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March 2018

Lady Justice holding scales of justice

15 March 2018 - Country Care cartel case to be heard in Melbourne

The Mildura Magistrate's Court has ordered that the committal hearing in relation to two individuals charged with cartel conduct should take place in the Melbourne Magistrates' Court.

The AFR reports that County Care managing director Robert Hogan and former busienss development manager, Cameron Harrison, are each facing dozens of charges relating to cartel conduct, including in the form of bid rigging and price fixing.

A committal mention is listed for 6 June.



House with piles of coins

15 March 2018 - Independent Cinemas Australia authorised to collectively bargain with film distributors

The ACCC has authorised Independent Cinemas Australia and its members to 'share information and collectively bargain with film distributors on the terms and conditions of film licensing agreements'.

View ACCC Press Release.

View Authorisation register.


House with piles of coins
Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

15 March 2018 - ACCC issues statement of issues outlining concerns in relation to Pacific Nationals' proposed acquisitions of Aurizon's intermodal assets

The ACCC has issued a PDF iconStatement of Issues raising strong concerns about Pacific National's proposed acquisitions of Aurizon's 'Queensland intermodal freight haulage business and intermodal rail terminal at Acacia Ridge in Brisbane'.

ACCC Chairman, Rod Sims, stated:

'Aurizon’s decision to sell its Queensland intermodal operations and the Acacia Ridge Terminal to its closest competitor, while shutting down its remaining intermodal business, will fundamentally change this market. We are concerned about the impact on competition in the freight industry.'

'We are concerned the proposed acquisitions would lead to increased prices and reduced service for freight hauled between Brisbane and Far North Queensland'

Pacific National has offered a PDF iconsection 87B behavioural undertaking, but the ACCC's preliminary review is that it will not resolve their concerns.

The ACCC is inviting further submissions in response to the Statement of Issues. Submissions are due by 3 April with a final decision expected on 24 May 2018.

View ACCC media release. View Merger Register.


House with piles of coins

15 March 2018 - ACCC releases residential mortgage price inquiry interim report

The ACCC commenced a residential mortgage products price inquiry in 2017 and today it released its interim report. The ACCC's media release notes that the interim report 'reveals signs of less-than-vigorous price competition, especially between the big four banks'. The preliminary findings of the inquiry are discussed under the following headings:

  • Opaque discretionary discounts make it difficult for borrowers to compare products
  • Basic (or ‘no frills’) residential mortgages are not always the cheapest after discounts
  • New borrowers pay significantly lower interest rates on average than existing borrowers
  • Signs of a lack of vigorous price competition
  • The public’s reaction has been a constraint on pricing
  • Public messaging on rate changes do not always tell the full story
  • Prudential benchmarks have led to increases in some interest rates
  • The Major Bank Levy

For more detail:


High Voltage cable

13 March 2018 - Full Federal Court dismisses Prysmian cartel appeal

The Full Federal Court today dismissed an appeal by Prysmian Cavi E Sistemi SRL against a 2016 ruling that it had engaged in cartel conduct in relation to the supply of high voltage land cables.

The ACCC has welcomed the Full Court's decision.

See ACCC, 'Full Federal Court dismisses cartel appeal' (13 March 2018)



12 March 2018 - Vale Professor Bob Baxt AO

I am saddened to learn of the passing of former Chairman of the Trade Practices Commission (now ACCC), Professor Bob Baxt AO.

Current ACCC Chairman, Rod Sims, described Professor Baxt as a 'true champion of competition law in Australia' who 'leaves a lasting legacy'. Professor Baxt's contribution to trade practices law and policy was recognised through the award of a Centenary Medal in 2001 'for service to consumer protection as chairman of the Trade Practices Commission'. In 2003 he was appointed an Officer, Order of Australia for 'service to the law, particularly as a leading spokesperson in the areas of trade practice, competition, taxation and corporate law, and in the field of legal education'.

In addition to his role as Chairman of the (then) Trade Practices Commission, Professor Baxt was Dean of Law at Monash University in the 1980s, partner at Allens Arthur Robinson and later Herbert Smith Freehills, Professorial Fellow at the Melbourne Law School and Chair of the Advisory Board for the competition and consumer law specialisation in the Melbourne Law Masters program. Since 2011 an annual 'Baxt Lecture' has been held in recognition of the substantial contribution made by Professor Baxt to the development of competition law in Australia.

Professor Baxt was also a founding member of the Business Law Section of the Law Council of Australia and long time member of the the competition and consumer committee (among others). In 2017 the Business Law Section of the Law Council Australia offered, for the first time, the 'Baxt Prize' for an outstanding research paper on the topic of 'Human Rights and Business Law'. Professor Baxt was also Chairman of the Law Committee of the Australian Institute of Company Directors.

Professor Baxt published widely and was the founder and general editor of the Australian Business Law Review and the Company and Securities Law Journal.

My condolences to friends and family of Professor Baxt.


Shipping containers

8 March 2018 - ACCC will not challenge Qube MCS deal

The ACCC has announced it will not take further action in relation to Qube's completed acquisition of Maritime Container Services.

View ACCC press release. View merger register.

See also Samanntha Bailey 'ACCC clears Qube’s already-completed Maritime Container Services buy' (The Australian, 8 March 2018) and Jenny Wiggins, 'Qube can keep MCS container parks acquisition: ACCC' (AFR, 8 March 2018).



8 March 2018 - Accor-Mantra deal not opposed by ACCC

The ACCC has announced it will not oppose the proposed acquisition of Mantra Group by AAPC Ltd (Accor).

ACCC Chairman, Rod Sims, said that the 'combined Accor-Mantra will still compete with other international and national hotel chains, as well as many independent hotels and accommodation providers'

View ACCC press release. View merger register.


Shaking hands

6 March 2018 - Fisse on mergers

Brent Fisse has published presentations he recently gave at an APEC Workshop on merger control. The first offers a critique of Australia's informal merger review process and the second relates to the Metcash saga. They can be found on Brent's website, or directly from the links below:

Merger Control in Australia: Informal and Formal Review
Brent Fisse (APEC Workshop on Merger Control Regimes, Port Moresby, 1 March 2018)

Merger Control in Australia: ACCC v Metcash - SLC v Legalism
Brent Fisse (APEC Workshop on Merger Control Regimes, Port Moresby, 2 March 2018)


Network connection

6 March 2018 - NBN Migration Plan variation approved to allow for Fibre to the Curb

The ACCC will allow Telstra to vary its NBN Migration Plan 'to enable fibre to the curb (FTTC) as a new access technology for NBN connections. Changes to the original proposed variation are designed to ensure that FTTC services are operating before existing services are disconnected.

View ACCC media release. View Telstra'a Migration Plan and variation.

[NB: Finding it hard to get excited about anything NBN when planned rollout for my area is for fixed wireless to be available between July-December 2019 ... seriously!]


Optical fibre

5 March 2018 - ACCC commences inquiry into telco transmission

The ACCC has commenced a public inquiry to 'determine whether declaration of the Domestic Transmission Capacity Service (DTCS) remains appropriate in light of changes to the market, including the growth of commercial alternatives available to service providers, new NBN products for business customers and industry consolidation.'

View ACCC media release

View Service Declaration Inquiry 2018-2019



5 March 2018 - Draft authorisation for dental services pricing

The ACCC is proposing to authorise health insurer HCF and participating dentists to agree on the maximum price that they will charge members for some services. As HCF is planning to establish its own clinics, authorisation has been sought to avoid contravening the cartel laws.

The ACCC does not consider that the agreement is likely to have any significant impact on competition, noting that dentists are free to choose whether or not to participate and HCF members are free to choose a non-HCF member for their dental services. The draft ruling states that the proposed conduct 'is likely to lower the cost and increase the use of preventative dental services' and that it is 'likely to result in a net public benefit'. It is proposed that authorisation be granted for ten years.

View ACCC media release

View Authorisation register: Hospitals Contribution Fund of Australia Limited


Maintenance worker

2 March 2018 - ACCC authorises maintenance coordination activities at LNG facilities in WA and NT

The ACCC authorised Chevron, INPEX, Shell and Woodside to 'coordinate maintenance activities at their LNG facilities in Western Australia and Northern Territory.'

ACCC Chairman, Rod Sims, said: 'LNG producers can now schedule maintenance together without risking breaching competition laws, reducing concurrent work at their facilities. This will improve efficiency and maximise LNG production'

See also Cole Latimer, 'ACCC approves gas pricing tie-ups to help ease energy crisis' (SMH, 2 March 2018)


2 March 2018 - ACCC issues draft decision for joint marketing of NT gas

The ACCC has released a draft determination proposing to authorise joint gas marketing arrangements between Central Petroleum and Macquarie Mereenie (joint venture partners at the Mereenie oil and gas field).

The authorisation is proposed to run for three years. Submissions from interested parties may be made until


1 March 2018 - ACCC issues SoI on Saputo-Murray Goulburn deal

The ACCC has released a Statement of Issues outlining some competition concerns with Saputo's proposed acquisition of the assets of Murray Goulburn.

The concerns relate to Murray Goulburn's Koroit dairy plant in western Victoria, including the likely impact on competition for farmers' milk.

ACCC Chairman, Rod Sims, said that the ACCC's view was that 'Saputo owning the Koroit plant would substantially lessen competition for the acquisition of dairy farmers’ raw milk in the region'.

Submissions from interested parties are due by 13 March with a final decision expected by 29 March.

Plenty of media - see, for example


Carnival cruise ship

1 March 2018 - Draft decision on Port of Brisbane and Carnival agreement

The ACCC has issued a draft authorisation for an agreement between Port of Brisbane and Carnival Cruise line relating to the development of a new dedicated cruise liner terminal.

The ACCC proposes to impose conditions in relation to certain aspects of the agreement that might limit competition from other cruise liners.


February 2018

Piggy bank

28 February 2018 - ACCC remarks: Competition in the Australian Financial System

The ACCC has welcomed the Productivity Commission's draft report into Competition in the Financial System at a public hearing this morning.

Speaking at the public hearing this morning, Marcus Bezzi (Executive General Manager (Enforcement & Compliance Division)) focused his remarks on:

  1. Competition Advocacy
  2. The ACCC's Financial Services Unit
  3. 'Embedding greater transparency in decision-making and a commitment to competition'

View the ACCC's opening statement.

The opening statements were followed by questioning from PC Commissioners. The opening statements and subsequent discussion was streamed this morning and can be viewed via Facebook (skip through to the 3 hour mark to hear Marcus Bezzi and Molly Choucair (General Manager, Financial Services Unit) speaking on behalf of the ACCC).


Digital media platforms

26 February 2018 - Digital platform issues paper released

The ACCC has released an issues paper in relation to its Digital Platform inquiry. In its media release the ACCC indicates it is seeking feedback on:

  • 'Whether digital platforms have bargaining power in their dealings with media content creators, advertisers or consumers and the implications of that bargaining power.
  • Whether digital platforms have impacted media organisations’ ability to fund and produce quality news and journalistic content for Australians
  • How technological change and digital platforms have changed the media and advertising services markets, and the way consumers access news
  • The extent to which consumers understand what data is being collected about them by digital platforms, and how this information is used
  • How the use of algorithms affects the presentation of news for digital platform users.'

The issues paper itself runs to 39 pages, although much of this is background information. In addition to asking six questions regarding the scope of the inquiry, the issues paper asks 36 stakeholder questions.

Submissions are due by 3 April 2018. More informal submissions can be made via a questionnaire on the ACCC's consultation hub by the same date.

Digital platforms imageSee my inquiry page for more details.

See also


20 February 2018 - ACCC announces 2018 priorities

In his annual address to CEDA in Sydney today ACCC Chair, Rod Sims, launched the ACCC's 2018 Compliance and Enforcement policy.

This year the focus for the ACCC in relation to competition issues will be:

  • conduct that might contravene the new misuse of market power prohibition
  • conduct that might contravene the new prohibition on concerted practices
  • competition issues in the financial services sector
  • competition issues in the commercial construction sector

In relation to both competition and consumer issues the focus will be

  • competition and consumer isssues concerning 'the use of digital platforms, algorithms and consumer data, with a focus on emerging markets and matters identified by the ACCC's digital platforms inquiry'
  • competition and consumer issues in relation to the provision of energy
  • competition and consumer issues in the agriculture sector

In relation to consumer issues, the priorities will be:

  • systematic consumer guarantee issues
  • consumer issues in broadband services
  • consumer issues in new car retailing
  • ensuring small business receives their industry code and unfair contract term protections (focus on Franchising Code of Conduct)
  • better product safety outcomes for consumers shopping online
  • issues relating ot the Takata airbag recall

Priority stampThe Policy also notes 'enduring priorities', including cartel conduct, anti-competitive agreements and misuse of market power and reiterates its priority factors, including conduct of significant public interest/concern or conduct resulting in substantial consumer or small business detriment.


Plenty of media about the priorities, including:



20 February 2018 - ACCC appeals Cussons decision

The ACCC has appealed the Federal Court's decision in December last year in which it dismissed the ACCC's claims that PZ Cussons had engaged in cartel conduct in relation to laundry detergents.

ACCC Chairman, Rod Sims, stated that the ACCC believed  'that there was sufficient evidence for the Court to find that Cussons had entered into an understanding' and that the appeal will allow the Full Court to 'consider whether the trial judge should have inferred an understanding involving Cussons based on the uncontested evidence in this case.'

A case management hearing is scheduled before Justice Wigney on Thursday.

See ACCC, 'ACCC appeals Cussons decision' (Media Release, 20 February 2018).

View case page for further detail.

See also Roje Adaimy, 'ACCC appeals cartel case against Cussons' (The Australian, 20 February 2018) and 'ACCC appeals cartel case against Cussons' (9 news, 20 February 2018)


Eye looking through window - insights

20 February 2018 - Gilbert + Tobin Competition Law Insights 2018

Gilbert + Tobin have published their 'Competition Law Insights 2018'. The report:

  • explores recent changes to the competition laws
  • examines the ACCC's activity in 2017 (including by providing some useful case studies)
  • predicts what's in store for the year ahead (focussing on merger and cartel activity)

The report provides a neat overview of the Harper reforms and a useful table detailing the new merger processes. It also examines some of the current competition law related inquiries, including those into Australia's financial system and the digital platforms inquiry.

The report can be downloaded from the Gilbert + Tobin website.


TV banner

18 February 2018 - Sims on ACCC priorities

ACCC Chair, Rod Sims, spoke with Patricia Karvelas for the National Wrap.

View the National Wrap on iView from just past the 4 minute mark to 13:51 - focus on the NBN, gas markets and the Facebook/Google inquiry.


Emirates plane16 February 2018 - ACCC to re-authorise Qantas-Emirates alliance

The ACCC is proposing to re-authorise the Qantas/Emirates alliance for a further five years.

See authorisation register for details.

See also


Jetstar16 February 2018 - ACCC allows Jetstar's Asian brands to coordinate

The ACCC has re-authorised the coordination of Jetstar Asia, Jetstar Pacific and Jetstar Japan.

See ACCC, 'ACCC allows Jetstar's Asian brands to coordinate' (Media Release, 16 February 2018)

See also ACCC authorisation register and Reuters staff, 'Australia consumer watchdog reauthorises coordination of Qantas' Asian tie-ups' (Reuters, 16 February 2018).


15 February 2018 - Criminal cartel proceedings commenced

Criminal cartel charges have been laid against The Country Care Group Pty Ltd, its Managing Director and a former employee.

The charges against Country Care Group represent the first criminal prosecution of an Australian corporation and the second criminal prosecution of a cartel (the first being NYK) under the criminal cartel provisions of the Competition and Consumer Act.

The charges against Country Care Group's Managing Director and a former employee represent the first time individuals have been prosecuted under thse provisions.

The charges are listed for mention in the Victorian Magistrates' Court in Mildura on 14 March 2018.

See ACCC, 'Criminal cartel proceedings commenced against Country Care and its managers' (Media Release, 15 February 2018)

See also Misa Han, 'ACCC launches first criminal cartel case against an Australian company' (AFR, 15 February 2018), Michael DiFabrizio, 'COuntry Care facing charges' (Sunraysia Daily, 16 Feb 2018) and Aisha Dow and Chloe Booker, 'Family business making wheelchairs accused of running criminal cartel' (SMH, 15 February 2018).


Digital matrix image7 February 2018 - Productivity Commission issues draft report on Competition in the Australian Financial System

The Productivity Commission has released its draft report on Competition in the Australian Financial System.

The report argues that competition in the financial system 'is without a champion among the existing regulators'. When considering who should promote financial system competition the PC considered two options: (1) the ACCC to have expanded role as proactive competition advocate or (2) that ASIC's focus be expanded to include advancement of competition. Draft recommendation 17.1 states:

'To address gaps in the regulatory architecture related to lack of effective consideration of competitive outcomes in financial markets, an existing regulator must be given a mandate to take the lead on matters related to competition in the financial system. To minimise cost and disruption, this role should be implemented in substantial part through the Council of Financial Regulators (CFR).

There would be no change under this recommendation to the current legislated responsibilities of the regulators. Rather, the Australian Government should include in its Statement of Expectations for all members of the CFR the practice of reviewing, before they are implemented, regulator actions that may have material effects on competition.

The competition-related functions of the designated Council member would include:

  • transparent analysis of competition impacts tabled in advance of measures proposed by regulators
  • testing of the impacts of competition and community outcomes of additional provider integration.'

This is followed by an 'information request', seeking feedback on the merits of each option (ACCC or ASIC as regulator responsible for advancing competition)

Various other draft findings (inculcating that the 'Four Pillars policy is a redundant convention') and recommendations are made in relation to competition in the financial system.

The final report is expected to be completed by 1 July 2018

Plenty of media: Peter Ryan, '"Four pillars" banking policy is "ad hoc" and "redundant", Productivity Commission warns' (ABC News, 7 February 2018), Joanna Mather and James Eyers, 'APRA delivers banks $1b windfall: Productivity Commission' (AFR, 7 February 2018), Jennifer Jennings, 'Productivity Commission call for new competition watchdog' (Daily Telegraph, 7 February 2018), Clancy Yeates, '"Four pillars" policy under fire from Productivity Commission' (The Age, 7 February 2018), Simon Benson, 'Banking's four-pillars policy redundant, claims watchdog' (The Australian, 7 February 2018).


Image of film strip

2 February 2018 - Media mergers and the ACCC's role in merger authorisations

Michael Corrigon and Simon Ellis at Clayton Utz provide some thoughts on the ACCC's new role in merger authorisation and discuss media mergers by reference to the New Zealand High Court's decision in NZME Limited v Fairfax Media Limited [2017] NSHC 3186 (recently appealed) and Australia's new Media Merger Guidelines.

See Michael Corrigan and Simon Ellis, 'What's the big deal? Media mergers and the ACCC's new role in merger authorisations' (Clayton Utz, Knowledge, 1 Feb 2018)


January 2018

Agreement - shake hands

24 January 2018 - Competition Law Symposium

The symposium, Cartels, Optimal Enforcement and Theories in Competition Law, will be held in Brisbane on 27 March 2018. The symposium has been organised by the TC Beirne School of Law at the University of Queensland in memory of the research of former PhD student, Laura Guttuso.

The program, which can be downloaded here, features keynote speakers from around the world.

Various registration options are available. To find out more visit the symposium website.


Corporate handshake

16 January 2018 - ACCC merger reviews

The ACCC has initiated a few informal merger reviews to kick of the year.

The first is Cleanaway Waste Management's proposed acquisition of Tox Free Solutions. A market inquiries letter was sent on 11 January and submissions are due 9 Feb, with a provisional announcement date of 29 March 2018.

The second is MYOB's proposed acquisition of Reckon Limited's Practice Management Group; an informal review commenced on 12 January accompanied by a market inquiries letter. Submissions are due by 1 Feb with a provisional announcement date of 22 March 2018. See John Durie, 'ACCC to probe MYOB's Reckon acquisition' (The Australian, 15 January 2018) and Brendon Foye, 'ACCC to investigate MYOB's $180 million acquisition of Reckon' (CRN, 15 January 2018).

Yesterday the ACCC commenced a review of Qube Logistics' completed acquisition of Maritime Container Services Pty Ltd. Qube has provided the ACCC with an undertaking to keep the MCS business separate and independent until at least 14 March 2018. Submissions on a market inquiries letter are due by 1 February. As this is a completed acquisition the ACCC have not provided a provisional announcement date. See John Durie, 'ACCC queries Qube's MCS acquisition' (The Australian, 16 January 2018).


Laundry12 January 2018 - Decision published in ACCC's detergent cartel case

The decision in the ACCC's case against PZ Cussons alleging participation in a laundry detergent cartel was handed down late last year, with Justice Wigney dismissing the ACCC's claim; the reasons for judgment have now been published.

In 2013 the ACCC commenced actions against Colgate, Cussons, Unilever and Woolworths alleging price fixing conduct contrary to s 45 of the Trade Practices Act 1974 as it was at the relevant time. Both Colgate and Woolworths made admissions in 2016 (Unilever was the Immunity applicant) and were ordered to pay penalties totalling $18m and $9m respectively.

Cussons challenged the claims and the hearing commenced 7 June 2016, running over several days. Justice Wigney handed down his decision on 22 December, finding that the ACCC had not discharged its burden of proving, on the balance of probabilities, that the respondent had entered into the claimed arrangement or understanding. The reasons for judgment have now been released and show that Justice Wigney preferred the economic evidence suggesting the conduct resulted from oligopoly behaviour rather than agreement.

View case page for more details.





Jump from 2017-20189 January 2018 - Criminal cartel cases loom

In an interview with the AFR, ACCC Chairman, Rod Sims, claims 2018 will be a 'big turning point for cartel enforceement', with 'three to four domestic-based criminal cartel actions' expected.

See Patrick Durkin, 'ACCC's criminal cartel cases seek jail time, big fines from companies (AFR, 8 January 2018). See also Glenda Korporaal, 'ACCC to launch criminal cartel cases' (The Australian, 9 January 2018).

See also Andrew Arulanandam, 'The ACCC's priorities for 2018' (KWM, In Competition blog, 12 January 2018)


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