related nominations.

25 November 2010 - Senate Inquiry web site now available

The Metcash Senate Inquiry web page is now available.
Labelled, the 'Inquiry into the Australian Competition and Consumer Commission (ACCC) Franklins decision' (yes, it avoids mention of 'Metcash'), it sets out the following terms of reference:

"On 23 November 2010 the Senate referred to this committee for investigation the decision of the Australian Competition and Consumer Commission (ACCC) to oppose the proposed acquisition of the Franklins supermarket business by Metcash Trading Limited, with particular reference to: (a) the basis of the ACCC decision to oppose the proposed purchase; (b) the competition impacts of the decision at the retail and wholesale levels; (c) whether the Franklins’ distribution warehouses, supplying eight franchised stores, could be regarded as an independently sustainable wholesale business; and (d) any other related matters."

Submissions are invited and are due by 29 November 2010 (presumably anyone who already submitted to the ACCC's more appropriate competition inquiry into the proposed merger could re-submit here if they so desired). The report date is 17 December. Clearly a group of non-competition/economics expert Senators can come up with a well considered report on complex economic/competition issues in much less time than it took the experts at the ACCC. Let's not all hold our breath.

25 November 2010 - NBN - Competition aspects

Yesterday the Government released it's NBN business case summary. The summary is discussed in an op-ed by CEDA's Michael Porter in today's AFR (Michael Porter, 'CompetitionBites the Dust' (AFR, 25/11/2010, p 67)) in which he criticises the anti-competitive featrures of the NBN plan as worse than expected. See also John Durie's 'Share the blame on NBN impasse' (The Australian, 25/11/2010) (observing that: 'It's hard not to be cynical and indeed disturbed about the state of national politics right now with independents doing deals that amount to zero and the likes of Nationals senator Ron Boswell setting himself up as an independent arbiter of competition law decisions.) and Terry McCrann, 'Broadband fairytale NBN's latest chapter' (Herald-Sun, 25/11/2010) and Malcolm Maiden, 'NBN Co looks ahead - but not that far - to lay out the network's numbers' (SMH, 25/11/2010), amongst plenty of others.

25 November 2010 - Metcash Senate Inquiry

On Tuesday the Senate, at the instigation of Nationals Senator Ron Boswell (and backed by independent senators Nick Xenophon and Steve Fielding), referred the ACCC's decision to oppose the Metcash purchase of Franklins supermarkets to the Senate Economics Committee (see Senate Hansard, 23/11/2010 at p 37). Senator Bosewell received $30,000 in election donations from Metcash, but has denied it influenced his decision, stating: 'Any inference that a campaign donation might influence my role as a senator is wrong' (see Steve Lewis and Michael Madigan, 'Senator Ron Boswell lobbies for company that donated to his election campaign', The Courier Mail, 25/11/2010). Regardless of the motivation, the referral is worrying - as Elizabeth Knight has rightly observed (SMH, 24/11/2010), 'It is not up to Boswell or any party to undermine the decision of any independent regulator. This is a poor precedent. ... the Federal Court will be the appropriate and impartial arbiter of any appeal under trade practices law'.

24 November 2010 - Metcash to defy ACCC

Following the ACCC's announcement that it would oppose Metcash's takeover of Franklins, Metcash has announced it will defy the regulator and proceed with the transaction. This is the first such challenge since the Toll Holdings showdown in 2006 (which was resolved with undertakings) and AGL, which was successful in its Federal Court challenge (see AGL case). Watch this space. See Supratim Adhikari, 'Metcash mettle' (Business Spectator, 24/11/2010), Rebecaa Urban, 'Metcash ready to take on th watchdog ACCC' (The Australian, 24/11/2010) and John Durie, 'Metcash chief Andrew Reitzer defies ACCC ruling on Franklins' (The Australian, 24/11/2010). See also Sue Mitchell, 'Metcash to defy ACCC over Franklins' (AFR, 24/11/2020, p 50)

23 November 2010 - ACCC announces domestic benchmarking approach to transmission pricing

The ACCC has announced its approach to transmission pricing in a Position Paper released today. View press release.

23 November 2010 - Cross appointments between ACCC and NZCC

Australian Parliamentary Secretary to the Treasurer David Bradbury and New Zealand Commerce Minister Simon Power have announced cross-appointments between the ACCC and the New Zealand Commerce Commission. Dr Jill Walker will join the NZCC as an associate member. NZCC Chair, Dr Mark Berry, has been appointed an associate member of the ACCC. Each have been appointed for a three year term from 1 December 2010 - 30 November 2013. View media release.

22 November 2010 - ACCC proposes to allow Central Queensland green waste tender

The ACCC has issued a draft authorisation decision proposing to allow the Central Qld Local Government Association, on behalf of its member councils, 'to conduct a regional tender for the provision of green waste mulching services.' View press release. View authorisation register (including draft determination).

22 November 2010 - Price signalling bill introduced

Mr Billson presented the Competition and Consumer (Price Signalling) Amendment Bill 2010 at 10.26am. An explanatory memorandum was presented and statement made - Bill was read for a first time at 10.37am. View the bill. View the explanatory memorandum. View bill homepage.

22 November 2010 - Price signalling - opposition bill expected

The opposition's price signalling bill is expected to be introduced today. Plenty of media: AAP, Opposition Moves on Price Signalling (SMH, 22/11/2010), Glenda Korporaal, Bank 'reform' dangerous: Munchenberg (The Australian, 22/11/2010), AAP, 'Opposition bill 'thought bubble' (Herald Sun 22/11/2010) and plenty more. More to follow when bill released. According to today's House Program, the Competition and Consumer (Price Signalling) Amendment Bill 2010 will be presented by Mr Billson (Dunkley) (probably around 10.30am) accompanied by a statement (10 minutes allowed). A second reading to be made an order of the day for the next sitting.

21 November 2010 - Wayne Swan talks about price signalling

Treasurer Wayne Swan discussed price signalling laws with Laurie Oakes today. The discussion was prompted by the fact that the Opposition will tomorrow move its price signalling bill. Swan responded:

'I haven't seen this bill as yet, but when it comes to pricing signalling I've been working with our regulator, the ACCC, on this issue for over six months. It's a complex area and it's a difficult area, and what it requires is detailed assessment, drafting of legislation and accuracy. So, you can't just have a thought bubble and read the paper and see that Government has been talking to the ACCC about price signalling and produce a bill. Any bill in this area has to be based on the very firm and accurate advice of a regulator. I've not seen it, but what I do know is that there would have to be a thorough assessment of the drafting of this bill before I could even consider what we might do with it because the Government, in this area, is developing a new wave of competition reforms of which price signalling is part, and you can only do this in a methodical, well considered way, and that hasn't been happening with what the Opposition's been doing. Crass populism doesn't work in this area.'

References were also made to the Government's proposed reforms, but they were light on detail. View transcript.

17 November 2010 - Cabcharge decision published

The decision of the Justice Finkelstein in the Federal Court relating to the Cabcharge misuse of market power conduct (see news 24 September) has now been published. View case summary.

17 November 2010 - ACCC opposes Metcash proposed acquisition of Franklins

The ACCC has announced it will opposed the proposed acquisition of Franklins supermarkets by Metcash. Graeme Samuel stated: 'Central to the ACCC's concerns is that the proposed acquisition is likely to result in a substantial lessening of competition through the removal of Metcash's closest and only genuine competitor for the wholesale supply of packaged groceries in NSW'. View press release. View merger register.

15 November 2010 - Even more on price signalling

With Parliament resuming today and the Liberal Party set to give notice of a private member's bill targetting price signalling, there's a lot of buzz about the nature and effect of any proposed price signalling laws to target banks. Notably, Katie Lahey of the BCA has an item in The Australian (Economy could become roadkill in new rush to regulation) and there are several items in today Australian Financial Review (Swan pressured on bank reforms', pp 1 and 4; Laura Tingle, 'Little room on the left for Labor', p 5).

11 November 2010 - ACCC authorises port truck access arrangements

The ACCC has confirmed its previous draft determination and has authorised DP World Australia Ltd and Patrick Stevedores Operations Ltd to give preferential treatment to truck carriers engaging in dual runs at the port of Fremantle. View press release. View authorisation register.

11 November 2010 - ACCC to rethink Singapore bid for ASX

The Australian Financial Review reports today on the ACCC's investigation of the Singapore Exchange's bid for ASX. See George Liondis, 'ACCC rethinks Singapore bid for ASX' (AFR, 11/11/10, page 5)

9 November 2010 - More on proposed price signalling laws

The Australian Financial Review reported today on proposed new rules to allow the ACCC to use its coercive powers under s 155 whenever it suspects price signalling has occurred (rather than waiting until it suspects competitors have agreed to collude). The proposal does not appear to be restricted to any particular industry. It is not clear what impact this will have in isolation - the current law still requires collusion before contravention occurs - but the proposed new price signalling powers would be just one part of a package of reforms. See Matthew Drummond, 'Bank, petrol chiefs face ACCC grilling' (AFR, 9/11/2010, pages 1 and 48) (not freely available online)

8 November 2010- ACCC releases container stevedoring report

The ACCC has called for more competition to drive increased investment and productivity at container ports. View press release. View report.

7 November 2010 - Swan announces work on price signalling laws for banks ... again

In an economic note released today, Treasurer Wayne Swan stated that the Government is in the process of developing a 'new banking competition package', one part of which involves 'working closely with the ACCC to carefully and methodically design new laws to prevent price signalling'. This is not really news, but he does also indicate that more will be announced shortly on this issue. View my blog post on this issue.

5 November 2010 - Barriers to entry, expansion and exit in retail banking

The UK OFT has released a report: 'Review of Barriers to entry, expansion and exit in retail banking' (November 2010). The review was launched in 2010 'to identify any obstacles blocking firms from entering the sector or from successfully competing against existing firms, as well as factors preventing inefficient firms from exiting the market and being replaced by more efficient ones'. View press release. View review home page. View report.

5 November 2010 - Bank competition

There are a few op-eds popping up about the recent attacks on banks by both parties. See, for example, Michal Pascoe, 'Bank mania abandons market faith' (SMH, 5/11/2010), Simon Benson, 'Bank bosses could face heavy penalties if collusion on rates proved' (News.com.au, 5/11/2010) (suggesting a private member's bill from Mr Hockey will appear within three weeks) and Siobhain Ryan and Joe Kelly, 'The Coalition steals a march on banking reform' (The Australian, 5/11/2010).

4 November 2010 - Black & White Cabs to pay $120,000 penalty for third line forcing

Justice Finkelstein in the Federal Court has ordered that Black and White Cabs pay $120,000 for requiring some taxi operators to exclusively use Cabcharge Payment systems for electronic payments in breach of third line forcing laws. The conduct had been admitted and penalties were agreed and incorporated a discount for a plea before trial. View ACCC press release.

3 November 2010 - ACCC grants conditional authorisation for Generic Medicines Industry Association's Code of Practice

The ACCC has granted conditional authorisation to the Generic Medicines Industry Association's Code of Practice 2nd edition for three years. The conditions are designed to 'provide greater transparency around the relationship between the manufacturers of generic medicines and pharmacists'. View press release. View authorisation register.

2 October 2010 - ACCC seeks price signal law

The Financial Review reports (pages 1 and 8) that the ACCC has asked the Treasury to draft a new law to prohibit price signalling..

31 October 2010 - Coalition to prepare price signalling bill

Shadow Minister for Competition, Bruce Billson, has indicated that the Coalition is preparing a private member's bill to outlaw 'price signalling'. The Coalition hopes to win support from the Greens and independents. View Lenore Taylor, 'Hockey steps up fight with big banks' (SMH, 30/10/2010)

29 October 2010 - ACCC releases Annual Report 2009-2010

The ACCC has released its Annual Report.

29 October 2010 - Competition within the Australian Banking Sector

The Senate Economics Committee web site now includes details of the inquiry. See Inquiry home page.

28 October 2010 - Interim authorisation granted for TWU collective bargaining

The ACCC has granted interim authorisation to allow the Transport Workers' Union to collectively bargain on behalf of participating concrete cartage owner drivers in Qld. See press release. See authorisation register.

28 October 2010 - Bank inquiry confirmed

The Senate has voted to hold an inquiry into banking competition and fees. The referral to the Economics References Committee was made by Senators Xenophon and Bushby. The Senate is due to report by 31 March 2011. View Senate Hansard (pages 14-15). See also 'Senate to hold banking inquiry' (Business Spectator, 28/10/10). See also 'Bank Battle Heats Up' (SMH, 28/10/10)

28 October 2010 - Inquiry into bank competition likely

A Senate inquiry into banking competition looks likely after Senator Nick Xenophon joined with the Liberal party to call for the inquiry. The proposed terms of reference include the 'current level of competition between bank and non-bank providers' and any 'policies, practices and strategies that may enhance competition in banking, including legislative change'. See, eg, 'Liberals, Xenophon drive towards new Senate banking Inquiry' (Banking Day, 28/10/10) and 'Withdraw guarantee for big banks: Hockey' (Business Spectator, 28/10/10)

27 October 2010 - Authorisation granted for Agsafe industry stewardship program

The ACCC has granted authorisation to Agsafe to continue to enforce the Agsafe Code of Conduct for an additional three years. This seeks to ensure safe storage, handling, transport and distribution of agricultural and veterinary chemicals. View press release. View authorisation register.

27 October 2010 - ACCC calls for comment on proposed pharmaceutical acquisition

The ACCC has issued a Statement of Issues on the proposed acquisition of Sigma Pharmaceuticals' Pharmaceutical Division by Aspen Pharmacare Holdings. Submissions are invited and due by 11 November 2010. Final decision due 25 November. View press release. View merger register.

25 October 2010 - Samuel speaks about price signalling between banks, Packer's acquisition of share in TEN and the NBN

On Radio National breakfast this morning ACCC Chairman, Graeme Samuel, was asked about price signalling between banks, the ACCC's plans to review James Packer's acquisition of an interest in the Ten Network and about the ACCC's roll in the implementation of the NBN. Samuel also indicated that he didn't see any competition concerns in the proposed ASX merger witht he Singapore Exchange. Listen to the interview or read the transcript here.

23 October 2010 - Interview with Graeme Samuel

Adele Ferguson and Ben Butler report today on an interview with Graeme Samuel about his time as ACCC chief - it's worth a read - the article is 'Villain or consumer champion?' appearing in the SMH today.

22 October 2010 - ACCC to look into Packer's raid on ten

The ACCC has indicated it will examine James Packer's investment in the TenNetwork to see if it raises competition concerns. Key concern surrounds fears Packer may axe One HD (Ten's digital sports channel). See, eg, Tim Dick, 'ACCC to probe Packer's Ten raid' (The Age, 22/10/2010), 'ACCC to investigate Ten share raid' (Finance News Network, 22/10/2010) and Christine Jared-Perrin, 'ACCC Investigates Packer's investment in Ten' (International Business Times, 21/10/2010)

22 October 2010 - ICN Cartel Workshop materials available

Materials from the ICN's Cartel Workshop in Yokohama earlier this month are now available, including a presentation from Caron Beaton-Wells entitled: 'Cartel Criminalisation as Cultural Change: A report from findings of a survey of the Australian public' - the findings are worth a look. There is also a presentation from Ayman Guirguis of Blake Dawson entitled: 'Cartels: Early Court Resolution in Australia. The Experience - The Challenge' which is also worth a look. View materials here.

22 October 2010 - ACCC Chairman speaks to Senate Estimates Committee

ACCC Chairman, Graeme Samuel, appeared before the Senate Estimates Committee yesterday to face questions over a perceived conflict of interest between his business interests and his role as ACCC chairman airising out of the proposed NAB/AXA merger (see eg Richard Gluyas, 'Samuel faces questions on Direct Factory Outlet decisions, 21/10/2010). Samuel told the committee he acted promptly in removing himself from involvement in the merger review once a potentialc onflict of interest was identified (see, g, RIchard Gluyas, 'I acted promptly, Samuel tells Senate estimates', 22/10/2010). See also Clancy Yeates, 'Samuel defends his use of 'blind trust'', 22/10/2010.

21 October 2010 - ACCC calls for comment on proposed acquisition of Centrel by BP Australia

The ACCC has issued a statement of issues in respect of the proposed acquisition of Centrel Pty Ltd by BP Australia Pty Ltd. Submissions invited and due by 5 November; final decision of ACCC deferred until 18 November 2010. View press release. View merger register.

21 October 2010 - ACCC invites comments on POI to NBN

The ACCC has released a discussion paper on the number and location of initial Points of Interconnection (POI) for the National Broadband Network that will best meet the long-term interests of end users. A consultation period will follow - submissions due by 8 November. View press release. View discussion paper.

21 October 2010 - Ergas: Shield protects NBN from competition

Henry Ergas has an item in the Australian today, 'Shield protects NBN from competition' that is worth a look - it's sure to anger an already angered Senator Conroy. View Henry Ergas, 'Shield protects NBN from competition'

20 October 2010 - Telecommunications bill

The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010 was introduced into the House of Representatives today. According to the explanatory memorandum, the bill has three primary parts: "addressing Telstra’s vertical and horizontal integration; streamlining the access and anti-competitive conduct regimes; and strengthening consumer safeguard measures such as the Universal Service Obligation (USO), the Customer Service Guarantee (CSG) and priority assistance." This will involve, amongst other things, amendments to Parts XIB and XIC of the TPA (soon to be renamed the Competition and Consumer Act 2010). View bill.

There is plenty of media on this - for example, see Clancy Yeates, Labor launches fresh broadband bill push (The Age 21/10/2010), Lucy Battersby, 'ACCC weighs regulating broadband' (The Age, 21/10/2010) and 'Telsta calls for a quick break-up' (SMH, 21/10/2010)

20 October 2010 - ACCC will not oppose proposed acquisition of Bell Bay sawmill by Gunns

The ACCC has announced it will not oppose this proposed acquisition of the Bell Bay sawmill business by Gunns Limited. View press release. View meger register.

20 October 2010 - ACCC accepts court enforceable undertakings from St Vincent's private anaesthetists

The ACCC has accepted court enforceable understakings from St Vincent's Private Hospital Sydney and its Department of Anaesthesia over alleged anti-competitive arrangements between the anaesthetists. This has involved an arrangement for allocating between themselves all permanent anaesthetic work at the hospital. The undertakings provide that the department will no longer allocate permanent anaesthesia work between themselves, with the Hospital to be responsible for the allocation. VIew ACCC press release. View undertakings register.

20 October 2010 - Six Principles for Limiting Government-Facilitated Restraints on Competition

In light of the debate over the NBN and the recent announcement that a uniform price will be applied to the NBN, it's worth revisiting the 2007 article by Michal Gal and Inbal Faibish, 'Six Principles for Limiting Government-Facilitated Restraints on Competition', which has recently been made available on SSRN. The authors note, relevantly, that 'regulation may also address distributional issues or other broad social goals. For example, where competition will not ensure universal service, and such service is considered to be in the public interest, regulatory intervention may be warranted. Regulation thus often enables the reconciliation of efficiency and equity View the full article here.

19 October 2010 - BHP and Rio dissolve joint venture proposal

BHP Billiton and Rio Tinto announced yesterday that they had 'reluctantly agreed to dissolve the proposed joint venture' worth US$116billion because it had 'become increasingly apparent that regulatory approvals [were] unlikely to be achieved.' The proposal involved the establishment a production joint venture covering both companies' Iron Ore assets in Western Australia. Regulators who expressed disaproval include the European Commission, the ACCC, the Japan FTC, Korea FTC and, recently, the German Federal Cartel Office. View statement by BHP Billison. View reports in the Financial Times, Reuters, Wall Street Journal, ABC Lateline and the Australian.

16 October 2010 - Gans - How much will NBN violate competition laws?

Joshua Gans has an interesting blog piece on the competition law implications of the NBN. View blog.

14 October 2010 - UK announces proposed merger of competition functions of OFT and Competition Commission

The UK Department for Business, Innovation and Skills has announced a proposal to bring together the Competition Commission and competition functions of the OFT into a single competition and markets authority. View press release. View statement of Vince Cable, Secretary of State for the Department for Business, Innovation and Skills.

13 October 2010 - NBN debate continues

Malcolm Turnbull has delivered a speech to the CommsDay Congress in Melbourne in which he discussed the proposed NBN; he devotes a section to 'competition'. He claims, among other things, that: "If the Government were serious about competition then it would not compel Telstra to shut down its copper network and migrate its customers to the NBN. And it certainly would not contract to prevent Telstra and Optus from offering competitive broadband services on their HFC networks which are capable of offering 100 mbps broadband to around 2.7 million homes and can do so right now – not in eight years time and at a cost which is a tiny fraction of FTTH" (view speech). James Massola, on the other hand, has an article in today's Australian noting claims by Optus that the NBN is financially viable (but with not real focus on potential competition issues) (view article). Economist, Prof Joshua Gans, provides his own thoughts on the issue here, including relevant competition issues.

7 October 2010 - ACCC authorises Queensland liquor accord

Conditional authorisation has been granted for a pro-forma liquor accord arrangement proposed by the Queensland Office of Liquor and Gaming Regulation. The ACCC indicated that it considered "that the measures proposed are likely to assist in efforts to reduce violence and other alcohol-related harms in and around drinking venues in Queensland". While they are likely to have some effect on price and consumer choice, these are likely to be limited. View press release. View authorisation register.

7 October 2010 - ACCC proposes to deny authorisation for exclusive pilotage agreement

The ACCC has issued a 'draft determination proposing to deny authorisation for an exclusive pilotage services agreement at the Port of Brisbane' which would require Maritime Safety Queensland to acquire all pilotage services at the port from Brisbane Marine Pilots. View press release. View authorisation register.

7 October 2010 - ACCC consults on GrainCorp's proposed wheat port access arrangements

The ACCC has begun consultation on GrainCorp's proposed wheat port access arrangements for October 2011-September 2014. View press release. View GrainCorp Undertaking and Issue Paper.

6 October 2010 - ACCC allows small liquor retailers to collectively bargain

The ACCC has authorised Liquor Stax Australia to collectively bargain with wholesale suppliers on behalf of around 200 small businesses. View press release. View authorisation register.

6 October 2010 - Partners turn against competition watchdog

Richard Gluyas has an item in today's Australian claiming Graeme Samuel's partners in the DFO have called for an 'inquiry into a perceived clash between his public duties and his private business interests. View article.

5 October 2010 - Competition in the banking sector

Treasurer Wayne Swan spoke with ABC Radio's Sabra Lane this morning about competition in the banking sector, stating, in part, that: 'what we've put in place is a series of effective measures to increase competition in the banking sector and one of the sad consequences of the Global Financial Crisis is that it did restrict competition in the banking sector; it did strengthen the big four.... we remain ready to take on board other measures should they be necessary to ensure greater competition in the banking sector.' View transcript.

2 October 2010 - Transparency and mergers

Stephen King has provided his thoughts on an item in Friday's AFR in which John Kench argued for more transparency in the merger process. View blog piece.

1 October 2010 - ACCC allows continuation of SA oyster research levy

The ACCC has issued a final determination granting authorisation to the South Australian Oyster Growers Association and five oyster hatcheries to continue collecting a levy from SA oyster growers. Levy funds are used for research and development, which the ACCC accepts may benefit consumers through the production of higher quality oysters. View press release. View authorisation register.

1 October 2010 - ACCC proposes to approve collective bargaining by Wiggans Island coal producers

The ACCC has issued a draft decision proposing to allow coal producers to collectively bargain with QR Network for access to its Moura and Blackwater rail systems; access is necessary to transport coal to the new Wiggins Island Coal Export Terminal. View press release. View authorisation register.

30 September 2010 - ACCC Chairman speaks of 'merger myths'

ACCC Chairman, Graeme Samuel, today spoke about seven merger 'myths' he claims have developed in relation to the ACCC's merger review process. His speech was part of the Merger Market's event in Sydney - see ACCC press release, 'ACCC chief busts merger myths'. View full speech. See also article by Angus Whiteley and Jo Schneider in Bloomberg: 'Merger "Myths" Leave Top Australian Watchdog Graeme Samuel Bewildered', which quote Samuel refering to claims (by some) that recent bank mergers have diminished competition as 'superficial nonsense' which beggar belief.

30 September 2010 - ACCC will not oppose proposed tobacco acquisition

The ACCC will not oppose the proposed acquisition of Swedish Match AB by Scandinavian Tobacco Group, following resolution of competition concerns by way of a court enforceable undertaking. The undertaking will see Scandinavian Tobacco group selling certain Australian cigar assets to an independent purchaser. View press release. View merger register.

30 September 2010 - ACCC proposes to allow port truck access arrangements

The ACCC is proposing to allow DP World Australia Ltd and Patrick Stevedores to give preferential treatment of truck carriers engaging in dual runs at the Port of Fremantle. ACCC Chairman, Graeme Samuel, stated that "the ACCC accepts that the proposed arrangement is likely to result in an increase in the efficiency of the Port of Fremantle and a reduction in the number of trucks moving to and from the port, to the benefit of the surrounding community and the environment" while producing limited public detriments. It is proposed that authorisation be granted for five years. View press release. View draft determination.

28 September 2010 - ACCC accepts court enforceable undertakings over RPM concerns

The ACCC has accepted court enforceable undertakings from ResMed Asia Pacific Ltd over concerns that it engaged in resale price maintenance. The alleged RPM conduct involved ResMed making it known to its Accredited Partners that it would not supply to them unless they agreed not to advertise ResMed products at less than a price specified by ResMed. View ACCC press release. View Undertaking.

24 September 2010 - Cabcharge penalised for misuse of market power

The Federal Court (Justice Finkelstein) has made declarations that Cabcharge contravened s 46 of the TPA (misuse of market power) on three occasions and ordered that Cabcharge pay penalties totalling $14 million plus $1 million toward the ACCC's costs. The penalties were agreed in advance and endorsed by the court. Cabcharge was also ordered to comply with a compliance program and will be subject to external audits. The contraventions involved refusals to deal and the supply of taxi maters and fare schedule updates below cost (predatory pricing) between 2004-2007. View press release. For a good discussion of the case and its implications see 'Cabcharge receives record fine for miusing market power' by Allens Arthur Robinson.

23 September 2010 - ACCC grants interim approval to Virgin Blue-Etihad alliance

The ACCC has granted an interim authorisation in relation to a joint pricing and scheduling services cooperation agreement between VIrgin Blue and Etihad. ACCC Chairman, Graeme Samuel, noted that the ACCC had ' taken into account the fact that Virgin Blue and Etihad currently do not operate any competing services, as well as the lead time required to market and sell tickets before the commencement of long-haul services' (which was not the case in respect of the recently denied authorisation for a proposed alliance between Virgin Blue and Air New Zealand). View press release. View news item: 'Etihad welcomes ACCC approval for Virgin Blue alliance'

22 September 2010 - ACCC re-authorises collective negotiations by Premium dairy farmer members

The ACCC has re-authorised - for 10 years - collective negotiations by Premium Milk on behalf of its dairy farmer members with Parmalat. View press release.

22 September 2010 - ACCC calls for comment on proposed acquisition of Franklins by Metcash

The ACCC has issued a statement of issues on this proposed acquisition. Submissions are due by 15 October; the ACCC's decision will be released by 11 November 2010. View press release.

17 September 2010 - ACCC objects to Sydney Airport's proposed increase in charges for regional airlines

The ACCC has objected to Sydney Airport Co Ltd's proposal to increase charges for regional airlines serving passengers within NSW. View press release.

17 September 2010 - ACCC released draft report and draft indicative prices to apply to fixed line telco services

The release of the draft report and draft indicative prices follows a period of industry consultation that commended on 3 December 2009. View press release and draft report. Submissions on the draft report are due by 22 October.

16 September 2010 - UK OFT/CC release joint merger guidelines

The UK's Office of Fair Trading and Competition Commission have, for the first time, released joint merger assessment guidelines. These Guidelines replace the following guidelines: Mergers—substantive assessment guidance (OFT516), Guidance note revising Mergers —substantive assessment guidance (OFT516a), Restatement of OFT’s position regarding acquisitions of ‘failing firms’ (OFT1047) and Merger References: Competition Commission Guidelines, CC2. View press release (PDF). View guidelines (PDF).

16 September 2010 - ACCC consults on revised Hunter Valley rail access arrangements

The ACCC is consulting on a revised Hunter Valley rail network access undertaking submitted by Australian Rail Track Corporation. Submissions are due by 11 October. View press release and undertaking.

13 September 2010 - ACCC grants authorisation to Suncorp-Metway and Bendigo and Adelaide Bank ATM fee free arrangements

The ACCC has granted authorisation to an agreement between Suncorp-Metway and Bendigo and Adelaide Bank not to charge each other's cardholders a fee for transactions at ATMs they own. The ACCC believes the agreement 'will be pro-competitive, assisting to ensure that they are not at a competitive disadvantage to institutions with larger ATM networks'. View press release. View authorisation.

13 September 2010 - ACCC accepts court enforceable undertaking from OzTAM, Seven, Nine and Ten

The ACCC has accepted a court enforceable undertaking from OzTAM Pty Limited and its shareholders, Seven Network (Operations) Limited, Nine Network Australia Pty Ltd and Network Ten Pty Limited, which addresses concerns that "OzTAM's structure and operation had the potential to facilitate anti-competitive conduct". View ACCC Press Release. View undertaking.

11 September 2010 - No new Minister for Competition

The Prime Minister, Julia Gillard, today announced the new Ministry. Former competition minister, Dr Craig Emerson moves into the Cabinet as Minister for Trade; there is now no Minister for Competition Policy and Consumer Affairs. Instead, responsibility has been merged into Treasurer Wayne Swan's portfolio, assisted by new Parliamentary Secretary for Treasury, David Bradbury MP. View Age piece on the removal of a specialist minister. The Shadow Minister for Small Business, Competition Policy and Consumer Affairs remains Bruce Billson MP. View blog piece.

10 September 2010 - ACCC opposes Air New Zealand/Virgin Blue Alliance

The ACCC has denied clearance of a proposed alliance between Air New Zealand and Virgin Blue, who they consider to be 'significant' competitors.View ACCC Press Release. View news item.

9 September 2010 - ACCC continues to oppose NAB acquisition of AXA

The ACCC has denied informal clearance of NAB's proposed acquisition of AXA, despite revised understakings being offered. See press release

2 September 2010 - ACCC grants interim approval for joint green waste tender

The ACCC has 'has granted interim authorisation to allow the Central Queensland Local Government Association to run a joint tender process on behalf of the Banana Shire Council, Central Highlands Regional Council, Gladstone Regional Council, Isaac Regional Council and the Rockhampton Regional Council to provide green waste mulching services in their council regions'. Submissions on the substantive application for authorisation are due by 10 September. See press release.

1 September 2010 - ACCC allows Jetset Travelworld/Stella Travel Services Merger

The ACCC will not oppose the proposed acquisition of Stella Travel Services by Jetset Travelworld Ltd. This decision followed release of a statement of issues and extensive review of the transaction. The ACCC noted, in particular, that the internet has 'dramatically affected th way competition works in the travel industry'. See Press Release.

31 August 2010 - Baxter Healthcare penalised for TPA breaches

Justice Mansfield has ordered Baxter Healthcare to pay a penalty of $4.9million for contravening sections 46 (misuse of market power) and 47 (exclusive dealing) of the Trade Practices Act. This penalty ruling follows the 2008 ruling of the court declaring that the contraventions had occurred. The penalty is substantially less than the $27.3m sum sought by the ACCC. View ACCC Press Release.

31 August 2010 - Chief Justice of the Federal Court thinks BHP v Qld Wire was wrongly decided

At last week's Law Council seminar on the Gold Coast the newly appointed (March 2010) Chief Justice of the Federal Court, Pat Keane, stated that he disagreed with the 1989 High Court decision in Qld Wire in which BHP was found to have abused its power by refusing to supply y-bar to a competitor of its subsidiary, QIW. Keane was, at the time, junior counsel for BHP. View brief report by John Durie in the Australian. See also article by James Eyers, 'Keane's Lament for Cases Lost' in Friday's Australian Financial Review (page 39) in which Justice Keane is quoted as saying: 'It may be that the decision in QWI should now be seen as a relic of times when legal and legal/economic theories derived from US jurisprudence exercised undue sway over the thinking of members of the High Court'.

29 August 2010 - Publication: Changes in Competition Policy Over the Last Two Decades

On 25 May the Polish Office of Competition and Consumer Protection announced the release of a book - 'Changes in Competition Policy Over the Last Two Decades'. The book (which is just shy of 600 pages long) is freely available for download on the Agency's website and was released as the 'jubilee publication' celebrating the 20th Anniverry of the establishment of the UOKiK. It features a number of papers by authors from various jurisdictions divided into four broad areas: Competition-Restricting Practices, Merger Control, State Aid Reform and Competition Policy Challenges.

25 August 2010 - ACCC v Link Solutions Pty Ltd (No 2) [2010] FCA 919

This case involves an allegation of third line forcing by telecommunications companies. The pleadings against EFS and CIT were struck out and orders made for summary judgment in their favour. Clear Telecoms and WorldTel officers were held not to be entitled to summary judgment.The ACCC sought (and was granted) leave to replead. The matter was stood over until 30 August to consider proposed orders. View decision.

25 August 2010 - Trade Practices Committee Workshop

Graeme Samuel's opening remarks at the LCA's Trade Practices Committee Workshop on the Gold Coast on 21 August are now available here. The provide an update on trade practices issues with particular focus on cartel conduct. A paper by ACCC Commissioner, Dr Jill Walker is also available: 'The meaning of understanding: when does communication become collusion?'

20 August 2010 - ACCC proposes to allow Agsafe to continue industry stewardship program

The ACCC has issued a draft determination proposing to grant further authorisation to Agsafe to allow it to 'continue to enforce the Agsafe Accreditation and Training Program' ensuring 'regulatory compliance with the supply chain of agricultural and veterinary chemicals in Australia'. The ACCC believes the authorisation will help maintain safety levels. Submissions on the draft determination may be made until 1 September. View press release. View draft determination.

19 August 2010 - US agencies release new merger guidelines

The US Federal Trade Commission and Department of Justice today announced the release of new horizontal merger guidelines. These replace the 1992 merger guidelines and follow the release of draft revised guidelines in April this year. View press release. View Guidelines.

19 August 2010 - ACCC revokes speedway notification

The ACCC has revoked an exclusive dealing notification lodged by Perth Motorplex and Avalon Raceway 'which only allow drivers and pit crew to access track facilities if they hold a licence from the National Association of Speedway Racing.' The notification was originally lodged in 2008. View Press Release. View notification register.

18 August 2010 - ACCC proposes to re-authorise collective negotiation arrangements for dairy farmers

The ACCC has issued a draft decision to re-authorise collective negotiation arrangements proposed by Premium Mil Ltd on behalf of its members relating to farm gate milk prices and milk standards when dealing with Parmalat Australia Ltd. View Press Release. View Authorisation Register.

18 August 2010 - Samuel recuses from NAB/AXA merger decision

To avoid an perceived conflict arising from a family investment in DFO, Samuel has recused himself from ACCC's deliberations on the proposed NAB/AXA merger. View press release. View mergers register; the closing date for public submissions on the proposed merger is 23 August 2010.

16 August 2010 - ACCC v Cement Australia Pty Ltd [2010] FCA 877

Reasons for Judgment of Justice Greenwood are now available. This involves requests to amend statements of claim (and opposition to that request) in relation to allegations by the ACCC that Cement Australia engaged in anticompetitive conduct contrary to s 45 of the TPA. View case.

16 August 2010 - Which party has the best competition policy?

With the election campaign gearing up for next weekend's vote, I thought I'd take a little time to evaluate which major party has the best competition policy. The evaluation is not simple, given the lack of detailed discussion of future competition policy by either party, but the conclusion is not surprising. View blog post.

13 August 2010 - Melbourne University Launches CLEN

Melbourne University today launched the hosted the Competition Law & Economics Network. The launch coincided with the first annual Baxt Lecture in Competition Law, delivered by Prof William Kovacic. See my related blog post.

13 August 2010 - First Annual Baxt Lecture in Competition Law

Melbourne University today hosted the first annual Baxt Lecture in Competition Law (co-sponsored by the ANZSOG). The lecture was presented by Professor William Kovacic, former Chairman of the US FTC, on the topic 'Competition Authorities for the 21st Century'. The lecture will serve as the flagship event for the new Competition Law & Economics Network. See my related blog post.

12 August 2010 - Draft decision to authorise Queensland liquor accord

The ACCC has issued a draft decision to grant conditional authorisation for a pro-forma liquor accord arrangement in Queensland which aims to deal with harm resulting from alcohol abuse. View press release. View authorisation register.

9 August 2010 - ACCC takes action against Black and White Cabs

The ACCC has instituted proceedings against Black and White Cabs, alleging third line forcing. t is alleged that in 2009 Black and White Cabs included a 'clause in a number of operating agreements which required the taxi operators who sub-let a licence through Black and White Cabs to exclusively use the Cabcharge Eftpos System for processing electronic payments'. The matter is listed for a scheduling conference in Melbourne on 22 September. View ACCC press release.

30 July 2010 - ACCC proposes to authorise ATM proposal

The ACCC is proposing to authorise an agreement between Suncorp-Metway and Bendigo and Adelaide Bank not to charge each tohers' cardholders a fee for ATM transactions that they own. View press release. View authorisation register for draft determination.

29 July 2010 - ACCC will not oppose Novartis pharmaceutical acquisition

The ACCC has announced that it will not oppose the proposed acquisition of Alcon Laboratories by Novartis, following the provision of undertakings which will see 'injectable miotic assets' in Australia sold to Bausch & Lomb. View press release. View mergers register.

28 July 2010 - Telstra penalised $18.55 million

Justice Middleton has penalised Telstra $18.55 million for denying infrastructure access to competitors, indicating that the contraventions 'demonstrate substantial non-compliance by Telstra with its legal obligations'. Telstra has indicated that it will not appeal. View Federal Court decision. View ACCC press release. See also news articles, including 'Telstra fined $19m for blocking wholesale rivals' (Bingemann, The Australian), 'Telstra to be focused, for the first time' (Maiden, SMH), 'Telstra up to its old tricks again' (Durie, The Australian), 'Telstra fine for breaching competition laws has lessons for all' (Clayton Utz) and 'Telstra fined $18.5m for anti-competitive behaviour' (Donovan, ABC)

28 July 2010 - ACCC grants interim approval to Liquor Stax to collectively bargain

The ACCC has granted interim approval to Liquor Stax to collectively bargain for around 2000 small businesses with around 60 suppliers of alcohol, cigarettes, poker machines and confectionary and related services. Submissions have been sought from interested parties - submissions close on 30 July. View press release. View authorisation register.

22 July 2010 - ACCC does not propose to intervene in sale of Mobil retail assets to 7-Eleven

The ACCC has announced it does not intend to intervene in the proposed sale, conditional on certain divestiture undertakings. VIew press release. View Merger Register.

16 July 2010 - ACCC objects to car rental collective bargaining at Perth Airport

The ACCC has objected to a proposal by five car rental companies to collectively negotiate with Perth Airport, claiming it may 'reduce competitive tensions between the car rental companies' and put other car rental companies at a competitive disadvantage. View press release.

13 July 2010 - Name change legislation receives Assent

The Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 was assented to on 13 July with the result that the TPA will be renamed the Competition and Consumer Act 2010 from 1 January 2011.

13 July 2010 - Wright Rubber v Bayer

The Full Federal Court has granted an application for leave to appeal and allowed that appeal in respect to the striking out of certain pleadings relating to the applicant's representative proceeding against Bayer alleging price-fixing. View case.

13 July 2010 - Access bill receives assent

The Trade Practices Amendment (Infrastructure Access) Act 2010 was assented to on 13 July, making changes to administrative aspects of the regime.

8 July 2010 - ACCC proposes to authorise North West Shelf Gas Project joint marketing

The ACCC is proposing to 'grant conditional authorisation to the joint venture partners in the North West Shelf Gas Project to jointly market and sell their individual domestic gas entitlements for supply in Western Australia' until 31 December 2015. The ACCC is now consulting on the draft determinations and submissions are due on 30 July 2010. View press release. View Authorisation Register.

24 June 2010 - TPA to become CCA

Today's passage of the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 means that the TPA will be renamed the Competition and Consumer Act 2010 from 1 January 2011.

11 June 2010 - ACCC v Bridgestone Corporation

The full text of the Judgment of Justice Finkelstein in this case involving admissions and agreed penalties for cartel conduct is now available and worth a look. Justice Finkelstein compares penalties in other jurisdictions and is critical of the low penalties applied (to date) in Australia. View my blog post on this.

2 June 2010 - Extradition for cartel conduct

Mallesons' latest Competition Law Update includes a discussion of the extradition rules relating to criminal cartel conduct.

31 May 2010 - Current Issues on the ACCC's Radar

ACCC Chairman Graeme Samuel's paper from the weekend's Competition Law Conference in Sydney is now available on the ACCC website. View paper.

27 May 2010 - Creeping Acquisition Bill Introduced

Parliament today introduced the Competition and Consumer Legislation Amendment Bill 2010 which will make minor changes to the merger provisions which the Government, in the Explanatory Memorandum, claims will help to address concerns about creeping acquisitions. View my summary here.

27 May 2010 - Telstra seeks fine reduction

Telstra has requested a fine of $4m for excluding the broadband servers of some competitors for a period in excess of two years. The ACCC is seeking a $40m fine. Telstra claims the amount should be significantly less than what the ACCC is seeking because it's conduct was accidental and resulted from poor supervision rather than as a result of a deliberate anticompetitive policy. The case is currently before Justice Middleton in the Federal Court (Melbourne). See reports in The Age and the Sydney Morning Herald.

24 May - US Supreme Court reverses American Needle

The US Supreme Court had overturned the decision of Seventh Circuit Court in American Needle. The case stemmed from an agreement by the National Football League Properties (NFLP), an entity formed by the NFL (an unincorporated association of 32 football teams), to grant an exclusive licence to Reebok to produce and sell trademarked headware for all of the teams. Each of the football teams owned its own name, colors, trademarks etc. The Court found that just because members were controlled by a single entity did not mean they necessarily escaped the scope of s 1 of the Sherman Act - they considered the issue one of 'substance' not 'form' and in this case asked whether the agreement joied together 'separate economic actors pursuing separate economic interests' such that it 'deprive[d] the marketplace of independent centers of decisionmaking'. The Court found that each NFL team was a substantial independently owned and managed business whose 'general corporate actions are guided or determined [by] separate corporate consciousnesses'. They also observed that the teams compete with each other on and off the playing field. Importantly, the Court held that they were potentially competing suppliers for intellectual property. Consequently they held that the NFLP's decisions to licence the teams' separately owned intellectual property constituted concerted activity covered by section 1 of the Sherman Act. The decision was unanimous. View decision.

19 May - Hockey announces Liberal plan to review TPA

Joe Hockey announced as part of his Budget Address to the National Press Club that, if elected, the Coalition would undertake a 'comprehensive and independent review of the Trade Practices Act ... including all aspects of competition arrangements in Australia.' We can expect to hear more about this from Bruce Billson in the coming days. View Hockey's address.

17 May - ACCC institutes proceedings against Japan Aiarlines alleging price fixing of air freight

Japan Airlines today became the 14th airline subject to ACCC proceedings alleging price fixing in the air cargo industry. A directions hearing has been set for 10 June. See press release.

17 May - ACCC institutes proceedings against Air New Zealand alleging price fixing of air freight

The next claim by the ACCC in a long line of proceedings instituted in respect of air cargo is against Air NZ, alleging that between 2002 and 2006 Air New Zealand 'entered into arrangements or understandings with other international air cargo carriers that had the purpose or effect of fixing the price of a fuel surcharge and a security surcharge that were applied to air cargo carried by them and other airlines'. A directions hearing has been set for 10 June. See press release.

13 May - Senate Economics Committee recommends rejection of Richmond Amendment

The majority of the Senate Economics Legislation Committee recommended that the Senate reject the Trade Practices Amendment (Material Lessening of Competition - Richmond Amendment) Bill 2009, finding alteration of the merger test would generate uncertainty when there was no sound evidence suggesting a problem with the current bill. The Committee also rejected the proposal to set a percentage market share threshold for mergers involving firms with an existing substantial market share - the so-called 'creeping acquisition' provision - noting that such a change would be 'arbitrary and contentious'. View report information.

10 May - OFT withdraws criminal cartel proceedings

The OFT has withdrawn criminal cartel proceedings against British Airways executives following late disclosure of documents. View OFT Press Release. This was the first criminal cases brought pursuant to the OFT's criminal cartel laws. Caron Beaton-Wells has written a nice piece in the Australian Financial Review (20 May 2010) describing the lessons to be learned for Australian criminal cartel litigation.

5 May - Professions and the TPA

The ACCC has launched a new publication, Professions and the TPA.

21 April - ACCC continues to allow collective bargaining for chicken growers

The ACCC has re-authorised collective bargaining by Victorian chicken growes for a further five years. View press release. View authorisation register.

21 April - ACCC authorises arrangements to close coal terminal at Gladstone Port

The ACCC has authorised arrangements for the transfer coal handling capacity which would facilitate the closure of Barney Point at Gladstone. View press release. View authorisation register.

21 April - ACCC proposes to allow freelance journalists to collectively negotiate with publishers

The ACCC has issued a draft determination proposing to authorise Media Entertainment and Arts Alliance to collectively negotiate on behalf of freelance journalists. See press release. See authorisation register, including draft authorisation.

21 April - News on ACCC opposition to NAB bid

The NAB has rejected the ACCC's opposition to its bid for Axa Asia Pacific and has indicated it will pursue a 'range of options' to move ahead with the bid. This has led to a flurry of interesting news items - there's pleny on offer, so I've just included links to a small selection: Scott Murdoch, 'NAB to Defy ACCC on AXA' (The Australian, 21 April), David Rogers, 'Investors Cautious after NAB blocked' (The Australian, 21 April), Tim Boreham, 'Bank licks wounds after watchdog bite' (The Australian, 21 April), Ben Butler, 'NAB Hints at Legal Action Against Corporate Regulator' (Herald Sun, 21 April), George Lekakis, 'Watchdog thwarts NAB on Axa takeover' (Herald Sun, 21 April) and John Durie, 'ACCC changes its tune' (The Australian, 20 April).

21 April - $9 million in penalties for air conditioning cartel

The Federal Court has imposed $9.2m in penalties over a Western Australian air conditioning cartel case involving bid-rigging and price fixing for the supply of commercial and industrial air conditioning and mechanical services. Proceedings were brought against 17 companies and 22 individuals. View press release. View decision of Justice Gilmour: ACCC v Admiral Mechanical Services Pty Ltd [2010] FCA 348.

19 April - ACCC to oppose NAB bid for AXA; ACCC to clear AMP bid

The ACCC will oppose NAB's proposed acquisition of AXA Asia Pacitic holdings, but will not oppose AMP's proposed acquisition of AXA. The ACCC expressed the view that a merger between NAB and AXA 'would result in a substantial lessening of competition in the market for retail investment platforms for investors with complex investment needs'. View press release. View public competition assessment register.

14 April - $8 million + marine hose penalty penalty for cartel conduct

The Federal Court has ordered four suppliers of marine hose to pay penalties in excess of $8.24 million for cartel conduct (in the form of bid rigging) between 2001-2006. View press release.

9 April - ACCC institutes proceedings against Malaysian airline companies for alleged price fixing of air freight

The ACCC has instituted proceedings against Malaysian Airline System Berhad and Malaysia Airlines Cargo Sdn BhD (a wholly wned subsidiary). This is the 13th airline that has been subjected to ACCC proceedings arising out of price fixing allegations in the air cargo industry. View press release.

1 April - ACCC authorises continued operation of Qantas/British Airways' Joint Services Agreement

The ACCC has granted authorisation of Qantas and British Airways' Joint Services Agreement for a further five years. View authorisation register. View press release.

31 March - ACCC to oppose proposed acquisition of Goodman Fielder's edible fats and oils business by Cargill Australia

The ACCC has announced it will oppose the proposed acquisition of Goodman Fielder's edible fats and oils business by Cargill Australia, with Chairman Graeme Samuel noting that the proposed acquisition 'would lead to a significant concentration of refining assets in Australia and remove one of only a small number of competing refiners that offer a wide range of fats and oils products' and that this 'would likely result in a substantial lessening of competition in markets for the supply of certain refined oil products'. See full press release. See mergers register.

31 March - ACCC will not oppose proposed acquisition of Varian by Agilent after modification

The ACCC has announced that it will not oppose proposed acquisition of Varian by Agilent 'after competition concerns were resolved by Agilent's undertaking to sell certain global scientific instrument assets'. See press release. See mergers register.

26 March 2010 - ACCC proposes to deny authorisation to NSW electricity co-insurance arrangement

The ACCC today released a draft decision 'proposing to deny authorisation to the NSW Government-owned electricity generators and the future acquirers of the Gentrader bundles to join and use a joint risk management arrangement'. See press release. See authorisation register.

25 March 2010 - ACCC calls for comment on proposed BHP Billiton/Rio Tinto joint venture

The ACCC has issued a Statement of Issues on the proposed BHP Billiton and Rio Tinto joint venture to produce iron ore in WA. See press release. See Merger register.

25 March 2010 - Tasmanian vegetable growers allowed to collectively negotiate

The ACCC has re-authorised collective contract negotations for the Tasmanian Farmers and Graziers Association. See press release. See the ACCC's determination.

25 March 2010 - ACCC proposes to allow some limited alcohol supply restrictions

The ACCC 'proposes to authorise alcohol supply restrictions in an agreement between liquor licensees in the Casuarina Business Precinct in Darwin'. See draft decision. See press release.

25 March 2010 - ACCC proposes to authorise arrangements to close problem coal terminal at Gladstone Port

The ACCC has made a 'draft decision to authorise arrangements to re allocate specified amounts of coal port terminal capacity from Barney Point Coal Terminal at the Port of Gladstone in Central Queensland to either the RG Tanna Coal Terminal or a new terminal to be constructed at the Port.' See press release. See registry record.

25 March 2010 - ACCC grants interim authorisation for the joint marketing of oil

The ACCC has granted 'conditional interim authorisation to Santos and ten other oil producers to jointly market their oil produced in the Surat Basin and Denison Trough in Queensland'. See press release. See registry record.

24 March 2010 - ACCC proposes to grant authorisation for collective negotiations for access to essential airport services

The ACCC has issued a draft determination 'proposing to grant authorisation to the Board of Airline Representatives of Australia Inc to continue to engage in collective negotiations, on behalf of its member international airlines, for essential airport services'. See press release.

24 March 2010 - ACCC to oppose propsed acquisition of Newreg by Link Market Services

The ACCC intends to oppose the proposed acquisition of Newreg by LInk Market Services. The ACCC claims the acquisition would be likely to substantially lessen competition 'in the national market for securities registration and related services to listed companies and other entities with similar requirements, leading to higher prices and reduced quality of service that shareholders would ultimately bear'. See press release. See public register, including statment of issues.

23 March 2010 - ACCC proposes to re-authorise collective bargaining arrangements for Victorian chicken growers

The ACCC proposes to re-authorise for five years collective bargaining arrangements put forward by the Victorian Farmers Federation on behalf for Victorian chicken growers. A draft determination has been issued and is open for comment until 9 April. See press release.

17 March 2010 - TPA to be renamed CCA

The Trade Practices Amendment (Australian Consumer Law) (No 2) Bill 2009 was introduced into the House of Representatives today. Schedule 5, s 2, provides: “Omit “Trade Practices Act 1974“, substitute “Competition and Consumer Act 2010””.

5 March 2010 - ACCC institutes proceedings against Korean Air Lines Co Ltd

The ACCC has instituted proceedings against Korean Air Lines Co Ltd in relation to alleged price fixing in the air cargo industry. Korean Air is the twelfth airline subject to ACCC proceedings in relation to alleged air cargo price fixing. A directions hearing has been set for 1 April 2010. See media release.

5 March 2010 - Doctors risk breaching competition laws

An ACCC press release provides some details of an ACCC investigation into five doctors from the Kangaroo Island Medical Clinic in South Australia. The doctors shared office and administrative facilities but operated their own separate medical practices and therefore were competitors. The investigation arose from letters written by each doctor to the administrator of the Kangaroo Island hospital relating to on call arrangements and after hours remuneration. The doctors threatened to withdraw services and this conduct was investigated as a collective boycott. Concerns were addressed through the provision of undertakings to the ACCC. View media release.

4 March 2010 - ACCC proposes to authorise collective bargaining by iron ore producers

The ACCC has issued a draft determination which proposes to grant conditional authorisation to a group of junior iron ore producers to collectively bargain for rail haulage services and rail track acess in Pilbara, WA. View press release. View public register.

3 March 2010 - How competition law supports transport and logistics solutions

ACCC Chariman, Graeme Samuel, delivered a paper at the Australian Logistics Council Forum 2010, Sydney, today regarding the benefits of competition in the transport industry. View speech.

2 March 2010 - Restrictive ice hockey policy is anti-competitive

The ACCC has issued a notice revoking Ice Hockey Australia's exclusive dealing notification, under which members are prevented from playing in ice hockey competitions that do not have Ice Hockey Australia approval. View press release. View notification register.

25 February - Speech by Samuel - Breaching the TPA never been more costly

ACCC Chairman, Graeme Samuel, delivered a speech to an AICD luncheon in Melbourne discussing new tougher penalties for anti-competitive behaviour, including cartels. View press release.

10 February - ACCC issues statement of issues on proposed acquisitions of AXA Asia Pacific

The ACCC has issued a Statement of Issues on the separate proposed acquisitions by AMP Ltd and National Australia Bank Ltd of AXA Asia Pacific Holdings Ltd. Further submissions are due by 26 February 2010. A final decision is anticipated by 17 March 2010. View media release.

8 February 2010 - More Supermarket Agreements

The ACCC has announced further agreements with major supermarkets to phase out restrictive provisions in supermarket leases. See ACCC Press Release. See press release of competition Minister Emerson.

8 February 2010 - $1 Million Penalty for Defence Cartel

The Federal Court has ordered DRS C3 systems (an American-based company) to pay $1m in penalties for cartel behaviour in the international military defence training industry. The conduct was admitted and orders were by consent. See ACCC Press Release.

3 February 2010 - Paper suppliers to pay $4m for price fixing

The Federal Court has ordered APRIL Fine Paper Trading Pte Ltd (Singapore) and APRIL International Marketing Services Australia Pty Ltd, to pay penalties totallying $4m for engaging in price fixing ($3.25m and $750,000 respectively). The penalties were discounted as a result of the cooperation of the companies. View ACCC Press Release.

22 January 2010 - Emerson Press Release on Merger Change

The Press Release from Competition Minister, Dr Craig Emerson, relating to the proposed change to the definition of market for purposes of merger review, has now been released. Although the announcement claims that the change will address creeping acquisitions, it is impossible to see how it will do this. Hopefully, however, this proposed insignificant change means that we can say goodbye to the various other government proposals relating to creeping acquisitions and the current proposed Richmond Amendment (although a report is still due out on the latter in March). The Conduct Code Agreement 1995requires the Government to consult with state and territory governments in relation to the proposed amendments (full detals of which are not available) before their implementation.

22 January 2010 - Proposed changes to merger laws - again!

According to today's papers, Emerson will today announce plans to change the definition of market in relation to mergers by removing the requirement that a 'market' be 'substantial': ('Competition Minister takes aim at creep for control', John Durie, the Australian; 'Craig Emerson plans changes to the law to stop creeping takeovers', John Durie, the Australian and also see page 5 of today's Australian Fin Review). Although full details are not yet clear, it's hard to imagine what practical significnace this change will have: see good post by former Member of the ACCC, Prof Stephen King, 'Goodbye to substantial markets'.

21 January 2010 - EC clears Oracle/Sun deal

Following provision of commitments by Oracle, the European Commission has cleared the Oracle/Sun proposed merger. View EC Press Release.