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Harper Review

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Competition and Consumer Amendment (Competition Policy Reform) Act 2017 passed (with change to secondary boycott penalties) and received Royal Assent on 27 October 2017. The changes commenced on 6 November 2017.

Competition and Consumer Amendment (Competition Policy Reform) Bill 2017 was introduced into the House on 30 March 2017

Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was introduced on 1 December 2016. Passed both houses on 15 August 2017.

Senate Economics Committee reported on 16 February 2017 recommending passage of the bill (but with removal of mandatory factors contained in the proposed s 46(2))

Exposure Draft Legislation was released on 5 September 2016.

The Government response was released in November 2015, accepting most recommendations.

The final report was released in March 2015.

The final terms of reference and panel for the Competition Policy Review (or 'Harper Review') were released in early 2014.

The Issues Paper (which runs to 59 pages) for the Harper Review was released on 14 April and was open for submissions until 10 June 2014 (although many were published in the weeks that followed that deadline).

The draft report was released on 22 November 2014.

Briefly, in relation to the law, key recommendations included:

  • simplify cartel provisions plus additional exemptions (rec 22)
  • remove prohibition of exclusionary provisions in s 45/4D (rec 23)
  • repeal price signalling provisions; extend s 45 to capture concerted practices (rec 24)
  • effects test for s 46 (misuse of market power)
  • no specific price discrimination provisions (general or international) (rec 26)
  • simplify s 47 (exclusive dealing) and remove per se ban on third line forcing (rec's 27 and 28)
  • resale price maintenance to remain per se prohibited but with notification option
  • no change to merger law (inc no creeping acquisition law) (rec 30)
  • improve formal merger exemption process and combine with authorisation process with ACCC decision-maker at first instance (rec 30)
  • retain secondary boycott prohibition but require ACCC to report on enforcement and extend jurisdiction to state and territory supreme courts (rec's 31 and 32)
  • simplify authorisation and notification provisions (inc allow ACCC to grant exemption if satisfied either the conduct is unlikely to SLC or it will result in a net public benefit) (rec 34) and introduce block exemption power (rec 35)
  • qualify obligations under s 155 (rec 36)
  • extend s 83 to apply to admissions of fact (facilitate private actions) (rec 37)
  • extend CCA so that competition law provisions apply to Crown 'insofar as they undertake activity in trade or commerce' (rec 19)
  • retain access regime but with modification - including that criterion (b) require it be uneconomical for anyone to develop another facility (rec 38 - further comment invited on aspects of Part IIIA)

Discussion of the legal provisions has not come at the expense of policy discussion or discussion about institutions and governance, which are also covered extensively in the report.

See my Competition Policy Review Page for more details, including an overview of the recommendations and government response.

Prof Ian Harper, Chair of the Review panel, has released the following video describing the review.


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