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Latest Australian Competition Law News and Commentary
25 August 2016 - ACCC proposes to deny authorisation of real estate advertising collective negotiations
The ACCC has issued a draft determination 'proposing to deny authorisation to Property Media Group Pty Ltd (PMG)' to 'collectively bargain and boycott suppliers of online and print real estate advertising, including realestate.com.au and domain.com.au.' See media release. See authorisation register.
23 August 2016 - Durie: Proposed Harper amendments expected to be released 'some time soon'
In his column today, John Durie notes that Scott Morrison has 'assumed the role as key minister for the ACCC in charge of competition policy matters' and that proposed Harper amendments were back with him 'late last week and will be issued publicly for comment some time soon' with the aim to have the law in parliament 'by year's end'. See John Durie, 'Paul O'Malley's BlueScope in fine form' (The Australian, 23 August 2016).
22 August 2016 - Glance on why the ACCC should not grant the banks' request to collectively bargain with Apple
David Glance, Director of UWA Centre for Software Practice, provides his take on why granting the banks authorisation to collectively negotiate with Apple would not be in the consumers' interests. See David Glance, 'Why the ACCC siding with the banks against Apple will not be in consumers' interests' (The Conversation, 22 August 2016).
19 August 2016 - Banks denied interim authorisation to collectively bargain with Apple
The ACCC has denied the application by several banks for interim authorisation to collectively bargain with Apple. The ACCC will continue to assess the applications for authorisation. A draft decision is expected in October with a decision to follow within six months of the original application (made on 26 July 2016).
In its decision denying interim authorisation the ACCC briefly noted that, after considering factors relevant to granting interim authorisation (set out in its decision) it was not appropriate to grant interim authorisation at this time. In particular, the ACCC noted that 'the applications raise complex issues for consideration' which require further market consultation, with the result that at this time 'the ACCC does not have sufficient information to form a view on the likely public benefits and public detriments of the proposed conduct or the possible harm to consumers.'
The ACCC further noted that it did not 'see compelling reasons to support the urgency of the application' and expressed concern that 'the proposed conduct has the potential for continuing impacts on competition, even if any arrangements reached are later unwound.'
16 August 2016 - KWM on the new Access Undertakings Guidelines
KWM's Elouise Davis has an item on the ACCC's new Part IIIA Access Undertaking Guidelines. See Elouise Davis, ACCC Publishes Part IIIA Access Undertakigns Guidelines' (In Competition, 16 August 2016).
11 August 2016 - ACCC releases guidelines for Part IIIA Access undertakings and for Part XIC declaration provisions
The ACCC has released two new guidelines today. The first is the Part IIIA Access Undertaking Guidelines. The release of these followed a four week public consultation period on a draft in May-June 2016. The second is the ACCC's Guideline for Part XIC Declaration Provisions for Telecommunications Services. These update the previous 1999 Guidelines and reflect changes to legislation - they also follow a consultation period in June-July this year.
11 August 2016 - ACCC will not oppose proposals for Port of Melbourne Lease
The ACCC has announced it will not oppose two separate proposals to acquire the 50 year lease of the Port of Melbourne. See media release. See merger register for IFM, APF and MIRA consortium proposed acquisition and merger register for QIC, GIP and Borealis consortium proposed acquisition.
11 August 2016 - ACCC will not oppose JB Hi-Fi's proposed acquisition of the Good Guys
10 August 2016 - Apple versus the banks: Apple responds
Late last month several Australian banks (CBA, NAB, Westpac, Bendigo and Adelaide Bank) asked the ACCC for permission to collectively negotiate with Apple to get their digital wallets onto iPhones. Apple has recently responded with its own submission to the ACCC's review.
The submission notes that Apple will provide a 'separate and comprehensive submission' at a later date, but makes a number of key points, urging ACCC to reject the banks' application for interim authorisation. Apple claims that the banks seeking authorisation view Apple Pay as a 'competitive threat' and that this is based on their 'limited understanding of the offering' and a desire to 'maintain complete control over their customers' and that the application represents a tactic to 'blunt Apple's entry into the Australian market'.
The submission then notes that a collective boycott is a 'hard-core breach' of the Act and would 'slow innovation and reduce choice'. Apple suggests there are no public interest justifications supporting the application. In particular, it argues that giving the banks simple access to its NFC antenna would 'fundamentally diminish the high level of security Apple aims to have' on its devices. It suggests interim authorisation would be inappropriate in the circumstances and the normal six month statutory assessment period should apply.
See, James Eyers, 'Apple says Australia's banks pose a security threat to iPhones' (AFR, 10 August 2016) and Angus Kidman, 'The war over access to Apple Pay and NFC looks set to run and run' (Finder,com.au). See ACCC authorisation register, including Apples submissions and submissions by other interested parties.
5 August 2016 - Sims' update on ACCC activities
ACCC Chairman, Rod Sims, has delivered a speech at the Law Council's Competition and Consumer Workshop, providing an update on the ACCC's court actions, mergers and market studies. See media release, 'ACCC Chairman reports on key court actions, mergers and market studies' and speech(Chairman's address to the Law Council Workshop).
5 August 2016 - Woolley argues Sims was wrong to go cold on privatisation
Infrastructure Australia board member, Kerry Schott, has argued that ACCC Chairman, Rod Sims, rather thatn criticising privatisations, should be selling their economic benefits. See Mark Ludlow, 'Rod Sims wrong to go cold on privatisations' (AFR, 5 August 2016). See also ACCC, 'Privatisation needs smarter regulation' (Media release, 4 August 2016).
5 August 2016 - Peter Anderson on monopolists and exploiters
Speaking at the Law Council workshop, former head of the ACCI and Harper Review panel member, Peter Anderson, has blamed business for lack of progress in market-opening reforms - see Ben Potter, 'Ex-ACCI chief slams monopolists and exploiters' (AFR, 4 August 2016).
4 August 2016 - ACCC to undertake market study of communications sector
The ACCC has announced that its next market study will focus on the communications sector. See media release. See communications sector market studies page. See also Max Mason, 'ACCC to undertake major telecommunications study' (AFR, 4 August 2016) and Supratim Adhikari, 'Watchdog looks to the post-NBN telecoms future' (The Australian, 5 August 2016).
4 August 2016 - ACCC releases SOI on proposed acquisition of Sunday Times and Perthnow by Seven West Media
The ACCC today released a Statement of Issues on the proposed acquisition of The Sunday Times and perthnow.com.au by West Australian Newspapers (wholly owned subsidiary of Seven West Media). The ACCC is investigating the impact on readers and advertisers. See ACCC Media Release - ACCC invites feedback on Seven West Media’s proposed acquisition of The Sunday Times and Perthnow and the ACCC Merger Register.
2 August 2016 - Sea Swift reasons available
The Tribunal's reasons for their authorisation decision in Sea Swift are now available (all 110 pages) on AustLII or Jade. See also Tribunal authorisation page for all relevant non-confidential documentation.
1 August 2016 - High Court transcript in Flight Centre
Competition Policy Review (Harper)
The first major review of competition policy in Australia was conducted in 2014-2015 with the final report released on 31 March 2015. The Government has accepted many of the recommendations and draft legislation is expected later in 2016.
Misuse of market power
Always topical, the issue of misuse of market power featured prominently in the Harper Review, with the Panel recommending introduction of an effects test. In March 2016 the Government announced that it would introduce an effects test consistent with the Harper Panel's recommendation.
First criminal cartel case
On 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.
Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 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. The ACCC has been granted special leave to appeal the Flight Centre decision to the High Court.
Resale Price Maintenance
The decision in CFMEU cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA; on 9 December 2015 the High Court overturned this decision with the result that parties may continue to negotiate and submit agreed penalties to the Court.
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,