Competition Law News
22 December 2014 - Coles' unconscionable conduct
The Federal Court has found Coles engaged in unconscionable conduct and ordered Coles to pay $10 million penalties. See ACCC press release.
21 December 2014 - New State of Competition out now
The latest The State of Competitionis out now - the focus is SLC: "... rather than our usual 'year in review', this year we’re finishing up with a reflective piece on just what the substantial lessening of competition test involves. As the slogan says, it’s time for less opinion, more expertise." As always, a must read - especially if you want to find out why John Glenn was 'contemplating competition law while in space'.
19 December 2014 - More Harper submissions available
The fourth batch of Harper Review submissions on the draft report have been published on the Competition Policy Review website.
17 December 2014 - ACCC appeals Air Cargo decision
The ACCC has announced it will appeal the Air Cargo cartel decision; the case failed at first instance because the Court found there was no relevant 'markt in Australia'. See press release. For the judgment see: Australian Competition and Consumer Commission v Air New Zealand Limited  FCA 1157. See also 'ACCC appeals court’s dismissal of cartel case against Air NZ, Garuda; (Business Spectator, 17 December 2014) and my note on this case.
15 December 2014 - ACCC and Coles seek consent orders
The ACCC and Coles have made joint submissions to the Federal Court seeking consent orders from the Court. See ACCC press release. See also Sue Mitchell and Madeleine Heffernan, 'Coles to refund suppliers as it settles cases with ACCC ' (The Age, 15 December 2014)
5 December 2014 - More Harper Submissions published
The third batch of submissions on the Harper Competition Review Draft Report have now been published on the Review website.
5 December 2014 - ACCC authorises RPM
The ACCC has granted conditional authorisation for Tooltechnic Systems (Aust) Pty Ltd to set minimum retail prices on Festool power tools until 31 December 2018. View press release. View authorisation register.
5 December 2014 - Durie on ACCC's cartel enforcement
John Durie has an item in today's Australian discussing the ACCC's increased level of enforcement in relation to cartel conduct: see John Durie, 'Watchdog ACCC chases cartels' (The Australian, 5 December 2014)
4 December 2014 - New cartel action
The ACCC has instituted proceedings against electrical cable suppliers alleging cartel and exclusionary conduct in the supply and acquisition of electrical cable. See ACCC press release.
28 November 2014 - More Harper media
Some more items of interest in the last couple of days: John Durie, 'Brickbats for Brickworks' (The Australian, 27 November 2014) (scroll down to 'Harper’s way' section), 'Farmers Back Government Draft Report' (The Cattle Site, 24 November 2014), Julie Edwards, 'Harper Review's new world of public service for profit' (Eureka Street, 27 November 2014)
26 November 2014 - ACCC proposes to allow WATAB collective bargaining authorisation
The ACCC proposes to grant a ten year authorisation for the WATAB Agents' Association Incorporated to collectively negotiate terms and conditions of service behalf of members with Racing and Wagering Western Australia and to participate in dispute resolution processes between RWWA and agents. See ACCC proposes to authorise W.A.T.A.B Agents’ to engage in collective bargaining & dispute resolution (ACCC Update, 29 November 2014) . See authorisation register.
26 November 2014 - Media on Harper submissions
There has been a bit of media on some of the Harper Review submissions recently. See, for example, Andrew White, 'Industry super slaps big bank bundling ' (The Australian, 25 November 2014) and , 'ADF calls for mandatory code' (The Australian Dairy Farmer, 26 November 2014), 'Minter Ellison announces general support of Harper Review draft report' (The Lawyer, 21 November 2014)
26 November 2014 - ACCC submission to Harper
The ACCC's submission on the draft report is now available here (it is not yet available on the Review website). See also the accompanying press release. For commentary see, for example, Michael Roddan, 'Harper review would weaken cartel laws: ACCC' (Business Spectator, 26 November 2014) and Georgia Wilkins, 'ACCC warns on cartel law changes' (The Age, 27 November 2014) '
25 November 2014 - Subsidies to microbreweries challenged
Australian craft brewers have asked the WTO to take action against countries that subsidise microbreweries. The ACCC is also said to be investigating is investigating tying practices which lock craft beers out of Australian hotels. See Steve Cannane and Sashka Koloff, 'Craft beer brewers take on domestic heavyweights in ACCC and WTO fair trade investigation' (ABC, 25 November 2014)
24 November 2014 - More Harper submission released
The next batch of Harper Review submissions have been released and can be viewed here.
21 November 2014 - Harper submissions
No new submissions to the Harper Review have been published since the deadline for submissions passed on Monday - a few have trickled out online though. See, for example, ANRA submission, ACCI submission, Australian Copyright Council, CHOICE, Pharmacy Guild of Australia submission (a mere 123 pages) and Victorian Local Governance Association.
20 November 2014 - Federal Court upholds validity of Obeid notices
The Full Federal Court has upheld the validity of examination notices issued to Paul and Moses Obeid. See ACCC press release. See also Kat McClymont, 'Eddie Obeid's sons set to be grilled by ACCC' (SMH, 20 November 2014)
20 November 2014 - More effects test commentary
Woolworths chief executive Grant O'Brien has again warned against introducing an effects test for the misuse of market power prohibition, claiming it would create uncertainty which would chill investment. See Sue Mitchell, 'Woolworths boss Grant O'Brien warns effects test will prove negative for economy' (The Age, 19 November 2014). See also Katie Walsh, 'Big retailers warn of chill to competition' (Farm Weekly, 20 November 2014). See also ANRA submission to Harper Review (not yet published on the Harper Review website)
20 November 2014 - Pharmacy Guild considers Harper deregulation proposal 'deeply flawed'
It comes as no surprise that the Pharmacy Guild of Australia has criticised the Harper Panel's proposal to remove restrictive pharmacy location and ownership rule. Draft recommendation 52 states, in part, 'that the Panel 'considers that the pharmacy ownership and location rules should be removed in the long term interests of consumers.' See Christie Moffatt, 'Guild analysis finds deregulation call ‘deeply flawed’' (Pharmacy News, 19 November 2014)
20 November 2014 - ACCC will not oppose Wesfarmers' acquisition of The Workwear Group
20 November 2014 - ACCC launches secondary boycott action against
The ACCC has instituted proceedings against the CFMEU alleging 'it engaged, or attempted to engage, in secondary boycott conduct directed at Boral Resources (Vic) Pty Ltd and Alsafe Premix Concrete Pty Ltd; contrary to the CCA.. See ACCC Media Release, 'ACCC takes court action against the CFMEU alleging secondary boycott and undue harassment or coercion' (20 November 2014) See also Michael Janda, 'ACCC launches court action against CFMEU for Boral secondary boycott' (ABC News, 20 November 2014)
17 November 2014 - Last day for Harper Submissions
17 November 2014 - Sims and the NBN
ACCC Chairman, Rod Sims, spoke today in Sydney about the NBN. See ACCC Press Release (NBN presents opportunities for future broadband competition) and the speech (Solving the multi-technology puzzle: The ACCC’s perspective). See also, David Ramli, 'NBN must be stripped of monopoly power, says ACCC chairman Rod Sims ' (SMH, 17 November 2014)
15 November 2014 - First batch of Harper submissions focus on road tolls and trading hours
The first batch of 128 non-confidential submissions on the Harper Review Draft Report were released yesterday. The vast majority are brief 'have your say' submissions and the majority of those oppose the imposition of road tolls (with most using near-identical wording and pointing to s 92 of the Constitution). The next most popular 'have your say' issue related to retail trading hours, with a significant number of these submissions opposing any extension to retail hours either because it would interfere with family time or because of concerns about the impact on smaller businesses.
There were also several submissions from IGA stores - most adopting very similar (in some cases identical) wording - these typically focus on misuse of market power, access to justice, zoning restrictions and a supermarket code of conduct. There are a handful of more substantial submissions so far - these have typically focussed on misuse of market power (eg, Prof Stephen Corones, Frontier Economics (Dr Philip Williams) and Dr George Raitt). I have provided brief overviews of most submissions here. See also the official Competition Policy Review website to view the submissions in full.
14 November 2014 - First batch of Harper draft report submissions now published
13 November 2014 - The Future of Competition Policy
ACCC Chairman, speaking at the Australian Farm Institute Conference in Melbourne today, has discussed the implications of competition policy for Australian agriculture, including commenting on the 'national champions' argument (expressing the view that promotion of national champions 'takes us in the opposite direction to reform that makes markets work better'), the misuse of market power provision and collective bargaining issues. See speech.
7 November 2014 - Sims on Competition Policy
ACCC Chairman, Rod Sims has addressed the RBB Economics Conference in Sydney backing competition reforms proposed by the Harper Review Panel - three points were highlighted: (1) need to make a choice about s 46 - clearly preferencing a change to an SLC approach; (2) need to extend the Act to cover more government activities; (3) need to debate and decide the issues around competition advocacy and market studies. View press release. View speech. See also John Durie, 'ACCC boss Rod Sims pushes for powers to scrutinise governments' (The Australian, 7 November 2014)
6 November 2014 - Samuel on Telco competition
Former ACCC Chairman, Graeme Samuel, spoke to the Telecommunications Society in Sydney yesterday, focusing on competition in relation to content. Samuel also criticised several reviews into the industry, including the Vertigan and Scales reviews. See David Ramli, 'Ex-ACCC chair says real telco battleground is content' (AFR, 5 November 2014), John Durie, 'Graeme Samuel warns on threat of content control to competition' (The Australian, 5 November 2014), David Ramli, 'Warnings issued over telco content threat' (SMH, 6 November 2014) and Graeme Philipson, 'Graeme Samuel unloads on Scales, defends Telstra and says content is king' (IT Wire, 6 November 2014)
5 November 2014 - Deadline looming for Harper Review submissions
Submissions on the draft report are due by 17 November and the Secretariat has warned that this deadline (unlike that relating to the issues paper) is 'firm', noting that submissions received after this date may not be fully considered, particularly where they suggest significant deviation from the draft report. For more details see the Review's submission page.
5 November 2014 - ACCC issues ACCount for September quarter
4 November 2014 - Commentary on draft RPM authorisation
Several law firms have released commentary on the ACCC's draft RPM authorisation:
- Pam Cue, 'Nailed it ...' (King&Wood Mallesons, In Competition, 28 November 2014)
- Mark McCowan, Alistair Newton and Asa Lam, 'ACCC issue first-ever draft determination proposing to authorise resale price maintenance' (Corrs Chambers Westgarth, 23 October 2014).
- Nick McHugh, Claire Forster, Joanna MacKenzie, 'Authorisation of Resale Price Maintenance in Australia: a long time coming' (November 2014)
Submissions on the draft determination are due by 7 November.
31 October 2014 - ACCC loses air cargo case against Air NZ and Garuda
In a 350+ page judgment, the Federal Court has dismissed proceedings against Air New Zealand and Garuda concerning alleged price fixing in relation to air cargo services; Justice Perram concluded that the conduct alleged did not take place in a 'market in Australia'. See, for example, ACCC, 'Court dismisses air cargo cartel proceedings against Air New Zealand and Garuda Indonesia' (Press Release, 31 October 2014), Steve Creedy, 'Air New Zealand, Garuda beat ACCC cargo collusion case' (The Australian, 31 October 2014) and Michael Roddan, 'Court throws out ACCC's Air NZ case' (Business Spectator, 31 October 2014). For the judgment see: Australian Competition and Consumer Commission v Air New Zealand Limited  FCA 1157
30 October 2014 - Allens >< Linklaters competition update
The latest In Touch: Competition Law update has been released by Allens >< Linklaters. This issue features a number of news items, including the ACCC's annual report, the recent conditional RPM authorisation, the ACCC Statement of Issues on the proposed Dux acquisition by Rheem, the ACCC's SOI on the CSR/Boral proposed JV and the penalties in the forklift gas supply cartel.
30 October 2014 - ACCC releases annual report
29 October 2014 - ACCC proposes to allow medical schools to continue streamlined admission/interview policies
The ACCC has 'issued a draft determination proposing to re-authorise policies which govern the selection and interviewing of applicants to study medicine at Australian graduate-entry medical schools'. See press release. See authorisation register.
29 October 2014 - ACCC authorises Tabcorp & TAB's international pooling arrangements
The ACCC 'has issued a determination granting authorisation to Tabcorp, TAB and TAB ACT in relation to international pooling arrangements with overseas wagering operators and Premier Gateway International (PGI) (an intermediary hub) to allow for the transmission of bets by overseas punters into Tabcorp totalisator pools and the transmission of bets by Australian punters into overseas pools'. See press release.
29 October 2014 - ACCC proposes to authorised Racing & Wagering WA's international pooling arrangements
The ACCC has ' issued a draft determination proposing to grant authorisation to Racing and Wagering Western Australia in relation to current and future pooling arrangements with overseas wagering operators to allow for the transmission of bets by Western Australian punters into overseas pools.' See press release.
28 October 2014 - Retailers in Canberra
Large retailers met with politicians and regulators in Canberra yesterday - a bit of media on this: Eli Greenblat, 'Retailers lay down deregulation gauntlet' (The Australian, 28 October 2014), Sue Mitchell and Matthew Knott, 'Australian National Retailers Association condemns Harper review's 'dangerous' competition law shake-up' (SMH, 27 October 2014) and Joanna Heath, 'Retailers slam Harper change 'drafted by lawyers'' (The Australian Financial Review, 27 October 2014 (paper version 28 October 2014, page 9))
27 October 2014 - Talks with retail giants in Canberra today
Large retail bosses will meet with politicians and regulators in Canberra today to discuss deregulation and competition issues - see Eli Greenblat, 'Retail giants take fight to regulators: closed-door talks with government' (The Australian, 27 October 2014)
25 October 2014 - Dymocks push for removal of parallel imports
The AFR has an item on Dymocks' push for removal of parallel import bans - supported by recommendations in the draft Harper Report. See Sue Mitchell, Dymocks wants book shops on a parallel with Amazon' (The Australian Financial Review, 25 October 2014, page 36) (see SMH version online)
24 October 2014 - Harper Review
John Durie has an item outlining some of the issues discussed at the Competition Policy Review International Conference held in Canberra over the last two days. See John Durie, 'Harper's health complaint' (24 October 2014)
24 October 2014 - ACCC to probe Armidale petrol prices
See Lydia Roberts, 'Breaking: Watchdog to probe city's fuel prices' (The Armidale Express, 24 October 2014)
24 October 2014 - Justice Gordon not impressed with lack of focus in ACCC case against Coles
In a directions hearing this morning Justice Gordon has criticised the ACCC for lack of focus in its unconscionable conduct claims against Coles. Justice Gordon also questioned the need for Coles to use 17 junior lawyers to defend the case. See Eli Greenblat, 'Judge slams lack of focus in ACCC cases against Coles' (The Australian, 24 October 2014)
24 October 2014 - $8.3 million forklift gas cartel fine
The Federal Court has ordered (by consent) penalties of $8.3 million against Renegade Gas Pty Ltd, Speed-E-Gas (NSW) Pty Ltd and three current and former senior officers of the companies for engaging in cartel condut. See ACCC Press Release. Read judgment.
24 October 2014 - Expedia/Wotif deal faces NZ hurdle
The ACCC approved Expedia's acquisition of Wotif on 2 October, but the deal now faces a NZ hurdle with the Commerce Commission issuing a letter of 'unresolved issues'. A decision is due on 5 November. See Clearances Register (does not include letter) and Wotif's ASX announcement. See also Jamie Freed, 'Expedia's Wotif takeover held up again' (The Australian Financial Review, 23 October 2014, page 24 (online version)).
23 October 2014 - Billson on the agriculture green paper
Small Business Minister, Bruce Billson, has spoken at the Competition Policy Review International Conference in Canberra today. John Durie has a piece in today's Australian noting that in that speech Billson stressed that it is the Harper Review, not the Agriculture Green Paper, that is the 'key tool in setting competition policy'. See Durie, 'Bruce Billson seeks to soothe supermarkets' concerns over agriculture green paper' (The Australian 23 October 2014).
See also, for example, Fluer Anderson, 'Producers in Power Push' (The Australian Financial Review, 20 October 2014, page 5), Fluer Anderson and Katie Walsh, 'Cold shoulder for carve-ups' (The Australian Financial Review, 22 October 2014, p 11), Editorial, 'Open economy is good for the farm' (Australian Financial Review, 21 October 2014, p 58), Lexi Metherell, 'Agriculture green paper to spark debate over water, competition' (ABC Radio, The World Today, 20 October 2014) and Joe Kelly, 'Green paper canvasses court orders to break up businesses' (Dynamic Business, 20 October 2014). For more detail see also my Agricultural Competitiveness White Paper page.
23 October 2014 - New publications
The latest issue of the Competition and Consumer Law Journal is out now with a couple of competition items of interest: Rhonda L Smith, 'Market definition and substitution options' and George Raitt, 'Misuse of market power: Why policy objectives matter'. Piper Alderman has also released their latest Competition and Consumer Law News (October 2014) which includes items on section 155 Notices, Merger clearance proposals, the proposed (semi) effects test for s 46 and more.
21 October 2014 - Gough Whitlam and competition law
Malcolm Maiden had an item in today's SMH on Gough Whitlam's impact on competition law - see Malcolm Maiden, 'Gough Whitlam 'changed the way business is done' with lasting competition laws' (SMH, 21 October 2014)
21 October 2014 - ACCC proposes first RPM authorisation
The ACCC has issued a draft determination proposing conditional authorisation to Tooltechnic to set minimum retail prices on Festool power tools for three years. The ACCC has accepted that there is market failure caused by free riding of some Festool retailers in this case sufficient to justify authorisation. This represents the first ever application for authorisation for RPM conduct under the Act. See press release. See authorisation register. Submissions are due by 7 November. It is notable that the Harper Review has proposed retaining the per se ban on RPM, but introducing a notification option.
21 October 2014 - Agricultural Competitiveness Green Paper
The Agricultural Competitiveness Green Paper was released yesterday. See my Agricultural Competitiveness White Paper page for details - includes discussion of competition law 'policy ideas'.
21 October 2014 - Coles v ACCC - balance between fair trading and competition
Prof Caron Beaton-Wells has an opinion piece in today's Conversation discussing the ACCC's recent actions against Coles. See Caron Beaton-Wells, 'Coles v ACCC: finding the balance between fair trading and competition' (The Conversation, 21 October 2014)
17 October 2014 - ACCC releases Statement of Issues on proposed acquisition of Dux by Rheem
The ACCC has released a Statement of Issues outlining competition concerns relating to the proposed acquisition of the Dux hot water heater business by Rheem Australia. The ACCC has expressed concern that the proposed acquisition would substantially lessen competition 'in the supply of storage water heaters'. See press release. See merger register.
16 October 2014 - ACCC authorises owner drivers to collectively bargain with Toll Transport
The ACCC 'has granted authorisation allowing a group of small business owner drivers to collectively bargain with Toll Transport Pty Ltd for the supply of air freight courier transport services at the Toll Priority Brisbane depot.' See press release. See authorisation register.
16 October 2014 - ACCC releases Statement of Issues on CSR and Boral proposed clay brick JV
The ACCC has today released a Statement of Issues outlining competition issues arising from the ACCC's review of the proposed CSR/Boral clay brick JV. ACCC Chairman, Rod Sims, stated that: "The proposed joint venture would result in a duopoly in eastern Australia. The ACCC’s preliminary view is that this would be likely to lead to an increase in the price of clay bricks as well as a reduction in the product range available to residential builders, architects, and end-consumers". Submissions on the SOI are due by 6 November with a final decision to be announced on 18 December. See press release. See merger register. See, for example, Tim Binsted, 'ACCC raises concerns about Boral-CSR brick JV' (SMH, 16 October 2014)
15 October 2014 - ACCC proposes to allow new levy to combat oyster mortality syndrome
The ACCC has issued a 'draft determination proposing to allow Australian Seafood Industries (ASI) to collect a levy, in conjunction with hatcheries, on the purchase of Pacific oyster spat.' See press release. See authorisation register.
15 October 2014 - ACCC reauthorises Consumer Electronic Clearing System regulations
The ACCC has 're-authorised the certification, suspension and termination provisions of the Australian Payments Clearing Association’s (APCA) Consumer Electronic Clearing System (CECS) regulations.' See press release. See authorisation register.
15 October 2014 - ACCC accepts undertakings over restrictions on Taxi booking apps and mobile phones
The ACCC 'has accepted a court enforceable undertaking from Standard White Cabs Limited, trading as Townsville Taxis, relating to alleged breaches of the competition provisions'. Part of the undertaking requires Townsville Taxis to ensure 'affiliated drivers are free to lawfully use a third party booking application and/or a mobile telephone to receive taxi bookings from customers'. View media release.
15 October 2014 - Barnett attacks Rio and BHP
WA Premier, Colin Barnett, has told the state Parliament that he thought it 'strange' that Rio Tinto and BHP Billiton were "seemingly acting in a concert way". See AAP, 'Barnett says Rio, BHP likely colluders' (The Australian, 14 October 2014) Ian Verrender, 'Rio Tinto, BHP Billiton iron ore strategy crushes Colin Barnett' (ABC News, 14 October 2014). See also Hansard (Uncorrected Proof) pages 2-3
15 October 2014 - Telstra pricing
There has been a bit in the media over the last couple of days about Telstra's call to the ACCC to raise prices for access to copper. See, for example, Supratim Adhikari, 'A "greedy" Telstra will test ACCC's resolve' (Business Spectator, 14 October 2014) and Chris Ducket, 'NBN causing inevitable copper cost increase for users: Telstra' (ZDNet, 13 October 2014). See further ACCC Fixed line services FAD inquiry 2013 - Consultation on primary prices (July 2014).
15 October 2014 - Abertis unhappy with ACCC decision on Qld Motorways-Transurban deal
Abertis CEO, Francisco Reynés has argued that Transurban's purchase of Qld Motorways in April gives it control of most of the east coast tollroads. See Jenny Wiggins, 'Abertis chief lashes ACCC for allowing $7b Queensland Motorways-Transurban deal' (SMH, 15 October 2014).
14 October 2014 - Allens >< Linklaters Competition Law Update
Allens >< Linklaters latest In touch: Competition law update is now available, covering the Harper Review, ACCC immunity policy, NZ unfair contract terms draft guidelines, ACCC news, case news ACCC v Breast Check; Zen Telecom; Pirovic Enterprises; Safe Breast Imaging Pty Ltd (No 2) and Seafolly v Madden).
13 October 2014 - Focus on electricity generation assets
In a speech to Energy Users' Association of Australia, ACCC Chairman, Rod Sims, has indicated the ACCC will focus on electricity generation assets when the privatisation of Qld electricity assets is triggered. See press release. See speech - Sims, 'Carbon, mergers and other issues' (13 October 2014) Annual Energy Users' Association of Australia Conference, Melbourne. See also Maggie Lu YueYan, 'Break up Queensland generators: ACCC' (Business Spectator, 13 October 2014), Amy Remeikis, 'Tim Nicholls looks for silver lining in ACCC comments on electricity privatisation' (Brisbane Times, 14 October 2014) and Mark Ludlow, 'Sims to Queensland: split electricity assets' (The Australian Financial Review, 13 October 2014, page 6).
11 October 2014 - Samuel raises concerns on proposed ACCC board
Today's Weekend Australian (Business p 29) has a brief item noting that former ACCC Chairman, Graeme Samuel has raised concerns about Harper Review draft proposals to add a Reserve Bank-style board to the ACCC. This followed concerns raised by current Chairman, Rod Sims, in his speech at the UniSA Competition and Consumer Law Workshop in Adelaide yesterday. See Annabel Hepworth, 'Samuel cool on ACCC 'board'' (The Weekend Australian, 11 October 2014, Business 29) (online for subscribers only).
10 October 2014 - ACCC initial comments on Harper Review
ACCC Chairman, Rod Sims, spoke at today's UniSA Competition and Consumer Law Workshop in Adelaide. In part, Sims indicated in was pleasing that the panel had 'given the core elements of Australia's merger laws a stamp of approval' and that its recommendation regarding concerted practices responded to longstanding ACCC concerns of a gap in the law. Sims also welcomed the Panel's recommendations on misuse of market power. Concerns were raised about separating regulatory functions between different bodies and the recommendation to replace the current Commission with a differently composed Board. See press release. See full speech. See also Michael Roddan, 'ACCC concerned over Harper competition review' (Business Spectator, 10 October 2014).
10 October 2014 - Convenience stores v supermarkets
SMH reports that Australasian Association of Convenience Stores chief executive, Jeff Rogot, has spoken about Coles and Woolworths growth strategies (in particular in relation to convenience stores) arguing that the ACCC must ensure convenience stores and small business aren't disadvantaged by such strategies. See Carolyn Cummins, 'Convenience stores call on ACCC to keep watch as supermarkets plan smaller shops' (SMH, 10 October 2014) and Carolyn Cummins and Julie-anne Sprague, 'Woolworths, Coles to take on convenience stores' (SMH, 6 October 2014)
9 October 2014 - The State of Competition
The latest 'The State of Competition' is out now and focus on the Harper Panel's recommendations for s 46. In it, authors Rachel Trindade, Rhonda L Smith and Alexandra Merrett 'road-test the Harper proposal, trying it out with examples of allegedly anti-competitive conduct said to fall outside the scope of the current law.' View the latest The State of Competition ('Building better mousetraps: Harper’s re-write of section 46'). See also The State of Competition homepage for earlier issues.
9 October 2014 - ACCC clears taxi co-op
The ACCC has "allowed taxi operators working in co-operatives in regional and country Victoria to agree on the maximum fares they will charge taxi-users for work booked within their cooperative network." See press release. See authorisation register.
8 October 2014 - NBN oversight
Allan Asher has a piece in today's The Conversation discussing NBN oversight and the recent Harper and Vertigan recommendations. See Allan Asher, 'Why handing NBN oversight to a new regulator is a recipe for failure' (The Conversation, 8 October 2014).
6 October 2014 - No Woolworths liquor split
The ACCC has indicated it will not try to force Woolworths to divest assets to reduce market power (noting that it does not and should not have the power to break up companies). This follows a suggestion by former Woolworths and Coles executive, Tony Leon, suggested a forced liquor separation may be necessary. See, for example, 'ACCC won't hunt Woolworths split' (The Australian, 6 October 2014) and Julie-Anne Sprague, 'Competition watchdog won't call for Woolies liquor split' (AFR, 6 October 2014) and Julie-Anne Sprague, 'Tony Leon, liquor legend with a thirst for a deal' (AFR, 4 October 2014, p 35)
3 October 2014 - Harper Review a chance for economic leadership
Dr Martyn Taylor has an item in the Australian Financial Review on the draft Harper recommendations. See Martyn Taylor, 'Harper review a chance for economic leadership' (AFR, 3 October 2014) (alternate source: Norton Rose Fulbright website)
3 October 2014 - 40 years of the TPA
The Trade Practices Act (still in force but re-named the Competition and Consumer Act 2010) celebrated its 40th anniversary on 1 October. The ACCC has released a commemorative magazine and 30-min video showcasing the history of the Act. See press release.
The ACCC today announced it would not oppose the proposed acquisition by Expedia of Wotif.com. This follows the release of a Statement of Issues last month. See press release. See merger register. See also Matt O'Sullivan, 'ACCC clears Expedia takeover of Wotif' (The Age, 2 October 2014), Jamie Freed, 'ACCC gives green light to $703m Expedia-Wotif deal' (AFR, 2 October 2014) and Michael Roddan and AAP, 'ACCC clears Expedia's Wotif takeover' (DataRoom, 2 October 2014)
2 October 2014 - Criminal proceedings commenced for alleged failure to comply with 155 notice
The ACCC has commenced criminal proceedings against Mr Robert Paul Davies, alleging he aided and abetted the failure of Natural Food Vending to comply with a compulsory s 155 notice (relating to a consumer law issue). See press release.
2 October 2014 - Vertigan report released
The Vertigan panel's report (Markets and Regulatory Report) was released last night. In part, the panel calls for the NBN to be split up and sold off (disaggregating NBN Co 'into competing business units using roughly equally matched technologies would provide the most effective platform for competition and innovation'). Communications Minister, M Turnbull MP, says no, 'now is not the time' - see preliminary government response: Malcolm Turnbull MP, 'Vertigan panel lays out path to less telecommunication regulation' (1 October 2014). See also summary or principal conclusions. For more media and related reports see my Vertigan report page.
2 October 2014 - ACCC will not oppose Reckitt Benckiser's proposed acquisition of K-Y brand
2 October 2014 - ACCC will not oppose Tabcorp's proposed acquisition of ACTTAB
2 October 2014 - ACCC exempts Graincorp's Newcastle port terminal under new wheat code
1 October 2014 - Sims speaks on Grocery Code
30 September 2014 - More Harper news
There has been plenty of media on the Harper Review's draft report released last Monday - including two items in today's AFR: Kate Walsh, 'Lawyers see green light for mergers in Harper review' (The Australian Financial Review, 30 September 2014, page 15) and an opinion piece by former Competition Minister, Craig Emerson: 'There are ill-effects in an effects test' (The Australian Financial Review, 30 September 2014, p 58). For more links to media following the report, see my Harper media page.
26 September 2014 - Petrol retailers deny use of Informed Sources enabled them to engage in price fixing
In a directions hearing before Justice Bernard Murphy on Friday, petrol retailers denied that sharing of historical information via the Informed Sources website constituted price fixing or that it substantially lessened competiition. See AAP, 'Petrol pumps deny website allows fixing' (Business Spectator, 26 September 2014)
25 September 2014 - ACCC will not oppose Wilmar and First Pacific's proposed acquisition of Goodman Fielder
24 September 2014 - Authorisation day
The ACCC has granted interim authorisatins to Tabcorp Wagering Manager & Ors and Racing and Wagering Western Australia and has authorised Melbourne councils to undertake joint tendering for organic waste processing services. See the ACCC's exemptions media page.
23 September 2014 - Media on Harper Draft Report
There are plenty of media reports discussing the Harper Panel's Draft Report - I am collating them on my Harper Media Page. They include a couple of useful pieces by Alexandra Merrett - 'Big business, market power and why we need more test cases' (The Conversation, 23 September 2014) and 'Harper's booster shot for competition' (Business Spectator, 23 September 2014) - and a set of brief expert reactions on different aspects of the Report in The Conversation (Harper competition review seeks widespread change: experts react (The Conversation, 22 September 2014))
22 September 2014 - Plenty of recommendations
There are plenty of recommendations in the Draft Harper Report on policy and law. In relation to Part IV, key recommendations include:
- simplify cartel provisions plus additional exemptions (rec 22)
- remove prohibition of exclusionary provisions in s 45/4D (rec 23)
- repeal price signalling provisions; extend s 45 to capture concerted practices (rec 24)
- effects test for s 46 (misuse of market power)
- no specific price discrimination provisions (general or international) (rec 26)
- simplify s 47 (exclusive dealing) and remove per se ban on third line forcing (rec's 27 and 28)
- resale price maintenance to remain per se prohibited but with notification option
- no change to merger law (inc no creeping acquisition law) (rec 30)
- improve formal merger exemption process and combine with authorisation process with ACCC decision-maker at first instance (rec 30)
- retain secondary boycott prohibition but require ACCC to report on enforcement and extend jurisdiction to state and territory supreme courts (rec's 31 and 32)
- simplify authorisation and notification provisions (inc allow ACCC to grant exemption if satisfied either the conduct is unlikely to SLC or it will result in a net public benefit) (rec 34) and introduce block exemption power (rec 35)
- qualify obligations under s 155 (rec 36)
- extend s 83 to apply to admissions of fact (facilitate private actions) (rec 37)
- extend CCA so that competition law provisions apply to Crown 'insofar as they undertake activity in trade or commerce' (rec 19)
- retain access regime but with modification - including that criterion (b) require it be uneconomical for anyone to develop another facility (rec 38 - further comment invited on aspects of Part IIIA)
Commentary in the lead-up to the release of draft report suggested we wouldn't see much attention paid to the detail of the provisions in Part IV - the report is a pleasant surprise in that respect. Discussion of the legal provisions has not come at the expense of policy discussion or discussion about institutions and governance, which are also covered extensively in the report. See further the draft report.
22 September 2014 - Who said there would be no effects test recommendation?
Reports over the last week that the Harper Draft Report would be unlikely to recommend an effects test for s 46 were about as far off the mark as you could get - recommendation calls for removal of 'taking advantage' and adding effect of SLC to the provision. See draft report.
The draft report has now been released. Each of the Panel members has also made a statement on the draft report. Submissions on the report are due 17 November 2014.
22 September 2014 - Harper draft report to recommend opening up health and education to business
The AFR reports this morning that the draft Harper report, to be released today, will recommend opening more health and education to business, to relax local planning rules and to propose the ACC report on secondary boycott investigations. See Fluer Anderson, 'Competition review to open up health, education' (AFR, 22 September 2014, page 4)
22 September 2014 - Samuel - back seat for effects test
Former ACCC Chairman, Graeme Samuel, has indicated that detailed legal debate - including whether or not to introduce an effects test - is likely to take a back seat to broader economic reforms - see Jared Lynch, 'Competition effects test to take a back seat, says Samuel' (SMH, 22 September 2014). The Panel's draft report is expected today.
18 September 2014 - No effects test recommendation likely
Fairfax is reporting today that the introduction of an effects test will not be among the draft Harper recommendations expected on Monday. See Fleur Anderson, '"Effects test" for competition law put on hold' (Australian Financial Review, 18 September 2014) (in paper version, Fluer Anderson, 'Competition law: 'effects test' on hold' (AFR, 18 September 2014, page 3))
18 September 2014 - ACCC will not oppose Coles' acquisition of three Supa IGA stores in WA
The ACCC has announced it will not oppose the proposed acquisition of three Supa IGA supermarkets by Coles. The ACCC noted that in each of the relevant local markets 'there is at least one large competitive independent offer, in addition to Woolworths' supermarkets' and it was likely Aldi would enter some of the relevant markets in coming years. The ACCC also noted the potential for the Supa IGA stores to be closed without the acquisition. See press release. See public register.
16 September 2014 - Bloated competition laws
Allan Fels, Nicolas Taylor and Prudence Smith have an opinion piece in today's AFR discussing the Competition Policy Review - see Fels, Taylor and Smith, 'Trim our bloated competition laws' (Australian Financial Review, 16 September 2014, page 47)
14 September 2014 - Sims on National Champions
As part of his LCA address, ACCC Chairman, Rod Sims, addressed the recurring issue of national champions, claiming the current debate confuses the distinction between industrial and merger policy. See Jeff Whalley, 'Global can't crush local, says competition watchdog chief' (Herald Sun, 14 September 2014)
14 September - Sims' address to LCA
The full address by ACCC Chairman, Rod Sims, to the Law Council of Australia on Friday is now available on the ACCC's website. See Press Release, 'Our economy needs more competition on its merits' (ACCC, 12 September 2014) and Rod Sims, 'Enhancing competition policy' (Speech to Law Council of Australia, Competition and Consumer Committee AGM, 12 September 2014)
13 September 2014 - Locking rivals in change rooms
ACCC Chairman, Rod Sims, speaking to the LCA, has suggeted that the ACCC's proposed changes to s 46 are directed to addressing behavior akin to a football team with substantial market power locking a rival in their change rooms and 'seeking to win by default'. See 'ACCC boss Rod Sims: Companies locking rivals in change rooms' (news.com.au, 13 September 2014)
12 September 2014 - Sims misunderstood?
The Australian Financial Review today features several items on competition policy today. First, page one features an article by Michael Smith - 'Rod Sims: don't let me be misunderstood' (Australian Financial Review, 12 September 2014, pages 1 and 4) highlighting Sims' claim that the ACCC's proposed changes to s 46 have been 'misinterpreted'. On page 36 you will find 'Competition Rules', featuring an interview with Rod Sims (Michael Smith, 'Competition Rules' (AFR, 12 Sept 2014, page 36). Finally there is an opinion piece from Rod Sims focussing on s 46 (Rod Sims, 'The ACCC wants to keep the playing field open as well as level' (AFR, 12 Sept 2014, page 39)
12 September 2014 - Bowen attacks s 46 proposals
Former competition minister, Chris Bowen, addressed the National Press Club yesterday and took the opportunity to voice his opinion that the proposed effects test for s 46 may chill competition. See David Crowe, 'ACCC’s reform plan will chill market forces, Chris Bowen warns' (The Australian, 12 September 2014). See also 'Labor backs big business in opposing effects test' (Australian Financial Review, 12 September 2014, page 4).
11 September 2014 - Billson labels big business juvenile over effects test
The AFR is reporting that Small Business Minister, Bruce Billson, has labelled big business juvenile for suggesting the issues surrounding section 46 are 'black and white'. According to the AFR he also claims there is no suggestion an effects test would replace the current law requiring proof of intent to misuse market power (although if that is the case it is not at all clear what is being suggested). See Fluer Anderson, ''Effects test' to allow scrutiny of big firms' (Australian Financial Review, 11 September 2014) - for online versions see Fluer Anderson, 'Big business 'juvenile', says Billson' (AFR, 10 September 2014 - subscription required) and Fluer Anderson, 'Big business is 'juvenile' for opposing effects test: Small Business Minister Bruce Billson' (BRW, 11 September 2014)
11 September 2014 - Billson denies he's made up his mind on s 46
Following the report in yesterday's Australian that Cabinet was split over competition laws, Minister for Small Business, the Hon Bruce Billson, has denied that he has a fixed view on policy changes. See David Crowe, 'Minister warns on plan to toughen laws ahead of competition review' (The Australian, 11 September 2014). John Durie also has a piece in today's Australian suggesting the s 46 debate is a distraction, suggesting the focus should shift to more substantial issues: John Durie, 'Section 46 focus is a distraction' (The Australian, 11 September 2014)
11 September 2014 - ACCC gives nod to TPG
The ACCC has announced it will not take action to prevent TPG implementing its plans to connect large apartment buildings in metro areas to its existing fibre networks (etc), concluding that it's planned rollout is permitted under the Telecommunications Act. The ACCC's investigation followed a complaint that the plans would breach the 'NBN level playing field' provisions in the Act. See ACCC press release. See also David Ramli, 'ACCC gives TPG nod despite NBN Co's concerns' (Australian Financial Review, 11 September 2014).
The ACCC has today published its updated Immunity and Cooperation Policy for Cartel Conduct (these replace the ACCC Immunity Policy for Cartel Conduct July 2009 and ACCC Immunity Policy Interpretation Guidelines July 2009). This follows a review which commenced In May 2013 (including a public consultation from 30 September 2013 to 28 October 2013) and the release of a draft updated policy on 9 April 2014. Key changes include implementing a two-step process for the CDPP to grant criminal cartel immunity, removing 'clear leader' as a disqualifying factor for immunity and consolidating various publications into one policy document plus a set of FAQs. An updated Annex B to the Prosecution Policy of the Commonwealth was published yesterday. See press release.
10 September 2014 - ACCC re-authorises Victorian lottery agents to collectively bargain
The ACCC has re-authorised the 'Lottery Agents Association of Victoria to collectively bargain on behalf of its members' for a period of ten years. See press release.
10 September 2014 - Cabinet split over competition law
The Australian reports today that cabinet ministers are at odds over potential changes to the competition laws. See David Crowe, 'Cabinet split over competition laws' (The Australian, 10 September 2014)
10 September 2014 - Prof Harper speech in Qld today
Prof Harper delivered a speech to the Australasian Convenience and Petroleum Marketers Association this morning - see Renee Viellaris, 'Supermarket giants cry foul as small business pressures ACCC to limit Coles and Woolworths’ duopoly power' (The Courier Mail, 10 September 2014).
9 September 2014 - What to expect in Harper Draft Report
John Durie reports today that the Harper draft report (due 22 September) will be divided into three roughly even sections - competition policy, the law and institutions. See Durie, 'Ian Harper's draft report will look at competition policy, the law and institutions like the ACCC' (The Australian, 9 September 2014)
8 August 2014 - Durie: Harper spotlight on ACCC
John Durie has an item about the Harper Review in today's Australian (John Durie, 'Harper spotlight to shine on ACCC' (8 September 2014)) with a focus on merger review times. The article also notes that the review is expected to issue its draft report on September 22.
5 September 2014 - ACCC proposes to allow Victorian country taxi co-op members to agree fares
The ACCC 'has proposed to allow Victorian regional and country taxi operators working in co-operatives to agree on the maximum fares they will charge within a network for three years.' See news release. See authorisation register.
5 September 2014 - More Harper submissions
Two more Harper Review submissions released today - the BCA's second submission (earlier released on BCA website) and a brief submission from the Australian Diagnostic Imaging Association. All submissions can be downloaded from the Competition Policy Review website and summaries of some (progressively added), including release date, can be found on my submissions page.
5 September 2014 - Media on Wotif/Expedia deal
Plenty of media following the release of the ACCC's Statement of Issues raising concerns about Expedia's proposed acquisition of Wotif.com. See, for example, Jamie Freed, 'Competition watchdog raises concerns about Wotif takeover' (Sydney Morning Herald, 4 September 2014), Mitchell Bingemann, 'Wotif shares dive amid ACCC’s takeover fears ' (The Australian, 5 September 2014), Tim Boreham, 'Watchdog knocks the stuffing out of Wotif' (The Australian, 5 September 2014), Tim Boreham, 'Wotif watchdog's bite worse than bark?' (The Australian, 4 September 2014), Mitchell Neems, 'ACCC to further probe Expedia's Wotif purchase' (Business Spectator, 4 September 2014) and 'Wotif this deal drives up costs?' (news.com.au, 4 September 2014).
The ACCC has released a Statement of Issues outlining competition issues that have arisen from the ACCC's review of the proposed acquisition of Wotif.com by Expedia. See press release. See merger register. See also Mitchell Neems, 'ACCC to further probe Expedia's Wotif purchase' (The Australian, 4 September 2014)
4 September 2014 - ACCC clears Fairfax/AllHomes deal
The ACCC will not oppose Fairfax Media's proposed acquisition of All Homes.View merger register. See, for example, Mitchell Neems, 'ACCC clears Fairfax's All Homes buy' (The Australian, 4 September 2014)
3 September 2014 - BCA supplementary submission
There has been much talk about the BCA's supplementary submission to the Competition Policy Review - it's not yet made its way to the Harper Review submission's page, but is available on the BCA's website. The submission focuses on three things: proposed changes to section 46, calls for the ACCC power to initiate its own market studies and the extension of the price signalling provisions. View Supplementary submission to the Competition Policy Review.
3 September 2014 - King: Words Matter
In response to the ACCC's most recent submission to the Harper Review, Prof Stephen King has an item in today's 'The Conversation' addressing (again) his concerns about the ACCC's proposal to change our misuse of market power provision. See Stephen King, 'Words matter. That's why the ACCC has got it wrong' (The Conversation, 3 September 2014).
2 September 2014 - More Harper submissions
Three more submissions were released late yesterday, including submission 4 from the ACCC focussing on section 46 and the recent op ed by Graeme Samuel (although they somehow manage to spell his name incorrectly - 'Graham') and Stephen King and comments made by Richard Goyder.
2 September 2014 - Business concern about effects test
The front page of today's Australian Financial Review features an article by Fleur Anderson ('Business fights tough ACCC rule' (AFR, 2 September 2014, pages 1 and 6)) discussing concerns expressed about the ACCC to introduce an effects test. See also ABC, 'Business Council takes on ACCC over competition rules' (Pat McGrath, The World Today)
28 August 2014 - Authorisation news day
The ACCC proposes to authorise joint tendering for organic waste processing services by Metro Waste Management Group (MWMG) on behalf of itself and five metro Melbourne councils, has issued a draft determination proposing to authorise Tabcorp and TAB's international pooling arrangement, proposes to re-authorise certification, suspension and termination of membership provisions Consumer Electronic Clearing System (CECS) rules and has re-authorised current and future FeeSmart Network members to agree not to directly charge each other's cardholders for certain ATM transactions.
27 August 2014 - 'Fixing the fixers' - petrol pricing
The Conversation has just published an item by Caron Beaton-Wells and David Byrne on the ACCC's latest action against the petrol giants - see Caron Beaton-Wells, David Byrne, 'Fixing the fixers of petrol prices is no easy task' (The Conversation, 27 August 2014)
26 August 2014 - Mobil swears off Informed Sources
Mobil Oil has pledged entered into an enforceable undertaking with the ACCC not to subscribe to Informed Sources (or any other similar service) for the next five years. Informed Sources has noted that Mobil does not currently retail petrol in Australia and has no stated objective to do so; Mobil has not subscribed to Informed Sources since 2010 when it sold its retailing assets in Australia (7-Eleven currently runs Mobil branded stores - they are not operated by Mobil). The undertaking states, in part:
"While Mobil Oil Australia does not accept that its previous subscription, or the subscription of others, to the Oil PriceWatch service had any adverse effect on competition n any relevant market in Australia, Mobil Oil Australia has voluntarily and without admission offered to provide this Undertaking to address the concerns raised by the ACCC."
See 'Mobil swears off petrol information service Informed Sources as ACCC Federal Court action looms' (news.com.au 26 August 2014) and ACCC press release.
22 August 2014 - Another six Harper Review submissions released
An additional six Harper Review submissions have been released today. They include a third submission from the ACCC, a second submission from the LCA (SME Committee), NewsCorp and a submission from the Qld Competition Authority. See also my my review page (including overviews of the first set of submissions to the Review.
21 August 2014 - ACCC will not oppose Aquis' proposed acquisition of Reef Hotel Casino
The ACCC has announced that it will not oppose the proposed acquisition by Aquis of the Reef Hotel Casino in Cairns. The informal review of the proposal commenced 9 April 2014 and a Statement of Issues was released on 3 July - in the end the ACCC 'was satisfied that, if developed, the Aquis Resort will focus primarily on international VIP customers because the size of its proposed investment would require a much higher return than could be obtained from non-VIP customers'. See press release. See merger register.
21 August 2014 - Informed Sources media
Plenty of media on the ACCC's action against Informed Sources. See, for example, Lucille Keen, 'ACCC sues petrol retailers, Informed Sources' (Financial Review, 20 August 2014), Ben Butler, 'ACCC takes action on petrol pricing' (Sydney Morning Herald, 21 August 2014), Annabel Hepworth, 'Petrol giants face legal test on prices' (The Australian, 21 August 2014) ACCC takes BP, Caltex, Woolworths, Coles Express, 7-Eleven and Informed Sources to Federal Court' (news.com.au, 20 August 2014), Michael Janda, 'ACCC launches legal action against Informed Sources and retailers over alleged petrol price sharing' (ABC News, 21 August 2014) and Simon Thomsen, 'Competition Watchdog Takes Fuel Big Boys To Court Over Alleged Price Fixing' (20 August 2014).
Several press releases have also been issued by the respondents to the ACCC proceedings: see, for example, Informed Sources, 'The ACCC action against Informed Sources is unjustified' (Media release, 20 August 2014), Woolworths Ltd, 'ACCC and Informed Sources' (20 August 2014) and Caltex, 'Caltex response to ACCC proceedings on fuel price data' (20 August 2014)
21 August 2014 - ACCC draft decision on GrainCorp's wheat port access undertaking
The ACCC has instituted proceedings against Informed Sources and several petrol retailers (BP, Caltex, Eureka (t/a Coles Express), Woolworths and 7-Eleven) alleging they contravened s 45 of the Act by entering into arrangements involving communication about prices which had the 'effect or likely effect of substantially lessening competition in markets for the sale of petrol in Melbourne'. The matter is listed for a directions hearing on 26 September 2014 before Justice Murphy. See ACCC press release.
20 August 2014 - More Harper submissions
19 August 2014 - Misuse of market power 'effects test' debate continues
Former treasurer, Peter Costello, has weighed in on the public debate about an 'effects test' for section 46. At an Australian Retailers Association function Costello said he opposed an effects test 'designed to protect competitors, particularly less efficient ones, from a competitive challenge' (see 'Costello backs Goyder against ACCC' (The Australian, 18 August 2014) and Bridget Carter, '"Effects test" will hurt competition' (The Australian, 19 August 2014, p 25 Business) and Sue Mitchell, 'Peter Costello buys into retail debate' (The Age, 18 August 2014)).
See also Lucy Barbour, 'Competition watchdog ACCC head Rod Simms (sic) denies claims an 'effects test' would be 'economically dangerous' (ABC Rural, 18 August 2014), in which the ACCC Chairman defends the ACCC's proposed effects test (and is also reported as saying that the current case against Coles was brought under the unconscionable conduct provisions rather than under s 46 because the misuse of market power prohibitions is a law that exists only between competitors ...)
14 August 2014 - ACCC initiates price fixing action
The ACCC has instituted proceedings against OmniBlend Australia alleging it attempted to price fix with a competitor and that it 'induced a supplier to direct Omniblend's key competitor not to discount its prices for blenders' (RPM) - see press release. A scheduling conference as been set for 10 October before Justice Gordon.
14 August 2014 - Section 46 in news again
Jill Walker and Roger Featherston have hit backs at comments by former ACCC Chairman, Prof Graeme Samuel, who opposes a proposed 'effects test' for s 46, calling for 'real debate' on the issue, not 'scare mongering'. See Jill Walker and Roger Featherston, 'ACCC's section 46 change is not anti-competitive' (The Australian Financial Review, 14 August 2014) (or for the paper version, Jill Walker and Roger Featherston, 'ACCC suggestion is far from novel and not anti-competitive' (AFR, 14 August 2014, page 55) (reproduced on ACCC website). See also Graeme Samuel and Stephen King, 'The effect of the ACCC's ambitions is dangerous' (AFR, 12 August 2014, page 47).
14 August 2014 - ACCC allows Catholic health providers to collectively bargain
The ACCC 'has granted authorisation to the Catholic Negotiating Alliance (CNA), a network of nine hospital and aged care service providers, to collectively negotiate with Funding Organisations (including private health funds) and suppliers of various goods and services.' See press release.
14 August 2014 - ACCC proposes to re-authorise Qld liquor accord framework
The ACCC has issued a 'draft determination proposing to grant conditional authorisation for local liquor accords operating in Queensland to adopt a pro-forma liquor accord developed by the Queensland Office of Liquor and Gaming (OLGR)' for five years. View press release.
14 August 2014 - ACCC grants interim authorisation to 'combat oyster mortality syndrome'
The ACCC 'has granted interim authorisation for Australian Seafood Industries (ASI) to collect a levy, in conjunction with hatcheries, on the purchase of Pacific oyster spat' which will enable ASI to undertake 'research into developing spat with resistance to the Pacific Oyster Mortality Syndrome (POMS)'. See press release.
14 August 2014 - More Harper review submissions
It appears the Competition Policy Review secretariat has stopped providing notice of new submissions to the review; since the last notice of 21 July there have been 12 more public submissions posted on the submission website (bringing the total to 301 public submissions). The site has also removed any reference to the date submissions were released (previously indicated with asterisks), other than to shade the very last batch released; the last batch were posted on 8 August and involved four submissions from from Anonymous childcare, Asciano, the AER and a second submission from Jones Day.
The other 8 submissions posted since 21 July were from eBay, Global Shippers' Forum, NSW Taxi Council, Recruitment and Consulting Services Association, Sigma Pharmaceuticals Ltd, The Industry Group, The Infrastructure Group and the United States Federal Trade Commission (focus on misuse of market power , price signaling, and merger notification and review procedures).
13 August 2014 - ACCC releases June 2014 quarterly report
The ACCC has released its latest quarterly report. The report notes that in the June 2014 quarter the ACCC was involved in 14 competition enforcement proceedings (13 carried over from previous quarter and one new action initiated against Aust Egg Corp Ltd). One court enforceable undertaking was accepted in the quarter relating to RPM. In relation to mergers 93 were pre-assessed, 10 were reviewed (four confidentially) and of these three were not opposed, two were opposed outright, three resolved through undertakings and in two confidential matters the ACCC has expressed concerns. One Statement of Issues (Elgas) was issued in the quarter. Some significant merger matters, including AGL, are highlighted in the report. In relation to authorisation and notification, the report notes that 16 final authorisation determinations were made in the quarter, 117 exclusive dealing notifications were lodged (none revoked) and one collective bargaining notification was received. The ACCC received 584 complaints relating to alleged anti-competitive practices (of these 125 related to allegations of misuse of market power). View ACCC press release for an overview.
13 August 2014 - More 'effects test' discussion
Lucy Barbour has an item in today's ABC Rural discussing concerns expressed by economists over the possible introduction of an effects test into s 46 of the Act. See Lucy Barbour, 'Push by farm lobby groups for 'effects test' in competition review leaves economists worried' (ABC Rural, 13 August 2014). The article focusses on concerns raised by Prof Graeme Samuel over the National Farmers Federation's proposed hybrid effects test.
12 August 2014 - Martyn Taylor on the competition review
Dr Martyn Taylor from Norton Rose Fulbright has an item discussing the current competition policy review. See Martyn Taylor, 'Australia: the country may lead the world on competition reform - in Australia, a comprehensive reform of competition policy is taking place' (Lexology, 11 August 2014)
11 August 2014 - Joyce attacks ACCC again
Barnaby Joyce has claimed the ACCC's treatment of the Murray Goulburn bid for WCB as a poor application of competition law. Joyce wants to create 'national champions'. He also thinks retailers continuing to advertise milk at $1 per litre is BS. See Andrew White, 'Warrnambool Cheese & Butter not ACCC at its finest, says Joyce' (The Australian, 11 August 2014) and Damon Kitney, 'Dairy producers back Coles and Woolies on $1 milk' (The Australian, 9 August 2014)
11 August 2014 - West Australian: ACCC asked to defer press release on power merger
According to today's West Australian, the ACCC was asked by WA Energy Minister, Mike Nahan, to defer a press release outlining competition concerns relating to the Verve/Synergy merger. See Daniel Mercer, 'Price fear over power merger' (The West Australian, 11 August 2014). See ACCC statement on Verve and Synergy re-merger, released 12 August 2014.
11 August 2014 - Competition and Consumer Law Journal
The August issue of the CCLJ is now available for subscribers. There are four articles in this issue: David J Brennan, Shifting shades of grey - International price discrimination and Australian copyright law; Matthew E Taylor and Arlen Duke, Refocussing the parallel import debate; Warwick Rothnie, Trade marks and parallel imports and Rhonda L Smith and Arlen Duke, Agreements and competition law in Australia.
8 August 2014 - Challenge to ACCC s 155 notices dismissed
The Federal Court has found that compulsory examination notices issued by the ACCC under s 155 to Paul and Moses Obeid are valid. View reasons for judgment. View ACCC Media Release. See also John Durie, 'Court rejects Obeid section 155 challenges' (The Australian, 8 August 2014) and Michaela Whitbourne, 'Paul and Moses Obeid could be forced to give evidence on alleged cartel ' (SMH, 8 August 2014)
8 August 2014 - Harper ABC interview
The transcript of an interview with Sheryle Bagwell on ABC Radio National is now available from the Competition Policy Review website. In response to questioning about the recent Goyder/Sims stoush, Prof Harper stated (in part): '... we're certainly starting from the position that competition policy is about protecting the competitive process. ... we don't see that being a matter for contest.' Pressed on s 46 and the possibility of effects test, however, Prof Harper was (appropriately) giving nothing away ('I am taking advice from people right across the spectrum about this'). The interview also touches on the issue of competition in government-dominated sectors.
8 August 2014 - Harper speech to Small Business Summit
A speech delivered by Competition Policy Review Chair, Prof Ian Harper, to the 12th National Small Business Summit yesterday, is now available on the Review's website.
7 August 2014 - 12th Annual Competition and Consumer Workshop
UniSA is once again hosting the Competition and Consumer workshop in Adelaide from 10-11 October. The Workshop will cover regulation updates from the UK, Australia, Singapore and New Zealand; small business; the Australian Competition Tribunal; dealing with the regulator; perspectives from Australian Federal Court judges; international judicial perspectives from New Zealand and Hong Kong; and the 'root and branch' review. The Workshop includes an impressive array of speakers and panelists, including two members of the current Competition Policy Review Panel (Prof Ian Harper and Michael O'Bryan QC). The Annual Workshop dinner will be held at the Adelaide Oval and feature after-dinner speaker Ben McDevitt AM, CEo of ASADA. Workshop registration is now open and closes 12 September. For further information, including the full program, visit the Workshop homepage.
7 August 2014 - Goyder v Sims
Some more media on the Goyder/Sims debate over competition policy. See, for example, Phillip Coorey and Su-Lin Tan, 'ACCC boss claims Goyder doesn't get it' (Australian Financial Review, 7 August 2014) and John Durie, 'Goyder a straw man, syas Sims' (The Australian, 7 August 2014)
6 August 2014 - 'War of words' on effects test
John Durie has an item in today's Australian discussing Rod Sims' response to comments made by Wesfarmers' Richard Goyder to the press club earlier this week, who expressed the view that it was 'ludicrous to contemplate introducing an effects test' into s 46 as proposed by the ACCC. See John Durie, 'Goyder "misrepresenting facts", says Sims' (The Australian, 6 August 2014). See also John Harper, 'B20 chairman: Don't blunt our competitive edge' (Herald Sun, 6 August 2014) and David Drowe, 'Wesfarmers chief Richard Goyder slams "ludicrous" consumer laws' (The Australian, 6 August 2014)
6 August 2014 - Presentation by Prof Ian Harper
Professor Ian Harper, Chair of the Competition Policy Review, delivered a presentation to the UNSW Competition Law and Policy Conference today. The presentation slides are available for download from the CPR Media page. The presentation highlights some of the issues raised by submissions to the review and notes that the panel 'will work through the issues raised, but will not adjudicate them' (noting Panel is 'looking at broad principles and institutional frameworks') and that a draft report is expected at the end of September - further submissions may be made in response to that draft report. See further my Competition Policy Review Page or the official Competition Policy Review website.
31 July 2014 - State of Competition and private enforcement
The latest The State of Competition has hit the virtual shelves today focussing on 'the public benefits of private litigation'. In this issue Alexandra Merrett and Rhonda Smith note the ACCC's apparent reluctance to litigate cases involving conduct subject to a competition test (providing some useful statistics). The authors go on to detail private actions in the past ten years, noting cases, outcomes and legal representation, before considering the reasons for such limited private enforcement (most notably cost and the absence of the s 155 powers enjoyed by the ACCC). The authors then consider the position in other jurisdictions (such as the US, where the prospect of treble damages has encouraged much more significant private litigation) before making some suggestions for improving the rate of private litigation. I particularly enjoyed this issue and commend it to you; see also The State of Competition archives.
28 July 2014 - Sims addresses Sydney Business Chamber CEO's Leadership Roundtable
ACCC Chairman, Rod Sims, addressed the Sydney Business Chamber CEO's Leadership Roundtable today detailing current ACCC priorities and noting (again) that a high number of 'in-depth' investigations are underway, most of which are confidential. The speech itself is not yet available. See press release.
24 July 2014 - ACCC consultation on access prices for Telstra's fixed line and transmission services
The ACCC has released a discussion paper seeking views on 'setting primary prices for the regulated fixed line services supplied using Telstra’s copper network'. Unusually, the government has urged the ACCC not to take Telstra's $11 billion NBN deal into account when making this determination (letter from the Minister for Communications and Minister for Finance received by ACCC on 17 July 2014). See press release. See ACCC project page. See also Supratim Adhikari, 'ACCC pushed to take Telstra's NBN payments off table' (The Australian, 25 July 2014) and David Ramli, 'Government urges ACCC to ignore Telstra's NBN deal' (Australian Financial Review, 24 July 2014)
24 July 2014 - ACCC will not appeal AGL Tribunal decision
The ACCC has announced it will not apply for judicial review of the Tribunal's decision to grant conditional authorisation for AGL's proposed acquisition of Macquarie generation. View press release. See also John Durie, 'ACCC unlikely to block AGL purchase' (The Australian, 21 July 2014) and 'ACCC won't appeal AGL-Macquarie Generation decision' (The Australian, 24 July 2014).
22 July 2014 - ACCC investigates Expedia, Wotif deal
The ACCC has sent out market inquiry letters in relation to Expedia's proposed acquisition of Wotif.com Holdings Ltd. The closing date for submissions is 6 August with a provision decision date of 4 September. The main area of competitive overlap identified in the letters is the 'retail supply of online accommodation booking services to consumers'. Overlap also includes online booking services for flights and other travel products. Specific issues for consideration relate to the relevant markets (eg, is there 'a market for the retail supply of accommodation which is separate from the supply of multiple travel products?' and the substitutability of bricks and mortar agents and direct booking channels) and competitive dynamics in the market (including how closely Expedia and Wotif compete with other online distributors of accommodation and barriers to entry). View merger register for further details. See also Jamie Freed, 'ACCC puts Wotif, Expedia deal under the microscope' (Sydney Morning Herald, 21 July 2014)
22 July 2014 - ACCC proposes to authorise owner driver collective bargaining with Toll
The ACCC has issued a draft determination 'proposing to grant authorisation to owner driver members of the Transport Workers’ Union in Queensland to engage in collective bargaining with Toll for air freight courier transport services.' See press release. See authorisation register.
21 July 2014 - Even more Harper submissions
Six more submissions released today - see official Competition Policy Review submissions page. This brings the total number of non-confidential submissions published to 289. See also my submissions overview page.
17 July 2014 - Senate extension on s 46 divestiture bill
The Senate Economics Committee Inquiry into Competition and Consumer Amendment (Misuse of Market Power) Bill 2014 has been given an extra six months to report (the original report date was 24 June, which was extended until 17 June - on Tuesday this was further extended to 4 December 2014). The inquiry relates to a bill introduced by Senator Nick Xenophon which would provide the Court with the power to order a corporation to reduce its market share, where the corporation has been found to have contravened subsections 46(1) or 46(1AA) of the Act. A total of four submissions were received by the Committee (the Treasury submission is well worth reading to provide an overview of the issues relating to MMP divestiture and its application in other jurisdictions - often significantly misrepresented by those proposing divestiture powers in Australia).
17 July 2014 - ACCC proposes to authorise collective bargaining by TAB Agents
The ACCC is proposing to 're-authorise the TAB Agents Association of NSW (Association) to collectively bargain on behalf of its members with TAB Limited (Tabcorp) for ten years'. See press release. See authorisation register.
16 July 2014 - ACCC re-authorises collective bargaining by Victorian Newsagents
The Vertigan panel's first report, tabled in Parliament today, concludes that
'the broad framework should be retained largely unchanged for the time being but with some important modifications. The recommended modifications deal mostly with NBN Co's non-discrimination obligations, regulatory recourse to the Australian Competition and Consumer Commission (ACCC) in relation to an NBN Co access agreement and oversight of regulatory decision-making' (page 6).
The report ('Independent cost-benefit analysis of broadband and review of regulation'), which runs to 97 pages and makes 34 recommendations, deals with terms of reference item 2a which satisfies the statutory review required by section 152EOA of the CCA. A separate report will be produced dealing with the other terms of reference.
See The Hon Malcolm Turnbull MP, 'Vertigan Panel's First Report Released' (Press Release, 16 July 2014) See further David Ramli, 'Regulate the ACCC, says NBN review panel' (Australian Financial Review, 16 July 2014) and Supratim Adhikari, 'ACCC needs to be regulated: Vertigan panel' (Business Spectator, 16 July 2014). See also my review home page.
15 July 2014 - Sims and Fels on NBN monopoly
Two former ACCC Chairs, Graeme Sims and Allan Fels, has again spoken out against the protections afforded the NBN - see, for example, David Ramli, 'NBN monopoly wrong, says former ACCC chief Graeme Samuel' (Australian Financial Review, 15 July 2014) and Annabel Hepworth, 'Allan Fels slams NBN shield' (The Australian, 14 July 2014)
14 July 2014 - Merrett on Competitive Neutrality
Alexandra Merrett has a pice in today's The Conversation on competitive neutrality. See Alexandra Merrett, 'Government Inc: time to revisit competitive neutrality' (The Conversation, 14 July 2014)
11 July 2014 - More Harper submissions
11 more submissions released today - see official Competition Policy Review submissions page. This brings the total number of non-confidential submissions published to 283. See also my submissions overview page.
11 July 2014 - Cartel laws and whistleblowers
There is an item in today's Financial Review on cartels and the immunity process: see Hannah Low, 'Cartel laws 'fail whistleblowers' (Australian Financial Review, 11 July 2014, page 32)
10 July 2014 - Statement of Issues on Coles' proposed acquisition of IGA stores
The ACCC has released a Statement of Issues highlighting concerns about Coles' proposed acquisition of four Progressive Supa IGA stores in WA. See press release. See merger register. Closing date for submissions is 17 July. See also Chris Kohler, 'ACCC warns on Coles' IGA purchases' (Business Spectator, 10 July 2014) and Stuart McKinnon, 'ACCC worried by IGA store sale' (The West Australian, 10 July 2014)
10 July 2014 - Competition concerns in online property sector
The Australian reports that the ACCC is assessing competition complaints relating to the online property sector. See Darren Davidson, 'ACCC eyeing property site row' (The Australian, 10 July 2014)
4 July 2014 - More Harper submissions
A further 36 submissions to the Harper Review have been released today. They include submissions from the, the American bar Association, the Australian Chamber of Commerce and Industry, the Australian Corporate Lawyers Association, the Business Council of Australia, Prof Allan Fels, Foxtel, the IBA (Antitrust Committee) and the Law Council of Australia (Business Law Section). The Chair of the Review, Prof Harper, has also released a video about what the Competition Policy Review has heard from stakeholders.
3 July 2014 - ACCC proposes authorisation for Perth councils joint waste tender
The ACCC has released a draft determination 'proposing to grant authorisation for the Cities of Wanneroo, Joondalup and Swan to jointly tender and enter into contracts for the supply of services to process dry commingled recyclables collected by them through their yellow lid kerbside collection service'. See press release. See authorisation register.
3 July 2014 - ACCC reauthorises brick levy
The ACCC has granted 'authorisation to the Australian Brick & Blocklaying Training Foundation (ABBTF), Think Brick Australia and the Concrete Masonry Association of Australia to continue to apply a small levy on the sale of clay brick and concrete masonry products.' See press release. See authorisation register.
3 July 2014 - ACCC calls for comment on Aquis' proposed acquisition of Reef Hotel Casino
1 July 2014 - State of Competition
Issue 18 of The State of Competition is out now - this time Rhonda Smith and Alexandra Merrett tackle the cellophane fallacy and the Cement Australia case: see 'Unwrapping a fallacy: market definition, market power & cellophane' (June 2014).
30 June 2014 - Scrap price signalling laws
A bit of media on price signalling laws and the Harper Review. First John Durie's 'Call to scrap laws on price signalling' discusses several submissions to the Harper Review, covering a range of issues, including price signalling. Next, David Ramli discusses Telstra's calls to remove price signalling rules: David Ramli, 'Telstra calls to say no to price signalling laws' (The Australian Financial Review, 30 June 2014) and then comes the ACCC's opposition to the Telstra's opposition in David Ramli's 'ACCC hits back at Telstra' (Brisbane Times, 30 June 2014)
27 June 2014 - More submissions to Harper released
A further 76 submissions to the Harper Review have been released today. They include submissions from the ACCC, Australian Copyright Council, Australian Education Union, Australian Food and Grocery Council, Coles Group Ltd, Herbert Smith Freehills, LCA (IP Committee), Medibank Private, Metcash Ltd, Minerals Counsil of Australia, Minter Ellison, NBN Co, the Productivity Commission and Woolworths Ltd. This brings the total non-confidential submissions released to 236. The submissions page on the Review website has also changed again - submissions can be viewed here. My overview of submissions (other than the 76 just released) can be found on my Harper Review page.
27 June 2014 - Competition key to productivity
Dave Poddar has an opinion piece in today's AFR. See Dave Poddar, 'Competition holds key to productivity' (The Australian Financial Review, 27 June 2014, page 42).
27 June 2014 - Tribunal's decision now available
The decision of the Australian Competition Tribunal (Justice Mansfield, Mr Latta and Prof Round) is now available: view Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Limited  ACompT 1 (the Word document is a 5MB download and the decision runs to 117 pages). Also plenty to read on the AGL decision - see, for example, Perry Williams and Geoff Winestock, 'AGL takes watchdog to task over veto' (The Australian Financial Review, 27 June 2014, page 20), Angela MacDonald-Smith, 'MacGen decision a boon for utilities sector' (The Australian Financial Review, 27 June 2014, page 20) and Geoff Winestock, 'Court unblocks MacGen sale' (The Australian Financial Review, 26 June 2014, page 7)
The Australian Competition Tribunal has granted conditional authorisation for AGL's proposed acquisition of Macquarie Generation. The decision is not yet available on the Tribunal page. The ACCC has expressed disappointment at the decision, believing the proposed acquisition will have significant implications for competition in electricity markets. See also Maggie Lu Yueyang, 'Regulator overturns ban on AGL's MacGen buy' (Business Spectator, 25 June 2014), Anthony Klan and Andrew White, 'Watchdog warns of energy price rise as AGL deal gets nod' (The Australian, 26 June 2014) and John Durie, 'Panel's decision a huge blow to Sims' (The Australian, 26 June 2014)
25 June 2014 - ACCC submission to Harper Review
The ACCC has released its submission to the Harper Review ('Reinvigorating Australia's Competition Policy'). Key recommendations relate to misuse of market power (advocates effects test) and price signalling (advocates expansion). See press release. A full list of published submissions is available from the Competition Policy Review site. I am also in the process of summarising submissions and issues discussed on my Harper Review page.
23 June 2014 - Sims speaks to CEDA Conference
ACCC Chairman, Rod Sims, has spoken (view speech) at the CEA State of the Nation Conference in Canberra today on the opportunity provided by the Harper Review to 'reinvigorate Australia's competition culture. See ACCC, 'Reinvigorate our competition culture says ACCC Chairman' (Press Release, 23 June 2014).
20 June 2014 - 26 more submissions to Harper
A further 26 submissions have been released on the Harper Review website (somewhat unhelpfully this has also changed the link to the submissions). More are expected next week, including those from BCA, ACCC and ASIC.
20 June 2014 - No stay of orders for Flight Centre
Flight Centre has unsuccessfully attempted to stay orders for payment of $11 fine imposed by the Court in March (see judgment). Justice Rangiah: see Flight Centre Limited v Australian Competition & Consumer Commission  FCA 658. Justice Rangiah noted that the 'assumption that the Court should not deprive a litigant of the benefit of a judgment is not relevant where a stay is sought of an order imposing a pecuniary penalty' (para 10) because a pecuniary penalty order is not a 'benefit' tot he ACCC, but rather has the primary object of deterrence. However, Rangiah J rejected the 'proposition that the mere commencement of an appeal against an order imposing apecuniary penalty is, in the absence of prejudice to the respondent, enough to warrant a stay of the order pending the appeal.' (para 14) His Honour concluded: 'The mere fact that Flight Centre was required to pay the pecuniary penalty in accordance with the order made by the primary judge was not enough, in my opinion, to warrant a stay. The position might have been different if Flight Centre had alleged and demonstrated some particular prejudice or difficulty in complying with the orders. It did not.' (para 19)
19 June 2014 - Taxi driver authorisation
The ACCC has temporarily allowed Victorian country taxi operators to work in co-operatives to enable them to 'agree the maximum prices for their cooperative network when state pricing laws change from 30 June'. See 'ACCC permits Victorian country taxi co-ops to agree prices in the short term' (ACCC Press Release, 19 June 2014). View authorisation register.
19 June 2014 - ACCC proposes authorisation for coal producers
The ACCC 'has proposed to grant authorisation for Rio Tinto, Peabody and Pacific National to coordinate transportation of coal in the Goonyella Coal Chain'. View ACCC Press release. View authorisation register.
18 June 2014 - AFR - 'Hilmer Review Part 2'
Today's AFR has an item on the Harper Review - Nassim Khadem, 'Hilmer review part 2' (The Australian Financial Review, 18 June 2014, p 40). Notes that many of the submissions to the review focus on protecting competitors not competition. However, notes many key submissions are not yet in - including BCA, ACCC, ASIC and state governments and agencies who have until June 27 to make submissions. The current 134 submissions can be viewed here. I have also created a table detailing the submissions here - a surprising number focus on secondary boycott exemptions!
18 June 2014 - ACCC proposes to reauthorise lottery collective bargaining
The ACCC 'has issued a draft determination proposing to reauthorise the Lottery Agents Association of Victoria to collectively bargain on behalf of its members with Victorian lotteries providers for ten years'. View press release.
18 June 2014 - ACCC allows Melbourne councils to jointly tender for organic waste services
The ACCC 'has granted authorisation for Metropolitan Melbourne Waste Management Group and eight metropolitan Melbourne councils to jointly tender and enter into contracts for the supply of organic waste processing services.' View press release. View authorisation register.
18 June 2014 - ACCC authorisation for construction of affordable housing
The ACCC has granted authorisation for 'Renewal SA to sell a section of a development site in Bowden, South Australia to Investec' - the arrangement will see Renewal and Investec setting maximum rental prices and minimum sales prices and 'apply restrictive criteria for eligible participants. The ACCC consider the arrangement 'may increase the amount of affordable housing available to those people who cannot access social housing or are excluded from the general housing market in metropolitan Adelaide'. View press release. View authorisation register.
18 June 2014 - ACCC proposes to reauthorise ATM sub-network fee free agreement
The ACCC has proposed 'to reauthorise an agreement between members of the FeeSmart ATM sub-network to not charge each other’s cardholders a fee for transactions at ATMs owned by members'. View press release. View authorisation register.
13 June 2014 - Harper submissions available
12 June 2014 - Media on Healthscope merger
There's now some media emerging on the ACCC's opposition to the proposed Healthscope acquisition of Brunswick Private Hospital. See, for example, John Durie, 'ACCC puts Healthscope on notice' (The Australian, 12 June 2014), Jessica Gardner, 'ACCC blocks Healthscope Brunswick rehab deal' (SMH, 12 June 2014) and Mitchell Neems, 'ACCC blocks Healthscope's Brunswick buy' (Business Spectator, 12 June 2014).
12 June 2014 - ACCC opposes Healthscope acquisition
The ACCC will oppose the proposed acquisition by Healthscope Ltd of the Brunswick Private Hospital. ACCC Chairman, Rod Sims, said that the 'proposed acquisition would result in Healthscope acquiring its closest and most significant competitor for the supply of private rehabilitation services in northern Melbourne' and removal of the Brunswick Private Hospital as an independent competitor 'would be likely to result in a substantial lessening of competition'. See press release. See merger register. A public competition assessment is expected ... eventually.
11 June 2014 - Submissions to Harper Review
Submissions to the Harper Review were due yesterday. They are not yet available on the review website but have been promised soon. In the meantime, some organisations have published their submissions, including CHOICE - their submission can be found here. It makes 26 recommendations, including either removing price signalling laws or applying them universally (recommendation 17), conducting regular independent reviews of ACCC merger decisions (recommendation 15), giving consideration to simplifying competition laws and processes (recommendation 16), repealing s 51(3) of the Act (axing the 'Australia tax') (recommendation 3) and, generally, recommending that any future policy reform agenda 'prioritise consumer welfare as its overarching objective' (recommendation 1). See further, CHOICE, 'Time to axe the 'Australia tax'' (11 June 2014). Arnold Bloch Leibler and Master Builders Australia have also published their submissions.
11 June 2014 - Authorisation for plant breeders collective bargaining
The ACCC has authorised 'royalty managers for plant breeders to collectively negotiate with the grain buyers they engage to collect royalties on their behalf.' View press release. View authorisation register.
11 June 2014 - New AJCCL
The latest Australian Journal of Competition and Consumer Law (Volume 22 Part 2, June 2014) was released recently and includes the following articles and notes:
- Graeme Samuel AO - A tribute to Ron Bannerman, the father of Australian competition law
- Mark Lewis - Supermarket private labels: Consumer dream or nightmare in disguise?
- James Laman and Marina Nehme - Section 46 of the Competition and Consumer Act: The need for change
- Hank Spier - Politics and the administration of the Australian competition and consumer law
- John Hedge and Rowan Kendall - Access to Services - Productivity Commission’s final report on the national access regime produces more prickly issues for the root and branch review
- Case Notes (ACCC v Cement Australia Pty Ltd and ACCC v Flight Centre Ltd)
- Alex Sundakov, Economic(s) Matters - What is the magic of market definition?
- Debra Wilson, Report from New Zealand - Reflecting on cardboard boxes and air cargo: The latest New Zealand cartel cases reach conclusion
10 June 2014 - Durie on Competition Review
John Durie has an item in today's Australian regarding the Harper Review (first round of submissions due today). In it he outlines 'three key areas' of focus identified by Harper in an interview with the Australian. See John Durie, 'Three key areas to help firms compete' (The Australian, 10 June 2014, page 17)
6 June 2014 - Air cargo cartel settlement
The Federal Court has approved a $38m settlement in in a class action suit against the air cargo cartel. See Maurice Blackburn, 'Australia's fourth cartel class action settles today for $38m'.
6 June 2014 - Challenge to section 155 notice
Moses and Paul Obeid have filed an application (NSD490/2014) in the Federal Court challenging s 155 notices issued to them by the ACCC as part of the ACCC's investigation into alleged cartel conduct relating to the 2009 tender process for an exploration mining licence over the Mount Penny coal tenement in the Bylong Valley. View press release. The application was filed on 20 May and heard before Justice Farrell on 6 June. Judgment has been reserved. Plenty of media. See, for example, Michaela Whitbourne, 'ACCC investigates Moses Obeid and Paul Obeid for cartel conduct over coal deal' (SMH, 6 June 2014). AAP, 'Obeid lawyers try to halt ACCC probe' (The Australian, 6 June 2014) and John Durie, 'Obeids test case rich in irony' (The Australian, 6 June 2014)
6 June 2014 - ACCC conditionally reauthorises APRA arrangements
The ACCC 'has reauthorised the Australasian Performing Right Association’s (APRA) arrangements for the acquisition and licensing of performing rights in music, subject to certain conditions', including requiring APRA to 'produce a comprehensive plain English guide to its licences, as well as a guide that increases awareness of the licence back and opt out provisions' and 'to implement a new alternative dispute resolution (ADR) scheme that will be independent, affordable and practical for a range of disputes and applicants'. See press release. See authorisation register.
6 June 2014 - ACCC reauthorises energy code of practice
The ACCC has reauthorised an industry code of practice for face-to-face energy sales by electricity and gas retailers. The authorisation runs for five years. See press release. See authorisation register.
5 June 2014 - ACCC calls for comment on Elgas' proposed acquisition of Kleenheat's east coast LPG business
The ACCC 'has released a Statement of Issues outlining competition concerns with the proposed acquisition by Elgas Limited of Wesfarmers Kleenheat Gas Pty Ltd’s east coast LPG business.' Interested parties have until 26 June to make a submission. See press release. See merger register.
5 June 2014 - ACCC proposes to authorise Victorian newsagent collective bargaining
The ACCC has issued a draft determination 'proposing to allow the Victorian Association of Newsagents (VANA) to negotiate on behalf of its members with six magazine and newspaper publishers.' Interested parties may make submissions on the draft until 20 June 2014. See press release. See authorisation register.
5 June 2014 - ACCC proposes to reauthorise brick levy to help with bricklayer shortage
The ACCC 'is proposing to re-authorise the brick and block manufacturing industry to continue to apply a levy on the sale of clay brick and concrete masonry products.' This levy adds approximately $15 to the cost of building an average house. The ACCC considers that the programs funded by the levy 'help address the problem of a shortage of bricklayers, by making it easier to take on an apprentice, which will encourage more bricklayers to do so'. The ACCC now seeks further submissions from interested parties (see para 26 draft determination - no timeline provided). View press release. View authorisation register.
4 June 2014 - ACCC authorises collective bargaining by APESMA
The ACCC has granted 'granted authorisation to the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to implement collective bargaining arrangements for translator and interpreter members who operate as independent contractors.' See press release. See authorisation register.
4 June 2014 - Jill Walker on aviation competition
ACCC Commissioner, Dr Jill Walker, addressed the Swinburne Aviation Industry Conference in Melbourne today, discussing the ACCC's role and interest in the industry. See press release. Speech not yet available from ACCC speeches page. See also Susan Zhuang, 'Creating an even plane field' (In Competition, 5 June 2014)
29 May 2014 - In Competition on egg cartels
Jax Arnold at In Competition has had fun with the ACCC's latest proceedings against Australian Egg Corporation Limited, discussing the 'egg-citing' news out of the Federal Court relating to the ACCC's allegations of an 'Eggsplosive' cartel attempt. See Jax Arnold, 'ACCC Cracks Down on Eggsplosive Cartel Attempt' (In Competition, 29 May 2014)
29 May 2014 - Authorisation for joint waste tender
The ACCC 'has granted authorisation to Bankstown, Fairfield, Parramatta and Liverpool councils to tender jointly for services to process ‘household clean-up’ waste'. See press release. See authorisation register.
29 May 2014 - ACCC proposes to allow poultry growers to collectively bargain
The ACCC propses to grant authorisation enabling members of the NSW Farmers' Association 'who grow chicken, turkey and duck meat, to collectively bargain with processors'. See ACCC press release. See authorisation register. Submissions on the draft determination may be made until 11 June 2014.
The ACCC has instituted proceedings in the Federal Court alleging that Australian Egg Corporation Limited (AECL) (and its managing director and two directors) and two egg producing companies, Ironside Management Services Pty Ltd (T/A Twelve Oak Poultry) and Farm Pride Foods Limited attempted to induce egg producers who were members of AECL 'to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia'). It is alleged that this conduct took place after the introduction of the new cartel laws. The ACCC is seeking declarations, injunctions, pecuniary penalties, orders that involved parties establish and maintain a compliance program, adverse publicity orders, community service orders and disqualification from directorship for the three directors alleged to be involved. See the ACCC's press release.
28 May 2014 - Competition, Fairness and the Courts
The paper presented by Justice Steven Rares at this year's Competition Law Conference is now available online. In it, his Honour traverses some of the history of the Act and attacks its current complexity (paying particular attention to the cartel provisions), noting (in part) that as 'a society, it is time for us to question why Australian legislation has become so bulky and impenetrable' (para 57). See Justice Steven Rares, 'Competition, Fairness and the Courts' (Competition Law Conference, 24 May 2014).
26 May 2014 - More AGL Media and ACCC report
The ACCC considers that the proposed acquisition of the assets of Macquarie Generation (Macquarie Generation) by AGL Energy Limited (AGL) would result, or be likely to result, in a small public benefit. Against this, the ACCC considers that the proposed acquisition would result, or be likely to result, in substantial public detriment constituted by a lessening of competition, due to raised barriers to entry and expansion for smaller electricity retailers in NSW and a material risk of increased generator market power. As a result of this likely lessening of competition, the proposed acquisition is likely to mean that consumers will pay more for electricity, receive lower quality service and be offered less choice.
For media see, for example, Brian Robins, 'AGL MacGen buy would cut competition and now lower prices, warns ACCC' (Sydney Morning Herald, 26 May 2014) and Maggie Lu Yueyang and Miranda Maxwell, 'ACCC says AGL conditions for MacGen buy 'inadequate'' (The Australian, Business Spectator, 26 May 2014)
25 May 2014 - Competition Law Conference
Terrific Competition Law Conference again this year; thanks to Christopher Hodgekiss for putting together another great programme.
22 May 2014 - ACCC proposes to grant authorisation to Melbourne councils for joint organic waste tender
The ACCC 'has issued a draft determination proposing to grant authorisation for Metropolitan Melbourne Waste Management Group and eight metropolitan Melbourne councils to jointly tender and enter into contracts for the supply of organic waste processing services.' See press release.
22 May 2014 - ACCC does not oppose Caltex acquisition of Scotts Group fuel division
The ACCC has announced that it will not oppose the proposed acquisition by Caltex of the fuel division of the Scotts Group, subject to an undertaking by Caltex to sell four retail fuel sites. See press release. See merger register.
22 May 2014 - Merger cooperation with China
The ACCC and MOFCOM have signed an MOU relating to communication and cooperation between the agency on mergers affecting both Australian and Chinese markets. See press release. See further John Durie, 'ACCC's China deal a door-opener' (The Australian, 22 May 2014)
21 May 2014 - Authorisation day at the ACCC
The ACCC has granted two authorisations issued a draft determination proposing a third. The authorisations relate to:
- collective bargaining by the Victorian Association of Newsagents in relation to public lotteries. The authorisation has been granted for 10 years. See press release. See authorisation register.
- re-authorisation of the Mortgage and Finance Association of Australia's Disciplinary Rules until June 2019. See media release. See authorisation register.
The draft determination proposes to authorise Renewal SA to 'sell a section of a development site in Bowden, South Australia to Investec on the condition that 40 per cent of the dwellings are developed as ‘affordable housing’ supplied at below market rates.' See media release. See authorisation register.
21 May 2014 - ACCC quarterly report
The ACCC has released its March 2014 quarterly report. See press release. In relation to competition law matters it highlights the Flight Centre penalty, proceedings instituted against Pfizer and against Woolworths and Coles in relation to their shopper docket enforceable undertakings. The report also notes:
- there were 14 competition law enforcement proceedings during the quarter; 11 carried over from last quarter, three new cases were commenced (Pfizer, Coles and Woolworths) and one was concluded (Flight Centre);
- the ACCC did not accept any section 87B undertakings for alleged competition breaches in the quarter;
- the ACCC reviewed 69 merger matters in the quarter. Of these, 53 were dealt with through pre-assessment, 11 were not opposed following review (including IAG's proposed acquisition of Wesfarmers' insurance underwriting business), one was withdrawn, two were opposed (AGL Energy Ltd - Macquarie Generation (AGL has now applied for authorisation) and Sonic Healthcare - Delta Imaging Group) outright and two were resolved through undertakings. Two SOI's were issued this quarter - the first related to AGL Energy and the other related to Heathscope Ltd's proposed acquisition of Brunswick Private Hospital (decision pending - delayed at request of Healthscope);
- three interim authorisation decisions, four draft authorisation decisions and eight final authorisation determinations were made during the quarter;
- 157 exclusive dealing notifications (for 116 proposals) were lodged during the quarter; all that were considered this quarter were allowed to stand. There were two collective bargaining notification (relating to one proposal), by Australian Wagering Council Ltd. The ACCC issued a draft objection notice and the AWC subsequently withdrew the notifications;
- the ACCC continues to investigate information sharing by fuel companies (ongoing since 3 May 2012) and online competition;
- A total of 51,551 complaints and enquiries were received by the ACCC in the quarter; 108 of these were escalated for assessment with 25 resulting in in-depth investigation. Approximately 599 (or 1.16%) of complaints related to anti-competitive practices. Of these the most complaints related to misuse of market power (103) and exclusive dealing (66). The vast majority of complaints related to scams (39.4%) or ACL matters (27.44%).
More about the ACCC's activities, including in relation to access matters, fuel monitoring and international engagement can be found in the report.
20 May 2014 - Durie on Baxt Lecture
John Durie has a good piece on yesterday's Baxt Lecture in today's Australian - see John Durie, 'Harper herding pet policy barrows' (The Australian, 20 May 2014).
19 May 2014 - Baxt Lecture - John Fingleton
Terrific 5th Annual Baxt Lecture delivered by John Fingleton today on the topic 'Economics in the design and implementation of competition policy'. An audio recording of the lecture is available from the website. This was followed by an expert panel discussion discussing Australia's Competition Policy Review. The panel comprised Professor Allan Fels AO, Professor Henry Ergas, Professor Stephen King and Professor Philip Williams and involved some interesting discussion around the issues raised by the current review.
15 May 2014 - State of Competition: The Harper Review
The latest issue of The State of Competition (Issue 17) is out now and is dedicated to the Harper Review (Alexandra Merrett, Rachel Trindade and Rhonda Smith, 'The Harper Review: what they are talking about and how to join in'). As well as providing a very useful overview of the review and its key issues, this issue also provides some guidance to those looking to lodge a submission. As always, not to be missed. See also The State of Competition Website for past issues.
14 May 2014 - The Budget and the ACCC
ASIC's budget has been slashed but the ACCC received a boost (mainly associated with carbon tax repeal monitoring) in yesterday's budget. See Andrew White, 'Taxman’s turn to feel pain as ACCC boosted' (The Australian, 14 May 2014). See also budget paper 2 ('The Government will provide funding of $68.5 million over four years from 2014-15 to the [ACCC] to fund its operations. This funding will assist the ACCC to monitor prices and protect consumer interests in relation to the repeal of the carbon tax. ... This funding is in addition to the $25.3 million provided in the 2013-14 Additional Estimates for the ACCC to fund its operating costs in 2013-14. ...')
14 May 2014 - $3m price fixing fine
The Federal Court handed down its decision in ACCC v NSK Australia Pty Ltd  FCA 45 yesterday. Justice Edmonds imposed a pecuniary penalty in the sum of $3 million on NSK relating to contraventions of s 45(2) (making and giving effect to price fixing conduct in relation to ball bearings). NSK admitted the arrangements or understandings in question containing provisions to which s 45A applied and that s 45 was, as a result, contravened (the relevant conduct took place before the introduction of the current cartel laws). NSK and the ACCC. The ACCC and A-NSK also reached agreement as to the suggested penalty and the Court accepted that the penalty of $3m was 'within a range that, unaided by the parties’ views, is appropriate' (para 60). See also ACCC press release.
12 May 2014 - In Competition on Harper Review
Hannah Luxford has posted on the King&Wood Mallesons Blog, In Competition about the current Harper Review, discussing recent comments made by the Minister for Small Business. See Hannah Luxford, 'An economy based on merit, not muscle' (12 May 2014).
9 May 2014 - Billson on Competition Policy Review
Minister for Small Business, The Hon Bruce Billson MP, has delivered a speech to the Committee for Economic Development of Australia discussing the current Competition Policy Review.
9 May 2014 - In Competition on Cartel reforms
Tamara Hunter has posted on the King&Wood Mallesons Blog, In Competition about cartel reforms in the UK and Australia. See 'CMA, SFO, MOU, ACCC, CDPP ... What does it all mean?' (9 May 2014)
9 May 2014 - Statement of Issues - M&A Risk
Nick McHugh and Claire Forster from Norton Rose Fulbright have a neat item on 'M&A risk from ACCC Statement of Issues' - it includes useful statistics on merger clearances (SOI's issues, opposed/not opposed/conditional clearance etc)
8 May 2014 - ACCC cross-appeals penalty judgment against Flight Centre
8 May 2014 - ACCC will not oppose Peregrine's proposed acquisition of BP petrol station sites in SA
The ACCC will 'will not oppose the proposed acquisition by Peregrine Corporation (Peregrine) of BP Australia's (BP) company- owned and operated retail petrol station sites in South Australia, after accepting a court-enforceable undertaking.' The review process commenced on 15 May 2013. It was suspended on two occasions to allow parties to provide further information. View press release. View merger register.
6 May 2014 - Alex Merrett and Rod Sims on Coles case
Pat McGrath interviewed Rod Sims and Alexandra Merrett about the ACCC's allegation of unconscionable conduct against Coles. See 'ACCC adopts new approach in challange to supermarket power' (PM with Mark Colvin, 5 May 2014). Alexandra Merrett has followed up with an item in today's Conversation (ACCC signals strategic change in battle with supermarkets).
The ACCC has launched an action against Coles alleging unconscionable conduct in relation to its Active Retail Collaboration program. Not a Part IV matter, but because both supermarkets and unconscionable conduct feature in the Competition Policy Review it's worth a mention. See ACCC press release. See also Eli Greenblat, 'ACCC takes action against Coles over alleged treatment of suppliers' (SMH, 5 May 2014)
1 May 2014 - ACCC to re-authorise newsagents collective bargaining
The ACCC has issued a draft determination proposing to allow the Australian Newsagents' Federation to negotiate on behalf of members. See ACCC press release.
26 April 2014 - ACCC mergers factsheet
The ACCC has recently published a 3-page 'factsheet' on mergers: 'What you need to know about: the ACCC's approach to merger reviews, including local markets' (April 2014). Target audience appears to be consumers.
25 April 2014 - Fairfax editorial on shopper dockets
Today's editorial in the SMH discusses the recent shopper docket saga, claiming 'a concern that Coles and Woolworths now have a perfectly legal way to avoid the spirit of an agreement they made last year to limit these discounts to 4c litre.' See 'Shopper dockets may be good for consumers but harm petrol retailers' (SMH, 25 April 2014).
24 April 2014 - Petrol saga summary
There's a neat little summary of the recent petrol pricing saga between the ACCC, Coles and Woolworths from Michael Bradley and Kiran Bath at Marque Lawyers, including the following observation: "Does this strike you as something only lawyers could dream up and then approve with a self - satisfied and somewhat cynical smirk? If so, you'd be right.": see, Michael Bradley and Kiran Bath, 'The Coles and Woolies petrol discount saga - are they in trouble or not?' (Marque Update, 22 April 2014)
24 April 2014 - Almunia opens 13th annual ICN conference
Joaquín Almunia, Vice President of the European Commission responsible for Competition Policy, has opened the 13th ICN annual conference in Marrakech. He states, amongst other things, '... co-ordinating our efforts in individual cases is not enough. With the rapid growth of competition regimes around the world, the risk for conflicting outcomes is real and must be addressed in a multilateral setting. I believe that the ICN is the perfect venue to minimise this risk and promote common standards for our procedures, policies and goals.' (View speech) ACCC Chairman, Rod Sims, will be a panelist on the Merger Working Group Plenary: International Cooperation in Merger Cases session tomorrow and will also speak at the Closing Ceremony. The special project for this year's conference is competition enforcement in relation to State Owned Enterprises.
22 April 2014 - 'Knowingly concerned' in cartels
The team at Jones Day have a brief note on the ACCC's recent action against leading suppliers of laundry products. See: Sébastien J. Evrard, John C. Lin, David Longstaff, Hiromitsu Miyakawa, Shinya Watanabe, Nick Taylor, Peter Wang and Yizhe Zhang, 'ACCC Pursues A "Knowingly Concerned" Accessory To A Cartel' (Jones Day, 22 April 2014, Mondaq)
18 April 2014 - Airlines settle class action
A group of airlines, including Qantas, have agreed to pay (collectively) $38m to settle a class action relating to price fixing. The settlement in subject to court approval and involves no admission of liability. See, for example, Trevor Chappell, 'Prominent airlines pay $38m to settle a class action' (Herald Sun, 17 April 2014) and Georgia Wilkins, 'Qantas, four other airlines to pay $38m in air-freight rigging case' (SMH 18 April 2014)
17 April 2014 - Flight Centre appeals
Flight Centre lodged an appeal against the Federal Court's judgment in ACCC v Flight Centre Limited (No 2)  FCA 1313 and against the penalties subsequently imposed. In its statement to the ASX Flight Centre indicates that it 'believes the judgment contains 'errors and inappropriate extensions of the law' and that the 'penalties are manifestly excessive'.
16 April 2014 - ACCC allows collective negotiations by coal producers
The ACCC has granted authorisation to a group of Queensland coal producers, known as the RG Tanna Coal Export Terminal Producers (the applicants), to collectively negotiate with Gladstone Ports Corporation (GPC). See ACCC press release. See authorisation register.
16 April 2014 - ACCC proposes to grant authorisation to APESMA
The ACCC has issued a draft determination proposing to authorise the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to collectively bargain on behalf its translator and interpreter members who operate as independent contractors.' See ACCC press release. See authorisation register.
16 April 2014 - KitchenAid distributor gives RPM undertaking
An importer an wholesaler of kitchenware products, including KitchenAid mixers, has provided court enforceable undertakings to the ACCC in respect of resale price maintenance conduct. See ACCC press release.
The Issues Paper (which runs to 59 pages) for the Harper Review was released yesterday and is open for submissions until 10 June 2014. The issues paper begins with a message from the panel which states that "it is now time for 'Hilmer Mark II' and noting that they will be 'examining the broader competition framework, to make sure that it can contribute to the Australian economy for the next 20 years.'
A fact sheet has also been released. This sets out an indicative timeline for review (draft report due September 2014). Plenty of media. See further, Joanna Mather, 'Review to examine price gouging on technology' (Australian Financial Review, 14 April 2014), Peter Martin, 'Standard of living key to competition review, says Professor Ian Harper' (15 April 2014, The Age)
15 April 2014 - Woolworths breached shopper docket undertaking; Coles cleared
The Federal Court yesterday found Woolworths breached its undertaking on fuel shopper dockets from January - March this year, because its 8 cents per litre discount was contingent on acquiring Woolworths supermarket goods or services. Woolworths changed its discount structure following the ACCC's Federal Court action. Coles, on the other hand, was found not to have breached their agreement, because the higher discounts were funded primarily though Coles Express stores. The ACCC expressed disappointment that 'the Court has found that Coles and Woolworths can bundle a supermarket fuel offer with a petrol station offer'. See ACCC press release.
See, eg, Amy Bainbridge, 'Woolworths found to have breached ACCC fuel dockets deal' (ABC, 14 April 2014), Blair Speedy, 'Extra supermarket fuel discount offers can continue, court rules' (The Australian, 14 April 2014), Mitchell Neems, 'ACCC welcomes Woolworths decision' (The Australian, 14 April 2014), Simon Thomsen, 'Woolies busted by competition watchdog after breaking promise on fuel discounts' (Business Insider, 14 April 2014) and Stephen Bartholomeusz, 'Discounting a hollow shopper-docket victory' (Business Spectator, 14 April 2014) (noting that the case did not investigate whether the conduct actually impacted competition and claiming that the fact that the ACCC has never sought to make the SLC case 'probably signals it doubts that case could be made')'. The judgments of Justice Robertson are now available from AustLII:
- Australian Competition and Consumer Commission v Coles Group Limited  FCA 363 (14 April 2014)
- Australian Competition and Consumer Commission v Woolworths Limited  FCA 364 (14 April 2014)
14 April 2014 - Informed Sources release petrol price app
Informed Sources has released a new petrol price app. No doubt this has been done, in part, to end the ACCC's investigation into its practises (the ACCC has said its investigation would conclude by June 30 this year - more than two years after it began); at $2.49 per download, the app may also earn them a tidy sum. See, eg, John Rolfe, 'Cheaper petrol just a click away with new smartphone app' (14 April 2014)
9 April 2014 - ACCC releases draft cartel immunity and cooperation policy for comment
The ACCC has released a draft of its new Immunity and Cooperation Policy for Cartel Conduct. See press release. See consultation hub. Closing date for submissions is 7 May 2014. This follows an earlier consultation that ran from 30 September 2013 to 28 October 2013. For further details see my Immunity review page.
9 April 2014 - Another waste tender authorisation
The ACCC has granted authorisation to Northern Sydney Regional Organisation of Councils (NSROC) and member councils to 'tender and contract jointly for the transfer, processing and disposal of household waste.' View press release. View authorisation register.
9 April 2014 - Authorisation for underground electrical works
The ACCC 'has authorised Victoria’s electricity distributors to maintain an accreditation scheme for civil contractors for underground civil works on electrical infrastructure.' View press release. View authorisation register.
7 April 2014 - Business Spectator interviews Sims
Alan Kohler and Stephen Bartholomeusz have interviewed ACCC Chair, Rod Sims. In the interview Sims defends the current structure of the ACCC, discusses competition in education and sectors in which competition is restricted (such as newsagents and pharmacies), discusses the relationship between big and small business and denies excessive focus on supermarkets (blaming the media for this perceived focus) See also Mitchell Neems, 'Sims denies excessive supermarket focus' (Business Spectator, 7 April 2014).
4 April 2014 - ACCC will not oppose Transurban Consortium's proposed acquisition of Queensland tollroad assets
The ACCC will not oppose the proposed acquisition of the tollroad and assets held by Queensland Motorways Group by a Transurban-led consortium. The ACCC concluded that the acquisition would be unlikely to substantially lessen competition. View ACCC press release. View merger register.
4 April 2014 - ACCC seeks views on CBH's proposed new port terminal access undertaking
The ACCC has invited submissions 'from interested parties in the bulk wheat export industry on CBH’s proposed new Port Terminal Services Access Undertaking'. Submissions are due by 30 April 2014. See ACCC press release. See Issues paper and related documents.
4 April 2014 - Boral, CSR brick merger plan in the news
ACCC Chairman, Rod Sims, has said the ACCC will look very closely at the proposal by Boral and CSR to combine their east coast brick operations. See, John Durie, 'ACCC won't like Boral, CSR brick merger plan' (The Australian, 4 April 2014) and Tim Binsted, Max Mason, 'Boral, CSR hope to seal brick-clad deal to shore up the joint' (The Sydney Morning Herald, 5 April 2014)
3 April 2014 - ACCC releases annual Airport Monitoring Report
The ACCC has released its annual Airport Monitoring Report for 2012-2013. If found that airports continue to be profitable but only one airport achieved a higher than 'satisfactory' quality of service rating and there were continued signs of congestion. View ACCC press release.
2 April 2014 - Authorisation day at the ACCC
The ACCC has:
- granted interim authorisation to four Sydney councils to commence a joint tender for household cleanup waste. See ACCC press release. See authorisation register.
- granted interim authorisation to three Tasmanian councils to commence a joint tender for the processing of recyclable materials. See ACCC press release. See authorisation register.
- issued a draft determination proposing to grant authorisation 'enable current and future members of the Australian CFD Forum to make and give effect to a number of proposed best practice standards in the provision of contracts for difference (CFD).' Para 67 states: 'The ACCC will now seek further submissions from interested parties. In addition, the applicant or any interested party may request that the ACCC hold a conference to discuss the draft determination, pursuant to section 90A of the Act'. However, no deadline or timeline for final decision is provided. View press release. See authorisation register.
1 April 2014 - Opinion piece on Harper Review by Alex Merrett
Alexandra Merrett has a new opinion piece in the Conversation today discussing the Harper review: see Alex Merrett, 'An ambitious agenda for Harper’s competition review ' (The Conversation, 1 April 2014)
30 March 2014 - BCA welcomes competition review
The BCA has welcomed the release of the final terms of reference of the competition policy review. BCA Chief Executive, Jennifer Westacott, stated that 'This review now provides the opportunity to reset Australia’s competition reform agenda to drive increased innovation, productivity and economic growth in future decades' and suggested that to do this the review must 'focus on removing poor and unnecessary regulation on business and focus on opportunities for more cost-effective administration of the law.' See also Competition Policy from 1992 to 2014: Presentation by Professor Fred Hilmer
The panel and final terms of reference have finally been announced. As predicted, Prof Ian Harper will Chair the panel. He will be joined by Su McCluskey, Michael O'Brien SC and Peter Anderson. The Treasury Press Release states that the 'Harper Review' will 'help identify ways to build the economy and promote investment, growth, job creation and durable benefits for consumers'. See further Competition Policy Review website. See also John Durie, 'Ian Harper facing an uphill task with competition review' (The Australian, 27 March 2014).
28 March 2014 - Flight Centre fined for attempting to induce Price Fixing
Justice Logan in the Federal Court has ordered Flight Centre to pay an $11m fine for six incidents of attempting to induce price fixing in contravention of s 45 - these occurred between 2005 and 2009, prior to the introduction of the new cartel laws. The penalty comprised 4 x $2m penalties and 1 x $3m penalties. In respect of the first contravention, Justice Logan held that, as it occurred more than six years prior to commencement of proceedings, no civil penalty was recoverable (s 77). The higher penalty for one of the contraventions recognised 'Mr Turner’s direct, personal involvement in that contravention.' (para 60)
Justice Logan also needed to consider the fact that some contraventions occurred prior to the increase in civil penalties which came into force on 1 January 2007; however, procedural failures prevented higher penalties from being considered (at para 25) 'Neither as originally cast nor by permitted amendment did the [ACCC's] statement of claim contain an allegation of any material fact necessary to engage a maximum penalty greater than $10 million in respect of any of the alleged contraventions.'
Flight Centre is expected to appeal both the principal judgment and the penalties.
- Penalty decision (ACCC v Flight Centre Limited (No 3)  FCA 292 (28 March 2014))
- Principal judgment (ACCC v Flight Centre Limited (No 2)  FCA 1313 (6 December 2013))
- ACCC Press Release
- For a useful discussion of the original judgment see: Rachel Trindade, Alexandra Merrett and Rhonda Smith, '2013: the year of waiting patiently' (The State of Competition, Issue 15 (Dec 2013))
- AAP, 'Flight Centre fined $11m for price fixing' (SBS, 28 March 2014)
- Sarah Kimmorley, 'Flight Centre Fined $11 Million for Price-Fixing' (Business Insider, 28 March 2014)
- 'Flight Centre fined $11 million for price fixing' (news.com.au, 28 March 2014)
27 March 2014 - Shopper dockets in Court
The Federal Court commenced hearing the Coles/Woolworths shopper docket case yesterday. Judgment has been reserved. This case relates to allegations by the ACCC (see ACCC press release) that Coles and Woolworths contravened their undertakings regarding the use of shopper dockets. See, for example, Elizabeth Knight, 'Coles, Woolies shopper-docket rumble going down in Federal Court' (SMH, 27 March 2014)
25 March 2014 - AGL applies for authorisation for Macquarie Generation acquisition
AGL Energy has applied for authorisation in relation to its proposed takeover of Macquarie Generation. This follows a refusal by the ACCC to grant informal clearance for the merger earlier this month. See AGL Press Release. See also AAP, 'AGL to fight rejected MacGen buy' (The Australian, 25 March 2014) and Angela Macdonald-Smith, 'AGL appeals ACCC veto of $1.5b Macquarie Generation takeover' (Sydney Morning Herald, 24 March 2014) (note this refers to an appeal and compares it to the AGL federal court case - it is, in fact, a separate application for authorisation rather than an appeal or application for declaration as in the earlier case). The application is not yet available from the Tribunal website.
25 March 2014 - New State of Competition Out Now
The State of Competition team has released Issue 16 - Australia's small business sector: "Not for the faint of heart". As always, a must read, particularly in light of the forthcoming root and branch review (if in fact it ever arrives).
19 March 2014 - NBN in the bush
Lots of chatter about NBN in the bush at the moment, particularly following the ACCC's submission on 14 March 2014 (the last day for submissions). See 'Cost-Benefit Analysis and Review of Regulation' home page. See also John Durie, "Time for Turnbull to fill gaps in the bush" (The Australian, 19 March 2014), John Durie, 'Malcolm Turnbull's NBN stance has created giant headaches' (The Australian, 18 March 2014), Annabel Hepworth, 'ACCC pushes for end to NBN cross-subsidies' (The Australian, 18 March 2014) and for some diversity try Chris Duckett, 'Reverse handout: Regional group wants to co-invest in NBN' (ZDNet, 18 March 2014)
15 March 2014 - Record fuel prices
John Leahmann has an item in the Sunday Telegraph about the effect of the Coles/Woolworths shopper-docket undertakings on fuel prices: see John Lehmann, 'Motorists hit with record petrol prices after ACCC attack on shopper dockets backfires' (The Daily Telegraph, 15 March 2014)
13 March 2014 - ACCC wants price signalling ban extended
In a speech to the National Consumer Congress in Sydney today ('Empowering consumers in the digital age') ACCC Chairman Ron Sims highlights 'price signalling' as an area for debate in the forthcoming root and branch review, claiming 'recent statements regarding airline capacity shows why these laws need to be extended to all sectors of the economy'. Current price signalling laws apply only to the banking sector. See Michael Janda, 'ACCC flags extension of price signalling ban, citing airlines' (ABC News).
13 March 2014 - AFR names Ian Harper as front-runner for competition review
Today's AFR confirms Prof Ian Harper as front-runner for competition review. We are also told again that PM Abbott is 'close to finalising his short-list'. See Fluer Anderson, 'Harper tipped for review job' (The Australian Financial Review, 13 March 2014, page 15)
12 March 2014 - John Durie: Ian Harper tipped to head root and branch review
In yesterday's Australian John Durie reported that Prof Ian Harper, partner at Deloitte Access Economics, is expected to be named head of the 'root and branch' competition review (see also today's Australian)
11 March 2014 - Declaration of anticompetitive conduct by Cement Australia
The Federal Court has made declarations in ACCC v Cement Australia. These declarations follow interim declarations made on 10 September 2013. Justice Greenwood found that the respondents' conduct 'had the purpose and effect of preventing a competitor from entering the market by obtaining direct access to a source of flyash in South East Queensland' and, as a result, having the purpose and effect of substantially lessening competition.' View ACCC press release. View Federal Court decision.
8 March 2014 - Xenophon's Misuse of Market Power Bill
On Thursday Senator Nick Xenophon moved the introduction of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2014. While the bill has no prospect of passage, if it did pass it would give the Court power to direct a corporation found guilty of a s 46 breach to reduce its market share. It is squarely directed at supermarkets. Senator Xenophon's second reading speech claims:
The need for the measures in this Bill is painfully obvious. The amount of power that Woolworth and Coles have over our food industry is genuinely frightening, with the two chains holding around 80% of the dry grocery market. They are the one s who decide whether to stock local or overseas products for a massive part of the market
8 March 2014 - Commentary on root and branch review
There is an item in today's Australian by David Crowe and Lauren Wilson (Economic gurus issue MPs with call to arms on reform) - but still no clues on when we're likely to see the final terms of reference.
8 March 2014 - New AJCCL out
The latest issue of the Australian Journal of Competition and Consumer Law (vol 22 part 1) is out now. It includes the following articles and notes of interest:
- Dave Poddar and Angela Flannery, 'The far side of the Pilbara: The Productivity Commission on the wrong track?'
- Justin Lipinski, 'Blurring the bright line? Third line forcing revisited'
- Amanda Richman, 'Authorisations and Notifications: Price setting and collective bargaining arrangements for professionals - in what circumstances will they be authorised?'
- Michael Ferguson and Scott Meacock, 'Enforcements and Remedies: Cartel conduct: A survey of the ACCC's enforcement activity'
- Rob Nicholls, 'Telecommunications: Structural separation, interconnection and access'
- Paul McLachlan, 'Not all benefits are services: ACCC v ANZ Banking Group Ltd'
- Rodrigo Morales-Elcoro, 'Report from Latin America: Recent experiences of Antitrust Reform and performance: Mexico, Chile and Brazil'
6 March 2014 - ACCC authorises Clubs Australia to collectively bargain with suppliers
6 March 2014 - ACCC proposes to allow collective bargaining by coal producers
6 March 2014 - ACCC will not oppose proposed acquisition of OneSteel Sheet and Coil by Bluescope
The ACCC has announced it 'will not oppose the proposed acquisition of the OneSteel Sheet and Coil business from Arrium Limited by BlueScope Steel Limited after accepting an undertaking from BlueScope to sell its sheet and coil processing assets in Western Australia.' View press release. View merger register.
5 March 2014 - Blackout - In Competition blogs on the AGL decision
King&Wood Mallesons' blog, In Competition, has a post by Pam Cue on the ACCC's AGL merger decision. View 'Blackout'.
5 March 2014 - AGL may challenge ACCC merger decision
John Durie has a couple of pieces in the Australian about the ACCC's AGL decision. The first (with Mitchell Neems) was published yesterday - 'AGL tipped to appeal ACCC's Macquarie Generation decision'. The second is an opinion piece in today's Australian - 'AGL boss Michael Fraser's only option is to appeal ACCC's MacGen ruling'. Watch this space.
The ACCC 'has today announced that it will oppose the acquisition of the assets of Macquarie Generation by AGL Energy Limited (AGL).' The ACCC considers the proposed acquisition will substantially lessen competition in 'the market for the retail supply of electricity in New South Wales'. See press release. See merger register. A public competition assessment will be 'published in due course'.
28 February 2014 - 'It's an online world'
Martine Phillips has posted an item in In Competition on the impact of online shopping and retail on market definition in a competition context - prompted by ACCC comments in relation too a proposed David Jones/Myer merger.
27 February 2014 - ACCC proposes to grant authorisation for David Jones 'stores within stores' promotions
The ACCC 'has issued a draft determination proposing to grant authorisation to David Jones to continue inviting certain businesses operating within its stores to participate in various promotions.' See press release. See authorisation register.
26 February 2014 - Durie: "legal battle makes mockery of code"
John Durie's column in today's Australian discusses the legal battle between the ACCC and the supermarkets which, he claims, 'makes a mockery of last year's grocery industry code of conduct'. See John Durie, 'Legal battle makes mockery of code' (The Australian 26 February 2014)
25 February 2014 - ACCC brings shopper docket case
There's nothing fuel purchasers hate more than discounts (!) - so the ACCC has taken action against both Coles and Woolworths alleging they have broken their promises over fuel shopper dockets. In a (very strange) agreement that entered force on 1 January, both Coles and Woolworths agreed not to offer supermarket shopper-docket discounts of more than 4 cents from fuel (subject to limited exceptions). The ACCC is alleging that Woolworths have offered a bundled discount of 8 cents and Coles have offered a bundled discount of 14 cents and that these offers contravene their respective undertakings. According to the ACCC press release , however, at least in the case of Coles (the release is a bit vague about WW) you can get the 10c by just purchasing $20 or more at the petrol station - it does not appear contingent on the grocery service. More to come on this one!
See also Eli Greenblat, 'Consumer watchdog ACCC takes Woolworths, Coles to court over fuel dockets' (SMH, 25 February 2014) and Mitchell Neems, ACCC moves on Coles, Woolworths (Business Spectator, 25 February 2014).
21 February 2014 - ACCC compliance and enforcement policy
The ACCC has released its 2014 Compliance and Enforcement Policy (view online or download as 4-page PDF). Core focus is on consumer issues, although mention is made of prioritising 'competition and consumer issues in highly concentrated sectors, in particular in the supermarket and fuel sectors' (nothing new here) and the policy states that some areas are always regarded as a priority, including 'cartel conduct and anti-competitive agreements, and the misuse of market power'. See press release
Chairman Rod Sims will also be delivering a speech at the CEDA Conference today (Looking forward to 2014) - the speech has a separate section dedicated to competition enforcement. Shopper dockets, petrol price information sharing and supermarket business practices are all discussed - again. The Pfizer and Visa cases naturally rate a mention. Sims indicates that there are ten 'in depth investigations under way in relation to anti-competitive agreements' (a bit like last year) and around 15 in relation to alleged misuse of market power with one likely to be before the courts soon which, he assures us, does not involve supermarkets or petrol. Merger activity is also discussed and the speech finishes with a brief mention of the anticipated 2014 'highlight' - the promised 'root and branch' review.
The Productivity Commission's Report on the National Access Regime was released last week. The Final Report recommends that the National Access Regime should be retained. It makes a number of other recommendations - in relation to paragraphs 44G(2)(b) and 44H(4)(b) the PC recommended that they be amended so that criterion (b) is satisfied 'where total foreseeable market demand over the declaration period could be met at least cost by the facility. Total market demand should include the demand for the service under application as well as the demand for any substitute services provided by facilities serving that market. The assessment of costs under criterion (b) should include an estimate of any production costs incurred by the infrastructure service provider from coordinating multiple users of its facility.' (recommendation 8.2).
Bruce Billson MP issued a press release accompanying the release of the final report in which it indicated it would not respond to the PC's report until the 'root and branch' review is completed.
See also Minter Ellison Alert - Government releases final report into National Access Regime (20 February 2014) which provides a neat summary of the key findings and recommendations.
Last week the ACCC instituted proceedings in the Federal Court of Australia against Pfizer (Case NSD146/2014 in NSW registry) alleging misuse of market power and exclusive dealing in 'relation to its supply of atorvastatin to pharmacies'(see media release). The Government took the opportunity to issue a press release indicating it would keep a 'close eye' on the case and reminding everyone that the misuse of market power provision would be looked at as part of the 'root and branch' review. First directions hearing in the case is scheduled for 18 March 2014 before Justice Flick.
20 February 2014 - ACCC will not oppose iSentia's proposed acquisition of AAP's media monitoring business
The ACCC 'will not oppose the proposed acquisition of Australian Associated Press Ltd’s media monitoring business by iSentia Pty Limited', concluding that it 'was highly unlikely that AAP would continue to operate its media monitoring business if the proposed acquisition did not proceed'. The ACCC has indicated it will issue a Public Competition Assessment in relation to this merger review. View press release. View merger register.
20 February 2014 - ACCC will not oppose Amcor's proposed acquisition of Detmold's Australian operations
The ACCC 'will not oppose the proposed acquisition by Amcor Ltd of Detmold Group’s Australian flexible packaging operation.' In its press release it noted that in 'reaching its decision, the ACCC determined that actual and potential import competition was likely to continue to provide a strong constraint on Amcor following the acquisition'. View press release. View merger register.
20 February 2014 - ACCC grants authorisation to Myer for 'stores within stores' promotions
The ACCC 'has granted authorisation to Myer to continue inviting certain businesses operating within Myer Stores to participate in various promotions'. View press release. View authorisation register.
19 February 2014 - ACCC grants interim authorisation to Catholic healthcare network
The ACCC 'has granted interim authorisation to enable a network of Catholic health facilities to continue to collectively bargain with health funds, the Repatriation Commission and a range of suppliers.' See press release. See authorisation register.
18 February 2014 - Norton Rose Fulbright - thought piece on root and branch review
Dr Martyn Taylor and Josh Buckland at Norton Rose Fulbright have just published an excellent thought piece on the proposed 'root and branch' competition review (still awaiting final terms of reference and panel!). Headed 'The greatest Australian competition reforms in 20 years' the piece works through the political context to the Review, the 'extraordinary' breadth of the review, the panel and timing of the review, the 'likely appetite for further deregulation', possible agency reforms, possible 'trimming' of the laws, small business issues and more - it runs for eight pages and is well worth reading. It can be downloaded from CCH's law chat page.
14 February 2014 - Gilbert + Tobin Competition Review
Gilbert + Tobin have released their inaugural Competition Review. The Review is both a PDF publication and related video. It includes, for example, a 22 minute video between Gilbert + Tobin partner Gina Cass-Gottlieb and Rami Greiss from the ACCC's Merger Investigations Branch. Well worth a close look.
13 February 2014 - BCA on Competition Policy
There was an opinion article in the AFR by BCA Chief Executive, Jennifer Westacott and Managing Partner of Gilbert + Tobin, Danny Gilbert entitled 'Competition Policy Review Offers Chance to Support Growth'.
10 February 2014 - new ABLR issue out
The latest Australian Business Law Review is out (volume 42(1)). It contains several interesting items, including an overview by the editor, Prof Bob Baxt, of some of the matters he believes may be at the forefront of the 'root and branch' competition review and a discussion by Prof Stephen Corones of 'agents as intermediaries' in the context of the recent ANZ and Flight Centre cases. It also includes publication of the 2013 annual Baxt Lecture, National Competition Policy: Coming of Age, delivered by Professor Fred Hilmer AO.
6 February 2014 - AGL Energy SOI
The ACCC has released a Statement of Issues outlining concerns with proposed acquisition of Macquarie Generation by AGL and have stated that its preliminary view is that the acquisition would result in a substantial lessening of competition in one retail and at least one wholesale market. See press release. View merger register.
30 January 2014 - Sims to assume CEO role
The ACCC has announced that ACCC Chairman, Rod Sims, will also assume role of CEO of the ACCC from 3 Feb 2014 following last week's announcement by current CEO, Brian Cassidy, that he will retire on 23 May 2014. Brian Cassidy will assist with the transition and with the ACCC's submission to the Root and Branch review. View press release.
30 January 2014 - ACCC does not oppose BlueScope Steel's proposed acquisition of Fielders Australia
The ACCC will not oppose the proposed acquisition by BlueScope Steel Ltd of Fielders Australia, concluding that although "BlueScope has market power in the supply of painted coil inputs through its COLORBOND product lines, this level of market power would not be altered by the acquisition." View press release. View merger register.
30 January 2014 - ACCC does not oppose ERM Power's proposed acquisition of Macquarie Generation
The ACCC has announced it will not opposed this proposed acquisition after forming the view that "an acquisition of Macquarie Generation by ERM was not likely to substantially reduce the competitiveness of generators or retailers or otherwise raise barriers to entry in the relevant electricity markets". See press release. See merger register.
29 January 2014 - Murray Goulburn pulls out of WCB bid
Murray Goulburn has withdrawn its bid for Warrnambool Cheese & Butter and will sell its holding to rival bidder, Canadian dairy company, Saputo. On 23 January a notice of withdrawal was submitted to the Australian Competition Tribunal which was due to begin hearing the authorisation application next month. See, for example, RN Breakfast, 'Saputo claims victory in cheese wars' (29 January 2014 - audio download) John Durie, 'Murray Goulburn will withdraw WCB bid to fight again' (The Australian, 22 January 2014) Trevor Chappell, 'Murray Goulburn pulls out of WCB fight' (news.com.au, 23 January 2014)
24 January 2014 - Amcor merger decision delayed
The ACCC was originally scheduled to issue a decision regarding Amcor's proposed acquisition of Detmold Flexibles & Detmark on 30 January. This has been delayed following receipt of further information from the parties. A new date has yet to be announced. View merger register.
24 January 2014 - Wine growers complain to ACCC
The ABC reports that Murray Valley, Riverina and Riverland growers will make a joint complaint to the ACCC regarding recent price slashing due to oversupply.
23 January 2014 - ACCC re-authorises collective bargaining by office products retailers group
The ACCC 'has allowed Office Choice Limited, Office Brands Limited, Office Products Depot, as well as their current and future Australian members and franchisees, to continue to collectively bargain with office products suppliers.' See press release. See authorisation register.
22 January 2014 - ACCC proposes to re-authorise collective negotiations by AMA
22 January 2014 - Interim authorisation for Victorian Association of Newsagents
17 January 2014 - ACCC opposes proposed acquisition by Sonic Healthcare of Delta Imaging Group assets
The ACCC 'has announced it will oppose the proposed acquisition by Sonic Healthcare Limited (Sonic) of assets of Delta Imaging Pty Limited (in liquidation), Delta Imaging Maitland Pty Limited (in liquidation) and Cscan Asset Pty Limited (in liquidation) collectively, the Delta Imaging Group' after concluding the proposed acquisition would be likely to have the 'effect of substantially lessening competition in the market for the supply of MRI services in Newcastle and Maitland, and the market for the supply of general diagnostic imaging services in Maitland.' See ACCC press release. See merger register.
11 January 2014 - Durie on Justice Mansfield's request for political views on MG/WCB case
John Durie has an item in this weekend's Australian about Justice Mansfield's decision to write to state premiers and others regarding Murray Goulburn's authorisation application relating to its bid for Warrnambool Cheese & Butter. He describes the action as 'unprecedented and, at best, truly bizarre'. As always, worth reading. See John Durie, 'Competition Tribunal's move in the dairy takeover game is unprecedented' (The Australian, 11 January 2014)
9 January 2014 - John Durie on Bruce Billson and the competition review
John Durie has an item in today's Australian discussing Bruce Billson's role and the forthcoming competition review. He notes that Billson has confirmed the broad nature of the draft terms of reference was deliberate and the final TOR would be released by the end of the month and will be 'much the same'. He goes on to discuss how the review will be staffed and likely timelines. See John Durie, 'Billson packs licence to kill off any impediments' (The Australian, 9 January 2014, 13)
8 January 2014 - ACCC issues paper: Murray Goulburn's authorisation application for acquisition of Warrnambool Cheese & Butter
The ACCC submitted an issues paper (78 pages) regarding Murray Goulburn's authorisation application to the Australian Competition Tribunal on 23 December 2013. This has now been made public (with significant redaction) - see Tribunal's Authorisation page (see also ACCC page). Several other statements and reports are also available (for example, affidavit of Geoffrey Carter (Minter Ellison) representing WCB, seeking permission to intervene in the proceeding (granted by Justice Mansfield on 9 December - para 10). For more details see, for example, Tin Binsted and Jared Lynch, 'ACCC has concerns over Murray Goulburn's takeover of WCB' (SMH, 8 January 2014). See also, Blair Speedy, 'Dairy battle takes political twist as tribunal calls for input on Warrnambool takeover' (The Australian, 8 January 2014)
7 January 2014 - Privatisation, competition and the ACCC Chairman
ACCC Chairman, Rod Sims, caused quite a stir when he spoke to the Australian Financial Review about government's 'root and branch' competition review (see Patrick Durkin, 'ACCC calls for big asset sell off' (Australian Financial Review, 6 January 2014)). This has resulted in the publication of a 'clarification' by the ACCC stating that, although Mr Sims said that 'generally the private sector will run commercial enterprises more efficiently than government', he made no reference 'to privatise any specific Commonwealth owned entity (the AFR refers to Australia Post and Medibank Private as examples of assets that may be privatised).
For more see, for example, AAP, 'ACCC urges government to sell of assets' (SMH, 6 January 2014) and Michael Janda & Justine Parker, 'ACCC chairman Sims argues the benefits of privatisation' (ABC News, 6 January 2014), Gareth Hutchens, Clay Lucas, 'ACCC chairman Rod Sims denies urging privatisation of Australia Post' (SMH, 7 January 2014) and Stephen King, 'Privatisation in Australia: as the ACCC opens a can of worms, what are the lessons on government ownership and regulation?' (The Conversation, 6 January 2014).
1 January 2014 - Farewell petrol discounts
Today the Woollies and Coles undertakings with the ACCC to stop big petrol discounts tied to supermarket purchases kicks in. For some recent articles on this see, for example, George Raitt, 'Bundled discounts: misuse of market power?' (Lexology, 17 December 2013) and Rose Brennan, 'Petrol prices set to reach near-record levels' (The Courier-Mail, 1 January 2014)