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Competition Policy Review (Harper)

Harper Review

 

The first major review of competition policy in Australia in 20 years took place in 2014-2015. The final report was released on 31 March 2015. Two bills have been introduced into Parliament to give effect to the reforms proposed in the Report.

Misuse of market power

Image of market power

 

Always topical, the issue of misuse of market power is featured prominently in the Harper Review, with the final report recommending a substantial overhaul of the provision, including the introduction of an effects test. The Government introduced a Bill designed to implement this recommendation on 1 Dec 2016.

First criminal cartel case

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On 14 July 2016 The Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.

Cartels and agency arrangements

TPA cover

 

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. Appeal decisions in both cases were delivered on 31 August. The ACCC was successfully appealed the case to the High Court (14 Dec 2016)

Resale Price Maintenance

Merger authorisation

In December 2014 the ACCC granted its first ever RPM authorisation. In its final report the Harper Panel recommend retaining the per se prohibition on RPM, but introducing a notification option. This has been accepted by the Government and the change appears in the exposure draft legislation

Agreed penalties

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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.

 

2017

Harper Review
The Harper Review reported in March 2015 and the Government response was received in November of that year. It's back in the news in 2017 because there are now two bills before Parliament designed to implement the Harper reforms.

Misuse of market power
The Government, on 1 December 2016, introduced a bill designed to introduce the 'effects test' propose in the Harper Report. The Bill (amended) passed through the House in March 2017 and is now before the Senate.

 

2016

Criminal cartel case
On 14 July 2016 The Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. Although details are not yet known, this appears to the the first case alleging a contravention of the criminal cartel laws introduced in Austarlia in 2009.

Harper Review
The Harper Review reported in March 2015 and the Government response was received in November; back in the news in 2016, the Government has now (September 2016) released exposure draft legislation designed to implement most of the recommendations and has (14 December 2016) introduced a bill designed to implement the misuse of market power reforms.

Misuse of market power
Misuse of market power will remain a hot topic in 2016; the Government has now (14 December 2016) introduced a bill designed to introduce the 'effects test' propose in the Harper Report.

 

2015

World Web imageHarper Review
The hottest topic for 2015 remains the Competition Policy Review (Harper Review), which delivered its final report in March. The Government response was received in November.

Misuse of market power
Misuse of market power was a hot topic in 2014 and will remain so in 2015. The ACCC lost its misuse of market power case against Pfizer in February; on 18 March 2015 it lodged a Notice of Appeal against that decision. See also 2016.

Agreed penalties
The decision in CFMEU cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents. The High Court has clarified the position - ruling that parties to civil proceedings are free to submit agreed penalties to the court for consideration.

Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 have led to some uncertainty about the circumstances in which agents may be considered in competition with their principals for purposes of the cartel laws. Both cases were appealed; the ACCC lost both appeals. There now appears consistency with the approach taken in both cases to agency arrangements - however, the ACCC successfully appealed to the High Court in the Flight Centre case.

Resale price maintenance
Possibly warm rather than hot - RPM attracted attention in 2014 when the ACCC granted the first ever RPM authorisation (despite the option being available to suppliers since 1995). The Harper Report recommended the introduction of a notification regime for RPM; the Government accepted this recommendation.

ACCC takes on Informed Sources
In August 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers alleging contravention of section 45. In December 2015 the ACCC announced that proceedings had been discontinued against Informed Sources after Informed Sources and the retailers agreed to make pricing information available to consumers at the same time the retailers receive it. See ACCC media release.

ACCC alleges egg cartel
In May 2014 the ACCC instituted proceedings alleging AECL and two egg producing companies attempted to induce egg producers to enter into a cartel. The matterwas heard in April 2015 before Justice White.

ICN - ACCC hosts International Competition Network Annual General Meeting
In April-May the ACCC hosted the 14th ICN Annual Meeting

 

2014

Harper Review
The hottest topic for 2014 is the 'Son of Hilmer' Harper Review of Competition Policy.

Trade Practices Act celebrates 40 years
On 1 October 2014 the TPA (still in force but re-named the Competition and Consumer Act 2014) celebrated 40 years.

ACCC releases new immunity policy for cartel conduct
On 10 September 2014 the ACCC released a new cartel immunity and cooperation policy

Food and Grocery Code of Conduct
Treasury has been consulting on a Draft Food and Grocery Code of Conduct. A consultation paper was released in August - submissions closed on 12 September.

First Tribunal merger authorisation since 2007
In June 2014 the Australian Competition Tribunal granted its first direct merger authorisation.

ACCC takes on Informed Sources
In August 2014 the ACCC instituted proceedings against Informed Sources and several petrol retailers alleging contravention of section 45.

Supermarkets and shopper dockets
Following an investigation by the ACCC Coles and Woolworths agree to provide enforceable undertakings relating to the extent of shopper docket fuel discounts. The ACCC subsequently sued both companies alleging contravention of those undertakings.

Misuse of market power
Always a controversial provision, the Harper review has produced a plethora of submissions and some heated commentary on the appropriate test to be applied in abuse of power cases.

ACCC alleges egg cartel
In May 2014 the ACCC instituted proceedings alleging AECL and two egg producing companies attempted to induce egg producers to enter into a cartel

ACCC alleges Omniblend attempted to fix prices
In August 2014 the ACCC instituted proceedings against OmniBlend, alleging it attempted to engage in price fixing and RPM

 

Images copyright: Images in the Hot Topic box 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): power transmission tower courtesy of Rawich at FreeDigitalPhotos.net; 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, world web courtesy of Salvatore Vuono from FreeDigitalPhotos.net.