Competition Policy Review

Misuse of market power (effects test/taking advantage); price signalling (expand to whole economy), mergers (merger authorisation to ACCC at first instance), third line forcing (remove per se ban), clarify extraterritorial operation (s 5), simplify drafting for cartel provisions and authorisation and notification provisions and forms, improve ACCC investigative tools (expand s 155 and greater protection for whistle-blowers), extend unfair contract terms provisions to small business, make collective bargaining/boycott notification more accessible, amend prescribed industry codes to improve enforceability, implement 'legally enforceable supermarket and grocery industry code of conduct', RPM (keep per se ban) international price discrimination (effects ambiguous), remove s 51(3) IP exemption, structure of ACCC (don't split); ACCC functions (broader market study power). Generally competition principles and role of competition policy, key areas for microeconomic reform (145 pages)

View more detailed ACCC summary.

Includes four short submissions regarding 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.'

This ten page submission deals with the 'appropriateness of mechanisms for dealing with competitive neutrality complaints, particularly in respect of local government', 'the applicability of the CCA to the human services sector', the 'relationship between the CCA and industrial relations legislation' and 'how a market study function could operate in practice.'

This brief submission responds to concerns raised - particularly by Graeme Samuel and Stephen King - about the ACCC's proposal to change the misuse of market power provision (to prohibit unilateral conduct having the 'purpose or effect of substantially lessening competition in a market'). It refers in part to an Op Ed by Commissioners, Jill Walker and Roger Featherston, which is attached to the submission.

Country accounting firms and auditing company accounts.

Supports NFF submission and identifies 10 priority areas: Unconscionable conduct, Misuse of market power (effects test), Unfair contract terms (extension to small business), Collective bargaining (inc raising threshold for primary production bargaining), Codes of conduct, Statutory duty of good faith, Powers of the ACCC (price monitoring, divestiture powers), Access, Protection from agri-terrorism, Establishing a Perishable Goods Commissioner

Need to protect the pro-competitive effects of the Internet - focus on: 'need for modernisation of Australia's copyright regime' (must be technology neutral and flexible); 'enforcement of key anti-competitive provisions such as resale price maintenance and other tactics that prevent resellers from selling products online' and 'examination of the prohibition of third line forcing' (consider removing per se ban).

Land use planning and zoning reform

International price discrimination (restricting pricing flexibility likely to have negative impact on competition); Misuse of market power (broad changes to s 46 unnecessary - separate effects test has potential to generate uncertainty; Australian courts already take into account effects in considering purpose and whether it is exclusionary); Price signaling (separate prohibition has potential for overreach; may be preferable to extend the application of existing provisions in the CCA to concerted conduct having clearly anticompetitive impact that may not rise to the level of a 'contract, arrangement or understanding'' (p 11)); Resale Price Maintenance (move to competition test rather than per se prohibition would be in line with international developments; many RPM practices pro-competitive)

Secondary boycotts

Access ('warns against unnecessarily restricting the scope' of the access regime; supports PC proposed redrafting of criterion (a) (competition test) and (b) (uneconomic to duplicate test); does not agree with PC suggestions re: declaration criteria; however, PC recommendations on criterion (f) (public interest test) are inappropriate; regulation also important for 'non-vertically integrated natural monopolists'; need to protect against 'economic holdup' 'on expansion and extension of regulated infrastructure by owners and operators' - agree with PC recommendation that ACCC 'should have a clear power to direct capacity expansions ...')

'Have your say'
Overcharging/health

Competitive neutrality. Council run childcare centres - use of rate payers money to subsidise centres 'anti-competitive and makes it difficult for private centres to compete'.

Competition policy and small business; current regulation excessive and need to account for 'hardships they impose on honest and honourable small businesses'; policy based on flawed assumption of free markets (consumers not always rational and markets don't always correct); RPM (should adopt US approach); excess price competition (particularly from online retailers) harming small business and reducing incentive to innovate and invest; issues paper over-simplifies benefits of competition (p 5); current 'consumer-centric competition laws' are effectively a 'fraud on the minority (small business) and are discriminatory by supporting higher standards of living for consumers and 'lower standards of living for business owners' (p 6)

Direct marketing issues (claims too much regulation): Compliance (regulators should 'provide businesses with simple, brief and accessible information on their compliance obligations); Unsolicited Consumer Agreements (ACL needs to clearly specify certain fundraising activities are not UCA's); Call back (consumes should be able to request after hours call back in presence of a dealer); community concern over direct marketing 'not proportionate to the actual incidence of complaints'.

Competition in setting of benefits on the Prostheses List

Prices surveillance

General; Immunity Policy, cartel laws, joint venture exceptions, third line forcing, RPM, predatory pricing, price signalling laws, the ACCC's coercive powers.

Access (in particular third party rail infrastructure access). Supports PC recommendation that access regime be retained, proposed changes to declaration criteria, improvement to 'role of ACCC in capacity expansions' and 'clarification around certification uncertainty' but has concerns regarding PC position n 'retention of the negotiate arbitrate framework without improvement' and 'a single approach to national rail access'. Recommends panel look at merits of 'the light-heavy regulatory model dismissed by Productivity Commission and look to incorporate improvements to the negotiate-arbitrate framework'. Also believes economic benefits would flow from moving to a 'single rail regulator' and PC's rejection of this was based on 'too narrow a view of the benefits'. Also makes recommendations re: further reform in the privatised ports and rail sectors.

Financial services focus. Notes competition policy has, in the past, predominantly addressed competition within Australia and now needs 'to balance this with a greater focus on the competitiveness of Australia'. Competition policy needs to be framed 'in a way that explicitly includes a mechanism for the competition authorities to be able to consider the international competitiveness of Australia in their market analysis'. Notes that traditionally definition of market in CCA has been a market located within Australia 'while recognising that competition can also reflect imports of goods or services delivered from outside of Australia' - but that if a 'market is "global" then the competitiveness of Australia should be as important a consideration as the competitiveness of individual domestic operators'.

Notes small countries may need to accept a 'more concentrated domestic market structure in some sectors' and that 'well-designed self-regulatory structures can be an effective policy tool to help drive competitive-type outcomes in more concentrated industries'. Notes ASX experience of industry code of conduct and discusses unique features of financial sector.

Forthcoming (87 page submission - access focus)

Price discrimination, MMP (add effects test), mergers (mandatory PMN and creeping acquisitions), Qld liquor licensing laws.

Does not address issues paper
Discusses tax incentive regimes in other countries and argues for tax incentive for Australia

Claims 'existing competition policy overwhelmingly favours the two major supermarket chains'. Sale of packaged alcohol (wants convenicence stores to be allowed to sell packaged alcohol); Excise increases on fuel and tobacco (negatively impact small business more than larger chains); Penalty rates (claim huge cost burden for small business)

Intellectual property, price discrimination.

'Have your say'
Apply ACL (stet) to small business in relation to unilateral conduct, MMP, unfair and unconscionable conduct, third line forcing [no further explanation of how law does not currently apply to small business or why extension needed]

Regulatory controls over airports, MMP (retain purpose not effect), countervailing power of airlines and pricing

Access and ownership of vehicle data (concerned re: 'lack of clearly defined ownership and control of vehicle data and technical information'), fuel market issues (inc shopper dockets, fuel boards (claim misleading), price transparency and information sharing between retailers), MMP (amend s 46 'to incorporate the concept of collective dominance'),wholesale fuel market (particular concern re: lack of competition in regional areas); mergers (monitoring of post-acquisition growth and protection from creeping acquisitions)

Focus on retail car market - notes Australia's retail new car market is one of the most highly competitive in world and distorted significantly by luxury car tax and Australian design rules. Recommends panel consider a range of issues, including abolition of luxury car tax, consideration of 'change of emphasis in competition policy from black letter law to economic impacts or effects on the market resulting from a dominant position', statutory guidance on unconscionable conduct, consideration of a 'representative industry body to bring complex legal and other issues for clarification and resolution outside the judicial system', market distortion caused by FBT and salary packaging and industrial relations reform.

Small business (regulation (RIS for all new regulation), access to justice, access to finance); Trade (coastal shipping reform (remove contestability rights of General License holders), Part X (repeal), Parallel imports (review enforcement requirements)); Competitive Neutrality (review - and publicise principles); Workplace relations (secondary boycotts (rec transparent and consistent reporting from ACCC; simplify legislative framework; adopt Cole Royal Commission Report recommendations 181 and 182; additional recommendations), anti-competitive agreements (recommends new prohibition in CCA on enterprise agreements 'containing terms which restrict the engagement of contractors' or amend Fair Work Act to include such a prohibition), transfer of business provisions); Section 46 (amend 'take advantage' in s 46 'to better define the application of the 'take advantage' statement' to 'ensure clarity and ... enforceability'); Educational reform (appropriately fund MySkills and MyFuture websites); ACCC and market studies (ACCC should be empowered to undertake market studies) (65 page submission)

Collective bargaining authorisation, unfair and unconscionable conduct provisions

'Have your say'
Mental health; access to Medicare rebates

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 ...'

Geographic price discrimination (IT pricing inquiry) and removing s 51(3), Net neutrality, bundling, administration (keep consumer and competition functions together), advertising (included value issues) - unit pricing

Retention of section 45ZDD(3) Environmental Exemption in secondary boycott provisions

International price discrimination (no need for policy response/change); parallel importation (does not support removing remaining restrictions); copyright exceptions - fair use (does not support fair use defence); section 51(3) (should not be repealed)

Regulation (remove regulatory barriers - regulation 'must operate to protect and enhance competition for the benefit of consumers, not to inhibit it or protect uncompetitive participants or favour or discriminate against particular competitors or sectors'), international competitiveness (recommends the review 'recognises the need to support Australian businesses to be globally competitive and foster a strong economy, while still providing consumer protections'), exclusive dealing (suggest safe harbours to reduce inefficiencies and costs associated with ED compliance and making third line forcing subject to competition test), concern re: unintended consequences of some provisions (notes drafting anomalies in cartel provisions); role of ACCC (recommend review consider re-defining ACCC role to include 'an ATO-like Private Ruling mechanism', 'a broader understanding of business and active engagement with in-house counsel' and 'a greater focus on assisting to clarify ambiguity and providing guidance for all businesses in manners other than the use of punitive measure aimed at large national operators as a means of communicating to the broader marketplace'; institutional arrangements (recommend consolidating regulatory bodies, introducing independent monitoring for transparency and to create a learning environment and 'increased focus on facilitating and guiding compliance ahead of punitive measures'

Claims 'weak relationship between the application of competition legislation and movements in productivity'. Focus on secondary boycotts, limits to self-regulation (argues for retention of existing statutory framework; doubts effectiveness of self-regulation), privatisation (disagrees private firms should be assumed to be more efficient in provision of public services)

Changes to competition laws (milk wars discussion and recommendations relating to MMP (introduce effects test), predatory pricing (recommend Minister direct ACCC to investigate Coles for breach of s 46 relating to predatory pricing), unconscionable conduct (suggest it be defined), statutory duty of good faith, unfair contract terms (seeks 'recognition of the competitive disadvantage faced by farmers' and extension of unfair contract terms protection to small business), collective bargaining (seeks relaxation of public interest test for boycott approvals in agriculture markets, increase 'ability for peak bodies to commence and progress collective bargaining and boycott applications' on behalf of members - and further dairy specific recommendations, ACCC divestiture power (wants ACCC to have similar divestiture powers to Comp Commission in UK - 'simpler process of divestiture', ACCC monitoring powers (wants Minister to direct ACCC to use price monitoring powers to 'monitor prices, costs and profits relating to the supply of drinking milk') and mandatory code of conduct (wants mandatory code and 'Ombudsman with teeth to ensure compliance')). Also discussion of competition policy for global industries, reform in infrastructure sectors. Endorses NFF submission. (82 page submission)

Concern about private health insurance industry and use of preferred providers

Recommends removing 'unnecesary review processes in Australia for medical devices which duplicate the work done internationally', removing regulatory duplication and improving public sector procurement.

Competition in provision of Medicare-funded diagnostic imaging services to outpatients (competitive neutrality - public v private)

Intellectual property (amend Copyright Act s 10(1) anti-circumvention provisions 'to clarify and secure consumers' rights to circumvent technological protection measures that control geographic market segmentation'; repeal parallel import restrictions; introduce a flexible 'fair use' exception to copyright infringement; repeal s 51(3) CCA)

Government services and competitive neutrality; education services (should not be assumed that 'it is appropriate for competition policy to be extended into the operation of all sections of economic and social policy'); competitive neutrality 'disastrous' where introduced in education (VET, TAFE); recommend 'government abandon the use of market mechanisms to deliver educational services' (p 4); secondary boycotts (retain exemptions for environmental and consumer protection; recommend exemptions be broadened to allow 'Unions rights to organise freely' consistent with ILO Convention 87 (p 8)

Impact of non-energy related policies on energy sector - eg, climate change policies which are 'having a significant impact on price signals and the efficient allocation of risk'. Generally 'competition policy and legal frameworks are working effectively to manage competitive energy markets'. Discusses energy markets and structural and institutional reforms. Supports current approach to competition policy and legal frameworks are working effectively to manage competitive energy markets (flexible and merits-based). Access (notes concerns with PC recommendations in relation to certification).

Makes 18 recommendations. Discusses 'over-regulation' in food and grocery sector, importance of 'best practice regulation; anti-competitive impacts of parallel importation; importance of developing 'globally competitive supply chains' (suggest 'removal of regulation of access to coastal trading'); definition of market (amended to 'allow consideration of global market integration and the competitive impacts of vertical integration'); MMP (retain purpose test - no effects test); collective bargaining (review and simplify exemptions); secondary boycotts (remove exemptions in s 45D based on consumer and environmental considerations); potential for industry-driven solutions, such as Food and Grocery Industry Code of Conduct, as alternative to regulation; ACCC reform 'food descriptor guidelines'; ACCC reform s 87B policy 'to allow companies to deny that their conduct contravenes the CCA'; remove requirement for mandatory safety notifications or change threshold; stress 'importance of coordinated, high efficiency infrastructure as a key element of competition policy'; competition impacts of public asset sales should 'be assessed with a view to global contexts'; coordinated reform agenda to improve Australian gas market. (294 page submission; 37 pages plus attachments).

Secondary boycotts; food and grocery prescribed code of conduct (supported)

Maintain current level of regulation of community pharmacy ('AFSPA believes that the provision of pharmacy services via the distributed network of private pharmacists and friendly society pharmacies across Australia is a significant public good').

Health sector (key recommendations that expansion of competition in health sector 'must have equity of access and affordability as primary performance measures alongside fiscal sustainability' and that 'implications of greater competition must be considered for areas of current or potential market failure')

On premise competition issues for hotels (music licencing (need for two types of copyright licence and lack of competition in market); pay TV (market concentration issues); retail wagering (implications of retail wagering exclusivity)); Regulatory environment (contends 'state governments should not be required to again review the legislation regulating the industry in the manner required following the introduction of the 1995 arrangements')

Simplification of laws, 'boost the role and profile of the ACCC', streamline state-based regulators into the ACCC', competition issues in international trade, industrial relations regulation, transport regulation, education regulation, energy regulation, water regulation, waste management, industry access to major public projects (51 pages)

Transformative impact of information technology to economy (enhancing competition), recommend principles-based approach to competition policy and these principles should 'enhance innovation and investment'. On specific issues: price discrimination (opposes prohibition), competitive neutrality and the telecommunications sector (not functioning effectively)

Fuel market - 'fundamentally open, competitive, transparent and diverse'; removal of regulatory impediments, price signalling (should be no extension). Current law strikes 'appropriate balance between promoting competition and protecting consumers'

Part X (specifically clause 3.3.5 and concern about rescinding exemption)

Secondary boycotts (retain 'protections for individuals or groups engaged in campaigns for
environmental or consumer protection'. Recommend expanding s 45DD(3) protections 'protections for individuals or groups engaged in campaigns for environmental or consumer protection' and 'protections for individuals or groups engaged in campaigns for environmental or consumer protection'.)

Remove red tape (focus on liquor regulatory regime)

Policy (purpose of law (protecting consumers not competitors); current competition policy regime effective (no need to expand restrictions); competition policy should be economy wide and not sector specific); competition could be improved by removing non-CCA regulations; need to measure and evaluate performance of regulators (88 page submission).

Specific recommendations: de-regulate trading hours, reform planning systems to ensure no adverse impacts on competition, remove remaining parallel import restrictions, misuse of market power (no change to s 46(1);* repeal 46(1AA)), unfair contract terms (no case to extend to small business), unconscionable conduct (should not be extended), price signalling provisions (replace with prohibition against concerted practices in s 45), RPM (remove per se rule in s 48 and replace with SLC test), third line forcing (remove per se rule; retain related parties exception); mergers (decisions need to take account of of true impact on competition - do not use number of firms as proxy; no justification for further creeping acquisition amendment); self-assessed public benefit or efficiency defence (panel should consider as alternative to authorisation and notification processes - subject to risk of ACCC intervention); codes of conduct (should be encouraged as a low-cost dispute-resolution mechanism); penalties (existing penalties in CCA sufficient - opposed to forced divestiture or other punitive measures); regulators (need to be more mindful of costs imposed on business; should focus more on education and compliance and less on litigation).

*Submission indicates that ANRA has commissioned work exploring introduction of an effects test for s 46 expected to be completed in early July.

Secondary boycotts (retain s 45DD(3) exceptions relating to environmental protection and consumer protection)

Reform needed and should focus on fair conduct: 'current competition law does not help newsagents to any real degree'. Specific concerns noted in relation to lottery sales (increased online sales), newspaper retailers (range of retailers increasing), domination by major retailers.

On specific questions: supports simplifying competition laws and making them more accessible, fairer and consistent and that fair conduct and small business issues should be central; advocates principles of competitive neutrality; supports 'more price surveillance in markets such as petrol, energy & telecommunications'; definition of market (needs to recognise that competition occurs between franchisors/suppliers and 'agent' retailers, even where title has not changed hands); misuse of market power (supports effects test and removal of 'take advantage' element (suggested approach provided p 11)), unfair contracts (will submit to Treasury review on this issue); unconscionable conduct (disappointing application so far - need clear definition); agency (need clarity around whether agents compete with suppliers); collective bargaining (should be simplified or 'small business collective bargaining and even boycotts should be removed from being an offence' (various options suggested)); codes of conduct (supports mandatory industry codes); enforcement (trade associations should have standing in courts and tribunals to act for members and have some funding to do this)

In relation to agencies: ACCC (functions, structure and processes need review - it has 'too much to do', should 'focus on market conduct and not become a policy player'; Commissioners should be removed from staff roles; there should be more associates; the ACCC should not have a 'regular role of market studies'; there should be ex-post evaluation of major ACCC decisions - but should be by independent bodies; more needed to protect witnesses; consider time limits on ACCC investigations; ACCC should pay for cost of s 155 Notices in some cases; legal costs (ACCC should be able to be solicitor of record in Federal Cases and constant use of senior barristers should be questioned - need greater transparency)); NCC (should return to 'its original roles of legislative review and access assessment and be merged with the State and Territory Competition, pricing and access agencies').

Inefficient regulation. Current approach to quality standards imposes inefficient burdens on organisations - argue for harmonised standards - suggest 'aligning legislation/regulation to contemporary business quality management systems'.

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.

Part X - argues for retention of Part X with some amendment

Oil and gas industry - wants policy action 'on tax, market-oriented policies, access to resources and regulatory reform on unnecessary red and green tape' to improve international competitiveness.

Addresses regulatory impediments to competition and effectiveness of Australia's competition laws. Focus on preferred provider arrangements through private health insurers. Argues 'preferred provider schemes discourage competition and restrict consumer choice' and further argue that they encourage a 'misuse of market power'. Existing unfair and unconscionable conduct provisions should be strengthened (unfair terms laws should extend to small business). Note reluctance of small physiotherapy practices to engage with ACCC 'for fear of 'damaging their relationship with private health funds.'

Notes ongoing competition issues in wholesale gas markets - issues yet to be addressed - and notes uncertainty re Access regime production process exemption. Recommends that the Review (1) recommend policy action to address ongoing competition issues in wholesale gas markets (2) adopt PC recommendations re: coverage criteria for access and that production process exemption be clarified and (3) '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'.

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

Forthcoming (51 page submission)

Addresses regulatory impediments to competition , price discrimination (opposed ), IP laws, effectiveness of current competition laws, provisions on cartels, horizontal agreements and primary boycotts and price signalling

Focus on retail rents (information imbalance - landlord should be required to provide certain information), retail trading hours (retain existing restrictions), low value import threshold (should be lowered), needs of modern workforce (high labour costs; more flexibility needed; FWC must be required to review modern awards regularly), planning laws (generally support broadening business zoning restrictions and removing red tape to ensure a more competitive retail leasing environment), payment systems and reform, access to finance (major issue for SME), education reform (need more unbiased student information to assist potential students) and market power (grocery chains - concern those levels of concentration could extend to other areas of retailing; support comments of Retail Guild on Market Power).

International price discrimination (market for books competitive in Australia; does not believe 'local book purchasers are being gouged or charged "too much"'); Intellectual property (retain existing parallel import restrictions - removal would 'destroy Australian authors' territorial copyright' - 'parallel importation restrictions based on territorial copyright are vitally needed as a means of supporting the work of our local industry and authors')

Anti-competitive regulation: reform anti-siphoning regime which limits competition for sports rights; 'standardise the allocation and pricing of broadcase radiofrequency spectrum'; 'lift regulatory barriers to entry to the free-to-air television sector'; 'review inconsistencies in the application of captioning regulations' (STV v FTA). Approach to markets (ACCC must recognise global context in which Australian media operates); third line forcing (remove per se ban); RPM (remove per se ban); misuse of market power (no effects test)

Priorities for competition policy reform ('development and implementation of a set of policies and laws to proactively deal with Disruptive Innovation' (should 'specifically address the issue of new market entrants ignoring or avoiding compliance with regulatory requirements) and the development and implementation of 'enforceable policies for dealing with the "sharing economy"'); regulatory impediments to competition (current regulations in taxi industry produces benefits that outweigh costs; current review should 'not include taxi industry deregulation in any agenda for possible future reforms' and recommends 'against any reduction in the present standards applicable to taxi drivers or taxi services'); government provided goods and services and competitive neutrality (recommends adoption of 'robust, transparent econometric models to inform annual reviews of taxi licence caps and maximum fares' - should be by state and territory governments and not the Commonwealth; state and territory governments should restrict themselves to role of Regulator and 'leave all aspects of actual supply of taxi services to the private sector' - various related recommendations re: government involvement in taxi industry); reform in other sectors (cost of transportation services associate with HACC programs should be reviewed)

Competition laws : policy generally (recommends introduction of policies for dealing with a Sharing Economy'); small business collective bargaining (could not be used by small businesses within taxi industry without assistance from industry associations). National Competition Policy (deregulation of taxi industry in NCP agenda flawed; NCP process not effective).

B

Cartel conduct, third line forcing (should be subject to competition test), exclusive dealing (block exemption/safe harbour)

New approach needed for problems concerning small business community - not appropriate to make further reforms to the CCA for this purpose (better to address them through separate legislative regime). Also notes opposition to introduction of statutory unconscionable conduct provisions because they focus on protection of individual competitors rather than promotion of competition.

'Have your say'
Series of rhetorical questions around supermarkets and petrol stations

Powers and functions of ACCC

Cartel conduct and enforcement of cartel provisions

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

Lengthy (102 page) submission. Opportunities to strengthen competition in banking system.

55 page submission; sections on Australia's productivity, defining objectives of competition policy, international dimensions of competition policy, (including intersection of competition and trade policy), addressing regulation which undermines productivity, access and Australia's competition laws (inc cartels, JV, information disclosure, third line forcing and boycotts)

Brief one page submission; claims need for 'strict control over foreign investment' to 'encourage home grown business' and that Australia should use 'its raw material bounty as a leer to redress competitive disadvantage'.

Reform needed to 'help international aviation maintain and improve its productivity. Competitive supply, efficient pricing structures and greater innovation from suppliers can all contribute to more efficient international aviation in Australia'. Discusses access and NCC assessment process.

Budget measures will 'ensure private Universities can compete with government universities on a level playing field' (inc removal of 25% loan fee on FEE-HELP loans; removal of lifetime borrowing limits on FEE-HELP loans and extension of Cth Gov subsidies for students studying at non-public institutions as well as development of different funding levels)

'Have your say'
Calls to break 'Coles and Woolworths supermarket power', have an 'inquiry into Australia's Postal services' and increased parcel costs and have 'an inquiry into shopping centres' and rental practices. Also claims ACCC is pathetic and needs 'more teeth'.

'Have your say'
Franchise agreements and IP integrity.

Notes three priorities for competition policy reform: 1. 'need for integrated approach across road and rail in addressing congestion in capital and major cities'; 2. 'need to reform land transport pricing in Australia'; 3. 'need for better institutional frameworks in delivering infrastructure and transport networks'. Specific problems and suggested solutions identified.

Competition policy framework should be developed that 'reflects a global mindset by promoting flexibility, innovation and porductivity'; CCA should be amended to clarify that global dimensions of markets must be considered in any competition assessment and that dynamic competitive effects are to be preferred over static measures (like historical concentration). Broad range of policies which create barriers to competition should be removed and National Competition Policy principles should apply in relation to new regulation/laws. Public sector markets should be exposed to greater competition.

In relation to the laws themselves, they should be aligned to best-practice principles, including that long-term consumer welfare should be the overriding goal; market definition and competitive effects analysis (less focus on concentration and more on dynamics of competition); mergers (current formal merger process too onerous and inflexible; should not be amended to address creeping acquisitions or impose market caps); predatory pricing (repeal Birsdville); price signalling (repeal); resale price maintenance (remove per se ban); third line forcing (remove per se ban; do not remove related bodies corporate exemption); cartels (ensure cartel and exclusionary provisions only apply to horizontal arrangments between competitors and extend JV exemption; remove prohibition on exclusonary provisons in s 45 (as defined in s 4D)); misuse or market power (no effects test; no divestiture); access (should be used sparingly; need to reduce regulatory cost and risk for investors and do not change private profitabilty test for declaration); remedies (no structural remedies other than for mergers; do not increase maximum penalties); public benefit defence (adopt general public benefit defence - reduce reliance on authorisation and notification processes); ACCC powers (no 'cease and desist' power)

In relation to regulatory structures notes Australia unusual in combining three regulatory functions in one body (competition, consumer protection and pricing and access regulation of monopoly infrastructure). Consider 'merits of creating a separate national pricing and access regulatory body in Australia'. In relation to regulator performance, improvement needed in relation to expectations and oversight, clarification of policy roles (no power to initiate formal formal market studies), timeliness (focus on mergers), use of compulsory investigatory notices (s 155 notices - concern about scope, purpose and intent), transparency (focus on mergers) and use of media.

Breaking down regulatory barriers 'will require a coordinated effort across all levels of government' - recommend Commonwealth, state and territory leaders commit to 'implementing a comprehensive package of reforms to remove barriers to competition that embody a new global mindset'.

See more detailed summary of BCA submission

Proposed changes to section 46, calls for the ACCC power to initiate its own market studies and the extension of the price signalling provisions.

Regulatory impediments to competition and government-provided goods and services

Forthcoming

C

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.

'Have your say'
Pharmacy restrictions - argues for 'removal [of] the restriction of pharmacy numbers and location'

Imbalance in 'economic strength favouring the milling community' over the 'local cane growing community'. Unconscionable conduct (agrees with NFF that they have not provided protection and support reforms 'to provide transparency in the supply chain' and recognise that 'certain classes of suppliers ... are predisposed to suffering from a special disadvantage ...'; misuse of market power (legal framework must 'level the balance of market power in negotiations ... ', 'ensure transparency in the transmission of market prices' and 'not allow for final market risks to be borne by the primary producer' and provide 'transparency of contract processes' - specifically, Canegrowers supports effects test and a process giving ACCC greater power to 'regulate anti-competitive behaviour and impose penalties', shifting 'the decisions framework from the judicial system to a regulatory system' which would make it more accessible to small producers); collective bargaining (notes limits of Sugar Industry Act (Qld); authorisation and notification approval costly and limited and not a viable alternative - peak bodies should be able to 'commence and progress collective bargaining with mills on behalf of their members' and current threshold too restrictive)' competitive neutrality (mixed outcomes - perverse outcomes in the case of natural monopolies - suggest remove 'application of competitive neutrality provisions to natural monopoly essential services')

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.

Forthcoming

Focus on 'reducing anti-competitive regulation; the need for greater rigour in the evaluation of new policy initiatives; and the development of an institutional framework that encourages reform.'

Competition issues in Qld (Competitive neutrality, electricity, supermarket dominance, insurance, tender process, hospital licencing laws'), improving environment for small business (unfair contract provisions, MMP and creeping acquisitions), improving small business competitiveness.

Policy (competition policy in relation to financial market infrastructure of 'critical importance'; should be 'universal principle requiring regulation and policy development to factor the facilitation of competition into related decision making processes' combined with a 'meaningful governance process'); removal of unwarranted regulatory impediments to competition (time taken to grant regulatory approvals; method of monitoring by ASIC; cost recovery mechanisms; ASX monopoly); competition laws ('lack of clarity on how competition and sectoral regulation interacts'; definition of market (definition should not be 'hijacked by those seeking to spruik a national champion'; need flexible regime to respond to innovation); misuse of market power (favours effects test, flexible cease and desist power for regulators, incorporation of a special responsibility obligation (cf Europe); claims 'rigidly academic approach ... to "protecting competition not firms"' in Australia is 'unhelpful'); code of conduct (ASX Code of Conduct not a viable alternative to competition))

Various (26 recommendations) inc re: price signalling, ex post merger review, simplification of laws, repealing s 51(3) (axing the 'Australia tax') and prioritisation of 'consumer welfare as its overarching objective'.

Product labelling obligations 'impact the ability of cider producers, particularly smaller operators, to compete in the market'

Forthcoming

'Have your say'
Effect of deregulated trading hours (focus on Coles and Woolworths)

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

Forthcoming

'Have your say'
Payroll tax (should be abolished or indexed - makes it difficult for small-med business to compete), 'tender documents for government contracts are unnecessarily large and complex' and protection for consumers 'not good enough in the domestic building sector'

Adopt and support submission of WAIGA. Strongly recommend amendment to s 46 and reinstate s 49 (price discrimination)

Urges panel to consider 'areas beyond the minimising of cost or price for goods and services'

Need to remove 'regulations and restrictions that currently prevent competition and stifle innovation' in complementary medicines industry. Role of TGA.

Forthcoming

JVs and cartel conduct (JV exemption essential but needs clarification and guidance needed), misleading and deceptive conduct (concerns re: inaccurate forecasting - claim should not apply to B2B transactions), high cost of tendering and onerous terms and conditions (particularly re: risk)

Forthcoming

Forthcoming

Forthcoming

Forthcoming

Forthcoming

Forthcoming

Global competitiveness of Australian business and the Australian tax system

Financial services dispute resolution

Competition in credit card payment systems in Australia ('current industry structure and its regulatory framework entrenches anti-competitive market structures, cross-subsidisation from merchants to other system participants, and inhibits economic efficiency')

Forthcoming

D

Regulatory burden, ACL rules (calls for amendment to unsolicited consumer agreements section), regulation re: complementary healthcare products by TGA

Agreements and Competition Law in Australia (article); simplify ss 45 and 47 (inc remove per se ban on TLF), review cartel provisions at later date, notification for small business only and for all conduct (but for s 46 conduct), review price signalling laws

E

Energy price regulation, access regimes (does not support PC proposal to remove from State/Territory governments an obligation to seek certification of energy access regimes under Pt IIIA; concern about potential risk of 'dual regulation'), supports 'single independent specialist energy regulator', including separation of AER from 'general competition agency functions of the ACCC'.

Lack of competition in legal services.

F

Shipping exemptions (support retention (or extension) of exemptions under Part X)

Misuse of market power (effects test or re-write), simplification, broadening s 45 (focus on 'contract arrangement or understanding'). Also brief discussion of exemptions - IP (implement Ergas Review recommendations), Part X (repeal); International Price Discrimination (repeal parallel import restrictions) and Mergers (revert to ACCC with original jurisdiction for authorisation with right of appeal to Tribunal); Market studies (specify that ACCC can undertake market studies) (17 pages)

'Have your say'
Supermarket power and small business

Secondary boycotts

Access (broadly supports PC report), need for review of Australian ports

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"

'Have your say'
Industrial relations - penalty wages; all imports 'should have the same imposts applied to them as the Australian manufacturer or Producer' (particularly quality standards)

Mergers; creeping acquisitions, dominance test

G

'Have your say'
Effect of deregulated trading hours (focus on Coles and Woolworths)

Transformative impact of the Internet, market definition in Australia working effectively, recommends cautious approach to amending CCA - only amend if 'clearly demonstrated substantive or procedural deficiencies'. Need for flexible copyright regime (and fair use exception),

Secondary boycotts (retain exemption for consumer and environmental boycotts)

'Have your say'
'The reform agenda for competition policy must be interlaced with consumer policy'; supermarket private labels, legal profession, competitive neutrality

H

Claims Councils have unfair advantage over small rubbish removal businesses

Mergers (for most mergers processes work well; for complex or contentious mergers they do not; main concerns identified: accountability, timeliness, transparency, burdens). In relation to clearance recommends new public merger register for informal clearance, enhanced accountability in formal clearance (notes concern re: reverse onus of proof) and strict time limits for formal clearance or introduce a new merger specific notification system to replace informal and formal clearance. In relation to authorisation, noted direct application to Tribunal can be effective and efficient. Suggest improving efficiency by moving to an 'electronic Tribunal', increasing co-ordination between the Tribunal, ACCC and applicant and amending or replacing Form S. Provides useful attachment on recent timing and PCA's in complex merger matters

I

Taxation system, support for small business (particularly regarding increasing compliance costs, including in the financial services sector), revisit and attempt to revive National Competition Policy with input of CoAG.

Unconscionable conduct (s 22 to be amended to include 'price' within list of matters court can consider when determining whether conduct unconscionable); unfair contract terms (expand to B2B contracts and make it 'possible for term that "sets the upfront price payable" to be found to be unfair')

Regulatory costs (regulatory overreach), MMP (current provisions adequate - no effects test), industry codes

Focus on competition aspects of statutory insurance and industry codes of conduct

Focus on competition aspects of statutory insurance and industry codes of conduct

Supports submissions of Shipping Australia Ltd - supports maintenance of Part X.

Shipping - retain Part X (also discusses proposed NZ changes in Cartels Bill)

Scope for opening markets to competition - including in water and public transport industries (inc taxis), competitive neutrality, access (adopt PC recommendations), administration (oppose splitting regulatory responsibilities between organisations; reporting; competition payments - NCP)

Secondary boycotts (s 45DD(3)(a) - not effective and should be removed or establish effective authorisation process)

J

Vertical restrictions (RPM and exclusive dealing; argue for public benefits exemption), proving collusion (cartels and s 45) and the objective of competition law

Process; 'disparity between heavy penalties and weak process' (inc query whether parties should benefit from right against self-incrimination in response to ACCC questions)

K

Agricultural production and processing - transparency and consistency in regulation, modified tax structures for R&D investment, policy initiatives to increase workforce skills (focus on regional Australia)

Brief submission focussing on Victorian Government Review of the Water Act 1989 (concern about monopoly water authority)

MMP: 'The South African Example: A Legislated Effects-Based Test and Efficiency Defence for Misuse of Market Power'

Coles and Woolworths duopoly and fuel prices (inc shopper dockets - should be scrapped)

L

Planning and zoning (refers to PC 2011 report 'Economic Structure and Performance of the Australian Retail Industry' recommendations on planning and zoning not yet implemented), trading hours (particularly WA - should be de-regulated)

Responds to meda suggesting original submission was critical of ACCC - focus on institutions and SME dealings with ACCC.

IP - patents

Financial market - encourage panel to 'consider current financial infrastructure policy and regulation, as articulated by the' Council of Financial Regulators

Secondary boycotts, restrictions on engaging contractors and labour hire (inc amend s 51(2)(a)), red tape.

M

Financial system; inc joint venture exemptions (opposes exemption)

Attaches PhD - 'A Critique of Australia's National Competition Policy: Assessing its outcomes in a range of major sectors'.

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

Potential anti-competitive effects of regulation (81 pages)

"Integrating the Australian Consumer Law and Domestic Building Contract Legislation - Small Business Perspectives". Unfair terms (critical of s 25 and concern re: domestic building contracts, uncertainty etc - recommends exemption of domestic building contracts from unfair contracts regime). Consider consistent definition of consumer. Discussion of statutory guarantees.

Supermarket concentration - CCA needs amendment to 'halt the power of the two largest supermarket retail outlets in Australia ...'. Shopper docket schemes, creeping acquisitions (recommends 'cumulative effect' be introduced into s 50 test), price discrimination (effects test for 'price discrimination'), reform of s 46 (add effects test and introduce 'predatory capacity' provision (with reverse onus of proof for Woolworths and Coles)); state planning laws; restrictive liquor laws; trading hours; industry code. (59 pages)

Wants to preserve the ability of governments to impose appropriate controls on the economic and physical availability of alcohol, even where these controls may otherwise be seen to limit competition'

Notes benefits of preserving Australia's voluntary merger notification system.

Clarity - 'desirability of a clearer conceptual approach to competition laws' (inc 'avoiding convoluted codification' (cartel laws prime example), trusting 'judicial institutions to apply standards as opposed to codes and avoiding kneejerk legislative responses to judicial decisions' and removing 'curiosities and inconsistencies' (eg, JV exemptions and different SLC standards)); misuse of market power (suggest repeal ss 46(1AAA), 46(4A) and 46(6A) and that 'deeper' consideration be given to re-shaping s 46 than merely debating whether 'purpose' or 'effect' is appropriate); RPM (questions why max RPM exempt from s 45 and recommends repealing the RPM provisions); international price discrimination (remove parallel import restrictions instead of attempting to prohibit price discrimination); improve allowance 'for activities occurring within corporate groups'.

Competition policy (SME focus; need for equity; treat SMEs as 'consumers' when dealing with larger businesses - extend unfair terms contracts to small business; need 'legal precedents or statutory definitions' as part of unconscionable conduct framework); competition laws (focus on unfair terms and unconscionable behaviour; mention of MMP but not in context of s 46; access - call for broader access; price signalling (not clear)); administration

N

Secondary boycotts (support broader exemptions)

Alcohol - regulation appropriate; restrictions limiting competition may be 'justified in interests of public health'

Principles and processes for effective competition policy reform, Access regime (generally supporting PC conclusions and recommendations, but not change to interpretation of criterion (f))

Unconscionable conduct, MMP, unfair contract terms, collective bargaining, codes of conduct, statutory duty of good faith, powers of ACCC, access, agri-terrorism, perishable goods commissioner

Public sector workers compensation schemes - more competition needed; privatisation, competitive neutrality

Need for effective price competition re: fuel, international price discrimination, access for smaller claimants to enforce rights, 'completion of NCP reforms in energy, water and pharmacy markets and the taxi industry', barriers to competition in the financial services sector, opportunities for competition to improve services funded (in whole or part) by government - including health and aged care, remove unnecessary legislative restrictions on competition, consider structural reforms, extend competitive neutrality principles, mechanisms for assisting consumers to make informed choice where there are significant information asymmetries, new federal state agreement to competition policy reform and independent oversight of compliance with reform agreement (inc competitive neutrality), MMP (no effects test)

Aim of competition law (focus should be on fair competition, not solely economic objectives), MMP (effect test), penalties and sanctions (should be strengthened), difficult for small business to enforce rights (response to q 41; claim proportion of actions versus complaints re: s 46 suggests ineffective regulatory system)

Media policy and IP. Notes 'explosion of media diversity' in digital age and submits that existing competition law (together with FIRB rules) is appropriate for assessing media transactions and maintaining media diversity. In relation to IP expresses view that the current balance between IP rights and competition 'has in the most part been struck appropriately'. Notes concern with online copyright infingement and as a result 'reform of this area of the copyright regime – which entails targeted legislative amendments to correct the unintended failings of the current Copyright Act – is long overdue'.

Opportunities for greater competition in health sector, but health outcomes to be first priority - suggest better measurement of outcomes

Market concentration (notes that often 'market concentration is simply the result of underlying economic realities, such as economies of scale or the tyranny of distance' and skeptical of whether competition policy can alter this, but rather should deal with this reality), review should 'recognize that competition policy is about delivering better outcomes for businesses as well as consumers' (but noting that policy should not seek to protect uncompetitive business), unfair contract terms for small business (supports), enforcement (cheaper forum for small business to resolve disputes), international price discrimination (problematic but no obvious solution - consider Canada's response), inconsistent regulatory enforcement and surveillance, planning restrictions and retail competition, electricity (support privatisation; scope for reform to tariff structure and consumer data provision), increased contestability in public transport, user pay models for infrastructure provision

O

Joint submission to Senate Economics References Committee Inquiry into Innovation. Discussion on policy aims unclear (eg, 'Academics are not gamblers. Many just want their research, a cut lunch and a nice banana' (p 4), discussion of Sydney university students and role of NTEU (pp 4-5) - various other complaints about tertiary education and other professions (inc medicine, law))

Notes 'clarity and certainty' important. Discusses power imbalance issues for small business: difficulty in resolving disputes, problem with being subject to same administrative processes as larger business and concern about government procurement practices which can limit ability of small business to compete. Discussion of industry codes.

Preferred provider scheme (PPS) arrangements, online selling of prescription optical appliances, exclusive dealing through TLF

P

'Have your say'
Focus on Coles and Woolworths and other large multinationals; protection of small business from multinationals

Mandatory contracts in government and universities

Patient transport services (competitive neutrality a 'fiction'; state-owned ambulance monopoly)

Intellectual property. Supports ARIA submission. Statutory pricing caps should be removed.

Planning for the future; 'externalities on the built environment must be managed for the public good' - 'unfettered development and competition could negatively impact on broader productivity' - urban planning, zoning an development controls vital.

Policy (competition 'plays crucial role in promoting economic efficiency and enhancing community welfare'; scope for further policy reform that can increase competition; priority areas for competition reform should be identified; expansion of competition in human services)). MMP (changing to include effects test would bring regulatory risks - need to undertake 'thorough analysis of the costs and benefits'); prices oversight (review Part VIIA), IP (legislative framework requires scrutiny). Need to remove unwarranted regulations that impede competition (potential areas for form include pharmacy ownership restrictions, planning and zoning rules, coastal shipping protection, international aviation ownership rules, rail freight services, foreign investment rules, restrictions on professions, 'restrictions on water trading from rural to urban areas', taxi licensing quotas, financial services regulations and policies, trade restrictions and antidumping, parallel import restrictions on books (pp 29-30; page 31 sets out past PC recommendations). Government businesses (support making government business more commercially focussed and opening them up to competitive pressures (p 31)) and competitive neutrality (could be improved)

Brief submission relating to competitive neutrality and caravan parks - opposed to concerns raised by Caravan Park lobby

Q

Insurance - regulatory impediments to competition (overlapping, duplicative, inconsistent) and statutory insurance schemes (government participation and competitive neutrality)

Forthcoming

Strengthen CCA to 'outlaw predatory conduct that has negative effects on competition, value chain suppliers and ultimately consumers' (p 1); MMP (amend s 46 to outlaw predatory conduct), unconscionable conduct (needs to be strengthened), unfair terms (extend to business and further guidance), collective bargaining (claims ineffective; wants collective boycott option), Code of Conduct (wants mandatory code). Discusses impact of supermarket milk price war (several pages). Supports submissions of NFF and Australian Dairy Farmers Ltd.

Supports QDO submission and other submissions from QFF member bodies. Generally 'supports strengthening of Australia’s competition policy so that it gives farmers as both primary producers and as consumers of inputs to their business confidence that a fair market is in operation and that their business operates on a level playing field' (p 2)

R

Misuse of market power (no substantial change - no effects test - repeal Birdsville - remove application of s 4F to s 46)

Alcohol distribution (concern about 'duopoly' pricing), lease arrangements (landlord power), unconscionable conduct (wants clear definition), review websites (wants code of conduct), ACCC (increase capacity to investigate re: unconscionable conduct; improve customer-service focus of ACCC when responding to small business)

Supermarkets and market power. MMP (lack of enforcement; measures to assist complaints, measures to expedite litigation and reduce costs - encourage private litigation; create attempt prohibition similar to s 2 Sherman Act (prohibit conduct having 'likely effect of creating substantial market power'; include divestiture as s 46 remedy), Mergers (expand prohibitions for corporations which have SMP (so that any lessening of competition would be prohibited); regular independent reviews of ACCC merger decisions; simplify or remove formal process; merger authorisations should revert to ACCC at first instance), Reducing red tape (per se tests should be SLC tested for smaller businesses; remove three year renewal period for collective bargaining notification, cost of s 155 notices) increasing private litigation (relief from paying costs of other side if unsuccessful, establishment of 'clearing house' for 'development of capacity and expertise in competition (and other legal) issues within a small business context' - possibly use Small Business and Family Enterprise Ombudsman) (59 pages)

Numbering of Act difficult to follow - should be rectified

Access - Part IIIA (criterion (b) should continue to be a private profitability test (reject PC recommendation); declaration should occur only when access in public interest (criterion (f) - adopt PC recommendation); limitations on Tribunal role should be removed (concern the effect of the 2010 amendments and the HC decision in TPI 'will result in declaration decisions being made without detailed primary evidence and the opportunity to test that evidence'); production process exception to be reinforced

Design rules (differences in design rules 'between Australia and North America unnecessarily raises the cost of imported trailers')

"Have your say"
Large and multinational business too powerful (specific reference to Coles and Woolworths). Claims ACCC 'counterproductive' and 'mouthpiece for the major corporations'. Wants to think about 're-nationalising' some services, including banking.

"Have your say"
Local governments providing services 'should be subject to the same strict legislation' applicable to small business. Liquor licensing fees for small business.

Secondary boycotts (maintain current exemptions for environmental and consumer protection and expand to include 'protection of animal welfare')

Paramedics - concern re: only one employer in each state. Supports private ambulance companies.

S

Government Procurement (governments should be bound to ensure level playing field)

Part X (effective - 'crucial' that it be maintained); increase international competitiveness of exports (reduce Govt charges); retain primary and secondary boycott provisions; repeal price signalling provisions; JV (support current provisions); third line forcing (supports retention)

Core principles ('family is the fundamental group unit of society' and 'standard of living consistent with human dignity is a fundamental right of all Australians'), trading hours (opposed to any further deregulation), penalty rates (appropriate and fair), online retailers (claim uneven playing field - unfair competition re: GST obligations - should pay same tax and duties)

Trading hours (remove remaining regulation); retail tenancy leases (adopt PC recommendation - replace legislation with voluntary code of conduct for shopping centre leases), real estate legislation (exemptions for related entities and large property owners), planning schemes (various recommendations - include endorsing PC's previous recommendations), competitive neutrality (should guide reforms to retail competition through planning systems), unconscionable conduct (no amendments needed), retail tenancy leases (should be excluded from unfair contract terms regulation in business-to-business contracts), mergers (amend s 50 to ensure renewal of lease, and exercise of option in lease to supermarket operator, is not considered acquisition of an asset), repeal s 93AB (collective bargaining notification), joint venture defences (should clarify coverage - inc should make clear they cover oral joint decisions at JV committee meetings), ACCC Commissioner and deputy Commissioner with small business experience (remove requirement - repeal ss 7(3)(b)) and 10(1B))

Telecommunications and NBN - propose 'ex ante regulatory framework ... focusing on operators with Significant Market Power' which would provide regulators with a range of remedies - including access and also retail price controls, non-discrimination obligations and various forms of structural separation. Also suggest strengthening structural remedies (discusses concern re: proposed adoption of multi-technology mix for NBN and greater reliance on Telstra infrastructure), mergers (concern ACCC gives market concentration a higher weighting than other relevant factors; suggest 'merger provisions in the CCA to make clear the ACCC should not unduly place more weight on one consideration')

Claims business allowing slavery in supply chains are engaging in uncompetitive behavior and removing. Various re-framing of TOR around slavery in supply chains

Competitive neutrality critical in energy network industry to 'foster competition in ... new markets'. Competitive neutrality principles should continue to form part of Australia's NCP, governments should be 'required to give transparent explanations of how they are complying' with these principles and should be regularly audited for compliance with these results made public.

"Have your say"
Trading hours (should be 24/7); electricity production, distribution and supply (should be more control to contain price), compulsory parental leave (should not be imposed on small business).

Health sector - 'institutional anti-competitive environment aimed at those who are challenging the specialists' which is 'supported by hospital administrators and health bureaucrats'. Health sector should 'recognise the actual skills of practitioners and not whether or not they are members of a club' - refers to new AHPRA regime as ideal to facilitate this.

Paper: 'Transforming competition policy: Optimization as the primary goal'

Parallel importation (causes consumer and business detriment; if allowed requires 'very significant restrictions')

Forthcoming

Intellectual property - patents (focus on technology standards and patent pools). Patent laws need to evolve to ensure they don't unduly deter competition.

Insurance (Australian insurance market 'competitive and diverse'; govt should minimise market intervention, including 'running government enterprises that compete with the private sector'; should privatise state-owned insurance schemes (other than NDIS and NIIS)

Aviation (reduce protectionist measures, reduce competitive distortions between airports and improve regulatory and operating environment). Air services agreements (little transparency in negotiations - support review of how ASA's negotiated); curfew restrictions and noise sharing regulations restrict competition; onerous airport planning approval requirements; airport regulation (ACCC Monitoring Reports; support price and quality monitoring as long as 'conducted appropriately and serves its policy purpose')

T

Agriculture - Tasmanian focus; significant regulatory costs for farmers; regulatory impediments to competition (freight - coastal shipping; environmental regulations; government as land owner (not a 'good neighbour')); workplace penalties; competitive neutrality; unconscionable conduct and MMP (legislation not adequate); need to educate on competition issues. Notes 'very broad terms of reference mean that the Panel has a huge task ahead of it in giving adequate attention to many and complex issues'. Support NFF submission.

Ensuring efficient regulatory outcomes (inc establish clear deregulation agenda in CCA, ensuring regulators establish clear market failure before intervening 'and requiring periodic assessment of persistent market failure in order to justify continued regulatory intervention', measures to ensure any imposed regulation is proportionate and ensuring 'transparent and regular assessment of regulator's performance against the policy objective of greater economic efficiency' (p 4)). Ensure greater 'regulatory accountability, transparency and predictability' (inc reform merger review regime (current process ok for uncontroversial mergers but not complex mergers), make ACCC decisions under Part XIC subject to merits review, allow for more 'timely and effective review mechanism' for s 155 notices). Establish clear 'principles to guide discussion on any further reform of Part IV' (focus on clarity and predictability in the law and that benefit of any provisions outweighs associated burdens - suggest no further change to s 46, statutory unconscionable conduct or s 51(3) (IP); also consider subjecting third line forcing to competition test and removing Birdsville amendments and price signalling provisions)

Section 46 (notes ACCC more successful in s 46 than is generally thought) - suggest ACCC take more s 46 cases and not settle for inadequate penalties; effects test s 46 (even though purpose has not been difficult to establish, strong arguments exist for effects test and panel should recommend introduction of effects test to be added to existing purpose test); divestiture for s 46 (Panel should consider recommending introduction of divestiture remedy); efficiency of ACCC (notes ACCC budget overspend; top heavy structure; external consultancies etc - suggest need for 'urgent and in-depth review into the size and cost of its senior executives', 'urgent review of its performance pay scheme' and 'review [of] practices in terms of entering into external consultancies', review of way in which litigation is conducted and review of 'tendency to continue pursuing litigation against companies which have gone into liquidation'; cartel laws (notes complexity, insufficient investigatory training for ACCC investigators, lack of experience in executing search warrants); small business (notes problems associated with small business interactions with ACCC - case studies used and summary of problems provided p 26 - recommends Panel consider establishment of Joint Parliamentary Committee to oversee ACCC administration and appoint Associate Commissioner to ACCC to receive and respond to individual complaints and report annually)

Claims many areas of the market 'broken' and discusses 'problems in the application of the theory of competition', claiming also that in 'many markets more competition is not necessarily a good thing' and that competition policy 'should never be treated as a one-size-fits-all policy'. Claims 'the competition arguments often do not apply in Australia'. Discussion of specific industries. Discussion of IP (argues 'patents and similar protections should be would back unless there are compelling reasons in specific instances'; notes technical measures used to facilitate price discrimination (eg region coding);). Discusses education, health and disability care and support (no evidence of lack of sufficient competition where such competition is desirable - it is not always in these markets)

Indemnification (ss 77A and 77B) (may be harsh and unfair and deny access to justice; recommend remove altogether or, at least, permit indemnification in relation to successfully defended claims and give court discretion to overturn prohibition in appropriate cases even where individual liable)

U

Electricity and gas - competition framework and regulatory regime must encourage innovation, 'ensure fit for purpose regulation', 'reduce inefficient regulatory barriers to competition', 'facilitate fair and efficient pricing signals', 'minimise duplication in regulatory regimes', 'provide regulatory predictability'.

Land use restrictions (barriers to competition - highly complex and prescriptive, create local retail monopolies), competitive neutrality and government developers

V

Health - private health insurers (preferred provider schemes, 'lack of transparency around rebates'), corporate vs practitioner responsibility under National Law), de-regulation (excess dentist graduates - should be capped to reflect workforce needs)

Productivity growth stagnated; three general proposals 'based on insights from the telecommunications sector' (regulation in telco sector to be addressed as part of the Vertigan Review). (1) 'Create a high-powered competition policy review and development entity' (competition policy institutions require 'reinvigoration' - the entity should be 'empowered to encourage and implement continued competition policy reform and review'); (2) 'Apply stricter competition laws in certain sectors under a principled-based approach' (eg Part XIB Telco - Part IV should focus more on effects than purpose); (3) increase 'ACCC accountability' and scrutiny for decisions in concentrated sectors.

Section 45DD exemption to secondary boycotts. Endorses joint Greenpeace, Choice, GetUp! and TWS submission.

W

Grocery sector (wants 'fair and level playing field for all participants') Price discrimination (re-instate and add an effects test and a 'firm requirement that the ACCC investigate whenever an allegation of anti-competitive price discrimination is bought [sic] to its attention'.) (At times it is difficult to determine which portions of the document are part of WAIGA's 'submission' and which portions are extracts from other sources - the predominant focus is price discrimination, but there is some discussion of s 46)

Fuel dockets (does not understand why ACCC restricting their use), utilities pricing (claims model is broken - should allow greater access to the grid), energy market (service charges as barrier to entry into energy market and 'lack of requirement for retailers to pay a fair price for power generated by small generators'), negative effect of competition policy (in some cases), 'socio-economic on-costs' index (re: high wages and costs in Australia competing with other manufacturing in other countries without those costs)

Water - steps needed for effective private entry and competition in water are access regimes, licensing regime and market design (68 pages)

Policy (note benefits of scale, endorse international best practice principles of competition policy set out in BCA submission and definition of competition policy in Issues paper; remove import protection/tariffs; remove GST exemption for imported goods less than $1,000; remove pharmaceutical medicines package size limits for supermarkets; remove restrictions on trading hours and remove excessive restrictions in Qld liquor licencing laws; move to national standardisation of licensing of tradespeople and certification of occupations needed, government participation (case by case basis)

Competition laws: market definition (endorses BCA rec's), MMP (repeal Birdsville; no effects test, no general divestiture power); cartels, boycotts (support existing prohibitions); price signalling (whole economy or not at all); price discrimination (oppose re-introduction)

Unfair terms (caution against extending to B2B unless it is clear what is considered fair/unfair)

Code framework (satisfactory; support enforceability of voluntary and mandatory codes)

Supermarkets - discusses advantages of small business outlets; trading hours (oppose further de-regulation); raises various questions re: impact of big supermarket entry into new communities

Does not appear to relate to competition policy (states that it 'doesn’t directly deal with competition policy')

"Have your say"
Planning and zoning - 'ripe for capture by special interests'

'Competition is not a good thing in itself' (has bad effects; fear of losing 'reduces performance'; competition reduces 'empathy and cooperation' and 'community'); 'Competition may be inappropriate'; 'The Hilmer Report is a poor example for of [sic] policy definition' (eg, the 'idea of the public interest as something which was to be balanced against competition refuses the notion that Parliament is the expression of the public interest and that external balancing of Parliament’s will against an alternative policy imperative is to threaten the basis of democracy'; Hilmer Committee was created out of a desire to 'rewrite federalism'); 'National Competition Policy achieved little and cost much'; recommends CPR should 'commission research into competition with respect to its personal, social and cultural aspects as well as its place in economic reasoning' - provided the research is not given to the Productivity Commission which is 'compromised')

Z

Secondary boycotts