Welcome to Australian Competition Law
Latest Competition Law News and Commentary
3 May 2016 - Budget day
The Budget and related speech is available on the government's budget site. See, for example:
The budget papers include reference to the Harper Review; under Jobs and Growth the Government notes it is 'advancing the recommendations of the Harper Competition Policy Review and (in bold print no less) notes that the government is 'strengthening Australian's competition law to prevent big businesses from misusing their market power or seeking to dominate markets.' (see full PDF segment)
For media, see for example Alan Mitchell, 'Budget 2016: More like pre-election pussy footing than an economic plan' (AFR, 3 May 2016), Tim Leslie, Paul Donoughue and Simon Elvery, 'Budget 2016: Winner and losers' (ABC, 3 May 2016).
2 May 2016 - Halliburton terminates proposed deal with Baker Hughes
The ACCC has discontinued its informal review of Halliburton's proposed acquisition of Baker Hughes Inc after Halliburton advised the proposed acquisition would not be proceeding. The ACCC had issued a statement of issues in relation to the proposed acquisition in October last year. See merger register. See also Aoife White, 'Halliburton-Baker Hughes Deal Collapses Amid Global Opposition' (Bloombert, 2 May 2016), Amie Tsang, 'Morning Agenda: Halliburton and Baker Hughes Call Off Merger' (New York Times, 2 May 2016) and 'Oilfiled services provider Halliburton terminates $28b merger with Baker Hughes' (EBR, 2 May 2016)
2 May 2016 - Budget eve
On budget-eve 2016 Peter Martin reports on how the budgets of ACCC and other regulates have fared under the current government - he notes that the ACCC has lost 10% of staff over the past three years.
30 April 2016 - Media on Cement Australia
There has been some limited media following the Federal Court's order of penalties totaling $18.6m against Cement Australia (and related companies) yesterday for contraventions of s 45 of the (then) Trade Practices Act.
Most notable is John Durie, 'Politics triumphs over principles in Kidman decision' (The Australian, 30 April 2016) (various issues discussed - scroll down), who labels the fine imposed by Justice Greenwood a 'slap on the wrist' (particularly in light of the fact that the ACCC had sought $97m in penalties) and who considers (with some justification) the delay in handing down the decision a 'disgrace'. He further noted that the reasons for decision (still unavailable until confidentiality issues are resolved) run to 250 pages (admittedly less than the 940 odd pages of the primary judgment). See also Mark Ludlow, 'ACCC delivers $40m in penalties in three days' (AFR, 29 April 2016).
29 April 2016 - $18.6m penalties ordered against Cement Australia companies for competition law contravention
The Federal Court has ordered penalties totalling $18.6m against Cement Australia and related companies for contravening s 45 of the (then) Trade Practices Act. So far the judgment has been made available to the parties on a 'restricted basis pending resolution of confidentiality issues'. See ACCC press release. See also Anna MacDonald, 'Cement companies fined $18.62m for anti-competitive conduct (ABC News, 29 April 2016)
29 April 2016 - First report on NBN wholesale market released
The ACCC had released NBN Co's wholesale market indicators report, required to be provided pursuant to a disclosure direction issued by the ACCC on 21 March. The next report will be published in late July 2016. See ACCC press release for overview and key findings. See also NBN Wholesale Market Indicators Report page.
29 April 2016 - Egg news
The Federal Court (Justice White) has declared that in 2012 Zelko Lendich 'attempted to encourage certain egg producers in Australia to enter into an arrangement or arrive at an understanding containing a provision to limit the production for supply and the supply of eggs in Australia' and that the agreement or understanding, if entered into, 'would have had the purpose of directly or indirectly preventing, restricting or limiting the production for supply and the supply, or the likely production for supply and the likely supply, of eggs by any or all of the egg producers' in contravention of s 44ZZRJ of the Act. See judgment: ACCC v Australian Egg Corporation Limited  FCA 447 (29 April 2016)
Mr Lendich was ordered to pay $120,000 in respect of the declaration, as well as engage in a training session about the cartel laws. He was also ordered to pay ACCC costs in the amount of $10,000 as well as a contribution to costs of the other respondents. These orders follow admissions made by Mr Lendich.
This decision follows dismissal of the ACCC's proceedings against the other respondents to the proceeding, including the Australian Egg Corporation Ltd, on 10 February, against which the ACCC has appealed.
29 April 2016 - Productivity Commission's Draft IP report released
The Draft Productivity Commission Report on Intellectual Property Arrangements, released today, is consistent with the recommendations made by the Harper Panel in relation to IP. In particular, it recommends removal of parallel import restrictions on books by no later than the end of 2017 (draft rec's 5.2). It further recommends that the Government make clear that it is not an infringement of the Copyright Act for consumers to circumvent geoblocking technology (draft recommendation 5.1)
The Draft Report also acknowledges that a 'well-functioning IP system must take account of the longer run effects on competition that exclusivity of ideas can create' (p 386). It considers current competition law exemptions relating to licensing or assignment of IP property and exemptions form the National Access Regime. In relation to the former it recommends repeal of the s 51(3) exemption and that the ACCC issue guidance on the application of the competition law provisions of the CCA to intellectual property (draft rec 14.1). In relation to access, the PC does not reach a concluded view, but requests further information (p 399).
The Draft Report also considers pharmaceutical pay for delay schemes (ch 9). It recommends, in part, that the Government should 'introduce a transparent reporting and monitoring system to detect any pay-for-delay settlements between originator and generic pharmaceutical companies' and that this should be administered by the ACCC (draft rec 9.4).
There is plenty more in the report of interest. Submissions on the draft report can be made until 3 June. A final report is expected in August. View Public Inquiry home page.
29 April 2016 - Penalty judgment in Cement Australia scheduled for today at 4:15pm (Brisbane)
Justice Greenwood is expected to hand down his formal orders in ACCC v Cement Australia Pty Ltd today (4:15pm). This follows the hearing on these matters in December 2014, which followed publication of the judgment (accompanied by interim declarations) in the principal proceedings (ACCC v Cement Australia Pty Ltd  FCA 909) on 10 September 2013 (running to 940 pages!).
In that judgment, Cement Australia (and other respondents) were found to have contravened section 45 (the ACCC's claim that they had also contravened s 46 did not succeed). The interim declarations were discharged and dissolved in February 2014 (Australian Competition and Consumer Commission v Cement Australia Pty Ltd  FCA 148); in that judgment Justice Greenwood dismissed proceedings insofar as they related to a claimed contravention of s 46 and made various orders declaring contravention of s 45. Costs and final orders, including those relating to pecuniary penalty, were reserved for later determination. The hearing on these matters took place in December 2014. Following the judgment, expected today, the parties will have 21 days to file an appeal.
28 April 2016 - Court orders Colgate to pay $18m penalties as a result of ACCC cartel proceedings
Following admissions by Colgate that it entered into understandings which limited the supply - and controlled the price - of laundry detergents, the Federal Court has ordered Colgate pay penalties totaling $18m for contraventions of the TPA (as it was when the contraventions took place). Proceedings are continuing against Cussons and Woolworths, which the ACCC also alleges gave effect to cartel and other anti-competitive arrangements. View ACCC press release. See also: Michael Janda, 'Colgate-Palmolive to pay $18m penalty for laundry detergent cartel' (ABC News, 28 April 2016); John Rolfe, 'ACCC extracts $18m fine from Colgate-Palmolive for cartel to shrink laundry powders' (Herald Sun, 28 April 2016).
28 April 2016 - Sims on proposed new-car import changes
ACCC Chairman, Rod Sims, has an opinion piece in today's The Australian, discussing proposed new-car importation changes recently announced by the Government. See Rod Sims, 'Rod Sims: new-car importation changes can increase competition' (The Australian, 28 April 2016)
27 April 2016 - Membership of new Agriculture Consultative Committee announced
The ACCC has announced the membership of its new Agriculture Consultative Committee, which will provide a 'forum for the discussion of competition and fair trading concerns related to the agriculture sector'. The Committee will be Chaired by the ACCC's agricultural Commissioner, Mick Keogh. View media release. View Committee details.
27 April 2016 - ACCC sets new proposed date for ruling on beer merger
The ACCC last week delayed its decision (originally due 21 April) about the proposed acquisition by Ahnheuser-Busch InBev of SABMIller, at the request of the brewers. I received further information from the parties today and has set a revised proposed date for announcement of its decision - next Thursday, 5 May 2016. View merger register. See Simon Evans, 'ACCC again delays ruling on beer mega-merger of Anheuser-Busch InBev, SABMiller' (SMH, 20 April 2012).
27 April 2016 - ACCC releases East Coast Gas Inquiry Report
The ACCC released its report on the 'competitiveness of wholesale gas prices in eastern and southern Australia' last week. View media release. View project page (including report and key findings). This was followed by plenty of media - see, for example, Stephen Letts, 'Gas supplier monopoly pricing hits domestic users hard: ACCC' (ABC News, 22 April 2016), Stephen Bartholemeusz, 'Pipelines under pressure as ACCC inquiry misses the mark on gas' (The Australian, 22 April 2016), Matthew Stevens, 'Big Mick fumes as gas regulation looms' (AFR, 22 April 2016).
21 April 2016 - SOI released on proposed acquisition of Jennmar Australia by DSI
The ACCC has issued a Statement of Issues on the proposed acquisition of Jenmar Australia by DYWIDAG-Systems International Group (DSI), both suppliers of 'ground support products to mining and civil construction customers'. Submissions due by 12 May with proposed announcement on 16 June. See media release. See merger register.
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.
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.
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
ACCC and Informed Sources
In 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45. In December 2016 the ACCC announced it had resolved these proceedings after Informed Sources and the retailers agreed to make pricing information available to consumers at the same time the retailers receive it.
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,