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Competition Law News

April 2017

New Year

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)).


30 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.


29 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.


28 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').



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

In 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).


5 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. 


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