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Competition law news20 February 2018 - ACCC announces 2018 priorities

In his annual address to CEDA in Sydney today ACCC Chair, Rod Sims, launched the ACCC's 2018 Compliance and Enforcement policy.

This year the focus for the ACCC in relation to competition issues will be:

  • conduct that might contravene the new misuse of market power prohibition
  • conduct that might contravene the new prohibition on concerted practices
  • competition issues in the financial services sector
  • competition issues in the commercial construction sector

In relation to both competition and consumer issues the focus will be

  • competition and consumer isssues concerning 'the use of digital platforms, algorithms and consumer data, with a focus on emerging markets and matters identified by the ACCC's digital platforms inquiry'
  • competition and consumer issues in relation to the provision of energy
  • competition and consumer issues in the agriculture sector

In relation to consumer issues, the priorities will be:

  • systematic consumer guarantee issues
  • consumer issues in broadband services
  • consumer issues in new car retailing
  • ensuring small business receives their industry code and unfair contract term protections (focus on Franchising Code of Conduct)
  • better product safety outcomes for consumers shopping online
  • issues relating ot the Takata airbag recall

The Policy also notes 'enduring priorities', including cartel conduct, anti-competitive agreements and misuse of market power and reiterates its priority factors, including conduct of significant public interest/concern or conduct resulting in substantial consumer or small business detriment.


Plenty of media about the priorities, including:


Laundry20 February 2018 - ACCC appeals Cussons decision

The ACCC has appealed the Federal Court's decision in December last year in which it dismissed the ACCC's claims that PZ Cussons had engaged in cartel conduct in relation to laundry detergents.

ACCC Chairman, Rod Sims, stated that the ACCC believed  'that there was sufficient evidence for the Court to find that Cussons had entered into an understanding' and that the appeal will allow the Full Court to 'consider whether the trial judge should have inferred an understanding involving Cussons based on the uncontested evidence in this case.'

A case management hearing is scheduled before Justice Wigney on Thursday.

See ACCC, 'ACCC appeals Cussons decision' (Media Release, 20 February 2018)

See also Roje Adaimy, 'ACCC appeals cartel case against Cussons' (The Australian, 20 February 2018) and 'ACCC appeals cartel case against Cussons' (9 news, 20 February 2018)


Laundry20 February 2018 - Gilbert + Tobin Competition Law Insights 2018

Gilbert + Tobin have published their 'Competition Law Insights 2018'. The report:

  • explores recent changes to the competition laws
  • examines the ACCC's activity in 2017 (including by providing some useful case studies)
  • predicts what's in store for the year ahead (focussing on merger and cartel activity)

The report provides a neat overview of the Harper reforms and a useful table detailing the new merger processes. It also examines some of the current competition law related inquiries, including those into Australia's financial system and the digital platforms inquiry.

The report can be downloaded from the Gilbert + Tobin website.


18 February 2018 - Sims on ACCC priorities

ACCC Chair, Rod Sims, spoke with Patricia Karvelas for the National Wrap.

View the National Wrap on iView from just past the 4 minute mark to 13:51 - focus on the NBN, gas markets and the Facebook/Google inquiry.


Emirates plane16 February 2018 - ACCC to re-authorise Qantas-Emirates alliance

The ACCC is proposing to re-authorise the Qantas/Emirates alliance for a further five years.

See authorisation register for details.

See also


Jetstar16 February 2018 - ACCC allows Jetstar's Asian brands to coordinate

The ACCC has re-authorised the coordination of Jetstar Asia, Jetstar Pacific and Jetstar Japan.

See ACCC, 'ACCC allows Jetstar's Asian brands to coordinate' (Media Release, 16 February 2018)

See also ACCC authorisation register and Reuters staff, 'Australia consumer watchdog reauthorises coordination of Qantas' Asian tie-ups' (Reuters, 16 February 2018).


15 February 2018 - Criminal cartel proceedings commenced

Criminal cartel charges have been laid against The County Care Group Pty Ltd, its Managing Director and a former employee.

The charges against County Care Group represent the first criminal prosecution of an Australian corporation and the second criminal prosecution of a cartel (the first being NYK) under the criminal cartel provisions of the Competition and Consumer Act.

The charges against County Care Group's Managing Director and a former employee represent the first time individuals have been prosecuted under thse provisions.

The charges are listed for mention in the Victorian Magistrates' Court in Mildura on 14 March 2018.

See ACCC, 'Criminal cartel proceedings commenced against Country Care and its managers' (Media Release, 15 February 2018)

See also Misa Han, 'ACCC launches first criminal cartel case against an Australian company' (AFR, 15 February 2018), Michael DiFabrizio, 'COuntry Care facing charges' (Sunraysia Daily, 16 Feb 2018) and Aisha Dow and Chloe Booker, 'Family business making wheelchairs accused of running criminal cartel' (SMH, 15 February 2018).


Piggy bank7 February 2018 - Productivity Commission issues draft report on Competition in the Australian Financial System

The Productivity Commission has released its draft report on Competition in the Australian Financial System.

The report argues that competition in the financial system 'is without a champion among the existing regulators'. When considering who should promote financial system competition the PC considered two options: (1) the ACCC to have expanded role as proactive competition advocate or (2) that ASIC's focus be expanded to include advancement of competition. Draft recommendation 17.1 states:

'To address gaps in the regulatory architecture related to lack of effective consideration of competitive outcomes in financial markets, an existing regulator must be given a mandate to take the lead on matters related to competition in the financial system. To minimise cost and disruption, this role should be implemented in substantial part through the Council of Financial Regulators (CFR).

There would be no change under this recommendation to the current legislated responsibilities of the regulators. Rather, the Australian Government should include in its Statement of Expectations for all members of the CFR the practice of reviewing, before they are implemented, regulator actions that may have material effects on competition.

The competition-related functions of the designated Council member would include:

  • transparent analysis of competition impacts tabled in advance of measures proposed by regulators
  • testing of the impacts of competition and community outcomes of additional provider integration.'

This is followed by an 'information request', seeking feedback on the merits of each option (ACCC or ASIC as regulator responsible for advancing competition)

Various other draft findings (inculcating that the 'Four Pillars policy is a redundant convention') and recommendations are made in relation to competition in the financial system.

The final report is expected to be completed by 1 July 2018

Plenty of media: Peter Ryan, '"Four pillars" banking policy is "ad hoc" and "redundant", Productivity Commission warns' (ABC News, 7 February 2018), Joanna Mather and James Eyers, 'APRA delivers banks $1b windfall: Productivity Commission' (AFR, 7 February 2018), Jennifer Jennings, 'Productivity Commission call for new competition watchdog' (Daily Telegraph, 7 February 2018), Clancy Yeates, '"Four pillars" policy under fire from Productivity Commission' (The Age, 7 February 2018), Simon Benson, 'Banking's four-pillars policy redundant, claims watchdog' (The Australian, 7 February 2018).


Image of film strip

2 February 2018 - Media mergers and the ACCC's role in merger authorisations

Michael Corrigon and Simon Ellis at Clayton Utz provide some thoughts on the ACCC's new role in merger authorisation and discuss media mergers by reference to the New Zealand High Court's decision in NZME Limited v Fairfax Media Limited [2017] NSHC 3186 (recently appealed) and Australia's new Media Merger Guidelines.

See Michael Corrigan and Simon Ellis, 'What's the big deal? Media mergers and the ACCC's new role in merger authorisations' (Clayton Utz, Knowledge, 1 Feb 2018)


Agreement - shake hands24 January 2018 - Competition Law Symposium

The symposium, Cartels, Optimal Enforcement and Theories in Competition Law, will be held in Brisbane on 27 March 2018. The symposium has been organised by the TC Beirne School of Law at the University of Queensland in memory of the research of former PhD student, Laura Guttuso.

The program, which can be downloaded here, features keynote speakers from around the world.

Various registration options are available. To find out more visit the symposium website.


Corporate handshake16 January 2018 - ACCC merger reviews

The ACCC has initiated a few informal merger reviews to kick of the year.

The first is Cleanaway Waste Management's proposed acquisition of Tox Free Solutions. A market inquiries letter was sent on 11 January and submissions are due 9 Feb, with a provisional announcement date of 29 March 2018.

The second is MYOB's proposed acquisition of Reckon Limited's Practice Management Group; an informal review commenced on 12 January accompanied by a market inquiries letter. Submissions are due by 1 Feb with a provisional announcement date of 22 March 2018. See John Durie, 'ACCC to probe MYOB's Reckon acquisition' (The Australian, 15 January 2018) and Brendon Foye, 'ACCC to investigate MYOB's $180 million acquisition of Reckon' (CRN, 15 January 2018).

Yesterday the ACCC commenced a review of Qube Logistics' completed acquisition of Maritime Container Services Pty Ltd. Qube has provided the ACCC with an undertaking to keep the MCS business separate and independent until at least 14 March 2018. Submissions on a market inquiries letter are due by 1 February. As this is a completed acquisition the ACCC have not provided a provisional announcement date. See John Durie, 'ACCC queries Qube's MCS acquisition' (The Australian, 16 January 2018).


Laundry12 January 2018 - Decision published in ACCC's detergent cartel case

The decision in the ACCC's case against PZ Cussons alleging participation in a laundry detergent cartel was handed down late last year, with Justice Wigney dismissing the ACCC's claim; the reasons for judgment have now been published.

In 2013 the ACCC commenced actions against Colgate, Cussons, Unilever and Woolworths alleging price fixing conduct contrary to s 45 of the Trade Practices Act 1974 as it was at the relevant time. Both Colgate and Woolworths made admissions in 2016 (Unilever was the Immunity applicant) and were ordered to pay penalties totalling $18m and $9m respectively.

Cussons challenged the claims and the hearing commenced 7 June 2016, running over several days. Justice Wigney handed down his decision on 22 December, finding that the ACCC had not discharged its burden of proving, on the balance of probabilities, that the respondent had entered into the claimed arrangement or understanding. The reasons for judgment have now been released and show that Justice Wigney preferred the economic evidence suggesting the conduct resulted from oligopoly behaviour rather than agreement.

View case page for more details.

See also:




Jump from 2017-20189 January 2018 - Criminal cartel cases loom

In an interview with the AFR, ACCC Chairman, Rod Sims, claims 2018 will be a 'big turning point for cartel enforceement', with 'three to four domestic-based criminal cartel actions' expected.

See Patrick Durkin, 'ACCC's criminal cartel cases seek jail time, big fines from companies (AFR, 8 January 2018). See also Glenda Korporaal, 'ACCC to launch criminal cartel cases' (The Australian, 9 January 2018).


19 December 2017 - Supermarket Power in Australia - Public Symposium highlights

A video of highlights from the Melbourne Law School's public symposium, 'Supermarket Power in Australia: Looking Back and Ahead' (27 October 2017) is now available.

The symposium was inspired by a major ARC funded research project being conducted by the University (the Supermarket Power Project) and led by Prof Caron Beaton-Wells.


18 December 2017 - BHP and Esso undertake to separately market gas produced under Gippsland Basin Joint Venture

The ACCC have accepted court enforceable undertakings from BHP Billiton Petroleum (Bass Strait) and Esso Resources Australia to 'separately market their share of gas produced under the Gippsland Basin Joint Venture' from 1 January 2019. 

ACCC Chairman, Rod Sims, said that the 'ACCC was concerned that the joint marketing arrangements were likely to have resulted in a substantial lessening of competition in the market for the supply of gas to buyers in the southern states' and that the ACCC believed 'that competition in this market was negatively affected by the elimination of independent rivalry between BHP and Esso.'

BHP and Esso have, without admission, 'each provided the ACCC with a court enforceable undertaking that requires them to separately market GBJV gas from 1 January 2019 so that buyers will have the benefit of competing and potentially different offers from Esso and BHP in the future.'

See ACCC media release.

View undertakings:

BHP Billiton Petroleum (Bass Strait) Pty Ltd undertaking (18 Dec 2017)

Esso Australia Resources Pty Ltd undertaking (18 Dec 2017)

See also, Matthew Stevens, 'ACCC drives Bass Strait marketing divorce' (AFR, 18 December 2017), 'Victorian gas prices may fall as BHP and Esso split gas sales' (SMH, 18 December 2017), Andrew White, 'Gas deal eases fears over east coast supply' (The Australian, 19 December 2017).


Fuel empty image14 December 2017 - BP to fight ACCC's opposition of proposed acquisition fo Woolworths service stations

In a press release issued by BP following the ACCC announcing its opposition to BP's proposed acquisition of Woolworths service stations, BP Australia President Andy Holmes said:

'We are disappointed by the news today from the ACCC. We remain confident that, with appropriate divestments as offered by BP, this transaction would not substantially lessen competition. In light of this, we are currently consulting with our lawyers to determine our next steps'

See BP media release ('BP to consider ACCC's decision) (14 December 2017).

Media reports suggest that the ACCC's opposition will not be the end of BP's bid for the Woolworths service stations, citing Holmes as saying: 'This deal is very much alive and on foot ... My plan is that we will present our case strongly again ...'


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