The Harper recommendations for reform to Australia’s competition laws are being introduced in two stages, with the misuse of market power reforms being debated separately from the remaining reforms.
This week the House passed the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (after 17 second reading speeches and some significant amendment to the original bill) and introduced the Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 containing the remaining key Harper reforms. Debate on both bills has now been deferred until the next sitting of Parliament.
The Misuse of Market Power Bill
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was introduced on the last sitting day of Parliament last year (1 Dec 2016). It was designed to implement the Harper recommendation on section 46, which was the replacement of the current purpose based test with a prohibition on firms with substantial market power engaging in conduct having the purpose or effect of substantially lessening competition. It also contained a set of mandatory factors for the court to consider when assessing whether conduct would harm competition (including, for example, pro-competitive efficiency gains).
The bill was sent immediately to the Senate Economics Legislation Committee for consultation. That Committee reported in February, recommending passage of the bill subject to the removal of mandatory factors. Debate resumed in the House on 23 March and the Government moved an amendment (subsequently passed) to remove the mandatory factors in line with the Senate Committee recommendation and also to change the commencement date to ensure that the provision would not commence unless and until the other Harper Reforms, including the introduction of an authorisation process for misuse of market power, come into operation. A supplementary EM accompanied the changes.
The bill was read for a third time in the House on 28 March 2017 and was introduced into the Senate on 29 March. Second reading commenced with Senator Ruston (Assistant Minister for Agriculture and Water Resources) given leave to have her second reading speech incorporated in Hansard. Debate was then adjourned until the first sitting day of the next period of sittings.
The Competition Policy Reform Bill
The Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 was introduced into the House on 30 March 2017. It implements the remaining Harper reforms previously flagged in the Exposure Draft Bill introduced late last year and is accompanied by a 180 page Explanatory Memorandum. It includes sections on cartels, price signalling and concerted practices, exclusionary provisions, secondary boycotts, third line forcing, resale price maintenance, authorisations notifications and class exemptions, access as well as changes to evidentiary provisions.
Second reading of the Bill was moved on 30 March 2017. Debate was then adjourned until the next sitting of parliament.
Details to follow once I’ve had a chance to read the bill and EM!