Competition Law News 2011
23 December 2011 - Price signalling regulations released for comment
David Bradbury (Parliamentary Secretary to the Treasurer) has released the Government's price signalling regulations for consultation. These relate to the price signalling laws introduced by the Competition and Consumer Amendment Act (No. 1) 2011 (to commence 6 June 2012). The regulations make clear that the law will initially only apply to the banking sector. Consultation closes on 22 March 2012. View press release. View consultation draft regulations and explanatory note.
22 December 2011 - Ticketek penalised for misusing market power
The Federal Court in Sydney has penalised Ticketek Pty Ltd $2.5 million for taking advantage of its market power. 'The Court found that on four separate occasions Ticketek engaged in conduct with the anti-competitive purpose of deterring or preventing Lasttix from supplying its services. Lasttix offers promotional services to event organisers to target consumers wanting to buy 'last minute' discounted tickets.' View ACCC Press Release. View decision.
20 January 2012 - ACCC commences public consultation on NBN SAU
The ACCC has commenced public consultation on NBN Co Special Access Undertaking (SAU) lodged by NBN Co on 5 December 2011. 'The SAU provides a framework for access to services provided over NBN Co's fibre, wireless and satellite networks until June 2040.' View consultaiton paper. A supplementary consultation paper will be released in February 2012 that will analyse the SAU in greater detail and the 'ACCC will provide guidance on what it considers to be the key issues associated with the SAU at that time'. Submissions received by 30 March 2012 will be considered by the ACCC in deciding whether to accept or reject the SAU. View press release.
15 December 2011 - Stephen King appointed as Part Time NCC Councillor
15 December 2011 - ACCC revokes Football Qld's third line forcing notification
The ACCC 'has issued a notice revoking Football Queensland’s third line forcing notification which covers a program requiring member clubs to purchase equipment and apparel only from licensed suppliers.' Football Queensland is the governing body for soccer in Qld. View press release. View notification register.
15 December 2011 - ACCC proposes to authorise collective bargaining by Dudgeon Point coal
The ACCC 'proposes to authorise miners to collectively bargain with Dudgeon Point Project Management (DPPM) and QR Network to export coal from Bowen Basin mines through the proposed DPPM terminal at Dudgeon Point'. View press release.
13 December 2011 - ACCC proposes to authorise collective bargaining in the tomato industry
The ACCC is 'proposing to allow members of Australian Processing Tomato Growers, a branch of the Victorian Farmers Federation, to bargain collectively on the terms and conditions of their contracts with their processors'. View press release. View authorisation register.
13 December 2011 - MOA between ACCC and SA Government on cartels
The ACCC has signed a MOA with the South Australian State Government on strategies to combat cartel conduct. View press release.
12 December 2011 - ACCC proposes to authorise collective bargaining by AbbotPoint coal miners with QR network
The ACCC 'proposes to allow coal miners to collectively bargain with QR Network for access to its below rail infrastructure in the Newlands, Blackwater and Goonyella coal rail systems. Coal from the Bowen Basin mines is to be exported through the Port of Abbot Point.' View press release. View authorisation register.
9 December 2011 - ACCC issues draft final access determination for regulated transmission service
9 December 2011 - Revised Telstra structural separation undertaking
5 December 2011 - ACCC will not appeal Metcash
The ACCC will not seek special leave to appeal against the Full Federal Court's decision in Metcash. Despite the uncertainty brought about by the various separate judgments delivered in Metcash, the ACCC has indicated it 'will continue to assess the likely competitive effect of an acquisition on the basis of a "real chance" test'. View press release.
1 December 2011 - ACCC will not oppose Arrow Energy's acquisition of Bow Energy
1 December 2011 - ACCC authorises Virgin/Singapore Airlines alliance
The ACCC has granted authoirsation for Virgin and Singapore Airlines to enter into an integrated network aviation alliance that the ACCC 'considers ... likely to lead to increased competition for international air passenger services'. View ACCC press release. View authorisation register.
30 November 2011 - ACCC loses Metcash appeal
29 November 2011 - Foxtel/Austar decision delayed
Foxtel has requested an extension fo time to allow it to make a further submission on its proposed acquisition of Austar. See, eg, Colin Kruger, ACCC hits pause after Foxtel requests submission extension (SMH, 29 November 2011) . See ACCC Merger Register.
25 November 2011 - Changes to merger law pass through Senate
The Senate has passed the Competition and Consumer Legislation Amendment Bill 2011 without amendment. A proposed amendment by Senator Xenophon was negatived.
25 November 2011 - Price signalling Bill passes through Senate
The Price Signalling Bill (the Competition and Consumer Amendment Bill (No. 1) 2011) passed through the Senate late last night without further debate. The price signalling provisions will commence six months from the date of Royal Assent. The Competition and Consumer Legislation Amendment Bill 2011 (mergers) is listed for debate today.
24 November 2011 - ACCC calls for comment on Pact Group's proposed acquisition of Viscount Plastics
The ACCC has released a Statement of Issues on the proposed acquisition by Pact Group Pty Ltd of Viscount Plastics Pty Ltd. Submissions are invited - due 15 December. The final decision is due by 19 January 2012. View press release. View merger register.
21 November 2011 - Competition bills listed for debate this week
In the last sitting for the year, the Senate has finally listed the competition law bills for debate - the Competition and Consumer Amendment Bill (No. 1) 2011 and the Competition and Consumer Legislation Amendment Bill 2011 are both listed for debate on Thursday (view Senate "week at a glance"). The first of these bills is the controversial price signalling bill and the second is the 'creeping acquisition' bill, which will remove the word 'substantial' from the definition of market in s 50(6) and replace the words 'a market' with 'any market' in s 50(1).
18 November 2011 - Korean Air Lines fined $5.5 million for price fixing
The Federal Court (Justice Stone) has penalised Korean Air Lines $5.5 (plus $200,000 in costs) for its part in the international air cargo cartel - Korean Air Lines admitted that it reached and gave effect to understandings with other airlines in relation to fuel surcharges, security surcharges and cusoms fees. View press release.
18 November 2011 - ACCC not to oppose CBA's acquisition of Count Financial Ltd
The ACCC has indicated it will not oppose the proposed acquisition of Count Financial Ltd by teh Commonwealth Bank of Australia, noting that while the acquisition would 'increase CBA's presence in the supply of financial planning services and mortgage referral services', CBA 'would continue to be constrained by a number of other significant financial planning dealer groups, mortgage broking firms and investment product providers'. See press release. See merger register.
15 November 2011 - Sims speaks on access
ACCC Chairman, Rod Sims, delievered a paper this morning to the Western Australian Chamber of Commerce and Industry on 'Competition and regulating monopolies: some perspectives from the ACCC'. View paper. View press release.
8 November 2011 - Sims talks about competition issues in the top end
ACCC Chairman, Rod Sims, has delivered a Breakfast Seminar in Darwin on 'Competition and Consumer issues in the top end'. There is, however, very little mention of competition issues - the clear focus was the ACL. View speech.
3 November 2011 - Final Supermarket report presented to Senate
Senator Kroger presented the final report of the Economics Reference Committee on the The impacts of supermarket price decisions on the dairy industry to the Senate yesterday (View Hansard - pages 29-35). In part, the Report recommends that an independent review of the Competition and Consumer Act be initiated (recommendation 5). This recommendation is not supported by the Government (see Senator Bishop's comments and 'Government Senators' Additional Comments' in the final report). Additional comments to the report are also made by Senators Xenophon, Williams, Heffernan, Madigan and Milne, recommending - amongst other things - a re-introduction of price signalling laws and general divestiture powers (apparently influenced, in part, by the misconception that we are out of touch with international prctice in this respect).
2 November 2011 - Cost of Metcash trial
The cost of the ACCC's attempts to block Metcash's acquisition of Franklins was disclosd in Parliament today in response to Senator Boswell's question (number 1263). The cost to the ACCC was approximately $3.4million for the trial and between $85-90,000 for the interlocutory application for interim injunction. The ACCC has allocated around $850,000 for the costs of the appeal to the federal court. See Hansard (last two pages).
2 November 2011 - Penalties imposed in TF Wooolam cover pricing case
Justice Logan hs handed out penalties in the construction industry price fixing case. Corporate penalties total $1.3m with additional penalties for some individuals involved. View ACCC press release. View original case.
27 October 2011 - South Australian newsagents to collectively bargain with SA Lotteries
27 October 2011 - Coal producers granted interim authorisation for collective negotiations
The ACCC has granted interim authorisation for coal miners to collectively negotiate with Dudgeon Point Project Management Pty Ltd (DPPM) in Queensland.. View press release. View authorisation register.
26 October 2011 - Metcash appeal hearing concludes
The hearing of the appeal in Metcash concluded yesterday. Media highlights include: Susannah Moran, 'Metcash slams ACCC appeal over takeover bid' (The Australian, 26 October 2011), ABC Lateline Business, 'ACCC appeals against Franklins takeover' (26 October 2011), Susannah Moran, 'Retailer Franklins' Wholesale Denial' (Australian, 27 October 2011)
25 October 2011 - ACCC Chairman to pursue misuse of market power
Speaking to the Law Institute of Victoria, ACCC Chairman Rod Sims discussed unconscionable conduct and misuse of market power, noting again that the misuse of market power provisions need clarification: "The ACCC now believes that it is time to resolve the unanswered questions surrounding section 46. Recent amendments to the Act and likely future court actions are providing guidance on how to successfully prosecute companies that misuse their market power". Sims also apologised for not being a lawyer ... View speech.
24 October 2011 - AFR: New price signalling rules threaten workouts
The AFR reports on concerns that proposed price-signalling rules will cause problems for banks trying to support companies in financial distress. This includes concerns expressed by former TPC chairman, Bob Baxt and Corrs partner, Shaun McGushin. The price signalling bill will be debated in the Senate next month.
24 October 2011 - Metcash begins ... again
The appeal in Metcash began today in Sydney before Justices Finn, Buchanan and Yates. The hearing will continue from 10.15am tomorow and will conclude on Wednesday. Media coverage includes: John Durie, 'Metcash appeal will test regulator's powers' (The Australian, 24 October 2011) Michael Evans, 'Metcash ruling undermines retail competition, says ACCC' (SMH, 25 October 2011) and Susannah Moran, 'Judge "erred" on Metcash Ruling' (The Australian, 25 October 2011)
20 October 2011 - ACCC grants interim authorisation to CALMS fee cap schedule
The ACCC has' granted interim authorisation to the Canberra After-hours Locum Medical Service (CALMS) to continue to apply a 'not to exceed' fee schedule (capped fee arrangement).' View press release. View authorisation register.
20 October 2011 - Latest ACC Law News out
CCH's latest Australian Competition & Consumer Law News is out and contains a lengthy note by Michael Terceiro on the Metcash decision ('Messcash: a comedy of errors" (Issue 636, 14 October 2011)) in which he concludes that "claims that Emmett J's judgment represents a triumph of common sense over economic theory are entirely misplaced", predicting it is unlikely to survive appeal. Worth a read for a different perspective; Michael acted for the financial adviser to the Supabarn led consortium. The Issue contains a number of other interesting items, including notes on the FT Woollam cover pricing case and ACCC v Prysmian, in which the court held that the identity of a cartel informer was not protected by public interest immunity (at least in this case).
20 October 2011 - Sims discusses supermarket price wars
ACCC Chief, Rod Sims, has discussed the extent of ACCC's powers in relation to the major supermarket chains (amongst other things) at a senate estimates hearing last night. View report by Naomi Woodley on ABC radio (awaiting transcript).
14 October 2011 - NZ introduces criminal cartel bill
13 October 2011 - ACCC proposes to authorise Virgin Australia and Singapore Airlines alliance
The ACCC has "issued a draft decision proposing to grant authorisation for Virgin Australia and Singapore Airlines to enter into an integrated network aviation alliance. Under the alliance, the airlines will cooperate on all aspects of their Australia - Singapore services and any international and domestic connecting routes, including joint pricing and scheduling and joint marketing and sales." View press release.. View draft authorisation
10 October 2011 - Sims speaks to Melbourne Press Club: "Some Perspectives on Competition and Regulation"
In his first address to the Melbourne Press Club, Rod Sims noted that the vertical integration in supermarket supply chains requires 'close scrutiny to ensure the supermarkets do not misuse their market power under Sector 46.' Airports and telecommunications also featured in his address, as does Fred Hilmer's recent criticisms of Australia's current approach to competition policy. View press release. View speech.
6 October 2011 - NSW and ACT newsagents to collectively bargain with NSW Lotteries
5 October 2011 - ACCC allows collective bargaining for remote community stores
The ACCC has approved a collective bargaining notification which will allow "a group of community stores in the remote Anangu Pitjantjatjara Yankunytjatjara (APY) Lands in the far northwest of South Australia" to "negotiate terms and conditions with suppliers of essential grocery and supermarket items." View press release.
5 October 2011 - EUROPE: European Court of Justice rules against Premier League
The ECJ has ruled that "a system of exclusive licences is ... contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted". View Court of Justice press release. View full judgment. See also press: Katy Dowell 'Premier League, DLA Piper defeated at ECJ in key broadcast rights ruling' (The Lawyer, 4 October 2011) and Simon Taylor, "Premier League loses TV court battle" (EuropeanVoice.com, 4 October 2011)
1 October 2011 - Metcash takes over Franklins
Metcash yesterday completed its deal to acquire Franklins. This follows a failed attempt by the ACCC to block the acquisition ahead of next month's Full Court appeal. View Metcash press release. See also John Durie, 'Metcash takes helm at Franklins' (The Australian, 1 October 2011) and Elizabeth Sexton, 'Metcash seals Franklins deal despite appeal' (SMH, 1 October 2011).
30 September 2011 - NBN Co seeks further comments on draft Wholesale Broadband agreement
In response to concerns by the ACCC over access to NBN Co services for third parties, NBN Co is seeking further comments on its revised draft Wholesale Broadband Agreement. See ACCC press release. See also media coverage: eg, Lucy Battersby, 'NBN Co in fourth consultation round' (SMH, 1 Oct 2011), Annabel Hepworth and Mitchell Bingemann, 'NBN to strike ACCC deal' (The Australian, 30 Sept 2011)
29 September 2011 - ACCC approves Melbourne Port Terminal wheat export access arrangements
The ACCC 'has accepted an undertaking from Australian Bulk Alliance Pty Ltd which sets out arrangements for wheat exporters using Melbourne Port Terminal.' View press release. View ABA access undertakings.
29 September 2011 - ACCC approves SA wheat export access arrangements
29 September 2011 - ACCC approves WA wheat export access arrangements
The ACCC 'has accepted an undertaking from Co-operative Bulk Handling allowing Western Australian wheat exporters access to CBH’s ports at Kwinana, Geraldton, Albany and Esperance'. View press release. View CBH access undertakings.
29 September 2011 - ACCC authorises Qantas/American Airlines Joint Business Agreement
28 September 2011 - ACCC not to oppose SABMiller's acquisition of Fosters
The ACCC 'will not oppose the proposed acquisition of Foster’s Group by SABMiller plc, after concluding that the acquisition is not likely to substantially lessen competition in the Australian market for the supply of bulk and packaged beer. '. View press release. View merger register.
26 September 2011 - Fisse on the price signalling bill
Brent Fisse has produced an annotated critique of the second reading speech to the Competition and Consumer Amendment Bill (No 1) 2011 entitled 'Misleading, Deceptive and Bankrupt: The Second Reading Speech on the Competition and Consumer Amendment Bill (No 1) 2011'. It is available from the publications section of his website.
23 September 2011 - Sims: Is competition a myth?
ACCC Chairman, Rod Sims, today delivered a speech to the Australian Economic Forum in Sydney, entitled 'Is competition a myth?'. He made three broad observations: (1) "... competition is not a myth in the sense that Australia has achieved a great deal since 1974 ..."; (2) "while much has been achieved, more needs to be done" (in this he agreed with recent comments made by Fred Hilmer) and (3) "where competition is clearly a myth, especially in the areas of infrastructure provision where there are monopoly providers, economic regulation is the complement to competition. ..."
22 September 2011 - Senate debate
The competition bills were not debated yesterday as originally scheduled - they are also not listed in today's Order of Business. It seems the Senate may be pre-occupied with other matters.
21 September 2011 - Senate to debate competition bills
There are two competition bills listed for debate in the Senate today. The first, and most controversial, is the government's price signalling bill. The second relates to mergers and, in particular, the definition of market (the so-called 'creeping acquisition' bill).
20 September 2011 - Court denies ACCC Metcash injunction
Justice Peter Jacobson has rejected an application by the ACCC for an injunction to prevent Metcash's proposed acquisition of Franklins pending an appeal to the Full Federal Court (to be heard over three days, beginning 24 October). View judgment.
13 September 2011 - ACCC seeks interim injunction against Metcash
On 13 September the ACCC applied to the Federal Court for an interim injunction restraining the proposed acquisition by Metcash of the Franklins supermarket business.
9 September 2011 - ACCC Appeals Metcash!
The ACCC today announced it will appeal against the Federal Court's judgment dismissing the ACCC's application to block Metcash's acquisition of Franklins. Rod Sims gave two reasons for the appeal: "First, because of the adverse effect of the proposed acquisition on independent supermarket retailers, consumers and competition in the NSW and ACT grocery sector. ... Second ... because, if left unchallenged, the Court’s interpretation of some fundamental principles of merger analysis could have serious implications for the ACCC’s ability to block anti-competitive mergers and so protect consumers in the future". View press release.
7 September 2011 - The Conversation: Will Rod Sims' tougher approach pay off for the ACCC?
30 August 2011 - ACCC calls for comment on Telstra' structural separation undertaking
The ACCC has issued 'a discussion paper inviting comment from industry stakeholders and consumers in relation to Telstra’s structural separation undertaking and draft migration plan. The ACCC’s preliminary view is that Telstra’s undertaking can not be accepted in its current form and that important changes are required.' View press release. View discussion paper.
New ACCC Chairman, Rod Sims, has delivered his first major address at the annual Law Council Workshop, "ACCC: Future Directions". View speech.
27 August 2011 - Bradbury's opening address to LCA workshop
David Bradbury MP delivered the opening address to the Law Council of Australia Competition and Consumer Workshop, entitled 'Developments in Competition Policy'.
26 August 2011 - Metcash decision out
The full reasons of Justice Emmett in ACCC v Metcash  FCA 967 were released today and can be downloaded from AustLII.
25 August 2011 - ACCC media release on Metcash
The ACCC has issued a media release expressing its disappointment at Justice Emmett's decision today. It reiterates concerns that 'the proposed acquisition is likely to result in a substantial lessening of competition through the removal of Metcash's closest and only genuine competitor for the wholesale supply of packaged groceries in NSW' (a market definition not accepted by Justice Emmett). Following public release of full reasons for judgment tomorrow the ACCC will 'examine the judgment and consider its options'.
Justice Emmett handed down his much anticipated decision in the ACCC v Metcash merger case, finding in favour of Metcash. Detailed reasons will be released tomorrow, but they will include findings that the acquisition "On the other hand, I consider that it is quite likely that the acquisition of Franklins by Metcash will strengthen the capacity of independent retailers operating under the IGA banner to compete more vigorously with the major supermarket chains" (see Elizabeth Sexton, 'Court clears path for Metcash to buy Franklins', SMH, 25 August 2011 and John Durie, 'Federal Court frees Metcash to buy Franklins from Pick n Pay' (The Australian, 25 August 2011)). The ACCC has been ordered to pay costs. It is not yet clear whether they will appeal the decision.
24 August 2011 - Second Annual Baxt Lecture on Competition
The second annual Baxt Lecture was held today at the Melbourne Law School. It featured Prof Richard Whish as guest speaker, who addressed those present on: "Private Enforcement of Competition? European Developments". The slides (and possibly audio) from the lecture will be available from the web site in due course and I commend them to anyone interested in this area.
23 August 2011 - Justice Mansfield appointed as President of Australian Competition Tribunal
Justice Mansfield has been appointed as President of the Australian Competition Tribunal and Dr Darryn Abraham and Professor Kevin Davis have been appointed as members, each for five years. View press release.
22 August 2011 - ACCC proposes to authorise Qantas/AA Joint Business Agreement
The ACCC has issued a draft determination proposing to grant authorisation for a Joint Business Agreement between Qantas and American Airlines. This follows an earlier grant of interim authorisation on 9 June. Submissions on the draft determination are due by View press release.
22 August 2011 - New price signalling paper from Brent Fisse
Brent Fisse has written a new paper on the current price signalling bill, expected to be debated in the Senate this week. The working draft is titled: ''Private disclosure of price-related information to a competitor "in the ordinary course of business": A new slippery dip in the political playground of Australian competition law'' (updated 24 August) and is available from the publication page of Brent Fisse's website.
18 August 2011 - Price signalling bill introduced into Senate
The Competition and Consumer Amendment Bill (No 1) 2011 was introduced into to the Senate today and read a first time. The second reading was moved and debate adjourned.
18 August 2011 - Creeping Acquisition/Unconscionable conduct bill introduced into Senate
The Competition and Consumer Legislation Amendment Bill 2011 was also introduced and read a first time. The second reading was moved and debate adjourned. It's worth reading Hansard for Craig Kelly's rant on why the word 'substantially' should be removed from the phrase 'substantial lessening of competition' in s 50 - to prohibit all mergers that lessen competition in any way. This makes more sense when you understand that Craig Kelly has been 'assisted' by Frank Zumbo in relation to competition policy - author of the infamous Blacktown, Richmond and Birdsville amendments (fortunately only the latter got up, although it would have been better had it not).
18 August 2011 - ACCC approves Sucrogen's takeover of the Proserpine Sugar Mill
The ACCC has announced it will not oppose Sucrogen's takeover of the Proserpine Sugar Mill. View merger register.
17 August 2011 - Price signalling bill transmitted to Senate
The House has now transmitted the Competition and Consumer Amendment Bill (No 1) 2011 to the Senate for concurrence.
The Federal Court (Justice Jacobson) has approved (on 15 June 2011) a settlement deed relating to the Amcor/Visy cartel. Para 9 of the judgments reads: "The parties to the proceeding, and Jarra Creek’s solicitors, Maurice Blackburn Pty Limited (“MBC”), entered into a Class Action Settlement Deed dated 10 March 2011 under which the parties agreed to settle the proceeding for a total payment of $120 million. That amount is comprised of $95 million, which is described as the Distribution Sum, and $25 million payable to MBC for legal costs and disbursements." View case at AustLII (Jarra Creek Central Packing Shed Pty td v Amcor Limited  FCA 671). View Amcor/Visy settlement website. View settlement deed.
11 August 2011 - ACCC not to oppose proposed acquisition of P&N by Asahi
The ACCC 'will not oppose the proposed acquisition of P&N Beverages Australia Pty Ltd by Asahi Holdings (Australia) Pty Ltd after competition concerns were resolved by Asahi providing a court enforceable undertaking to the ACCC'. View press release. View merger register.
11 August 2011 - ACCC draft decision on arrangements for wheat exporters at Viterra's SA ports
'The Australian Competition and Consumer Commission has released a draft decision on arrangements for wheat exporters at Viterra’s six wheat export ports in South Australia. The preliminary view is that the introduction of an auction system would address the ACCC’s main areas of concern.' View press release.
11 August 2011 - ACCC draft view on wheat export arrangements at Melbourne Port Terminal
The ACCC has issued a draft decision on the access undertaking proposed by Australian Bulk Alliance (ABA). The ACCC's view is that 'the overall approach of ABA’s proposed undertaking is likely to be appropriate' but that improvements should be made ins ome areas. View press release.
9 August 2011 - AquaDepot Imports admit RPM
'Graeme Faulkner and Philip Wu, trading as AquaDepot Imports, admitted engaging in resale price maintenance by ceasing to supply an online retailer who discounted aquarium products below a specified price.' View press release. View register record.
5 August 2011 - ACCC extends dairy farmer collective bargaining arrangements
The ACCC has extended the exemption allowing dairy farmers to collectively bargain with processors for a further 10 years. "The ACCC considers collective bargaining by dairy farmers has the potential to deliver better access to information and resources as well as improved input into contract negotiations." View press release.
4 August 2011 - ACCC Publication: Cartel conduct - how it affects you and your business
The ACCC have released a new publication (on 1 August), 'Cartel conduct - how it affects you and your business'. It is two pages long and provides a brief overview of the prohibitions, sanctions and tips on avoiding cartel conduct. It also outlines the ACCC's immunity policy for cartel participants.
3 August 2011 - ACCC will not oppose investments in a new credit reporting agency by major Australian lenders
"The ACCC will not oppose six financial institutions (ANZ, CBA, Citigroup, GE Capital, NAB and Westpac) each taking a 4 per cent shareholding in a new credit reporting agency, Experian Australia Credit Services. " View press release. View merger register.
1 August 2011 - ACCC receives Telsta's structural separation undertaking and draft migration plan
The Australian Competition and Consumer Commission has received a structural separation undertaking and a draft migration plan from Telstra. View press release. View undertaking and related structural separation documents.
1 August 2011 - Rod Sims takes over as ACCC boss
Rod Sims officially takes over as ACCC Chairman today, succeeding Graeme Samuel. Sims is the third ACCC Chairman and the sixth Chairman since the establishment of the Trade Practices Commission (the pre-decessor to the ACCC) in 1965. His first major task will be dealing with the proposed merger of Foxtel and Austar following the ACCC's release of a Statement of Issues on 22 July.
30 July 2011 - Debate over Samuel's new role
Several news items in today's papers discuss the desirability (or otherwise) of outgoing ACCC Chairman taking on a role with investment bank, Greenhill Caliburn. See, for example, John Durie, 'Samuel should take some time off before taking up new appointment' (The Australian, 30 July 2011), Tim Borehman and John Durie, 'Graeme Samuel sparks debate over new role at Greenhill Caliburn' (The Australian, 30 July 2011), John Durie, 'Graeme Samuel, take gardening leave before starting Greenhill Caliburn job' (The Australian, 29 July 2011), John Durie, 'Bob Baxt calls for quarantine on regulators to prevent conflict of interest' (The Australian, 29 July 2011). There are even some items not penned by John Durie, including: Eric Johnston, 'ACCC chief's new job draws flak' (SMH, 29 July 2011) and 'The Graeme Samuel Puzzle' (SmartCompany, 29 July 2011)
29 July 2011 - AFR: The High Price of Public Office
There is a feature item in today's Australian Financial Review Magazine discussing Graeme Samuel's term as ACCC Chairman, which comes to an end on Sunday. The AFR also reports that Graeme Samuel will become a director and head of the Melbourne office of the investment bank Greenhill Caliburn.
28 July 2011 - The Australian: "Solid Legacy of ACCC chief"
There's another item in the Australian today discussing Graeme Samuel's term as ACCC Chairman. It claims some missteps (Samuel's push for price signalling bans on banking chiefs and his readiness to accept 'the wholesale monopoly' of the NBN), highlights some controversy (including the claims of conflict of interest regarding the DFO and the ACCC's pursuit of Richard Pratt) but concludes that overall 'Mr Samuel's energy and focus have resulted in an expansion of the size and the powers of the ACCC, which has also developed a clearer pro-market approach than it had under his predecessor, Alan Fels'
28 July 2011 - Dairy dissatisfaction
Dairy farmers have been expressing dissatisfactiona t the ACCC's recent announcement that it did not consider that Coles had contravened the CCA's prohibition on predatory pricing. Although the attacks are directed toward Samuel and the ACCC, focus seems to be on the loss alleged to have been suffered by small retailers and some farmers, rather than any actual contravention of the law by Coles. See Colin Bettles, 'Dairy dissatisfaction', Stock and Land, 28 July 2011.
27 July 2011 - ACCC proposes to authorise management services agreement for private heath fund
The ACCC has 'issued a draft determination proposing to grant authorisation for 10 years to the Reserve Bank Health Society (RBHS) and allow another private health fund, Lysaght Peoplecare Limited, to provide RBHS with advice on operational matters under a management services agreement. ' View press release.
27 July 2011 - Graeme Samuel on Lateline
Outgoing ACCC Chief, Graeme Samuel, appeared on Lateline last night. In response to questions about media and public interest tests for mergers he replied, in part"
"the ACCC's concern is about competition. Once we get into public interest, we get into social and potentially political debates which is outside the remit of the ACCC, as is diversity, I might say.
We're dealing with competition, and competition in itself more often than not, in almost every occasion, serves the public interest very well. You don't need public interest tests necessarily if you've got a truly competitive market because a truly competitive market is one where consumers are empowered to set their demands in place, and suppliers have to meet those demands.".
Samuel also responded to questiosn about the NBN, the prosecution of Richard Pratt, DFO and the NAB-AXA deal and the relationship of business with government. View Transcript.
26 July 2011 - Bradbury certifies South Australian Rail Access Regime
Parliamentary Secretary to the Treasurer, David Bradbury MP, has certified the South Australian Access Regime (SARAR) as an 'effective access regime' for a period of 10 years. View media release. View application, recommendations and decision.
25 July 2011 - Should price discrimination be illegal?
Neat little blog piece by Stephen King noting the core problem with price discrimination laws.
22 July 2011 - Coles milk pricing is not predatory: ACCC
The ACCC announced today that it considers there is no evidence that Coles has acted in breach of the CCA. According to the press release, "ACCC enquiries have revealed evidence that Coles' purpose in reducing the price of its house brand milk was to increase its market share by taking sales from its supermarket competitors including Woolworths. This is consistent with what the ACCC would expect to find in a competitive market." The ACCC further noted that, while it did "not usually comment on individual matters that it may or may not be investigating" the significant public interest surrounding this issue meant it was "appropriate to provide ... general comments on its findings." View press release. See also the Senate's milk inquiry, which is ongoing (final report expected in October).
22 July 2011 - ACCC calls for comment on FOXTEL's proposed acquisition of AUSTAR
14 July 2011 - ACCC conditionally authorises Qld fly ash agreement
The ACCC has issued its final authorisation determination in relation to a fly ash supply agreement between Pozzolanic Enterprises, Stanwell Corp and Tarong North Pty Ltd. It has conditionally authorised the agreement until 1 March 2014. The agreement will provide Pozzolanic with first right of access to the 'majority of fly ash produced at Tarong and Tarong North Power Stations in south-east Queensland'. Although the ACCC considered the original agreement unnecessarily restrictive, conditional authorisation was given, which requires the agreement to be amended to provide greater certainty in relation to third party access to fly ash. View press release. View authorisation register.
11 July 2011 - NZ: Rival bidder emerges for authorised merger
It has just been reported that a rival bidder for NZ Wool Services International (whose acquisition by Cavalier was authorised by the NZCC and is now subject to a HC challenge by Godfrey Hirst) has emerged - Wool Equities. See 'Rival bid for Wool Services Intl' (TVNZ, 11 July 2011) and 'Wool Equities to bid for Wool Services' (The National Business Review, 11 July 2011)
11 July 2011 - NZ: Godfrey Hirst wins High Court stay on WSI sale to Cavalier
On 6 July I posted that the NZCC authorised a merger for the first time in a decade between Cavalier Wool Holdings and NZ Wool Services International. A customer has challenged the authorisation and the appeal against the merger is scheduled to be heard in the High Court in the week beginning 22 August. See 'Hirst wins High Court stay on WSI sale to Cavalier' (Sharechat.co.nz, 8 July 2011) and 'Stay on sale to Cavalier' (nzherald.co.au, 9 July 2011). View authorisation decision (PDF) or full authorisation register.
8 July 2011 - Price signalling bill on 'lunatic' fringe of international competition law
Brent Fisse has described the Competition and Consumer Amendment Bill (No. 1) 2011, which was passed by the House of Representatives yesterday, as 'on the lunatic fringe of international competition laws', as 'other-worldly' and as 'pop legislation that serves little or no useful purpose'. He observed that the various amendments negotiated in the last couple of days, including an exception for information disclosure in the 'ordinary course of business', 'does not cure the fundamental failure of the Bill to address concerted practices by competitors in all sectors of the economy'. View Brent Fisse's news page.
Following amendments, brought about by negotiation with the opposition over their proposed amendments, the Competition and Consumer Amendment Bill (No. 1) 2011 has passed through the House. It remains an appalling piece of legislation, but unfortunately it is unlikely to find much resistance in the Senate.
The New Zealand Commerce Commission has authorised a merger for the first time in a decade, despite the fact that the the proposed acquisition by Cavalier Wool Holding's of the wool scouring assets NZ Wool Services International will result in Cavalier Wool being the only wool scourer in NZ. The Commission found that 'there are likely to be considerable cost savings from the rationalisation of the wool scouring industry that Cavalier Wool proposes to carry out. The rationalisation is likely to lead to lower production and administration costs, the freeing up of industrial sites, lower ongoing capital expenditure and improvements to wool handling'. View mergers register. It may be New Zealand news, and it may be a little old (authorisation occurred on 9 June), but it's a welcome break from price signalling ...
6 July 2011 - Inquiry into national competition policy on the cards
Peter Martin reports in the Age today - All is not fair in supermarkets' share - that a 'coalition of Greens, an independent and a Liberal believe they are in striking distance of forcing a inquiry into national competition policy'. Martin reports that Christine Milne (Greens), Xenophon (independent) and Kelly (Liberal) endorsed a report by former Greens Senator Dee Margetts which blames the policy for supermarket dominance. The abolition of s 49 (price signalling) is also blamed for a lot of problems (mind-boggling though that accusation may be).
6 July 2011 - Banks see red on price signalling
There is an item in the Age today by Clancy Yeates - Banks See Red on Signalling - despite the obvious self-interest of the ABA, they certainly have a point in relation to the Competition and Consumer Amendment Bill (No. 1) 2011.
5 July 2001 - Price signalling continued ...
Mr Billson, for the opposition, has proposed an amendment to the government's price signalling bill. This is in addition to a proposed amendment from Mr Bandt for the Greens (although that amendment does not relate to price signalling, but rather seeks to prohibit the big banks from acquiring any more smaller banks). Debate has adjourned while amendments are considered.
The University of Melbourne's Competition Law & Economics Network (CLEN) has released of a video demonstrating Australia’s approach to expert evidence in competition law cases - a mock 'hot tub', based on the facts in Boral and presided over by retired the Hon Peter Heerey QC who was the first instance judge in that case. In addition to the Hon Peter Heerey QC, the expert roles were played by Dr Philip Williams (for the ACCC) and Richard York (for Boral) and counsel were played by David Shavin QC (who acted for the ACCC in the Boral case) and Jack Fajgenbaum QC. Certainly an impressive line up - well worth a look. The video can be viewed on YouTube in three parts.
5 July 2011 - Price signalling bill to be debated
The Competition and Consumer Amendment Bill (No. 1) 2011 was debated in the House briefly yesterday (with Mr Billson continuing his speech) but it lasted for about 5 minutes before being adjourned yet again. My legislation page for this bill includes extracts from Mr Billson'ns speech.
4 July 2011 - Price signalling bill to be debated
The Competition and Consumer Amendment Bill (No. 1) 2011 is listed for resumption of second reading debate today and for third reading in the House.
1 July 2011 - Web site featured in Law Institute Journal
This website featured in the July 2011 issue of the LIJ - INSIGHTS, page 76.
29 June 2011- ACCC revokes CBH's exclusive dealing notification
The ACCC has revoked Co-operative Bulk Handling Ltd's (CBH) exclusive dealing notification which allowed CBH to 'require Western Australian grain growers and marketers who use its 'up-country' storage facilities to also use its transport services to deliver grain to port for export.' The revocation will be effective from 1 May 2012. ACCC chairman Graeme Samuel said that by 'virtue of the notified conduct CBH is the monopoly supplier of transport services for moving grain to port in WA' and the 'notified conduct allows CBH to leverage its substantial market power in up-country storage to insulate itself from any competition in the supply of grain transport services.' View ACCC press release. View notification register.
27 June 2011 - ACCC must rely less on chairman
Richard Gluyas reports ('ACCC must rely less on its chairman, survey finds', The Australian, 27 June 2011) on the Global Competition Review's 10th annual survey of antitrust organisations. While the report 'mostly commends' the work of the ACCC, the ACCC 'could benefit from a higher profile for other commissioners'.
24 June 2011 - Price signalling debate and amendment
Debate resumed on the Government's price signalling bill at 9.30pm last night (see Hansard, 23 June, from page 85). Mr Billson (Shadow Minister for Small Business, Competition Policy and Consumer Affairs) was the only speaker and was critical of the government's bill and the 'consultation' process regarding the bill. Debate was adjourned after about 15 minutes. In the meantime the Government has proposed yet another amendment to the bill containing yet another exception relating to communications following borrower insolvency (this problem was not mentioned in the report which recommended passage of the bill in existing form).
Yesterday the House Standing Committee on Economics finally presented it's report: 'Advisory Report on the Competition and Consumer (Price Signalling) Amendment Bill 2010 and the Competition and Consumer Amendment Bill (No. 1) 2011'. The report was due on 30 May and has only now been released. It will be of little surprise to anyone that the House Committee recommended passage of the Government's bill and rejection of the private member's bill put forward by Bruce Billson MP. More details will follow on my report page.
22 June 2011 - ACCC accepts GrainCorp's wheat port access arrangements
The ACCC has accepted GrainCorp's wheat port access arrangements for October 2011 to September 2014. View ACCC press release.
22 June 2011 - Sims puts NBN on notice
The Australian reports that incoming ACCC chairman, Rod Sims (whose appointment was approved by the states and territories last week) has declared the NBN a 'straight-out- monopoly' which will be a focus for the ACCC. See Glenda Korporaal, 'ACCC's new chief puts National Broadband Network on Notice' (The Australian, 22 June 2011).
The Governor-General has appointed Rod Sims the next chairman of the ACCC following unanimous support for his appointment by the states and territories. His five year term will start on 1 August. View Treasury media release.
16 June 2011 - Draft decision proposes to allow collective bargaining by dairy farmers to continue for a further 10 years
"ACCC chairman Graeme Samuel said the ACCC has reviewed the ADF's arrangements on two occasions since 2002. "Feedback from the industry is that the collective bargaining arrangements are supported and well understood by dairy farmers and processors. As such the ACCC considers it is in a position to grant authorisation for ten years, rather than the five sought by the ADF."" View ACCC Press Release.
16 June 2011 - ACCC allows WA chicken growers to collectively bargain
"The Australian Competition and Consumer Commission has decided to allow Western Australian broiler chicken growers to collectively bargain with their processors. ". View ACCC Press Release.
16 June 2011 - Cartel Criminalisation in NZ - exposure draft
The Ministry of Economic Development, NZ, has released an exposure draft Bill 'to test whether it is possible to define with sufficient clarity the prohibition and exemptions, such that any downsides of criminalisation are remedied or at least mitigated. If this can be achieved then there may be benefit in following international enforcement trends and criminalising hard-core cartel behaviour.' Submissions are invited and due by Friday 22 July 2011. View press release and exposure draft bill.
15 June 2011 - Government re-introduces creeping acquisition bill
The Competition and Consumer Legislation Amendment Bill 2011 has been re-introduced (it was previously introduced on 27 May 2010 but lapsed with the last election). View second reading speech by the Hon David Bradbury MP. View bill home page.
15 June 2011 - Samuel speech to National Press Club
Graeme Samuel addressed the National Press Club today with a speech entitled: "Collins Street sleeper agent or Castro's right-hand man'. View speech.
15 June 2011 - House Committee releases new submissions on price signalling Bill
The House Standing Committee on Economics has finally released submissions made to it on the Competition and Consumer Amendment Bill (No 1) 2011. These 11 submissions add to the seven previously made in relation to the private member's Competition and Consumer (Price Signalling) Amendment Bill 2010. The Committee was due to report on both bills by 30 May 2011. The report, if it exists, has not yet been made public. View submissions.
14 June 2011 - Metcash ready for favorable decision on Franklins acquisition
The AFR reports (Sue Mitchell, page 19) that Metcash may learn this week whether or not the Federal Court will block the proposed acquisition of Franklins. Metcash and some retail analysts are confident Justice Arthur Emmett will find in their favour, but it is also expected the ACCC will appeal an unfavourable decision.
9 June 2011 - ACCC not to oppose funerals acquisition after undertaking resolves concerns
The ACCC 'will not oppose the proposed acquisition of Bledisloe Group Holdings Pty Ltd by InvoCare Limited after competition concerns were resolved by InvoCare providing an undertaking to the ACCC.' View press release. View mergers register.
9 June 2011 - ACCC approves variation to chemical waste collection scheme
The ACCC has ' allowed AgStewardship to expand its industry waste reduction scheme to cover a broader range of agricultural and veterinary chemical containers.' View press release. View Authorisation register.
9 June 2011 - ACCC grants interim approval to Qantas and American Airlines joint business agreement
'Under the proposed JBA, the airlines will coordinate operations on services between Australia/New Zealand and the United States (the trans-Pacific routes), and on their respective services which support the trans-Pacific routes. Qantas and American Airlines do not currently compete directly on any routes.' See press release. See authorisation register.
8 June 2011 - Bradbury speech to ABA Banking Regulations Forum
Yesterday it was Munchenberg's turn; today The Hon David Bradbury MP addressed the ABA's Banking Regulations Forum in Sydney. This is what he said in relation to price signalling (nothing new, so don't get excited):
"The Government also wants to see consumers get a better deal on their home loans by prohibiting anti-competitive price signalling. While information disclosure plays a vital role in any economy, in some cases, it can impede competition.
The Government has a Bill currently before Parliament to amend the Competition and Consumer Act to provide new prohibitions to address anti-competitive price signalling and information disclosures. The Bill is not directed towards ordinary commercial communications. Banks will be able to continue communicating with their customers, shareholders, market analysts, employees and other stakeholders in the ordinary course of business. The Bill provides that banks will still be able to fully comply with any continuous disclosure obligations, such as discussing their funding costs, as well as any other legal or regulatory obligations.
The Government has worked closely with the Australian Competition and Consumer Commission (ACCC) to design these amendments, consulting extensively on the draft legislation with the banking industry, legal experts and other stakeholders. This extensive consultation has produced laws which will effectively address the issue of anti-competitive price signalling and information disclosures, while allowing banks to get on with business." (emphasis added)
Extensive consulations. Yes, that is what he said. It's hard to imagine what a consultation which was not extensive would look like. Alternatively the extensive consultation has been very secret indeed, so that nobody actually knows about it. I'm still checking the HOR Inquiry website each day - but still no published submissions on the bill or a report (now overdue by well over a week).
8 June 2011 - Munchenberg critical of Labor policy
Perhaps not surprisingly, ABA chief Steven Munchenberg has attacked the government for making policy on the run that will damage the banking sector. Amongst the policy under attack was that relating to price signalling (still no report released on that). In a speech delivered at the Banking Regulations Forum in Sydney yesterday, he claimed (not without justification) that: "There no longer seems to be any onus on those demanding regulation to show that there is really a problem requiring a general regulatory response". Mr Munchenberg said the government's crackdown on price signalling and credit-card reforms were prime examples of regulation that was not needed for customers or the banking industry. In relation to price signalling he claimed:
"I have hunted high and low to understand the burning issue of price signalling in banking.
I hear what politicians on both sides claim, but it is interesting to note that there was very little suggestion that price signalling was a problem in the banking sector, until the Coalition announced that it was going to introduce new regulation to fix the problem we weren’t aware that we had."
See Scott Murdoch, 'ABA chief Steven Munchenberg slams Labor for policy on the run' (The Australian, 8 June 2011). See also John Durie, 'Finance sector in bid to block ban on exit fees on mortgages' (The Australian, 7 June 2011) discussing the issue of price signalling and the proposed ban on exit fees (claiming both are examples of 'poor public policy in the name of short-term political point-scoring').
2 June 2011 - No news on price signalling
All seems quiet on the price signalling front; the House Economics Committee was due to report on 30 May, but the report has not been tabled and is not available on the web site. Nor are the submissions made to the Committee regarding the Government's price signalling bill. At least one of these can be found elsewhere - for example, Brent Fisse has his joint submission (with Caron Beaton-Wells) up on his website, but there is no justification for the delay in publishing all submissions made on the APH website, which indicates they will be published once received and authorised for publication - it is now almost two weeks since submissions were due (on 20 May). Silence also surrounds the report - the last media release did not alter the reporting date of 30 May. I will post an update when I know more.
In relation to the bill Brent Fisse also has a forthcoming article: 'Why the Competition and Consumer Amendment Bill (No 1) 2011 is International Worst Practice - An Illustrated Summary' which may be of interest - an abstract is available from his web site.
1 June 2011 - ACCC looks at Foxtel's bid for Austar
The ACCC commenced review of Foxtel's proposed acquisition of Austar on 26 May. On 31 May they released a letter for interested parties seeking information regarding the proposed acquisition, including background information. Submissions are due by 16 June 2011. The proposed date for the ACCC to announce its findings is 21 July.
26 May 2011 - AFR: Treasury deaf to reform ideas
Page 20 of the AFR has an item by Jane Searle and Matthew Drummond discussing, amongst other things, the lack of consultation surrounding the proposed price signalling laws. Last week interested parties were given less than three days to make submissions to the HOR Economics Committee on the government's proposed price signalling bill. Submissions made in relation to the government's bill have not yet been published (the inquiry is also considering the opposition's price signalling bill - submissions relating to that bill were due earlier in the year and have been published). The inquiry home page still indicates that a report is due by Monday.
23 May 2011 - Blunt Report available online
I have just received copyright approval from the ACCC to reproduce the Report of the Trade Practices Consultative Committee: Small business and the Trade Practices Act (Volume 1, December 1979). I hope to be able to make some more of the older trade practices reports available soon (pending further permissions). Although a 1979 report, it is interesting to note that some of the same issues continue to re-surface in current inquiries. Given some of the recommendations stemming from recent milk inquiries, chapter 10 of this Blunt Report, which discusses 'price discrimination' in detail, may be of particular interest; the Committee concludes that s 49 (which at the time prohibited price discrimination) shoudl be repealed. As I have digitised from an older copy it does contain some markings, but all text is readable.View full report (PDF: 2mb - 127 pages). See also my Blunt Committee page, which includes some shorter extracts from the report.
20 May 2011 - ACCC grants interim authorisation to vary chemical waste collection scheme
The ACCC has granted interim authorisation to AgStewardship's proposal to expand the types of agricultural and veterinary chemical containers it accepts for collection and recycling. View press release.
House Standing Committee on Economics has called for submissions on an 'expanded' inquiry into the Competition and Consumer (Price Signalling) Amendment Bill 2010 and the Competition and Consumer Amendment Bill (No. 1) 2011 (previously the house was considering only the 2010 bill) - it's given interested parties a whole TWO DAYS to make submissions (submissions are due 20 May 2011). Despite the hopelessly inadequate amount of time (especially in light of recent Senate Standing Committee conerns over the government's bill) hopefully there will be time for some sensible submissions; however, in light of the farcical time frame for submissions I'm not holding my breath about the extent to which they will be considered by the Committee. View the Inquiry home page.
18 May 2011 - AFR Op-Ed - Draft competition laws fail at first post
Have a look at the op-ed on page 63 of today's Fin Review by Caron Beaton-Wells and Brent Fisse, who have been the most vocal commentators on the Government's proposed price signalling laws. Amongst other things, they call for release of 'the independent legal advice on which [the Government] has relied.' This is particularly topical given the House Standing Committee's call for submissions on the price signalling bills.
18 May 2011 - Criminal cartel blog symposium
Daniel Sokol is currently hosting a Blog Symposium featuring discussion of the book by Caron Beaton-Wells and Ariel Ezrachi (editors) - Criminalising Cartels: Critical Studies of an International Regulatory Movement. Initial comments will be provided by Thomas Cheng (Hong Kong), Angus MacCulloch (Lancaster, UK), Anestis Papadopoulos (Athens, Greece), Daniel Sokol (Florida, USA) and myself. The first two reviews, by Angus MacCulloch and myself have been posted; the remaining reviews will be posted on 24 May on the Antitrust and Competition Policy Blog. It is anticipated that Caron and Ariel and some of the authors will then participate in responding/discussing the posts. Given Australia's recent criminalisation of cartels this may be of interest to some.
13 May 2011 - ACCC proposes to allow collective bargaining by WA chicken growers
12 May 2011 - Senate Standing Committee raises concerns about Government's price signalling bill
Yesterday the Senate Standing Committee for the Scrutiny of Bills released an Alert Digest identifying some concerns with Competition and Consumer Amendment Bill (No.1) 2011 (the Government's price signalling bill). In particular, the Committee noted that 'it is of concern that this scope of the prohibitions introduced by this bill are to be determined entirely through delegated legislation.' Treasury advice is sought about the possibility of defining the scope of the law in primary legislation, and it is noted that in the meantime 'the Committee draws Senators’ attention to the provisions, as they may be considered to delegate legislative powers inappropriately'. See Senate Standing Committee for the Scrutiny of Bills Altert Digest 4 (pages 19-20).
12 May 2011 - Parliament calls on ACCC to examine the market power of 'big' supermarkets
We don't need to wait for the Senate Economics Committee report, the House has drawn its own conclusions. The following motion was brought and agreed to in the House of Representatives (Hansard pp 71-72):
That this House: (1) notes with concern the impact on the Dairy Industry of the Coles milk pricing strategy and that: (a) dairy farmers around the country are today seriously questioning their future having suffered through one of the worst decades in memory including droughts, floods, price cuts and rising cost of inputs such as energy and feed; (b) unsustainable retail milk prices will, over time, compel processors to renegotiate contracts with dairy farmers and the prospect that these contracts will be below the cost of production may force many to leave the industry; (c) the fact that supermarkets are now selling milk cheaper than many varieties of bottled water will be the straw that finally breaks the camel's back for many dairy farmers; and (d) the risk of other potential impacts includes: (i) decreased competition as name brands are forced from the shelves; and (ii) the possible loss of fresh milk supplies to some parts of the country as local fresh milk industries become unviable; and (2) calls on the Government to: (a) ask the ACCC to immediately examine the big supermarkets and milk wholesalers after recent price cuts to ensure they do not have too much market power and are not anti-competitive in their behaviour; and (b) support the new Senate inquiry into the ongoing milk price war between the country's major supermarket chains'.
12 May 2011 - ACCC allows continuation of refrigerant recovery scheme
The ACCC has granted authorisation to allow Refrigerant Reclaim Australia to continue to operate a 'scheme to recover, reclaim, store or safely dispose of refrigerant.' See press release. See authorisation register.
12 May 2011 - ACCC calls for comment on Westfarmers possible acquisition of interests in Burrup Holdings
The ACCC has released a Statement of Issues on the possible acquisition by Westfarmers of interests in Burrup Holdings Ltd and/or Burrup Fertilisers. Submissions can be made until 30 May; final decision deferred until 23 June. View press release. View mergers register.
10 May 2011 - New CCLJ out
The latest CCLJ (Volume 18 No 3) is out with some interesting competition law items: Justice Finkelstein contributes an article, 'Crimes and punishments of competition law' and Justice Nettle likewise contributes an article focusing on recent cartel criminalisation: 'Criminalisation of cartel conduct: Commentary'. Both are edited versions of papers presented at the 2010 Trade Practices Conference in Adelaide. Then there are two papers dealing with the mischief rule of statutory interpretation for dealing with SLC issues - they are 'Running the mischief rule over appellate decisions trans-Tasman' by Justice Fogarty and comments on this paper by Kerrin Vautier. The next article is by Max Bessell, David Round, Manish Agarwal and Bernhard Lobmayr: 'How big can the Big 4 (or 3) get?A study of audit firm concentration in Australia'. The final article is by Kylie Pappalardo and Nicolas Suzor, entitled 'Standardisation and patent ambush: Potential liability under Australian competition law'. Two new competition books are also reviewed: Antitrust Law and Economics by Keith N Nylton (reviewed by Rhonda Smith) and Australian Cartel Regulation by Caron Beaton-Wells and Brent Fisse, which I have reviewed.
The Senate has released its 98 page second interim report on 'The impacts of supermarket price decisions on the dairy industry'. In it the committee notes that many of the issues raised by the inquiry 'require scrutiny over a longer period of time' and, accordingly, concludes that 'it is not able to draw final conclusions or make recommendations at this stage'. Recommendations will be made in the final report to be released in October. Additional comments were made by a group of Senators comprising Nick Xenophon, Bill Heffernan, John WIlliams and Christine Milne, who criticise the government for not enacting any of the recommendations from the 2010 Milking it for all it's worth report and (predictably) criticise the ACCC. Senator Scott Ryan provides a much more reasoned 'Additional Comment' to the report. More detail on this in my blog piece.
The Senate has released its 374 page report on 'Competition within the Australian banking sector'. It includes recommendations for modification of the government's proposed price signalling legislation. More details to follow. View more on the Senate inquiry.
Federal Court Chief Justice Keane and Justices Mansfield and Middleton have denied an appeal by Fortescue to obtain access to Rio Tinto's Hamersley rail line in the Pilbara. In addition, Rio Tinto succeeded in a an appeal to overturn the ACT's decision to declare the Robe River line. Fortescue was ordered to pay costs. View the Tribunal's finding. See, for example, Matthew Stevens, 'Fortescue the architect of its own Pilbara rail defeat' (The Australian, 5 May 2011). The decision is now available through AustLII.
3 May 2011 - Press Conference with the Treasurer and Rod Sims
Rod Sims has appeared before a press conference discussing his nomination. He refused to be drawn into specific questions relating to the supermarket price wars, petrol pricing etc. He observed that the ACCC "plays an absolutely pivotal role in the Australian economy and indeed I think the sort of role that the ACCC plays is really fundamental to the proper functioning of any market company." View transcript of press conference.
3 May 2011 - Rod Sims nominated as next ACCC Chairman
The Gillard Government has nominated Rod Sims to be the next Chairman of the ACCC. It is seeking majority support from States and Territories for the appointment. Presuming it is received, Mr Sims will be appointed on 1 August for a 5 year term. View media release. View my blog for more details.
28 April 2011 - Milk wars not a threat to farmers
An item by Damon Kitney in today's Australian discusses the findings of a research report commissioned by Coles regarding the recent milk wars. View article.
21 April 2011 - ACCC will not oppose Cellarmasters sale
On 20 April the Senate has released its "interim report" on the infamous "milk wars", it which is called on the Government to table a formal response to the Senate's earlier 'Milking it for all it's worth' report and then explained why it was no yet releasing a full report. It indicated a further interim report will be released by 10 May and a final report by 1 October. View interim report. View more on this inquiry.
20 April 2011 - ACCC allows industry to levy to fund waste paint collection trial
The ACCC has granted authorisation to allow the Australian Paint Manufacturers Federation to conduct a 12 month waste paint collectrial trial, funded by a 2 cent per litre levy on the wholesale supply of certain paint. View press release. View authorisation register.
20 April 2011 - ACCC allows collective bargaining by Australian Hotels Association
19 April 2011 - High Court of NZ dishes out record penalty for abuse of power
The High Court of New Zealand today penalised Telecom NZ $12million for breach of s 36 of the Commerce Act (equivalent to s 46 CCA). This is the largest penalty ever imposed under our Commerce Act 1986.Justice Rodney Hansen provides a relatively lengthy and useful discussion of factors to be considered in imposing a penalty. The Commerce Commission sought penalties of between NZ$20-25million. Telecom argued for no penalty, or a modest one, claiming the contravention was 'limited and minor'. The maximum penalty, given Telecom's turnover, was $279.2 million. In his judgment, Justice Hansen referred to Australian Competition and Consumer Commission v Telstra Corp Ltd  FCA 790 as being closest in facts for the purposes of assessing appropriate penalties (in that case Telstra was penalised $A18,550,000). See Commerce Commission v Telecom Corporation of New Zealand Limited. Thanks to Ben for alerting me to the decision.
15 April 2011 - Price signalling - Samuel v Fisse
Page 48 of today's AFR features an item by Duncan Hughes, 'ACCC boss stands firm on cartels' in which Samuel claims that the 'proposed government reforms to ban price signalling are entirely consistent with best practice in Europe and the US'. In response, Brent Fisse has provided his analysis (available on his web site) of why he considers this to be incorrect and highly misleading. Never one to mince words, Fisse claims that the proposed bill 'represents international worst practice on information exchanges between competitors' and refers to the bill as 'mindless proposed legislation'. Brent Fisse is the co-author (with Caron Beaton-Wells) of the new book, 'Australian Cartel Regulation' published by CUP. View also The Competition and Consumer Amendment Bill (No 1) 2011: International Worst Practice on Information Exchanges Between Competitors (abstract) (PDF)
15 April 2011 - Bradbury speech on price signalling
David Bradbury MP Parliamentary Secretary to the Treasurer, had given a speech to Gilbert and Tobin Lawyers on Anti-competitive price signalling and information disclosure. In it, he claims the government's price signalling bill, currently before parliament, will first apply to banks because there is "strong evidence that anti-competitive price signalling has been occurring" in that sector. He reiterates that the laws will only be extended to other sectors 'after further detailed consideration'. He further claims that the laws "laws will close an identified gap between Australian competition law and the laws of major international jurisdictions, such as the United Kingdom, United States and the European Union, which deal with anti-competitive price signalling and information disclosures." [differences between those laws and the one the government proposes are not acknowledged]. View speech.
12 April 2011 - Bradbury speech to Regulatory Reform Conference
David Bradbury MP has delivered an address to the Regulatory Reform Conference: The Critical Role of Competition Policy. It's pretty light on - a bit of history and a bit of discussion about international competitiveness and some rhetoric about needing to remain competitive and not being 'complacent' about achievements gained through competition policy.
11 April 2011 - Price fixing penalty imposed on Japan Airlines
The Federal Court has ordered a $5.5 million penalty against Japan Airlines International Co Ltd (JAL) for price fixing. JAL is the seventh airline to settle in the ACCC's air cargo cartel proceedings, with total combined penalties now reaching $46.5 million. JAL admitted the price fixing conduct at an early stage and cooperated with the ACCC with the result that it received a significantly discounted penalty. View press release. View decision by Justice Ryan.
8 April 2011 - New milk inquiry transcript available
The final transcript from Senate hearings relating to the milk inquiry is now available here. This involves testimony from Coles and Woolworths and lots of aggression from Bill Heffernan (who would prefer that the supermarkets discounted water ...). It also features Senator Colbeck informing Senator Heffernan that he doesn't look anything like Senator Hurley. Worth a read.
6 April 2011 - ACCC re-authorises collective bargaining by elite swimmers
John Durie in the Australian (Long process to select new ACCC chief) reports that Graeme Samuel has now officially announced his intention not to seek a further term as ACCC chief. Although he has previously indicated he would not seek a further term, there had been continuing speculation that he might - an email to staff was intended to end this speculation. As a result, his term will come to an end on 31 April 2011. See also 'ACCC boss to stand down: report' (Business Spectator)
5 April 2011 - Standing up for Coles
Paul Kerin in today's SMH ('Milking the cash cow') provides one of the few media articles which point out the hypocrisies inherent in some of the criticisms of Coles' pricing strategies. He also points out, as most have neglected, that the biggest critics are the suppliers which have significant vested interests. He also talks about resale price maintenance in an article, which is enough to bring a smile to my face any day. He also calls out Nick Zenophon for blindly defending the suppliers: "Yet politicians like Senator Nick Xenophon have swallowed them completely and are making outlandish policy recommendations on the run." He further goes on to discuss the dubious economics and 'real life' consequences of predatory pricing claims. The article can't get much better ... well worth a read.
5 April 2011 - Private predatory pricing action?
In 'Farmers backed in Coles milk battle' (Herald Sun, 5 April 2011), Matt Johnston claims that the Australian Dairy Farmers group 'is canvassing financial support to bankroll a case against Coles, accusing the supermarket giant of predatory pricing'. Coles denies engaging in predatory pricing, claiming it has not been selling milk at a loss (which is required for a successful action under the Birdsville Amendment, although it is not a pre-requisite under the standard misuse of market power provision, which might also found a claim for predatory pricing). The article also notes that farmers allege there is a 'prima facie case of price discrimination' between private labels and processor brands (although given price discrimination is not illegal in itself, the relevance of this appears to be in providing anti-competitive purpose rather than founding a separate cause of action) and that they believe Coles' actions constitute predatory pricing. The article also states that companies found guilty of predatory pricing face fines of up to $10m (although that is not the maximum fine limit anymore). Coles, who no doubt are fairly well informed of their obligations under the CCA - particularly the very prescriptive, if not economically justifiable, Birdsville Amendment - have denied below cost pricing, so it's tough to see a claim succeeding in relation to this provision - but as a matter of pure academic interest, I'd love to see it litigated ...
4 April 2011 - More news on the supermarket price wars
It's in the paper virtually every day now - see, for example, Andrew Carswell, 'Coles milking the price war for all it's Woolworths' (The Daily Telegraph, 4 April 2011). IGA claims Coles' Down Down campaign is deceiving the public. It's not entirely clear how. I wonder if the Senate will launch new inquiries into every affected industry ...
4 April 2011 - Price signalling laws back in news
There's an item on page 3 of Today's AFR by Matthew Drummond, 'Price signalling laws may be widened'. It notes that the ACCC is 'keen to have the laws applied more generally'. It also quotes Allen & Overy's Dave Podder as saying that the law has 'created a runaway train because it's so badly drafted'.
30 March 2011 - Senate attacks Coles
Naturally the open-minded Senate in its milk-wars inquiry went on the attack yesterday as Coles appeared before them (see, eg, the unflattering photo of Bill Heffernan on the attack in Clany Yeates, 'Senators suggest breaking up big supermarkets'). Xenophon has the bright idea of breaking up Coles and Woolworths. Coles claims the discounts are sustainable; Woolworths claims they are not (although as price followers rather than leaders on this they have an obvious interest in the prices being raised).
29 March 2011 - Coles, Woolworths and Choice to appear before Senate Milk Inquiry today
The fourth public hearing into the milk price wars will be held in Canberra today - scheduled to appear are Coles, Woolworths and Choice. Coles has said that it is "looking forward to explaining to the Senate committee how it is committed to reducing shelf prices for Australian shoppers, while ensuring that primary producers are not disadvantaged in the process" (see SMH). Dairy farmers have called on the supermarkets to use their appearance before Senate to commit to ending the price war (ironically, much of this inquiry is about whether their conduct is anti-competitive; such a joint commitment would be the most overtly anti-competitive act to date). Chairman of the Dairy Farmers Milk Co-op, Ian Zandstra has claimed the supermarkets must be more transparent and that it is for them to prove they have not engaged in loss leading or predatory pricing; while this may be useful for PR purposes, it's clearly not their legal obligation. Meanwhile, Coles have indicated that the next product to be targeted in its 'Down Down' campaign is fresh chicken.
29 March 2011 - Metcash trial continues, without Metcash witnesses
The Metcash hearing continues, with the ACCC seeking an injunction to prevent Metcash from buying Franklins' grocery business. The ACCC's case has, however, hit a hurdle with Metcash announcing it will not call any witnesses, including Metcash boss, Andrew Reitzer, who the ACCC had been preparing to cross-examine. See Susannah Moran, "Watchdog stymied by key Metcash witness no-show', The Australian, 29 March.
Yesterday the Government introduced the Competition and Consumer Amendment Bill (No 1) 2011 to prohibit price signalling. This follows the release, late last year, of an Exposure Draft Bill. Although there are some modifications, it is clear that fundamental concerns about the legislation were not given much consideration. The Bill introduced is longer and more complex than the Exposure Draft Bill, with amendments running to 14 pages of very dense legislative text. View Second Reading Speech. See also 'Crackdown on price signalling introduced' (SMH, 24 March)
23 March 2011 - Xenophon calls ACCC a toothless chihuahua
In the context of the Foster's saga, Senator Xenophon has labeled the ACCC a toothless chihuahua (he's also recently and unjustifiably attacked them in the farcical Senate milk inquiry). Senator Xenophon appears to be criticising the ACCC for not taking action against a non-breach of the legislation. He also suggests that ACCC is working hard to find 'new ways to tell Australian consumers why they can't do anything'. Of course, he thinks it's a great idea to deprive consumers of the opportunity to buy cheap bear. Senator Xenophon needs a little education in competition law and economics. In the meantime it may be better for everyone if he just stopped talking. Meanwhile, the Choice consumer group have attacked Foster's for their actions. Christopher Zenn, for Choice, expressed justified cynicism at Fosters' suggestion that it is concerned about the potential for the supermarkets to damage their brands through discount pricing (which is the key justification for the loss-leader defence relied upon by Foster's).
23 March 2011 - Exit Fee ban passes through Parliament
The Gillard Government's ban on mortgage exit fees passed into law today. It will apply to all new home loans from 1 January 2011. See Wayne Swan's press release.
23 March 2011 - Fosters withheld beer supply to supermarkets on the basis of loss leader selling
Fosters has confirmed it withheld supplies of beer to Coles and Woolworths, claiming it relied on s 98 of the CCA (although everyone still seems to refer to the TPA) which allows them to withhold were their goods are used as loss-leaders. Not at all surprisingly, Senator Xenophon and his mate Frank Zumbo have been the first to come out in vocal support of Fosters' actions; Xenophon has called for the ACCC to outlaw below-cost pricing (apparently under the misapprehension that the ACCC has these magical powers - no doubt if up to him they would be given those bizarre powers) and Zumbo has praised Fosters as 'brave' for trying to 'protect competition' in the market. He manages to relate this back to the current milk inquiry where he claims that the selling of cheap milk will destroy dairy farmers and threaten access to fresh milk. There's no attempt at an economic rationale for that conclusion, but we wouldn't want to complicate matters (cf, for example, the evidence, of Stephen King before the Committee on 10 March). See, for example, Peter Ryan, 'Foster's pulls beer to foil price war' (ABC News, 23 March 2011)
22 March 2011 - ACCC defends allegations it misled court
The ACCC has defended allegations it misled the court over a previously undisclosed meeting it had with Woolworths in December last year (after the ACCC indicated it would block Metcash's proposed takeover of Franklins). ACCC witnesses described the meeting as a 'thought bubble' and a 'back of the napkin exercise'. View article by Drew Cratchley for AAP (21 March 2011). See also Elisabeth Sexton, ACCC's Metcash denial, SMH, 22 March.
17 March 2011 - ACCC will not oppose grain acquisition
The ACCC will not oppose Cargill Inc's proposed acquisition from Agrium of the commodity management business of AWB Ltd, noting that the proposed acquisition is unlikely to substantially lessen competition because post merger Cargill will 'continue to face competition from a number of significant sources'. View press release. View merger register.
17 March 2011 - ACCC will not oppose acquisition of Austereo by Southern Cross
The ACCC will not oppose the proposed acquisition of Austereo Group Ltd by Southern Cross National Network Pty Ltd. The ACCC found that "due to the presence of existing competitors, the proposed acquisition would not be likely to substantially lessen competition in any other markets where Southern Cross and Austereo operate." See press release. View merger register.
17 March 2011 - Milk inquiry continues
Some of the transcripts are now available from the Senate's inquiry into the 'impacts of supermarket price decisions on the dairy industry' (naturally Frank Zumbo used the opportunity to once again rave about the Birdsville amendment on predatory pricing - he doesn't fail to mention he drafted it, amongst other things (such as a purported need for price discrimination laws and proposing an office of the Australian small business and farming commissioner)). Meanwhile, Coles has defended its milk pricing in its submission to the inquiry (submission number 131), claiming it has not sold retail milk 'below the commercial cost of acquiring it' (see ABC, 'Coles defends its milk pricing, in submission to inquiry' (16 March 2011)). More to follow ...
15 March 2011 - Dragon Alliance admits RPM
Dragon Alliance South Pacific Pty Ltd has "admitted restricting online retailers from selling Dragon's ski goggles, motorcross goggles and sunglasses below specified prices". It has provided court enforceable undertakings to the ACCC relating to furture conduct. View press release. View register (including undertaking)
15 March 2011 - Metcash trial underway
The ACCC's injunction hearing to block Metcash's proposed acquisition of Franklins stores. Neat item by Hannah Low in today's AFR ('Grocery wars are raging: Metcash - page 3) and plenty more items avaiable online. The trial is before Justice Arthur Emmett.
10 March 2011 - ACCC attacked in Senate milk hearings
Yes, they've come under attack by politicians playing politics, with Senator Xenophon asking if the commission was 'asleep at the wheel' (transcript still not available, but see, for example, Philip Wen, Watchdog Under Attack, SMH, 10 March. See also Alison Rehn, 'Milk war sparks watchdog inquiry' Herald Sun).Yes, somehow the ACCC have been napping and completely missed all the hype surrounding the 'milk wars' and the Senate inquiry they've been called before. Processors who believe there has been a contravention of the Act are, of course, free to take action. The ACCC does have some s 155 powers to obtain evidence where it believes there has been a contravention of the Act; on the other hand, if discussions have occurred (as the ACCC claims) with Coles and they have produced no evidence of 'below cost pricing', then these powers are more limited. The ACCC have insisted that, within their powers, they are investigating the conduct for possible contraventions of misuse of market power or unconscionable conduct breaches - Graeme Samuel also noted that their investigation would be rigorous and independent, something neither the media nor Senate can claim. For something different from the popular media reporting (and there's plenty of it for those interested), see Stephen King's blog, 'Milk Headlines' and David Leyonhjelm, 'Milk wars will only lead to retailer skimming' in the Business Spectator.
9 March 2011 - ACCC to oppose Asahi's proposed acquisition of P&N Beverages
The ACCC has announced it will oppose the proposed acquisition of P&N Beverages Australia by Asahi Holdings (Australia), out of concern that the proposed acquisition would 'remove a vigorous and effective competitor in the markets for the supply of carbonated soft drinks (CSDs) and cordial'. See press release. See merger register. I'm guessing that unlike the Metcash decision, this one won't prompt a Senate Inquiry, but the AFR reports today (Sue Mitchell, 'Asahi has ACCC in its sights', AFR, 10 March 2011, p 19) that Asahi is considering legal appeal against the ACCC's informal decision.
9 March 2011 - ACCC proposes to allow levy for waste paint collection trial
The ACCC is proposing to authorise a waste paint collection trial, funded by a 2 cents per litre levy on the wholesale supply of certain paint products. View press release. View authorisation register.
9 March 2011 - Cardboard box cartel settlement
It is believed that Amcor and Visy have agreed to settle a class action against them alleging losses arising from cartel conduct engaged in between the companies (previously the subject of an ACCC action in which Justice Heerey imposed a $36m penalty of Visy, noting that this was "by far, the most serious cartel case to come before the Court in the 30 plus years in which price fixing has been prohibited"). In an item in the Australian (Visy and Amcor settle box lawsuit), Andrew Main notes speculation that the settlement may be inthe order of $150 million (others have speculated it may be in the order of $500million).
9 March 2011 - Milk Wars hearings
Public hearings continue today in the Senate's inquiry into the impact of supermarket price decisions on the dairy industry. Yesterday hearings were held in Melbourne. Today they are being held in Sydney and tomorrow in Canberra. Transcripts are not yet available, but will be posted on the inquiry web site. There is no shortage of media on this one.
7 March 2011 - FOI information on price signalling
Recently Treasury has released some documents regarding policies on bank competition and, in particular, price signalling. Key among them is a Treasury Executive Minute setting out Treasury's proposal for price signalling and information exchange laws and attaching some of the advice relied upon to develop the proposed model. Notably, it attaches economic advice provided by Dr Jill Walker (prior to her appointment as an ACCC Commissioner) in which Dr Walker recommends against per se prohibition of facilitating practices. View FOI documents.
4 March 2011 - ACCC not to oppose single certifying body for attendant care standard
The ACCC will not oppose a single certifying body for attendant care standards. The proposed conduct was notified because of its potential to contravene s 47 (exclusive dealing). The ACCC accepts public benefit arguments, at least for the initial phase of the program. View press release.
3 March 2011 - ACCC proposes to allow continuation of refrigerant produce stewardship scheme
The ACCC proposes to grant authorisation to allow Refrigerant Reclaim Australia "to continue to operate a product stewardship scheme to recover ozone depleting and synthetic greenhouse gases (refrigerant). View press release. View authorisation register.
3 March 2011 - ACCC draft decision on AHA collective bargaining proposal
The ACCC has made a draft decision proposing to allow Australian Hotels Association Divisions in all states and territories to collectively bargain with various wagering, broadcasting etc services providers. View press release. View authorisation register.
2 March 2011 - Senate drops Metcash inquiry
The Senate Economics Reference Committee has released its final report on the proposed acquisition of the Franklins supermarket business by Metcash. It concluded that "[n]otwithstanding the significance of any competition issues associated with the proposed acquisition, the committee recognises this matter will be examined in detail through the judicial process. The committee believes this is an appropriate manner in which to test the arguments and resolve the matter." View inquiry details. See also Blair Speedy, 'Senate drops ACCC probe' (The Australian, 2 March 2011)
2 March 2011 - ACCC monitoring speculation over Foxtel/Austar merger
The ACCC is "monitoring media speculation of a possible acquisition of Austar by FOXTEL". View merger register.
2 March 2011 - ACCC authorises concrete cartage owner drivers collective bargaining
1 March 2011 - ACCC invites submissions on Woolworths' proposed acquisition of The Cellarmasters Group
The ACCC is inviting comments on the proposed acquisition, by Woolworths, of The Cellarmasters Group. Submissions due 22 March. View merger register.
28 February 2011 - $4.2m price fixing penalty for foreign cartel
The Federal Court has ordered that APP Singapore and two other companies pay penalties of $4.2 m for fixing the price of photocopy paper and 'uncoated woodfree folio paper' supplied to Australian consumers. None of the meetings at which agreements were reached occurred in Australia. View ACCC press release. View judgement. See also Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8)  FCA 153 (25 February 2011)
27 February 2011 - Milkonomics
Prof Stephen King has a blog piece today attacking the claims that 'farmers will be ruined' by the milk wars. View blog post at Core Economics.
25 February 2011 - ACCC grants interim approval for WA chicken growers collective bargaining
The ACCC has granted interim authorisation to allow WA chicken growers to collectively bargain with processors. The ACCC claims this will provide stability for the industry. View press release.
23 February 2011 - ACCC allows collective bargaining for Telstra shops
The ACCC has granted authorisation for TLS Association Pty Ltd to collectively bargain with suppliers on behalf of Telstra licensed shops for five years. View press release. View authorisation register.
23 February 2011 - ACCC proposes re-authorisation of collective bargaining by elite swimmers
The ACCC has issued a draft determination proposing to re-authroise the Australian Swimmers' Association Inc to collectively bargain with Swimming Austrlaia Ltd on behalf of members for a further ten years. View press release.
23 February 2011 - Swan on exit fees
David Crowe and John Kehoe discuss the Treasury document warning about the 'unintended consequences' of placing a ban on exit fees in today's AFR ('Swan defiant on exit fee ban', p 5). In particular, Treasury (amongst others) warned that such a ban would lead the banks to seek to recover actual or potential losses by increasing interest rates or other fees. Swan claims that any attempt to lift other fees to make up for lost revenue would be met with regulatory crack down - presumably based on the 'unfair terms' and unconscionable conduct provisions of the new Australian Consumer Law (ACL), but this seems unlikely. Nevertheless, he seems convinced the 'reform' will promote competition (or at least convinced that the public will think that the reform will promote competitoin) and is charging ahead with its implementation - see further my blog post.
'Australian Cartel Regulation', by Caron Beaton-Wells and Brent Fisse, was launched yesterday at an event hosted by Prof Bob Baxt AO. The book was officially launched by The Honourable Peter Heerey QC, who also used the occasion to criticise the current approach to legislative reform in the area of competition policy - in particular, he contrasted the lengthy process that resulted in the new cartel laws with the ad hoc, populist and reactionary approach that has been a feature of recent changes, from the infamous Birdsville amendment to the proposed price signalling laws. More information about the book can be found here.
22 February 2011 - ACCC exemption of gas project
Jonathan Barrett has an item on page 14 of today's AFR discusing the exemption granted by the ACCC to owners of the North West Shelf gas project. He notes that the ACCC did not seek input from Woodside Energy prior to granting the exemption. Woodside's chief executive, Don Voelte, has claimed that the exemption is both unnecessary and potentially costly for WA residents.
21 February 2011 - 'Milking the public'
17 February 2011 - ACCC re-authorises Homeworkers Code of Practice
Yes, another inquiry. I noted on 26 January that the opposition had called for an investigation over milk competition between Coles and Woolworths and now they have it. Independent senator, Nick Xenophon, announced the inquiry yesterday, noting that he understands 'consumers want cheap milk' but that consumers will suffer if the short term cuts mean 'the 'descruction of our dairy industry'. See Senate Hansard page 36. The inquiry is likely to start in the second week of March and is supported by the opposition. It will include investigation into whether the price reduction is anti-competitive (because the Senators increasingly believe themselves more equipped than the ACCC for such an assessment). Labor has not supported the inquiry.
For more details see my inquiry page. For related news see, for example, AAP, 'Senate announces inquiry into supermarket milk wars' (Herald Sun, 10 February); Sid Maher and Pia Akerman, 'Farmers urge milk price revolt against Coles' (The Australian, 11 February 2011); Michael Harvey, 'Senate announces inquiry into supermarket milk wars' (Herald Sun, 11 February) and 'Labor rejects probe into milk price war' (ABC, 10 February)
3 February 2011 - ACCC allows Virgin Blue-Etihad alliance
The ACCC has authorised an alliance between Virgin Blue and Etihad Airways for five years. The alliance relates to cooperation on joint pricing and scheduling of services. The ACCC considers it will promote competition and, given the airlines 'do not currently compete on any routes' it is 'unlikely to result in any anti-competitive detriments'. View press release. View authorisation register.
31 January 2011 - Samuel talks about criminal cartel prosecution
Olga Galacho's item, 'Samuel's vow: I will get cartels' contains an interview with Samuel about future criminal cartel prosecutions and the ACCC's role generally, including this slightly spooky remark: 'Every day, every minute, even while you sleep, everything you do will be oversighted by the ACCC".
31 January 2011 - Metcash merger news
An item by Elisabeth Sexton in the SMH today discusses the interest of grocery rivals, Coles, Woolworths and Aldi, in the forthcoming (14 March) ACCC challenge to Metcash's proposed takeover of Franklins and discusses the ACCC's statement of claim.
28 January 2011 - Price signalling submissions released
The submissions made to the Competition and Consumer Amendment Bill (No.1) 2011 (Exposure Draft Bill) have now been published. Twenty-four submissions were made. View submissions.
Yes, the opposition wants the ACCC to investigate Coles and Woolworths for their decision to vigorously compete on the price of milk (see, eg, AAP, 'Oppn calls in watchdog over milk debate'. The opposition considers such price 'slashing shameful'. Opposition agriculture spokesman John Cobb wants any inquiry to be 'fair dinkum' (claiming previous ACCC inqury into grocery retailing was simply a 'Labor ruse'). See also John Durie, 'Coles' milk price cut aimed at Woolies and Aldi, but the real victim will be processors' (The Australian).
26 January 2011 - More price signalling news
A few articles popping up over the Competition and Consumer Amendment Bill (No.1) 2011 (Exposure Draft Bill) are worth a look. See, eg, John Durie, 'Business backlash gorws on government's price signalling crackdown' (The Australian) (discussing a number of submissions, although one quote appears a tad wrong, claiming the LCA believes the laws (if introduced) should only prohibit disclosure "for the purpose of substantially increasing competition"! (fortunately their submission does refer to lessening rather than increasing competition)); Terry McCrann, 'Level playing field, Samuel-style' (Herald Sun) (McCrann criticises Samuel' 'bizarre understanding of commercial reality' when it comes to price signalling); Peter Taylor, 'ACCC tough on price signals' (Herald Sun) and Jennifer Hewett, 'Draft bill on price signalling may have unintended consequences' (The Australian).
25 January 2011 - Woolworths complains about Bunnings
Woolworths has lodged a complaint with the ACCC about the behaviour of Bunnings. It's hard not to be cynical about the timing when Woolworths is planning to open its own hardware stores to compete with Wesfarmers' Bunning stores; regardless, it will be intersting to watch. See, eg, James Thomson, 'Woolworths makes complaint against Bunnings as hardware war heats up' (SmartCompany)
24 January 2011 - ACCC proposes to authorise collective bargaining by concrete cartage owner drivers
21 January 2011 - Jewellery trader offers refunds as part of an undertaking to the ACCC
Global Enerprises (Qld) Pty Ltd, trading as Allure Gold has provided undertakings to the ACCC following concerns that Allure Gold had engaged in resale price maintenance by sending an email to retailers directing them not to sell products below a certain price. The undertaking includes provision of refund to customers or consumers who feel they have been misled as to composition. View press release.
20 January 2011 - ACCC consults on Viterra's proposed wheat port access arrangements 2011-2014
The ACCC has commenced consultatoin on Viterra's propsed access arrangements which must be in place by 1 October 2011. The ACCC has released an issues paper - submissions due 4 March 2011. View press release.
20 January 2011 - Australian Trade Practices Reporter renamed 'Australian Competition and Consumer Law Reporter'
I received my latest ATP Reporter update to discover it is being re-named the Australian Competition and Consumer Law Reporter. Fortunately the 'Australian Trade Practices Reports' series (ATPR) will retain its name. CCH notes that "With more than 35 years of trusted case reporting on all areas of trade practices, competition and consumer judicial law, CCH is dedicated to the practical importance of maintaining citation consistency and continuity'. Good call. The Reporter will also be restructured; most notably, competition and consumer law commentary will each form their own separate volumes.
20 January 2011 - ACCC consults on ABA's proposed wheat port access arrangements
20 February 2011 - ACCC proposes to allow collective bargaining for Telstra shops
The ACCC has issued a draft determination proposing to grant authorisation (for five years) to TLSA to "collectively bargain with a range of suppliers on behalf of Telstra licenced shops." Submissions due by 4 February. View press release.
19 January 2011 - ACCC calls for comment on Sleepyhead's proposed acquisition of Dunlop Foams
The ACCC has issued "a Statement of Issues relating to proposed acquisitions involving Wonderest Limited (trading as Sleepyhead) and Pacific Brands Limited (Pacific Brands)." Submissions due by 4 February. View press release.
19 January 2011 - ACCC calls for comment on proposed acquisition by InvoCare Ltd of Bledisloe Group Holdings
The ACCC has issued a Statement of Issues on the proposed acquisition by InvoCare Limited of Bledisloe Group Holdings Pty Ltd. "InvoCare is the largest provider of funeral services and the largest operator of private cemeteries and crematoria in Australia. Bledisloe operates a funeral directing business in Australia and owns cemeteries and crematoria in Queensland. " Submissions due 4 February. View press release.
17 January 2011 - ACCC authorises Central Queensland councils to conduct green waste tender
The ACCC will allow the Central Qld Local Government Association to conduct a regional tender for provision of green waste mulching services. Authorisation has been granted for five years. View press release. View authorisation register.
14 January 2011 - Banks irate over price signalling
Page 3 of The Australian Financial Review has an item by Patrick Durkin on the reaction to the government's proposed price signalling laws. Submissions on the Competition and Consumer Amendment Bill (No.1) 2011 (Exposure Draft Bill) are due today.
5 January 2011 - CCA consolidation now available
A free compilation of the Competition and Consumer Act has now been published at ComLaw. It can be viewed here. The new Australian Consumer Law is contained in Schedule 2 which is in Volume 3 of the Act. At 1,454 pages (or 1,314 excluding notes) be prepared to kill a few trees if you want to print it ...
The name change of the Trade Practices Act 1974 to the Competition and Consumer Act 2010 has now taken effect. This does not alter the substance of the competition law provisions of the Act (there are, however, substantial changes to the consumer laws with the Australian Consumer Law now taking full effect).