Welcome to Australian Competition Law
This site is designed to provide resources relating to Australia's competition laws. In addition to the key sections highlighted above, it includes a blog, links to legislative history, information about relevant guidelines, expert and judicial profiles, a chronology of Australian competition law, key links to further resources and more. For comments, suggestions or notification of dead links please contact Julie Clarke
Latest Competition Law
News and Commentary
12 March 2014 - John Durie: Ian Harper tipped to head root and branch review
In yesterday's Australian John Durie reported that Prof Ian Harper, partner at Deloitte Access Economics, is expected to be named head of the 'root and branch' competition review (see also today's Australian)
11 March 2014 - Declaration of anticompetitive conduct by Cement Australia
The Federal Court has made declarations in ACCC v Cement Australia. These declarations follow interim declarations made on 10 September 2013. Justice Greenwood found that the respondents' conduct 'had the purpose and effect of preventing a competitor from entering the market by obtaining direct access to a source of flyash in South East Queensland' and, as a result, having the purpose and effect of substantially lessening competition.' View ACCC press release. View Federal Court decision.
8 March 2014 - Xenophon's Misuse of Market Power Bill
On Thursday Senator Nick Xenophon moved the introduction of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2014. While the bill has no prospect of passage, if it did pass it would give the Court power to direct a corporation found guilty of a s 46 breach to reduce its market share. It is squarely directed at supermarkets. Senator Xenophon's second reading speech claims:
The need for the measures in this Bill is painfully obvious. The amount of power that Woolworth and Coles have over our food industry is genuinely frightening, with the two chains holding around 80% of the dry grocery market. They are the one s who decide whether to stock local or overseas products for a massive part of the market
8 March 2014 - Commentary on root and branch review
There is an item in today's Austrlaian by David Crowe and Lauren Wilson (Economic gurus issue MPs with call to arms on reform) - but still no clues on when we're likely to see the final terms of reference.
8 March 2014 - New AJCCL out
The latest issue of the Australian Journal of Competition and Consumer Law (vol 22 part 1) is out now. It includes the following articles and notes of interest:
- Dave Poddar and Angela Flannery, 'The far side of the Pilbara: The Porductivity Commission on the wrong track?'
- Justin Lipinski, 'Blurring the bright line? Third line forcing revisited'
- Amanda Richman, 'Authorisations and Notifications: Price setting and collective bargaining arrangements for professionals - in what circumstances will they be authorised?'
- Michael Ferguson and Scott Meacock, 'Enforcements and Remedies: Cartel conduct: A survey of the ACCC's enforcement activity'
- Rob Nicholls, 'Telecommunications: Structural separation, interconnection and access'
- Paul McLachlan, 'Not all benefits are services: ACCC v ANZ Banking Group Ltd'
- Rodrigo Morales-Elcoro, 'Report from Latin America: Recent experiences of Antitrust Reform and performance: Mexico, Chile and Brazil'
6 March 2014 - ACCC authorises Clubs Australia to collectively bargain with suppliers
6 March 2014 - ACCC proposes to allow collective bargaining by coal producers
6 March 2014 - ACCC will not oppose proposed acquisition of OneSteel Sheet and Coil by Bluescope
The ACCC has announced it 'will not oppose the proposed acquisition of the OneSteel Sheet and Coil business from Arrium Limited by BlueScope Steel Limited after accepting an undertaking from BlueScope to sell its sheet and coil processing assets in Western Australia.' View press release. View merger register.
5 March 2014 - Blackout - In Competition blogs on the AGL decision
King&Wood Mallesons' blog, In Competition, has a post by Pam Cue on the ACCC's AGL merger decision. View 'Blackout'.
5 March 2014 - AGL may challenge ACCC merger decision
John Durie has a couple of pieces in the Australian about the ACCC's AGL decision. The first (with Mitchell Neems) was published yesterday - 'AGL tipped to appeal ACCC's Macquarie Generation decision'. The second is an opinion piece in today's Australian - 'AGL boss Michael Fraser's only option is to appeal ACCC's MacGen ruling'. Watch this space.
4 March 2014 - ACCC opposes AGL's proposed acquisition of Macquarie Generation
The ACCC 'has today announced that it will oppose the acquisition of the assets of Macquarie Generation by AGL Energy Limited (AGL).' The ACCC considers the proposed acquisition will substantially lessen competition in 'the market for the retail supply of electricity in New South Wales'. See press release. See merger register. A public competition assessment will be 'published in due course'.
28 February 2014 - 'It's an online world'
Martine Phillips has posted an item in In Competitionon the impact of online shopping and retail on market definition in a competition context - prompted by ACCC comments in relation too a proposed David Jones/Myer merger.
27 February 2014 - ACCC proposes to grant authorisation for David Jones 'stores within stores' promotions
The ACCC 'has issued a draft determination proposing to grant authorisation to David Jones to continue inviting certain businesses operating within its stores to participate in various promotions.' See press release. See authorisation register.
25 February 2014 - ACCC brings shopper docket case
There's nothing fuel purchasers hate more than discounts (!) - so the ACCC has taken action against both Coles and Woolworths alleging they have broken their promises over fuel shopper dockets. In a (very strange) agreement that entered force on 1 January, both Coles and Woolworths agreed not to offer supermarket shopper-docket discounts of more than 4 cents from fuel (subject to limited exceptions). The ACCC is alleging that Woolworths have offered a bundled discount of 8 cents and Coles have offered a bundled discount of 14 cents and that these offers contravene their respective undertakings. According to the ACCC press release , however, at least in the case of Coles (the release is a bit vague about WW) you can get the 10c by just purchasing $20 or more at the petrol station - it does not appear contingent on the grocery service. More to come on this one!
See also Eli Greenblat, 'Consumer watchdog ACCC takes Woolworths, Coles to court over fuel dockets' (SMH, 25 February 2014) and Mitchell Neems, ACCC moves on Coles, Woolworths (Business Spectator, 25 February 2014).
21 February 2014 - ACCC compliance and enforcement policy
The ACCC has released its 2014 Compliance and Enforcement Policy (view online or download as 4-page PDF). Core focus is on consumer issues, although mention is made of prioritising 'competition and consumer issues in highly concentrated secorts, in particular in the supermarket and fuel sectors' (nothing new here) and the policy states that some areas are always regarded as a priority, including 'cartel conduct and anti-competitive agreements, and the misuse of market power'. See press release
Chairman Rod Sims will also be delivering a speech at the CEDA Conference today (Looking forward to 2014) - the speech has a separate section dedicated to competition enforcement. Shopper dockets, petrol price information sharing and supermarket business practices are all discussed - again. The Pfizer and Visa cases naturally rate a mention. Sims indicates that there are ten 'in depth investigations under way in relation to anti-competitive agreements' (a bit like last year) and around 15 in relation to alleged misuse of market power with one likely to be before the courts soon which, he assures us, does not involve supermarkets or petrol. Merger activity is also discussed and the speech finishes with a brief mention of the anticipated 2014 'highlight' - the promised 'root and branch' review.
21 February 2014 - Access Regime - Productivity Commission Report
The Productivity Commission's Report on the National Access Regime was released last week. The Final Report recommends that the National Access Regime should be retained. It makes a number of other recommendations - in relation to paragraphs 44G(2)(b) and 44H(4)(b) the PC recommendat that they be amended so that criterion (b) is satisfied 'where total foreseeable market demand over the declaration period could be met at least cost by the facility. Total market demand should include the demand for the service under application as well as the demand for any substitute services provided by facilities serving that market. The assessment of costs under criterion (b) should include an estimate of any production costs incurred by the infrastructure service provider from coordinating multiple users of its facility.' (recommendation 8.2). Bruce Billson MP issued a press release accompanying the release of the final report in which it indicated it would not respond to the PC's report until the 'root and branch' review is completed. See also Minter Ellison Alert - Government releases final report into National Access Regime (20 February 2014) which provides a neat summary of the key findings and recommendations.
21 February 2014 - ACCC alleges misuse of market power against Pfizer
Last week the ACCC instituted proceedings in the Federal Court of Australia against Pfizer (Case NSD146/2014 in NSW registry) alleging misuse of market power and exclusive dealing in 'relation to its supply of atorvastatin to pharmacies'(see media release). The Government took the opportunity to issue a press release indicating it would keep a 'close eye' on the case and reminding everyone that the misuse of market power provision would be looked at as part of the 'root and branch' review. First directions hearing in the case is scheduled for 18 March 2014 before Justice Flick.
Son of Hilmer
The draft terms of reference for the Competition Review are now available. See Root and Branch Review Page.
Supermarkets and shopper dockets
The ACCC has been investigating the competitive effects of shopper dockets since the middle of 2012. At the end of July Chairman Rod Sims announced that the investigation will be finalised in the latter half of 2013 and expressed the view that the ACCC believes the escalating shopper docket petrol discounts 'is likely to have a negative impact on competition in the petrol industry'. Coles and Woolworths have now provided undertakings to the ACCC in relation to their shopper docket discounts. The ACCC is now suing them alleging breach of those undertakings.
Access / Essential Facilities
In October 2012 the government announced an Inquiry into the National Access Regime to be conducted by the Productivity Commission. The final report was submitted to the Government in October 2013 and was released on 11 February 2014. the access page.
Cartel enforcement: 'The Marker' and review of cartel immunity
In late August 2012 the ACCC released a video promoting its immunity policy for cartel conduct - THE MARKER. In May 2013 the ACCC announced on that it was commencing a review of the Immunity Policy. See ACCC review page.