The BCA made a 167 page submission (but usefully it provides a summary report comprising a more modest 35 pages). It made several key points (explained in more detail from page 4):

• 'Robust competition grows the economy'
• 'Global markets have changed our competitive environment'
• 'Poor application of regulation has a serious impact'
• 'Competition law must adapt to a changed economic environment'
• 'Review recommendations should boost competition across the economy'
• 'Competition policy review is one part of a strategic reform agenda'

The remainder of its submission was divided into six parts:

The submissions discusses issues and opportunities, noting that, at present, 'Australia's competitiveness is lagging behind other countries' and recommending that the review 'develop its framework for competition policy with the new competitive global and technological landscape in mind'. The implications on the new competitive landscape are stated as follows:

• 'Competition remains paramount to economic progress'
• 'Long-term interest of consumers remains a sound objective' (but noting that over the long term consumer interests will not always be served by the 'simplistic measures of the lowest prices' or 'number of players'
• 'Government must look at markets through a global lens'
• 'Time is everything' (focus on timeliness and consistency of regulatory decisions and approvals)
• 'Regulation may not keep pace'

The BCA recommends that:

'1. The panel should design a competition policy framework that reflects a global mindset by promoting flexibility, innovation and productivity in the national interest of enhancing Australia’s competitiveness.

2. The Competition and Consumer Act (CCA) should be amended to clarify that in any competition assessment, the global dimension of markets must be taken into account, and dynamic competitive effects in markets are to be preferred over static measures such as historical concentration.'

The submission notes that there remain a range of policies that create barriers to competition and that they should be removed - the BCA broadly groups these as follows:

• 'Permits, licences, approvals and other regulations that restrict business growth'
• 'Regulations that limit the ability to compete' (eg, trading hours)
• 'Regulation that restricts ease of movement of resources across state markets'
• 'Regulation and policies that restrict the ease and speed of meeting growing export markets' (eg, coastal shipping regulation)
• 'Delays to regulatory approvals' (eg, planning and zoning)

The BCA makes several recommendations relating to removal of these barriers - many are specific to particular types of regulation and some more general (eg, National Competition Policy principles should continue to be applied and all governments should have robust Regulatory Impact statement processes testing new proposals against competition principles).

The BCA also addresses extension of competition to public sector markets, noting there remain 'considerable opportunities to expose government activities and organisations to greater competition so as to generate better outcomes for consumers, users of subsidised services, and for taxpayers'. Recommendations 12-18 address this issue; in particular, it is recommended (rec 18) that the Productivity Commission:

'be given inquiries that separately look at each of the main areas of state and territory service delivery (education and early childhood; health and human services; justice and transport) to examine the potential to increase competitive provision, drawing on the lessons from Australian and international jurisdictions that have already implemented such models'

Notes that despite a strong competition framework, 'aspects of the competition framework impose unnecessary costs and delays by requiring compliance with overly prescriptive regulations, discouraging vigorous competition due to uncertainties in the law, and potentially hindering the efficient use of capital by adopting an overly narrow approach to mergers.' Recommends Australia's competition law be aligned with the following international best-practice principles (see also rec 19):

(I) long-term consumer welfare should be the overriding goal
(II) aim to protect the competitive process, rather than individual competitors
(III) be consistent with best practice competition law
(IV) minimise use of ‘per se’ prohibitions
(V) focus law economy wide, not sector specific
(VI) aim for simplicity to reduce compliance costs
(VII) don’t unduly impede legitimate business interactions.

In relation to existing or proposed provisions:

• Market definition and competitive effects analysis
  (approach to market definition at times unduly narrow and focussed too much on 'concentration rather than the dynamics of competition' and, particularly in merger assessment, this approach can 'fail to take into account the impact of new and innovative small entrants or technology that has lowered barriers to entry')
• Formal merger process
  (Availability of formal process desirable, but current option is 'unduly complicated by strict technical formal requirements' which are 'onerous and inflexible')
• Mergers - creeping acquisitions (rec 26)
  Section 50 should not be extended to address creeping acquisitions or impose market caps
• Predatory pricing (rec 25)
  (Australia has moved away from global practice - Birdsville amendment should be repealed)
• Price signalling (rec 25)
  (Current prohibitions 'long, complex and inconsistent with international best practice' - should be repealed)
• Per se prohibitions
  (RPM and third line forcing should be subject to competition test (rec 25); per se prohibition against 'cartels and exclusionary provisions should be clarified to ensure that they apply only to horizontal arrangements between competitors, and the joint venture exemption should be extended to apply both to non-contractual arrangements and to joint ventures other than for the supply of goods or services' (rec 21); s 45 prohibition against exclusionary provisions defined in s 4D should be repealed (rec 25))
• National access regime (rec's 23-24)
  (Should be used sparingly; currently it can 'create significant regulatory risk for greenfields investment' by 'exposing investors to the possibility of a lengthy and costly declaration process and the risk of access arrangements that materially impact on return on investment' - regulatory costs and risks should be reduced)
• Misuse of market power (rec 26)
  (No need for effects test)
• Public benefit defence (rec 22)
  A public benefit defence should be adopted to reduce reliance on authorisation and notification processes
• Other (rec 26)
  The following changes should not be made: removing related bodies corporate exemption from third line forcing, providing structural remedies (divestiture) beyond mergers, giving ACCC 'cease and desist' power, increasing maximum penalties, changing private profitability test for declaration under Part IIIA.

Australia unusual in combining three regulatory functions in one body - competition, consumer protection and pricing and access regulation of monopoly infrastructure. Panel should consider 'merits of creating a separate national pricing and access regulatory body in Australia'. Suggest regulator performance needs to be improved in relation to expectations and oversight, clarification of policy roles (not appropriate for regulator to have 'general power to initiate its own formal market studies'), timeliness (focus on mergers), use of compulsory investigatory notices (note increase in last year - concern about scope, purpose and intent), transparency (focus on mergers - no access to or opportunity to respond to, the record before decision) and use of media (notes Dawson recommendation for media code of conduct has not been implemented)

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' - cannot be a Commonwealth-only responsibility (see recommendations 32-35)

Full list of recommendations provided from page 28-33 (total of 35 recommendations)

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