Welcome to Australian Competition Law
Latest Competition Law News and Commentary
4 August 2015 - Cabinet to discuss competition changes today
Federal Cabinet is meeting in Adelaide today and is expected to discuss proposed changes following the Harper Report, including the recommendation for the introduction of an effects test for misuse of market power. A couple of items in yesterday's AFR focus on the effects test proposal: see Phillip Coorey and Jacob Greber, 'Prime Minister takes on big business, retailers over tougher competition law' (AFR, 3 August 2015) and an opinion piece from former competition minister, Craig Emerson: 'The Coalition gives in to vested interests competition policy' (AFR, 3 August 2015).
3 August 2015 - Media on Flight Centre and ANZ
Plenty of media on the Flight Centre and ANZ appeal decisions. A couple of standouts - video interview with John Durie discussing the outcomes (John Durie and Eric George, 'ACCC setbacks could set a significant precedent' (Business Spectator, 31 July 2015)) and an item this morning from Jamie Freed (Jamie Freed, 'ACCC loss in Flight Centre, ANZ case clarifies price-fixing rules' (SMH, 3 August 2015) (also published in AFR here)). Also some firm commentary available; see, for example, commentary from Gilbert+Tobin and King & Wood Mallesons.
31 July 2015 - Reasons for judgment in Flight Centre appeal now published
The Federal Court has published its reasons for judgment in Flight Centre Limited v Australian Competition and Consumer Commission  FCAFC 104.
31 July 2015 - Reasons for judgment in ANZ appeal now published
The Federal Court has published its decision in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited  FCAFC 103.
31 July 2015 - ACCC releases statements on Flight Centre and ANZ appeals
The ACCC has issued media releases in relation to its losses in two Federal Court appeal cases today. See ACCC unsuccessful in appeal from judgment dismissing price fixing allegations against ANZ and ACCC unsuccessful in appeal by Flight Centre. In relation to both th ACCC has indicated it will 'carefully consider' the judgments.
31 July 2015 - ACCC loses ANZ appeal
The ACCC has been unsuccessful in its appeal against the decision of Justice Dowsett in ACCC v ANZ Ltd  FCA 1206.
31 July 2015 - Flight Centre wins price-fixing appeal
Flight Centre has won its appeal against Justice Logan's 2013 decision and the ACCC ordered to pay costs. See, for example, John Durie, 'Flight Centre wins price-fixing appeal against ACCC' (The Australian, 31 July 2015)
30 July 2015 - ACCC calls for comment on allegations of cartel conduct in Canberra construction industry
The ACCC has noted it is 'aware of serious allegations ... concerning alleged cartel conduct in the construction industry in Canberra, particularly concreting and scaffolding' and has urged anyone with information to contact the ACCC's cartel immunity hotline. See ACCC media release.
30 July 2015 - Flight Centre decision expected tomorrow
The decision in the Flight Centre appeal is expected tomorrow (scheduled for 9:30am). See also John Durie, 'Full Court set to rule on Flight Centre' (The Australian, 28 July 2015).
29 July 2015 - Proposed remedies for China Eastern/Qantas proposed JV
Jamie Freed has an item in the SMH today, noting remedies offered by China Eastern to ease ACCC concerns over its proposed JV with Qantas have been 'revealed to be seasonal'. See, Jamie Freed, 'China Eastern's proposed ACCC remedies for Qantas JV revealed to be seasonal' (SMH, 29 July 2015). See ACCC authorisation register.
28 July 2015 - Commentary on Foxtel-Ten deal
Plenty of commentary surrounding Foxtel's proposal to acquire up to 15% of Ten Network Holdings. See, for example, Joe Dimasi, 'Sport the crunch point for regulator in Foxtel-Ten deal' (The Conversation, 28 July 2015), Dominic White, 'Murdochs on notice over Foxtel grab for Ten' (AFR, 27 July 2015) and Elysse Morgan, 'Fairfax boss warns Foxtel's Ten play will entrench Murdoch dominance' (ABC News, 28 July 2015). See merger register (provisional date for the ACCC's announcement is 10 September)
26 July 2015 - Commentary on Pfizer litigation
Suiyi Zhang has a comment on Justice Flick's Pfizer decision earlier this year. See Suiqi Zhang, 'Australia’s turn at antitrust pharmaceutical litigation has so far yielded interesting results' (Chillin' Competition blog, 15 July 2015).
24 July 2015 - Telstra competitors demand Communications Dept withdraw submission to ACCC
It has been reported that the Competitive Carriers Coalition has demanded the Dept of Communications withdraw a submission to the ACCC that backs Telstra's efforts to increase the regulated price it charges for access to its fixed copper network. See Mitchell Bingemann, 'Telcos slam department's Telstra defence' (The Australian, 24 July 2015, page 21 (or online version)), Renai LeMay, '"Extraordinary": Telcos slam Turnbull's Dept for backing Telstra over consumers' (Delimiter, 24 July 2015) and Juha Saarinen, 'Telco rivals slam govt intervention in Telstra price decision' (itnews, 23 July 2015). See also Optus submission in response to Department of Communications submission, received and released today.
See also ACCC fixed line services FAD inquiry page, including Further draft decision page (with draft decision and submissions on draft decision). Submissions were invited until 17 July and a final decision is anticipated in September. Submissions were released on the ACCC website on 22 July 2015.
23 July 2015 - ACCC proposes to approve revised NBN/Optus arrangements
The ACCC is proposing to authorise provisions within revised agreements between NBN Co and Optus involving "progressive migration of Optus' HTC subscribers to the new multi-technology NBN ...'. View authorisation register. View draft decision. View press release.
22 July 2015 - ACCC's Jill Walker appointed to NZCC
Current ACCC Commissioner, Dr Jill walker, has been appointed to the New Zealand Commerce Commission for a five year term. The term will commence on 1 December; however, Dr Walker will continue to serve as an ACCC Commissioner until April 2016. View ACCC press release.
17 July 2015 - ACCC proposes to authorise credit reporting system
The ACCC 'proposes to grant authorisation for five years to the Australian Retail Credit Association Ltd (ARCA) in relation to principles for exchanging comprehensive consumer credit data between signatory credit reporting bodies and lenders'. View press release. See draft determination. See authorisation register.
Competition Policy Review (Harper)
Misuse of market power
The decision in CFMEU has cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA. Special leave to appeal to the High Court has been granted.
Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 have led to some uncertainty about the circumstances in which agents may be considered in competition with their principals for purposes of the cartel laws. The appeal decisions in both cases were handed down on 31 July 2015.
Resale Price Maintenance
ACCC takes on Informed Sources
The ACCC has instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45.
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