Home Page / News

Competition Law News

June 2017

New Year

22 June 2017 - Tribunal publishes judgment in Tabcorp

The Australian Competition Tribunal has published its reasons for decision in the Tabcorp merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1). The reasons run to 255 pages.

The ACCC has also provided an initial response indicating that it 'will now consider the reasons for decision published by the Tribunal.'

 

22 June 2017 - ACCC will not oppose Cabcharge's proposed acquisition of Yellow Cabs in Queensland

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Yellow Cabs (Qld), concluding that the acquisition was unlikely to 'result in Cabcharge foreclosing competition from alternative non-cash payment system providers, as there are a number of alternative systems available and it is drivers who choose which system to use' and that the taxi business is also being 'constrained by the popularity of ridesharing services such as Uber'. View media release. View merger register.

 

Judge Ginsburg 200521 June 2017 - Baxt Lecture on Designing Cartel Sanctions

Judge Douglas Ginsburg (Federal US judge on the Court of Appeals for the District of Columbia and Professor of law, George Mason University) delivered the 8th Annual Baxt Lecture at the Melbourne Law School this evening, speaking on 'Designing Cartel Sanctions: A Continuing Debate'.

Judge Ginsburg's address focussed on the importance of directing sanctions to the individuals involved in the contraventions, rather than continuing to increase corporate sanctions; the latter, it was argued, both fails to increase deterrence and imposes penalties on shareholders who were not involved in the misconduct and cannot be deterred.

 

21 June 2017 - Tribunal authorises Tabcorp's proposed acquisition of Tatts Group Ltd

The Australian Competition Tribunal Tribunal has authorised the proposed acquisition of Tatts Group ltd by Tabcorp; reasons for this decision are expected to be published on Thursday. Tabcorp has issues a press release welcoming the decision. See also John Durie, 'Tabcorp’s high-risk strategy pays off as tribunal approves Tatts merger' (The Australian, 20 June 2017) and John Stensholt, 'Tabcorp-Tatts $11b merger gets green light from Competition Tribunal' (AFR, 20 June 2017). See my case page for further details an links.

 

14 June 2017 - High Court unanimously dismisses air cargo appeals

The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The appeals focus on the meaning of a market 'in Australia'. The High Court's judgment summary states that:

'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia'

View judgment. See High Court case page. See also my case page for links to ealier judgments and commentary. Details to follow.

 

13 June 2017 - ACCC will not oppose GE's proposed acquisition of Baker Hughes

The ACCC has announced it will not oppose the acquisition of Baker Hughes by GE. The acquisition will result in the formation of a new listed company 'combining the oil and gas business of GE and the whole business of Baker Hughes' and is valued at approximately US$32 billion. The ACCC's announcement follows an announcement by the US DOJ that it filed a consent decree requiring certain divestitures as a condition of the acquisition which, the ACCC indicated, would resolve any potential competition concerns. See ACCC media release. See merger register.

 

9 June 2017 - High Court to deliver judgment in air cargo case

The High Court has announced it will deliver its judgment in the Air New Zealand/PT Garuda Indonesia Ltd appeals on Wednesday 14 June at 10:15am. The appeals focus on the meaning of a market 'in Australia'. See High Court case page. See also my case page for links to ealier judgments and commentary.

 

8 June 2017 - ACCC will not oppose proposed merger of Dow and DuPont

The ACCC has announced it will not oppose the proposed merger of The Dow Chemical Company and EI Du Pont de Nemours and Company in Australia.

The merger was previously cleared by other agencies; in the EU approval was subject to divestiture of certain assets. The ACCC considers that their earlier competition concerns regarding the merger will be addressed by those global divestments.

See ACCC media release. See merger register.

 

Teddy Roosevelt 1918.  Public domain image: source: https://commons.wikimedia.org/wiki/File:Theodore_Roosevelt_in_1918.jpg7 June 2017 - McCowan: 'A Trust-Busting wind is blowing'

Mark McCowan, Parnter at Corrs Chambers Westgarth, has published an opinion piece entitled 'A Trust-Busting Wind is Blowing', warning against populist reforms to Australian competition laws.

See Mark McCowan, 'A Trust-Busting Wind is Blowing' (Corrs Chambers Westgarth Insights, 7 June 2017).

 

7 June 2017 - Andrew Leigh MP's on competition: A Few Big Firms

Image sourced from http://www.aph.gov.au/Senators_and_Members/Members/Members_Photos (CC BY-SA 3.0)Shadow Assistant Treasurer, Andrew Leigh MP's, speech at Murdoch University today, entitled 'A Few Big Firms', is now available online. See Andrew Leigh, 'A Few Big Firms' (Sir Walter Murdoch School Policy Seminar, Murdoch University, 7 June 2017).

In the speech Leigh sums up 'the problem', as he sees it, as follows: 'more than half of Australia’s markets are concentrated, some of our biggest industries are very concentrated and the problem is getting worse because fewer new businesses are being created and more existing businesses are merging. We are seeing a rise in firms using their market power for anti-competitive purposes to the detriment of small businesses, workers and consumers. And we are seeing too much anti-consumer conduct which is reducing the incentive of firms to compete on the price, quality and effectiveness of their goods and services.'

Leigh then considers possible solutions, including making non-compete clauses unenforceable, giving the ACCC market studies powers, increasing penalties, both for consumer and competition breaches (in the case of competition breaches Leigh advocates linking anti-competitive penalties to total sales) and increasing the ACCC's budget.

 

7 June 2017 - Shadow Assistant Treasurer wants crack down on non-compete clauses

Image sourced from http://www.aph.gov.au/Senators_and_Members/Members/Members_Photos (CC BY-SA 3.0)Shadow Assistant Treasurer, Andrew Leigh MP, will call for more to be done about Australia's 'growing competition problem' in a seminar to be delivered at Murdoch University today. Amongst other things, he will argue something needs to be done about the increasing use of non-compete clauses which, he will argue, 'make it harder for employees to switch to a better job and stifle start-ups'.

See Gareth Hutchens, 'Labor flags plan to crack down on non-compete clauses for employees' (The Guardian, 7 June 2017). See also, AAP, 'Industry concentration worsening: Labor' (7 June 2017).

 

7 June 2017 - Andreas Stephan on the normative justifications for cartel criminalisation

Although not Australian specific, UK Prof (and frequent visitor to Aus) Andreas Stephan's new paper examining the normative justifications for cartel criminalisation is nevetheless highly relevant to Australian competition law enforcement. Australia has criminalised cartels since 2009 but has yet to charge any individuals for cartel conduct.

The paper (Andreas Stephan, 'An empirical evaluation of the normative justifications for cartel criminalisation' (2017) Legal Studies) also references an Australian empirical study on cartel criminal sanctions conducted by the University of Melbourne and published in 2013 (Beaton-Wells and Parker ‘Justifying criminal sanctions for cartel conduct: a hard case’ (2013) 1(1) J Antitrust Enforcement 198)

Link to original Tweet

 

2 June 2017 - Beaton-Wells: Bigger fines needed for cartel conduct

Professor Caron Beaton-Wells has an item in today's The Conversation calling for bigger penalties for companies found to have engaged in cartel conduct that causes harm to Australian consumers.

Current fines are described as 'woefully below international benchmarks'. The ACCC's appeal against the Court's decision to fine Yazaki only A$9.5 million for cartel conduct is discussed.

See Caron Beaton-Wells, 'Cartels caught ripping off Australian consumers should be hit with bigger fines' (The Conversation, 2 June 2017).

 

2 June 2017 - ACCC on the Tabcorp authorisation application

There's plenty of media about the Tabcorp merger authorisation application currently before the Tribunal. The ACCC made submissions to the Tribunal today arguing that the proposed merger would not reap the public benefits claimed. A decision is expected from the Tribunal (comprising Justice Middleton, Grant Latta and Darryn Abraham) later this month. See, eg, John Durie, 'ACCC off leash over Tabcorp-Tatts' (The Australian, 1 June 2017), John Stensholt, 'ACCC "not satisfied" Tabcorp Tatts merger in public interest' (AFR, 2 June 2017) and Richard Gluyas, 'ACCC leaves $11bn Tabcorp-Tatts merger hopes in tatters' (The Australian, 2 June 2017). See further John Durie, 'Tabcorp's bet could sour' (The Australian, 2 June 2017, p 38).

 

May 2017

 

30 May 2017 - ACCC appeals Yazaki Corporation penalty decision

The ACCC has appealed the decision of the Federal Court to impose a penalty of $9.5 million against Yazaki Corporation for collusion; the ACCC had sought a penalty between $42-$55 million. View media release. View case page.

 

23 May 2017 - In Competition: 'A Tale of Two Authorisations'

James Gould has a post in King&Wood Mallesons' 'In Competition' blog discussing two recent South Australian authorisation decisions. See James Gould, 'South Australia: A Tale of Two Authorisations' (In Competition, 23 May 2017).

 

18 May 2017 - Fly-in fly-out airline alliance authorised

The ACCC has authorised a Charter Alliance Agreement between Virgin and Alliance Aviation Services, pursuant to which the Virgin Australia Regional Airlines and Alliance Aviation Services will 'jointly bid for and contract with corporate charter customers in relation to the provision of fly-in fly-out (FIFO) services.' This follows the ACCC's initial proposal to deny authorisation in December 2016; subsequent market inquiries led the ACCC to conclude there were a 'number of factors that mitigate the risk to competition' so that likely public benefits will outweigh likely detriments. View media release. View authorisation register.

 

16 May 2017 - Tabcorp merger hearings begin in the Tribunal

The Australian Competition Tribunal commenced its hearing of Tabcorp's merger authorisation application today. The matter is listed in the Victorian Fedearl Court Registry from 16 May - 2 June 2017 before Justice Middleton (President), Mr Grant Latta AM (Member) and Dr Darryn Abraham (Member). See, eg, John Stensholt, 'ACCC hits out at Tabcorp as merger hearings begin' (AFR, 16 May 2017) and Ben Butler and Sarah-Jane Tasker, 'Tatts, Tabcorp merger will produce a behemoth, says ACCC' (The Australian, 17 May 2017).

 

11 May 2017 - Private members' bill debated

Senator Gallagher - Image sourced from http://www.aph.gov.au/Senators_and_Members/Senators/Senators_photos (CC BY-SA 3.0)The Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017, introduced by on 16 February by Senator Gallagher, was debated in the Senate on 11 May 2017. Several speeches were made by ALP and LP Senators and by Senator Xenophon, who noted during the course of his speech that he and his colleagues support, 'with some amendments' the 'effects test' contained in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016. In this respect, Senator Xenophon indicated he would move 'a whole range of amendments based on this bill to the government's effects test bill, because we think that is the right thing to do in order to make that piece of legislation work much more effectively'. All speeches can be viewed on the Second Reading speeches page for the bill.

 

9 May 2017 - Yazaki ordered to pay $9.5m in penalties for collusion

The Federal Court today imposed penalties against Yazaki for 'engaging in collusive conduct with a competitor when supplying wire harnesses to Toyota Motor Corporation (Toyota) in Australia.' The ACCC sought significantly higher penalties (between $42-$55m) and is carefully considering the judgment. See ACCC press release. See case page.

 

9 May 2017 - Kemp on Misuse of Market Power

Katharine's Kemp's new article on misuse of market power is now available as an advance copy from the UNSW Law Journal. See Katharine Kemp, ‘“The Big Chill”? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power’ (2017) 40(2) University of New South Wales Law Journal.

 

Rod Sims - ACCC Image Library Sept 20166 May 2017 - Sims: Restoring Faith in Free Markets

The Chairman's speech at today's Competition Law Conference addressed the role of the ACCC in 'restoring faith in free markets'. View speech. This followed a keynote address by former Chief Justice of the High Court, The Hon Robert French AC, who discussed the 'Role of the Regulator as Competition Advocate'.

 

5 May 2017 - ACCC proposes not to declare wholesale domestic mobile

The ACCC has released its draft decision 'proposing to not declare a wholesale domestic mobile roaming service', observing that theres is 'insufficient evidence that declaration will improve the current state of competition.' See ACCC media release. See draft decision on Domestic Mobile Roaming Declaration Inquiry 2016 page.

 

4 May 2017 - ACCC releases SOI in relation to proposed APN Outdoor Group Ltd and oOh!media Ltd merger

The ACCC has released a Statement of Issues 'expressing preliminary concerns about the proposed merger between APN Outdoor Group Limited ... and oOh!media Limited'. The concerns arise from the fact that the merger will 'combine the two largest providers of out-of-home advertising in Australia, creating a market leader with over 50 per cent of all out-of-home advertising, and an even higher share in some segments ...' See media release. See merger register.

 

4 May 2017 - ACCC will not oppose Caltex's proposed acquisition of Milemaker

The ACCC today announced that it has decided not to oppose the proposed acquisition by Caltex of a 'chain of Victorian service stations from Milemaker Petroleum'. This decision followed a Statement of Issues released in March and was described by the ACCC Chairman as a 'difficult decision' because 'competition will be reduced'; the ACCC concluded, however, that that reduction would not be substantial. See media release. See merger register.

 

1 May 2017 - ACCC alleges Ramsay Health Care engaged in anti-competitive conduct

The ACCC has 'instituted proceedings in the Federal Court against Ramsay Health Care Australia Pty Limited (Ramsay) for alleged anti-competitive conduct involving misuse of market power and exclusive dealing in the Coffs Harbour region.' See ACCC media release. The matter is listed for its first case management hearing on 13 June.

 

Rod Sims - ACCC Image Library Sept 20161 May 2017 - Sims claims misuse of market power laws 'almost unusable'

ACCC Chairman, Rod Sims, has described the current misuse of market power laws as 'almost unusable' according to SMH. The SMH article also notes that in order to pass the proposed changes to the MMP law the Government will need the support of at least one crossbencher. See Madeleine Heffernan, 'Misuse of market power laws "almost unusable', ACCC chairman Rod Sims says' (SMH, 30 April 2017).

 

April 2017

(c) Commonwealth of Australia - see copyright page26 April 2017 - Former ACCC Chairman claims nothing to fear from Amazon

Former ACCC Chairman, Graeme Samuel, has dismissed claims that Amazon's entry into the Australian market would result in higher prices for Australian consumers, noting the entry of major international competitors into other markets in Australia has not driven out local competition. See Jackson Stiles, 'Nothing to fear from Amazon: former ACCC boss' (The New Daily, 26 April 2017)

 

20 April 2017 - ACCC issues draft decision on Hunter Valley rail network access undertaking

The ACCC has 'issued a draft decision not to accept the proposed Hunter Valley rail network access undertaking lodged by the Australian Rail Track Corporation'. See ACCC media release. See Hunter Valley access undertaking 2017 page.

 

13 April 2017 - ACCC proposes to authorise joint purchase of electricity

The ACCC has 'issued a draft determination proposing to allow the South Australian Chamber of Mines and Energy, along with 24 other South Australian businesses, to establish a joint electricity purchasing group.' See ACCC media release. See authorisation register.

 

13 April 2017 - Cane growers collective bargaining approved

The ACCC has 'authorised members of the Canegrowers Organisation to collectively bargain cane supply and related contracts with mill owners and sugar marketers for ten years.' See media release. See authorisation register.

 

13 April 2017 - Update on CCA Amendment Bill

Gilbert + Tobin's Elizabeth Avery has published her 'Insights' on the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, noting the changes from the exposure draft legislation. See 'Competition and Consumer Act Amendment Bills introduced into Parliament, but with further changes' (G+T, Insights, 12 April 2017).

 

3 April 2017 - Durie warns of reputation risk to ACCC

In his column today, John Durie's warns that the ACCC's new 'dual rol'e as a 'point person' for the Government on 'key market issues' poses a risk to its reputation. See John Durie, 'ACCC's new dual role could pose a risk to its reputation' (The Australian, 3 April 2017).

 

1 April 2017 - Mergers 2016

Richard L'Estrange at King&Wood Mallesons has published a blog piece reviewing '2016: The Year in Mergers' - it includes some commentary on the 33 public ACCC merger reviews as well as a tabular summary of their outcomes. See Richard L'Estrange, '2016: The Year in Mergers' (In Competition,King & Wood Mallesons, 28 March 2017)

 

March 2017

31 March 2017 - ACCC denies authorisation for banks to collectively bargain with and boycott Apple Pay

The ACCC has issued its final determination denying authorisation to the CBA, Westpac, NAB and Bendigo and Adelaide Bank to collectively bargain with and boycott Apple Pay. Chairman Rod Sims indicated that the ACCC was 'not satisfied, on balance, that the likely benefits from the proposed conduct outweigh the likely detriments. We are concerned that the proposed conduct is likely to reduce or distort competition in a number of markets'.

See ACCC media release and authorisation register. See also my earlier blogs on the authorisation application ('Apple versus the banks' (20 August 2016); 'Banks Denied Interim Authorisation for Cartel Conduct' (19 August 2016); 'Apple goes on the attack' (8 Feb 2017)).

 

Parliament of Australia (c) Julie Clarke30 March 2017 - Harper Reforms before the House

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 has been introduced into the House. Second reading debate has been ajourned until the next sitting of Parliament.

 

Parliament of Australia (Senate) (c) Julie Clarke29 March 2017 - MMP bill read in the Senate; adjourned until next sitting

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was read for a first time in the Senate and second reading speeches commenced but were then adjourned until the first day of the next sitting period.

 

House of Representatives (c) Julie Clarke28 March 2017 - MMP bill passes the House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 passed the House of Representatives today, incorporating the Government's amendments (changing the commencement date and removing mandatory factors for court to consider).

The Bill is listed for debate in the Senate tomorrow.

 

28 March 2017 - MMP debate resumed; further Harper bill 'imminent'

Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 resumed in the House of Representatives yesterday with a further 13 second reading speeches before it was agreed that the bill be read a second time.

Treasurer Scott Morrison's amendment (changing the commencement date and removing mandatory factors for Court to consider) also passed before an adjournment. A brief supplementary explanatory memo was also tabled in relation to the amendment. It explains the change to the mandatory factors follows the Senate Economics Legislation Committee recommendation and was designed to reduce complexity and uncertainty and 'reduce the risk that "substantially lessening competition" would unintentionally take on a different meaning in the context of section 46 compared to other provision ...'. It is not intended to 'change the objective of the new section 46'.

The supplementary EM also indicates that the introduction of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 is 'imminent' and that the proposed change in commencement date is designed to ensure that the new MMP provision will not be introduced unless and until authorisation is made available (in the new bill) for section 46 conduct.

 

24 March 2017 - More Harper reforms on their way

The Australian's John Durie reports today that the next suite of Harper Reforms are expected to be tabled in Parliament next week: John Durie, 'CBA within the law but community expects more' (The Australian, 24 March 2017) (scroll down to 'Playing both sides').

 

 

Scott Morrison image sourced from Parliament of Australia website http://www.aph.gov.au/Senators_and_Members/Members/Members_Photos (CC BY-SA 3.0)23 March 2017 - Debate to resume on Misuse of Market Power Bill

Debate on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 is set to resume in the House of Representatives today, with Treasurer Scott Morrison set to move the amendment to the bill proposed by the Senate Economics Committee. This amendment can be found on the Bill's homepage and removes the mandatory factors originally provided for in s 46(2).

The proposed amendment also changes the commencement date of the bill from the date of Royal Assent to the date that Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences. That bill has not yet been introduced, but presumably contains the other reforms outlined in the Exposure Draft Legislation released late last year. This change would delay the commencement of the MMP changes but would also overcome the problem associated with the authorisation provisions for misuse of market power not being included in the separate MMP Bill.

See further Emma Koehn, 'Scott Morrison to amend effects test legislation to remove hurdles for proving misuse of market power' (Smart Company, 23 March 2017) and Jacob Greber, 'Morrison to kill off 'lawyer's picnic' in competition effects test' (Australian Financial Review, 22 March 2017) and John Durie, 'Business to lament competition law changes' (The Australian, 23 March 2017).

 

23 March 2017 - ACCC wins competition advocacy award

The ACCC received an award by the World Bank and International Competition Network 'for its advocacy work in promoting pro-competition measures when governments are privatising public assets'. The award fell under the category 'Levelling the playing field through competitive neutrality or by elevating competition policy to the economic policy agenda'. See media release. See ICN-WBC Winners page.

 

23 March 2017 - ACCC will not oppose Healthe Care's proposed acquisition of Pulse Health

The ACCC has announced it will not oppose the proposed acquisition of Pulse Health by Healthe Care (both private hospital operators). See media release. See public register.

 

20 March 2017 - ACCC grants interim authorisation for airline Alliance

The ACCC has granted interim authorisation to Virgin Australia, HNA Group, Hong Kong Airlines, HK Express and their subsidiaries in relation to a proposed Alliance for the coordination of international passenger tarnsport between Australia and China. See authorisation register.

 

16 March 2017 - ACCC releases statement of issues on Caltex's proposed acquisition of Milemaker

The ACCC this morning released a Statement of Issues in relation to the proposed acquisition by Caltex of a chain of Victorian service stations from Milemaker Petroleum: 'The ACCC's preliminary view is that the acquisition may substantially lessen competition for the retail supply of petrol in Melbourne'. View media release. View merger register.

 

14 March 2017 - Tabcorp's authorisation filing now available on Tribunal website

The Tribunal has now published Tabcorp's merger authorisation application on its website. View Australian Competition Tribunal current listings page. See also my case page.

For additional media on the Tribunal move see: Sarah-Jane Tasker, 'Tatts deal: Tabcorp ditches ACCC review, goes to tribunal' (The Australian, 14 March 2017) and Paul Gilder, 'Tabcorp cracking the whip in push to get merger past the post' (Herald Sun, 14 March 2017).

 

13 March 2017 - Tabcorp heads to Tribunal for ruling on merger deal

Following the ACCC's release of a statement of issues on the proposed merger of Tabcorp and Tatts last week (see media release and merger register) Tabcorp is heading to the Tribunal seeking authorisation fo the deal. See Tabcorp media release.

See further John Durie, 'Tabcorp decision to switch regulators mid-race is being led by lawyers' (The Australian, 13 March 2017), James Thomson and John Stenshold, 'Tabcorp takes Tatts Group merger case straight to Competition Tribunal' (Australian Financial Review, 13 March 2017) and AAP, 'Tabcorp takes Tatts bid to tribunal' (SBS, 13 March 2017).

 

10 March 2017 - Cartel proceedings dismissed

The Federal Court yesterday dismissed cartel proceedings brought by the ACCC against electrical cable manufacturers and wholesalers. See ACCC press release. View judgment (ACCC v Olex Australia Pty Ltd [2017] FCA 222). See further my case page.

 

9 March 2017 - ACCC releases SOI on proposed Tabcorp-Tatts merger

The ACCC has issued a statement of issues on the proposed merger of Tabcorp and Tatts. See media release. See merger register. See also John Durie, 'ACCC reaction shortens odds of a Tass-Tabcorp tie-up' (The Australian, 9 March 2017).

 

9 March 2017 - Authorisation denied

The ACCC has denied authorisation for 16 insurance companies to agree to a cap on commissions paid to car dealers whho sell their insurance products. See media release. See authorisation register.

 

3 March 2017 - PT Garuda Indonesia / Air NZ High Court appeal

The High Court has heard appeals in PT Garuda Indonesia v ACCC and Air NZ v ACCC. A key issue revolves around the meaning of market 'in Australia'. The appeal documents as well as audio-visual recordings of the appeal can be found on the High Court website.

 

February 2017

 

23 February 2017 - ACCC concerns on Wollongong coal acquisition

The ACCC has published a Statement of Issues raising concerns about South32's proposed acquisition of Peabody's Metropolitan coking coal mine near Wollongong. See ACCC media release. See merger register. See Matt Chambers, 'ACCC raises flag on South32 Wollongong coal acquisition' (The Australian, 23 February 2017).

 

20 February 2017 - Maddocks - ACCC 2016 Year in Review

Maddocks has published its ACCC-2016 in Review.

 

19 February 2017 - COSBOA confirms support for effects test

The Council of Small Business Australia (COSBOA) has issued a media release confirming that it supports an effects test for misuse of market power. This was released in response to comments by the ALP 'insinuating that COSBOA does not support an effects test', which COSBOA has labelled wrong and 'fake news'. See COSBOA Media, 'ALP must support an effects test to have any competition credibility – and stop the fake facts' (17 February 2017)

 

17 February 2017 - Allens client update on MMP

Allens >< Linklaters have issued a client update on the Senate Committee's support for an effects test for MMP. See 'Client Update: Senate Committee Supports Proposal to Broaden the Misuse of Market Power Prohibition' (17 February 2017)'

 

16 February 2017 - Senate Economics Committee gives green light to effects test

I've posted a blog piece providing an overview and some commentary on today's Senate Economics Committee report on the misuse of market power bill. See Julie Clarke, 'Senate Committee Gives Green Light to Effects Test' (Australian Competition Law Blog, 16 February 2017).

 

16 February 2017 - Senate Economics Committee recommends passage of misuse of market power bill

The Senate Economics Committee today released its report on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016which will, amongst other things, introduce an effects test into Australia's abuse of power laws.

Labor senators dissented, claiming the effects test is 'a particularly dangerous economic policy'. Nick Xenophon, while 'broadly' supporting the committee recommendations, offered some additional comments, including once again calling for introduction of divestiture powers for breaching the misuse of market power provision. Further details to follow on my report page.

 

13 February 2017 - Banks' submission in ApplePay authorisation claim published

John Durie's latest column discusses the banks' submission responding to the ACCC's draft decision denying it authorisation to collectively negotiate with Apple over ApplePay. See John Durie, 'Banks stake out Apple Pay battleground in ACCC submission' (The Australian, 13 February 2017). See generally authorisation register.

 

9 February 2017 - Sims confirms its review of the BP's takeover of Woolworths petrol station will be a long one

Rod Sims - ACCC Image Library Sept 2016In an interview with the Australian, ACCC Chairman Rod Sims, has confirmed that the upcoming review of BP’s $1.8b acquisition of 527 Woolworths petrol station and convenience sites (announced in late December 2016) will be lengthy, with local competition issues to be assessed for all of the stations stations will need to be assessed. For more details see Matt Chambers, 'ACCC’s Sims: review of BP stations deal will be long' (The Australian, 9 February 2017).

 

9 February 2017 - ACCC will not oppose Ruralco’s proposed acquisition of TP Jones

The ACCC has announced it will not oppose Ruralco’s proposed acquisition of TP Jones, both 'rural merchandise retailers based in Tasmania'. See ACCC media release. See merger register.

 

8 February 2017 - Apple versus the banks ... Apple goes on the attack

Plenty of media this week generated by Apple's latest submission in response to the application by Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank's for authorisation to collectively bargain with and boycott Apple in relation to Apple Pay.

In November last year the ACCC issued a draft determination proposing to deny authorisation to the banks; however, it also noted that its draft decision was 'finely balanced'.

Apple's latest submission is in response to the draft determination. It concludes bluntly that it is Apple's view that the application by the banks 'is not primarily about NFC access' but rather is 'fundamentally about the applicant banks avoiding paying Apple fees for use of Apple Pay ... or specifically charging their cardholders for that use to discourage consumer use of Apple Pay and thereby reduce competition with their own proprietary wallets.' Authorisation would, Apple argues, produce no public benefit but only private benefit to the banks by allowing them to 'continue to free-ride on the significant investments made by Apple ... specifically in this case on the underlying technology installed on Apple devices to facilitate NFC payments without paying any fees for transactions processed via Apple Pay's secure element infrastructure ...'

For some more detail see my blog post. For a sample of recent media on this see, for example, James Eyers, 'Apple claims banks want digital wallets as a new revenue source' (AFR, 5 February 2017); Ariel Bogle, 'Apple's fight with big banks is getting even nastier, and it was already nasty' (MashableUK, 6 February 2017); Asha McLean, 'Apple argues Australian bank bargaining cartel is centred on fee avoidance' (ZDNet, 6 February 2017).

 

8 February 2015 - Dairy Inquiry

The ACCC is holding public inquiries in relation to the Dairy Inquiry from 6 February to 22 March 2017. It has been reported that up to 330 dairy farmers have given evidence in the first two days of ACCC hearings in Queensland and NSW.

There is likely to be ongoing media on this - for a sample see Simone Smith, 'ACCC dairy inquiry: Hundreds of dairy farmers give evidence' (The Weekly Times, 7 February 2017), 'ACCC investigating claims milk processors threatening farmers' (Radio National (audio), 7 February 2017); Shan Goodwin, 'No power to bargain for dairy farmers, ACCC told' (North Qld Register, 7 February 2017); Shan Goodwin, 'ACCC dairy inquiry has teeth' (The Australian Dairy Farmer, 27 January 2017).

 

Rod Sims - ACCC Image Library Sept 20165 February 2015 - Sims: ACCC too soft on penalties

The Chairman of the ACCC, Rod Sims, has argued that the ACCC has been too soft on penalties in the past. The ACCC will, in future, seek higher penalties. In addition, in response to the decision in Flight Centre, which Sims claims has 'profound implications' for business, the ACCC will launch a review across the e-commerce sector. See Patrick Durkin, 'Rod Sims says ACCC 'too cautious' on penalties in the past' (AFR, 5 February 2017).

 

January 2017

24 January 2017 - ACCC invites dairy farmers to air competition complaints

The ACCC has announced it is 'inviting dairy farmers to share any concerns they may have about competition and fair trading at a series of public forums around the country' as part of the ACCC's Dairy Inquiry. See media release.

 

20 January 2017 - Senate committee submissions available

Submissions were added progressively to the Commitee website and are available here. The Commitee is due to report on 16 February. For more information see my report page.

 

14 January 2017 - Durie on the Woolworths decision

John Durie has an item today discussing the Woolworths unconscionable conduct decision. It includes discussion of some of the submissions to the misuse of market power Senate review which have identified the decision as problematic for small business as well as more general discussion on some of the submissions. See John Durie, 'Woolies decision weakens watchdog the ACCC' (The Australian, 14 January 2017).

 

9 January 2017 - Flight Centre blog

I have a blog piece on the Centre for Competition Policy's blog today discussing the recent High Court decision in Flight Centre. See 'Flight Centre: Australian High Court finds agent competed with principal and breached cartel laws' (Centre for Competition Policy Blog, 9 January 2017)

 

6 January 2017 - Pharmaceutical competition

Terry Barnes has an opinion piece in today's AFR discussing the PBS, lobbying from the Pharmacy Guild of Australia and current protections from normal market competition. See Terry Barnes, 'A taste of their own medicine' (Australian Financial Review, 5 January 2017) (behind pay-wall)

 

 

1 January 2017 - MMP Bill submissions due soon

Reminder that submissions on the Senate Economics Committee's review of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 are due by 9 January 2017 with the Report expected on 16 February. 

 

Other news

View 2016 news

View hot topics