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Easter eggs

7 June 2018 - Plenty to talk about in Australian Competition Law

There's been plenty happening in competition law in Australia in the last six months.

Here's a quick six month recap:

It's all happening in Australian Competition Law (6 June 2018)


Bankc criminal charges expectedDeutsche Bank photo by FynnWu [CC0], from pixabay; ANZ photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons; Citigroup photo by Beyond My Ken [GFDL or CC BY-SA 4.0], from Wikimedia Commons.

5 June 2018 - Cartel charges laid

As anticipated, criminal cartel charges have now been laid. The ACCC's press release states:

Citigroup Global Markets Australia Pty Limited (Citigroup), Deutsche Bank Aktiengesellschaft (Deutsche Bank) and Australia and New Zealand Banking Group Ltd (ANZ) have been charged with criminal cartel offences following an investigation by the ACCC.

Criminal charges have also been laid against several senior executives: John McLean, Itay Tuchman and Stephen Roberts of Citigroup; Michael Ormaechea and Michael Richardson formerly of Deutsche Bank; and Rick Moscati of ANZ.

The charges involve alleged cartel arrangements relating to trading in ANZ shares held by Deutsche Bank and Citigroup. ANZ and each of the individuals are alleged to have been knowingly concerned in some or all of the alleged conduct. The cartel conduct is alleged to have taken place following an ANZ institutional share placement in August 2015.

The matter is listed in before the Downing Centre Local Court (Sydney) on 3 July.



4 June 2018 - Unlockd sues Google

Unlockd is suing Google alleging anticompetitive and unconscionable behaviour involving threats to block its app. Justice Moshinsky last week issued a temporary order stopping Google from blocking Unblockd ! (what a sentence!)

For more see Misa Han, 'Unlockd will 'cease to exist' if Google blocks the app' (AFR, 3 June 2018) and Cat Fredenburgh 'Unlockd wins bid to stop Google blocking app in Australia' (Lawyerly, 31 May 2018)


Bank criminal charges expected

4 June 2018 - Media on expected criminal cartel case

There has been plenty of media since the ACCC announced on Friday that charges were expected to be laid against the ANZ, Deutsche Bank, Citibank, ANZ Group Treasurer Rick Moscati and other individuals.

See, for example:


AFR and other Fairfax Media

The Australian

Other sources


Bank criminal charges expected
Deutsche Bank photo by FynnWu [CC0], from pixabay; ANZ photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons; Citigroup photo by Beyond My Ken [GFDL or CC BY-SA 4.0], from Wikimedia Commons.

1 June 2018 - Criminal cartel charges expected to be laid against Deutsche Bank and Citigroup

The ACCC has announced that Deutsche Bank and Citibank are the two other companies expected to be charged for cartel conduct, along with the ANZ and ANZ Group Treasurer Rick Moscati. The ACCC has also indicated charges are expected to be laid against a number of other individuals.

View ACCC media release re: Deutsche Bank.

View ACCC media release re: Citigroup.

See also Angus Whitley, 'Deutsche Bank, Citigroup, ANZ Face Cartel Charges on Share Sale' (Bloomberg, 1 June 2018), Simon Thomsen, 'Deutsche Bank and Citibank are also facing criminal cartel charges in the ANZ shares case' (Business Insider Australia, 1 June 2018), Reuters Staff, 'Deutsche Bank says it will defend itself against cartel charges in Australia' (Reuters, 1 June 2018), David Simmons, 'More banks facing criminal charges in relation to ANZ cartel investigation' (Business News Australia, 1 June 2018), Richard Gluyas, 'It just gets worse for banks, as ANZ faces criminal cartel charges' (The Australian, 1 June 2018).

On possible immunity:


ANZ Bank
By Pear285 [CC BY-SA 4.0], from Wikimedia Commons

1 June 2018 - Criminal charges expected to be laid against ANZ

The ACCC has announced that 'that criminal cartel charges are expected to be laid by the Commonwealth Director of Public Prosecutions (CDPP) against ANZ, ANZ Group Treasurer Rick Moscati, two other companies and a number of other individuals.' 

The expected charges follow an investigation by the ACCC. They will involve alleged cartel arrangements relating to trading in ANZ shares.

The ACCC's media release follows an announcement by the ANZ to ASX in which it states that it was advised yesterday that the CDPP intends to commence cartel proceedings against the bank.

View ACCC media release.

See ANZ announcement to ASX.

See also James Eyers, 'ANZ hit with criminal cartel charges' (AFR, 1 June 2018), 'ANZ facing legal action over alleged cartel conduct' (The Australian, 1 June 2018), Clancy Yeates, 'ANZ Bank facing cartel prosecution' (SMH, 1 June 2018) and Stuart Condie, 'ANZ bank facing criminal cartel charges over $2.5 billion share placement' (Perth Now, 1 June 2018).


Pfizer appeal

25 May 2018 - ACCC loses Pfizer appeal

After almost two and a half years, the Full Court of the Federal Court has dismissed the ACCC's appeal against the trial judgment in relation to Pfizer. The ACCC had alleged misuse of market power and exclusive dealing. The ACCC is 'carefully considering the judgment'.

The ACCC originally instituted proceedings in February 2014 and decided on 25 February 2015. The appeal was heard in November 2015.

View ACCC media release.

The reasons for decision (approx 200 pages) are now available here.

View my case page.

See also Christine Caulfield, 'ACCC loses appeal in Pfizer misuse of market power case' (Lawyerly, 25 May 2018), Misa Han, 'ACCC loses competition law case against Pfizer again' (AFR, 25 May 2018) and Reuters, 'ACCC loses appeal against Pfizer over Lipitor sales' (SMH, 25 May 2018).


Image of tyres

24 May 2018 - ACCC re-authorises Tyre Stewardship Scheme

The ACCC has authorised Tyre Stewardship Australia to continue its Tyre Stewardship Scheme. The scheme is 'designed to increase the recycling of tyres and use of products made from recycled tyres'.

The authorisation follows a draft determination proposing to re-authorise in April this year.

View ACCC media release.

View authorisation register.


Toll road Sydney

17 May 2018 - ACCC issues statement of issues in relation to proposed Transurban/WestConnex deal

The ACCC today issued a statement of issues setting our preliminary concerns about Sydney Transport Partners' (consortium led by Transurban) proposed acquisition of a majority interest in the WestConnex project.

View ACCC media release.

View merger register.

See also Mark Ludlow, 'ACCC raises red flag on Transurban's bid for WestConnex' (AFR, 17 May 2018), Matt O'Sullivan, 'ACCC fears Transurban will gain too much advantage from WestConnex buy' (SMH, 17 May 2018), Chanticleer, 'ACCC draws line in the road for Transburban' (AFR, 17 May 2018), Samantha Bailey, 'ACCC flags competition concerns over Transurban taking stake in WestConnex' (17 May 2018).


Appeal - Yazaki

16 May 2018 - Highest cartel penalty in Australian history imposed on Yazaki: $46m

The Full Federal Court today handed down its decision in the ACCC's appeal against Yazaki's $9.5m penalty for cartel conduct. The Full Federal Court allowed the appeal in part and increased penalties to $46m, the highest ever imposed in Australia for cartel conduct (or indeed for any contravention of the Competition and Consumer Act).

Part of the explanation for the increased penalty was that the Full Court found that the maximum penalty for each contravention was $18m, not $10m, based on 'the proper construction of s 76(5)' of the Act (defining annual turnover for purposes of the calculation of penalty) and because the Full Court held that the penalties should not be limited to two 'courses of conduct' but instead should be imposed on five separate contraventions.

The judgment can be found here, accompanied by a summary judgment.

Plenty of media: Misa Han, 'Japanese car parts supplier Yazaki gets record fine for cartel' (AFR, 16 May 2018), Nick Toscano, ''Huge step': Australian companies on notice after massive fine' (SMH, 16 May 2018). See also ACCC media release.

More details to follow on my case page.


Digital media platforms

11 May 2018 - ACCC releases new batch of submissions to digital platforms inquiry

The ACCC has published a new batch of submissions in response to the Issues Paper for the Digital Platforms Inquiry.

The new submissions are largely from individuals (David Nebe, Karl Goiser, Margaret Simons (A/Prof, School of Media, FIlm and Journalism, Monash University), Simon M, Teresa K and Tony Healy ), with a revised submission from the SBS and a submission from MediaScope also published today:

Consumer Questionnarire Responses have also been published

New submissions can be viewed here.



11 May 2018 - Capped prices for dental services authorised

The ACCC has authorised HCF to set capped prices for dental services - this follows a draft authorisation in March.

View ACCC media release. View


Carnival cruise ship

10 May 2018 - Conditional approval for Port of Brisbane, Carnival

The ACCC has granted conditional authorisation for an agreement between Port of Brisbane and Carnival to develop a $158m cruise terminal. This follows a draft determination in March. ACCC, Roger Featherston:

'While we understand the important benefits a dedicated cruise ship terminal would bring to Brisbane, we have concerns that parts of the agreement between the Port of Brisbane and Carnival would limit consumer choice and entrench Carnival as the dominant cruise operator in Brisbane for 15 years. That’s why we have approved this agreement with two conditions'

The first condition restricts the days Carnival can book the terminal (no more than two of three 'weekend' days) and the second is that ' if the terminal is expanded in the future to provide a second berth, Carnival cannot be given first right of refusal for an agreement which would give it first choice of days at that berth.'

View ACCC media release. View authorisation register.


Data access

10 May 2018 - ACCC new consumer data right

The ACCC has welcomed the 'introduction of a general data right for all consumers and $20 million in the Federal Budget over the next four years to oversee its implementation', which Chairman Rod Sims labeled 'fundamental competition and consumer reform'.

The first sector designated is the banking sector, with the consumer data right coming in response to the Open Banking Review.

The ACCC is establishing a dedicated 'Access to Data Unit' to undertake these new functions and will work closely with the Office of the Australian Information Commissioner, Data Standards Body and industry in relation to implementation of the consumer data right.

See ACCC media release (9 May) and Australian Government, 'Consumer Data Right' (Treasury, 9 May 2018)

See also: Joseph Brookes, 'New Consumer Data Right Funding Set To Fuel Open Banking' (Which-50, 10 May 2018), Nadia Cameron, 'Budget 2018: Government set to shake-up consumer data rights with $44.6m investment' (CMO, 9 May 2018), Supratim Adhikari, 'Banks welcome phased launch of open banking' (The Australian, 10 May 2018), Dorinne Reichert, 'Budget 2018: Funding Australia's data-sharing framework' (ZDNet, 8 May 2018), Denham Sadler, 'Gov't backs open banking framework' (InnovationAus.com, 10 May 2018), Patrick Gunning, Hannah Glass and Smriti Arora, 'Consumer Data Right to be introduced in Australia in 2018' (KWM, 17 November 2017)


Financial sheets - graphs

9 May 2018 - ACCC budget boost

The ACCC's funding for 2018-2019 is $261 million, up from $243 million for 2017-2018, incluidng increased staff levels (from 868-909). Performance targets for number of competition enforcement interventions reduced from 8 to 6 (page 86 Budget Portfolio Statement) and target of mergers finalised by pre-assessment remains at 80%.

See ACCC Budget Portfolio statement.

See also Budget Paper No 4 on Agency Resourceing 2018-19.


Satellite dish

8 May 2018 - Fisse on cartels

On Saturday Christopher Hodgekiss hosted his annual Competition Law Conference in Sydney, with its usual high caliber line-up.

Brent Fisse has now published his (slightly updated) paper from the conference - 'Australian Cartel Law: Biopsies'. The extensive paper discusses the state of Australian cartel law post-Harper. Fisse claims that post-Harper 'some patients remain in the wards' and that some 'detailed treatment plans may be called for'. The paper includes discussion of the concepts of 'arrangement an understanding', the ongoing issue of 'purpose' in s 45AD, cartel exemptions and some aspects of liability and sanctions (all discussed in this paper).

The associated PowerPoint as well as many more publications by Brent can be found on his website.


Satellite dish

3 May 2018 - ACCC will not oppose Seven and Nine's proposed acquisition of Network Ten's stake in TX Australia

The ACCC has announced it will not oppose Seven and Nine acquiring Ten's stake in TX Australia (TXA), which provides transmission services in major capital cities.

ACCC Chairman, Rod Sims, said of the decision:

The ACCC has carefully analysed the potential of this proposed acquisition to disrupt Ten’s access to transmission services and affect competition for television content or advertising.

After consulting industry players, we consider that Broadcast Australia, which currently provides transmission services to the ABC and SBS, is a viable alternative provider of transmission services for Ten. We therefore consider it unlikely that the acquisition would substantially lessen competition in the content or advertising markets.

View media release.

View merger register.

For related proceedings, see Max Mason, 'Court rules Network Ten sell TX Australia stake for $1' (AFR, 1 May 2018)


Digital media platforms

3 May 2018 - ACCC publishes Digital Inquiry submissions

The ACCC has now published public versions of submissions made in response to the Issues Paper released as part of the Digital Platforms Inquiry - 57 in total.

Submissions can be viewed here.

Plenty of media emerging. See, eg, Darren Davidson, 'Industry response to digital inquiry' (The Australian, 3 May 2018), Max Mason, 'Google, Facebook distorting advertising markets, ACCC told' (AFR, 3 May 2018), Jennifer Duke, 'News Corp slams digital giants for 'rapid spread of misinformation'' (SMH, 3 May 2018).


Digital media platforms

2 May 2018 - ACCC to publish Digital Inquiry submissions tomorrow

The ACCC will publish submissions made in response to the Issues Paper for the Digital Platforms Inquiry tomorrow.

See, eg, Darren Davidson, 'ACCC to reveal submissions into Google and Facebook' (The Australian, 2 May 2018).


Image of dairy cow

30 April 2018 - ACCC releases final dairy report

The ACCC has released the final report arising from the dairy inquiry, including recommendations for a mandatory code of conduct to address problems associated with the imbalance in bargaining power between dairy farmers and processors.

ACCC Commissioner, Mick Keogh, also noted that the report also found 'no direct relationship between retail private label milk prices and farmgate prices' and that increasing supermarket pricing of private label milk would be unlikely to increase farmgate prices 'unless farmers have improved bargaining power in their negotiations with processors'.

View media release.

View Final Report on dairy inquiry home page.

View 'Dairy inquiry - farmers' guide to the final report'.


Image of tyres

27 April 2018 - ACCC proposes to re-authorise Tyre Stewardship Scheme

The ACCC has announced that it is 'proposing to grant authorisation for Tyre Stewardship Australia (TSA) to continue its revised Tyre Stewardship Scheme for a further six years.'

The scheme aims to increase the recycling of tyres and the use of recycled tyre products.

ACCC Commissioner, Roger Featherston, noted that the ACCC believes:

... the scheme is likely to result in a public benefit by reducing the number of tyres disposed of in landfill, illegally dumped, or exported overseas to be burned unsustainably for fuel ...'

View media release.

View authorisation register.


Rubbish truck

26 April 2018 - ACCC does not oppose proposed acquisition of Tox by Cleanaway

The ACCC has announced that it will not oppose the proposed acquisition of Tox Free Solutions Ltd by Cleanaway Waste Management Limited. While noting it was a 'complex matter' with a mix of views on competitive impact, the ACCC concluded that the merger was unlikely to substantially lessen competition.

According to ACCC Commissioner Roger Featherston:

Although there may be a lessening of competition in some waste streams, such as hazardous waste collection and processing, and used lubricating oil collection, we considered that, in this case, the proposed acquisition is unlikely to meet the threshold of a substantial lessening of competition ...

We concluded that the threat of customers switching to competitors would constrain Cleanaway from increasing prices or decreasing service levels to a significant extent in any waste stream or geographic area.

View media release.

View merger register.


Tech images

23 April 2018 - Digital Platforms Inquiry submissions filtering out

There's plenty of media today relating to the ACCC's Digital Platforms Inquiry following the release of a number of submissions (not yet on the ACCC Inquiry page).

Public submissions include:

(related blog: Hason Pellegrino, 'Consumers will determine the future of news' (23 April 2018))

Free TV
(related media release: 'Free TV calls for ACCC oversight of Facebook and Google (20 April 2018))

MEAA (Media, Entertainment and Arts Alliance)
(related media release: MEAA submission to the ACCC inquiry into digital platforms (10 April 2018))

No doubt there are more I've missed; I will add links to submissions as I find them on my Digital Platforms Inquiry page.

For media see, for example:


Increase penalties target

23 April 2018 - Sims on penalties

ACCC Chairman, Rod Sims, is talking penalties again in the context of investigating competition in the financial system, arguing for penalties in hundreds of millions of dollars.

See Richard Gluyas, 'ACCC plan for fines worth hundreds of millions of dollars' (The Australian, 23 April 2018).

See also 'Australia needs tougher penalties for banks, financial institutions, ACCC says' (RN Breakfast, ABC, 23 April 2018) (includes audio download) and AAP, 'ACCC boss backs massive fines for banks' (9 News, 23 April 2018).


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Images copyright: Images in the Hot Topic section (left column): male runner on starting blocks courtesy of stockimages at FreeDigitalPhotos.net; gas pump filling nozzles courtesy of Rawich at FreeDigitalPhotos.net and price magnifier definition means promotions and savings courtesy of Stuart Miles at FreeDigitalPhotos.net.(right column): business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; vacations computer key courtesy of Stuart Miles (Image ID: 10091676) at FreeDigitalPhotos.net; handshaking courtesy of Photokanok at FreeDigitalPhotos.net.


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