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Chronology of Australian Competition Law*

 

1906-1973

1906 - Australian Industries Preservation Act

The Australian Industries Preservation Act was an early attempt at competition law in Australia, inspired by the Sherman Act. In Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 (7 June 1909) the High Court held that certain sections of the Act were unconstitutional and the Act fell into disuse.

1913 - Referendum

In 1913, 1919, 1929 and 1944 power was sought, by referendum, to amend the Constitution to permit the Commonwealth to deal directly with monopolies, combinations and trusts. All failed.

1921 - Tariff Board Act

Provided a very limited avenue of monopoly control to the Tariff Board

1962 - Proposal for Act

Sir Garfield Barwick, then Attorney General, placed before Parliament a proposal for federal control of trade practices law, modelled on the British legislation

1965 - Trade Practices Act | Trade Practices Tribunal

The Trade Practices Act 1965 was passed - it was an amended version of that proposed by Barwick. The Act also established the Trade Practices Tribunal. The Act became operative on 1 September 1967. In 1966 Ron Bannerman became the Commissioner of Trade Practics.

1967 - Trade Practices Act commences

The Trade Practices Act 1965 commenced on 1 September 1967. Businesses were required to lodge existing agreement registration with the office of the Commissioner of Trade Practices, then Ron Bannerman

1969 - First Tribunal hearing

The first hearing was brought before the Trade Practices Tribunal against Tasmanian Breweries Pty Ltd. It was alleged Tasmanian Breweries had engaged in monopolisation contrary to s 37 of the Act. A discussion of the allegation and Tribunal hearing can be found in J.P. Nieuwenhuysen, The Trade Practices Act: Recent Developments and Some Proposals for Change' (4th Quarter, 1969) 8 Australian Economic Review 19.

1970 - High Court decision favours Trade Practices Tribunal

In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 (24 March 1970) the High Court upheld the validity of the Trde Practices Tribunal. In his judgement, Windeyer explained the challenge to the validity of the Act as follows:

[2] The judicial power of the Commonwealth is vested in courts : and the judges of courts created by the Commonwealth Parliament must hold office during good behaviour. It is now firmly established that this means that members of federal courts exercising the judicial power are to be appointed for life. The Restrictive Practices Tribunal does not meet this requirement. Section II of the Act provides that "a member holds office for such period not exceeding seven years as is specified in the instrument of his appointment". Therefore, if the Tribunal is to exercise the judicial power of the Commonwealth, it is not validly set up. Levering on this as the point d'appui the prosecutor sought to loosen the whole scheme and bring the statute down. No other ground of invalidity is asserted in these proceedings. The point of attack is limited in this way because the events from which the case arises occurred in Tasmania : and the Parliament of that State has, by Act No. 62 of 1966, referred to the Parliament of the Commonwealth power to deal with certain matters which may be compendiously called restrictive trade practices. There is therefore in this case no room for any question of the power of the Commonwealth Parliament to make a law to operate in Tasmania with respect to restrictive practices. The critical question is thus whether the Act purports to vest in the Tribunal the judicial power of the Commonwealth within the meaning of that term in s. 71. (at p389)

His Honour concluded (at 22): '... looking at the functions of the Tribunal as a whole, I think that they do not involve its exercising the judicial power of the Commonwealth.'

1971 - Concrete Pipes Case and repeal of the 1965 Act

In Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 (3 September 1971) (the Concrete Pipes Case). In this case the agreements challenged under s 43 of the Act related exclusively to trade within Queensland; the High Court held that the 1965 TPA could not operate intrastate and was, therefore, invalid.

The Government subsequently repealed the 1965 Act.

1971 - Restrictive Trade Practices Act

Following repeal of the 1965 Act, the Government passed the Restrictive Trade Practices Act 1971. This was similar to the 1965 Act, but its constitutional basis was the corporations power alone, subject to one exemption based on the overseas trade and commerce power

1973 - Proposals for new Act

Proposals for a new Act (the Trade Practices Bill) were placed before the Australian Parliament by Labor Attorney General, Senator Lionel Murphy. This bill was based partly on US provisions.

 

1974-1992

1974 - Trade Practices Act

Following the May 1974 federal election the modified 'Murphy Bill' was passed - the Trade Practices Act 1974.

1976 - Swanson Committee

A detailed refiew of the Trade Practices Act was undertaken by the Trade Practices Review Committee which was chaired by T Swanson. Following the recommendations of the Committee, s 46 was modified - the words 'for the purpsoe of' were introduced into the provision. This was designed to ensure that it was not necessary that the proscriped purpose actually be achieved.

1979 - Blunt Committee

In December 1979 the report, Small business and the Trade Practices Act, was completed by a Committee chaired by Gaire Blunt. The report recommended repeal of s 49 and amendments to s 46 - in particular, that the 'position to substantial control' threshold be altered to 'substantial degree of power in the market' and that 'take advantage of the power' be altered to 'use that power.

The Trade Practices Consultative Committee was discontinued on 15 November 1981.

1984 - Green Paper

A discussion paper, The Trade Practices Act - Proposals for Change (Green Paper) was released by Attorney General, Senator Gareth Evans QC, in February 1984.

1985 - Trade Practices Amendment Bill | New Chairman

The Trade Practices Amendment Bill 1985, introduced in October 1985, proposed (among other things) lowering the threshold test in s 46 and regulating certain overseas mergers under s 50A.

Bob McComas became Chairman of the Trade Practices Commission.

1986 - Trade Practices Revision Bill and Trade Practices (Transfer of Market Dominance) Act

The Trade Practices Revision Act 1986 superceded the 1985 bill and commended on 1 July 1986. It made a number of amendments, including changing the test in s 46 and amending the merger provision.

The Trade Practices (Transfer of Market Dominance) Act amended the mergers provisoin under s 50.

1988 - New Chairman of the TPC

Robert Baxt was appointed the new Chairman of the Trade Practices Commission

1989 - Griffiths Committee

In May 1989 the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Griffiths Committee) (formed in 1988) issued its report: Mergers, Takeovers, and Monopolies: Profiting from Competition?. These recommendations were accepted by teh Attorney General on 22 August 1991, but were to be considered in light of recommendations by a Senate Committee inquiry whichw as also inquiring into adequacy of existing legislative controls into mergers, monopolies and acquisitions (Cooney Committee)

1991 - Cooney Committee

In December 1991 the Senate Standing Committee on Legal and Constitutional Affairs (Cooney Committee) issued its report: Mergers, Monopolies and Acquisitions. Adequacy of Existing Legislative Controls.

Prof Allan Fels was appointed Chairman of the Trade Practices Commission.

1992 - Trade Practices Legislation Amendment Act

The Trade Practices Legislation Amendment Act 1992 gave effect to some of the recommendations of the Cooney Committee. In particular, it introduced a substantial lessening of competition test into s 50 (mergers), substantially increased maximum pecuniary penalties under Part IV and made the giving of undertakings legally enforceable under s 87B

 

1993-2002

1993 - Hilmer Committee

The Independent Committee of Inquiry into National Competition Policy (the Hilmer Committee) wes established in October 1992, following agreements between state and territory governments. The HIlmer Committee released its report National Competition Policy on 25 August 1993.

1995 - Competition Policy Reform Act 1995

The Competition Policy Reform Act 1995 implemented recommendations of the Hilmer Committee. Amongst other things, it created a new regulator, the Australian Competition and Consumer Commission (combining the previous Trade Practices Commission and Prices Surveillance Authority), created a new access regime (Part IIIA), established the Competition Code, which facilitated application of the Part IV rules within state and territory jurisdictions, made various amendments to Part IV, inserted an objects provision and removed the shield of the Crown in relation to the states and territories in so far as they carried on a business.

1996 - National Competition Council - Australian Competition Tribunal

The National Competition Council was established under Part IIA of the Competition Policy Reform Act.

The Trade Practices Tribunal was re-named the Australian Competition Tribunal.

1999- Review of ss 51(2) and 51(3) of the TPA

On 5 March 1999 the NCC released its report on the exemption of certain conduct from Part IV. The report was titled Review of Section 51(2) and 51(3) of the Trade Practices Act 1974. It recommended various amendments to the exemptoins.

1999 - Baird Committee

In August 1999 the Joint Select Committee on the Retailing Sector (Baird Committee) released its report Fair Market or Market Failure? A Review of Australia's Retailing Sector, which
recommended, amongst other things, that the ACCC's power be extended to allow it to take representative actions in relation to Part IV matters.

2001 - Trade Practices Amendment Act (No 1) 2001

The Trade Practices Amendment Act (No 1) 2001 altered the market definition for mergers and acquisitions to include a substantial market in a region of Australia.

2002 - Wilkinson Review

The Wilkinson Review examined the impact of Part IV of the TPA on recruiting and retaining medical practitioners in rural and regional Australia.

 

2003-2010

2003 - Dawson Review

In May 2002 the government commissioned a review of the competition provisions of the Act. The Independent Review of the Competition Provisions of the Trade Practices Act was Chaired by Sir Daryl Dawson and recommended, amongst other things, introduction of criminal sanctions for serious cartel conduct, increasing maximum pecuniary penalties, introducing formal clearance for mergers and allowing merger authorisations to proceed directly to the Tribunal and allowing collective bargaining notifications.

Graeme Samuel replaced Prof Allan Fels as the Chairman of the ACCC.

2006 - Dawson Reforms

The first set of reforms enacting recommendations of the Dawson Committee were introduced by the Trade Practices Legislation Amendment Act (No 1) 2006. These included changes to the mergers procedurs and increased civil penalties.

2007 - Predatory Pricing

New 'predatory pricing' laws were introduced by the controversial Trade Practices Legislation Amendment Act 2007 (Birdsville Amendment).

2008 - Misuse of market power amendments

The Trade Practices Legislation Amendment Act 2008 made amendments to the misuse of market power provision (s 46), including some guidance as to what constituts a 'taking advantage' of market power.

2009 - Criminal cartel laws

A new Division 1 of Part IV of the TPA was inserted into the Act by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. This created new civil prohibitions and criminal offences for cartel conduct.

 

2011 - current

2011 - Competition and Consumer Act 2010

The Trade Practices Act 1974 was re-named the 'Competition and Consumer Act 2010' by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010, effective 1 January 2011

Rod Sims replaced Graeme Samuel as the Chairman of the ACCC on 1 August 2012

Amendments to merger provision (Competition and Consumer Legislation Amendment Act 2011 (Act 184 of 2011) ) - in particular, removal of the word 'substantial' from definition of market in s 50(6).

2012 - Price signalling laws

Price signalling laws - initially only applicable to banks - came into operation following the passage of the controversial Competition and Consumer Amendment Act (No 1) 2011.

2014 - Harper Review begins

The Competition Policy Review (Chaired by Professor Ian Harper) commenced on 27 March 2014. It is to report within 12 months.

Draft report released on 22 September 2014.

2015 - Harper Review concludes

Harper Review Final Report released 31 March 2015.

Government response to Harper Report released 24 November 2015

2015-2016 - Treasury Consultation on Misuse of Market Power

A further Treasury Consultation on Misuse of Market Power, involving the distribution of an Issues Paper relating to recommendations made by the Harper Panel in relation to this issue, was conducted in 2015-2016. The Government announced its response on 16 March 2016.

2016 - First criminal prosecution

An indictment in Australia's first criminal cartel case was filed by the Commonwealth Director of Public Prosecutions on Thursday 14 July 2016. Nippon Yusen Kabushiki Kaisha pleaded guilty before Justice Wigney on 18 July 2016.

2016 - Harper Exposure Draft Legislation released

The Government released an Exposure Draft Bill on 5 September 2016 designed to implement the Harper Recommendations that had been accepted by the Government.

2016 - Misuse of Market Power Bill 2016

The Goverment introduced the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 on 1 Dec 2016 designed to implement the Harper recommendations in relation to misuse of market power.

2017 - Harper Bill 2017

The Goverment introduced the Competition and Consumer Amendment (Competition Policy Reform) Bill 2017 on 30 March 2017 designed to implement the remaining Harper Recommendations (that had been accepted by the Government).

 

 


* Chronology to 2004 largely derived from ACCC Update, Issue 16, December 2004 - Celebrating 30 Years

For a good history of Australian competition law up to the 1992 see: Hilmer Report pages 8-10

For a broad chronology see ACCC milestones