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Senate Committee gives green light to effects test ?>

Senate Committee gives green light to effects test

The Senate Economics Committee today recommended passage of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 which will introduce the Harper Recommendations (frequently abbreviated as the ‘effects test’). I’ve previously posted about the content and merit of the bill and won’t repeat myself here, instead focusing on what the Committee majority and the dissenting Labor Senators, as well as Nick Xenophon (who sort of agrees but wants more to be done) had to say about it. Briefly the…

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Apple goes on the attack ?>

Apple goes on the attack

There has been plenty of media this week generated by Apple’s latest submission in response to the application by four banks to collectively bargain and boycott Apple in relation to Apple Pay. Brief re-cap: the story so far The application The saga began in August 2016 when four banks (Cth, Westpac, NAB, Bendigo and Adelaide Bank) sought authorisation to collectively bargain with and boycott Apple in relation to Apple Pay.  The ACCC may grant authorsiation for conduct that would otherwise contravene the…

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High Court finds for ACCC in Flight Centre appeal ?>

High Court finds for ACCC in Flight Centre appeal

The High Court today handed down its decision in the Flight Centre appeal.  The five High Court judges produced four different sets of reasons.  The majority of four-one (Chief Justice French dissenting) concluded that the ACCC’s appeal ought to be allowed.  They reached this conclusion on substantially the same grounds. The ACCC argued that Flight Centre had attempted to induce Singapore Airlines, Malaysia Airlines and Emirates not to discount the tickets they sold directly to customers, that Flight Centre was in competition with those…

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Misuse of Market Power Bill introduced ?>

Misuse of Market Power Bill introduced

Misuse of market power bill introduced On the last sitting day of Parliament 2016, and while I was snoozing half way around the world thinking the Parliamentary year had ended without any sign of the Harper Reforms, Treasurer Scott Morrison introduced the Misuse of Market Power bill (or the more mundane Competition and Consumer Amendment (Misuse of Market Power) Bill 2016) I’m afraid this will be a lengthy post (that was unintended … it got a bit out of control) – the short version…

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New High Court Appointments and competition law ?>

New High Court Appointments and competition law

A competition lawyer’s guide to the new High Court appointments The Prime Minister today announced the appointment of the Honourable Justice Susan Mary Kiefel AC to become the next Chief Justice of the High Court of Australia, and the first female Chief Justice, on 30 January 2017. Justice Kiefel will replace the Honourable Justice Robert French AC (Chief Justice since 2008) following his retirement. The Prime Minister also announced the appointment of a new High Court judge, the Honourable Justice James…

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Harper Exposure Draft Legislation Released ?>

Harper Exposure Draft Legislation Released

The Government today released Exposure Draft legislation (Competition and Consumer Amendment (Competition Policy Review) Bill 2016) designed to implement many of the recommendations made as part of the Competition Policy Review (Harper Review) 2014-2015. Consultation – be quick! Interested parties have relatively little time to respond to the draft legislation (which runs to and is accompanied by a 90 page explanatory memorandum), with submissions due by 30 September 2016.  In addition to Treasury’s review of the draft legislation, the ACCC today commenced two consultations on…

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Banks denied interim authorisation for cartel conduct ?>

Banks denied interim authorisation for cartel conduct

In an earlier post I noted that that several Australian banks had applied to the ACCC for authorisation to collectively bargain ‘with providers of third-party mobile wallet services [including Apple] on conditions relating to competition, best practice standards, and efficiency and transparency.’ Authorisation and interim authorisation Authorisation may be granted for cartel conduct and other prohibited anti-competitive conduct on public benefit grounds.  Applications typically take up to six months, which allows the ACCC to undertake detailed market studies and full consideration of potential competitive detriment…

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Apple versus the banks ?>

Apple versus the banks

Several Australian banks, including three out of the ‘big four’ banks, want the ACCC to give them the green light to engage in hard-core cartel conduct. The Banks’ submission On 26 July Bendigo and Adelaide Bank, the Commonwealth Bank, NAB and Westpac sought authorisation to engage in collective negotiation with providers of third party mobile wallet services (essentially Apple) and to collectively boycott third-party providers during the course of collective negotiations.  Apple has so far locked out third-party providers, although ANZ (the…

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Revival of effects test debate ?>

Revival of effects test debate

The effects test for misuse of market power (recommended in the Harper Report and accepted by the Government in March this year) has had a bit of a run in the media over the last week. This was prompted the release of the Productivity Commission’s draft report on the regulation of agriculture last Thursday, which suggested the effects test would do nothing to shield farmers from competition in the retail grocery market and that, even if it did, this would…

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Competition reform post-election ?>

Competition reform post-election

Now that we finally have an election outcome (even if Herbert does still remain in doubt), it’s worth considering what this means for the proposed Harper reforms. We know that the Turnbull Government, in September last year, accepted most of the recommendations made in the Harper Report.  Following a further consultation, the Government announced (in March 2016) it would also adopt the controversial ‘effects test’ recommended by the Harper Panel in relation to misuse of market power.  We also know that Labor opposes the effects…

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