Competition Law News 2015
23 December 2015 - ACCC resolved Informed Sources proceedings
The ACCC has resolved Federal Court proceedings it brought against Informed Sources and several petrol retailers after Informed Sources and the retailers agreed to make pricing information available to consumers at the same time the retailers receive it. The ACCC consented to Federal Court orders that proceedings be discontinued and that there be no order as to costs. See ACCC media release. See also Eli Greenblat, 'Woolworths able to keep using cheap fuel app and website after ACCC decision' (The Australian, 23 December 2015) and Michael Janda, 'Petrol price info live for motorists under deal between ACCC, retailers and Informed Sources' (ABC News, 24 December 2015).
22 December 2015 - ACCC consulting market on Brookfield's proposed undertakings
The ACCC has commenced consultation on proposed revised undertakings offered by the Brookfield consortium in relation to its proposed acquisition of Asciano. Submissions are due by 22 January with a proposed announcement date of 18 February. See media release. See merger register.
17 December 2015 - ACCC opposes GPC's proposed acquisition of Covs Parts
17 December 2015 - ACCC oposes GPC's proposed acquisition of Covs Parts
16 December 2015 - ACCC and Coles Express resolve Federal Court proceedings regarding petrol priceinformation sharing
The ACCC has resolved Federal Court proceedings against Coles Express regarding their subscription to Informed Source's petrol price information sharing service. Coles Express will terminate its subscription to Informed Sources after the current subscription period (ending April 2016) and has provided the ACCC with a s 87B court enforceable undertaking in which it commits not to enter into similar price information sharing service agreements and not to give effect to such arrangements following termination of its agreement with Informed Sources. As a result, Justice Murphy yesterday ordered the discontinuation of proceedings against Coles Express. Proceedings continue against Informed Sources and several other petrol retailers. See ACCC media release. For further details see me case page.
15 December 2015 - ACCC's decision in Brookfield merger decision
The ACCC's merger register notes that, at the request of Brookfield, its decision on whether to approve Brookfield consortium's proposed acquisition of Asciano (originally expected on Thursday) has been delayed; new decision date yet to be announced. See also Jenny Wiggins, 'ACCC delays decision on $9b Asciano takeover; Brookfield submits new plans' (SMH, 14 December 2015), Michael Smith, 'ACCC delays Brookfield decision as M&A frenzy drags into new year' (AFR, 14 December 2015) and John Durie, 'Brookfield eases timetable for Asciano bid clearance' (The Australian, 14 December 2015).
11 December 2015 - Stephen King on Treasury's misuse of market power discussion paper
Stephen King has a piece in today's The Conversation relating to today's release, by Treasury, of a discussion paper on misuse of market power reform. In it, he expresses some dismay that the options presented in the paper (other than the first option - retention of the status quo) all remove the 'take advantage' element, which he views as essential. See Stephen King, 'Confusion reigns in options for Australia's misuse of market power laws' (The Conversation, 11 December 2015)
11 December 2015 - Government releases discussion paper on misuse of market power
Here we go again. The Government has released a 24-page discussion paper seeking views on options to strengthen the misuse of market power provision in the Act. Submissions due by 12 February ... something fun to do over the Christmas/New Year break. See Treasury consultation page. See also my discussion paper page for further details.
11 December 2015 - Congratulations to Alice Muhlebach
Congratulations to Alice Muhlebach, Partner at Ashurst (Melbourne office), for being named in GCR's top 40 under 40 antitrust lawyers in the world for 2015. Alice was also the second youngest of the 40 named this years.
10 December 2015 - More on High Court's agreed penalties ruling
There has been some more media and law firm coverage of the High Court's ruling yesterday, which held that parties can make joint submissions with regulators in relation to civil penalties. See, for example, Peta Stevenson, Trish Henry and Emma White, 'Australia's High Court reinstates agreed penalties (King&Wood Mallesons, 9 December 2015) and 'Significant High Court Decision on Settlement of Regulatory Proceedings' (Allens><Linklaters Client Update, 9 December 2015). The High Court also released a useful one page judgment summary. For links to the case, commentary and other resources surrounding this decision see my agreed penalties page.
9 December 2015 - High Court decision in CFMEU agreed penalties case handed down today
The High Court judgment in Construction, Forestry, Mining and Energy Union & Anor v. Director, Fair Work Building Industry Inspectorate & Anor (B45/2015) has now been delivered. It can be viewed on the High Court's page or at AustLII or Jade. The High Court unanimously allowed the appeals, concluding that the 'decision in Barbaro does not apply to civil penalty proceedings and a court is not precluded from receiving and, if appropriate, accepting an agreed or other civil penalty submission.' (para 1 per French CJ, Kiefel, Bell, Nettle and Gordon JJ). In separate (brief) reasons for judgment, Justice Gageler agreed with the conclusion in the majority reasons that Barbaro does not apply to civil penalty proceedings and joined in the proposed orders. In a separate reasons Justice Keane also agreed that the appeals should be allowed for the reasons given by the majority and made a few additional observations.
8 December 2015 - Dr Graeme Woodbridge appointed Chief Economist at ACCC
The ACCC has appointed Dr Graeme Woodbridge as its first Chief Economist. See media release.
4 December 2015 - High Court to rule in CFMEU (agreed penalties) case
The High Court has announced it will deliver the judgment in Construction, Forestry, Mining and Energy Union & Anor v. Director, Fair Work Building Industry Inspectorate & Anor (B45/2015) on Wednesday 9 December.
This case relates to the ability (or otherwise) for parties to agree with the ACCC on penalties to be put before the Court; the Full Federal Court held that the High Court's decision in Barbaro (relating to criminal sentencing) should also apply to civil pecuniary penalties and that as a result a Court should have no regard to 'agreed penalties' proposed by the parties. Full case details (including the transcript and/or a five hour video of the appeal) can be viewed on the High Court's website.
4 December 2015 - World Competition Day
Who knew it was a thing? Apparently it is and tomorrow's the day. See ACCC update.
4 December 2015 - ACCC proposes to authorise collective bargaining by certain owner-drivers
The ACCC 'is proposing to authorise the Transport Workers Union (TWU) and its owner-driver members in the Adelaide area to bargain as a group with Toll Transport (Toll) for freight-courier contracts'. View media release. View authorisation register.
4 December 2015 - ACCC re-authorises Virgin-Etihad Alliance
The ACCC 'has re-authorised Virgin Australia (ASX: VAH) and Etihad Airways to continue their existing air transport services international alliance, which operates between Australia and the Middle East, for a further five years.' View media release. View authorisation register.
3 December 2015 - ACCC authorises credit reporting system
The ACCC has 'granted authorisation for five years to the Australian Retail Credit Association Ltd (ARCA) in relation to principles for exchanging comprehensive consumer credit data between signatory credit reporting bodies and lenders'. View media release. View authorisation register.
2 December 2015 - ACCC concerned about TPP
The ACCC, in a submission to the Productivity Commission's IP inquiry, has expressed concerns about IP restrictions in the TPP. While acknowledging that the role of IP rights in promoting innovation and competition is unlikely to raise competition concerns 'in the vast majority of cases', it expresses the view that the extent of current IP protections may go beyond what is necessary. It reiterates its previously expressed view that 'certain IP-related activities under section 51(3)' should be repealed.
In relation to the TPP, the ACCC notes that the IP chapter of the TPP 'is complex' and questions remain regarding its impact. The ACCC expresses concern (amongst other things) that 'the agreement appears to impose IP restrictions beyond existing international treaties, and this may tilt the balance in favour of IP rights holders to the detriment of competition and consumers.' (p 28). See ACCC submissions page.
See also, eg, Rohan Pearce, 'ACCC concerned over Trans-Pacific Partnership IP provisions' (Computerworld, 30 November 2015) and Gareth Hutchens, 'ACCC airs concerns over intellectual property provisions in Trans-Pacific Partnership' (SMH, 1 December 2015)
2 December 2015 - Yazaki decision published
The Federal Court's decision in ACCC v Yazaki has been published (Australian Competition and Consumer Commission v Yazaki Corporation (No 2)  FCA 1304). See also ACCC, 'Federal court finds Yazaki corporation engaged in collusive conduct' (26 November 2015).
30 November 2015 - ACCC extends proposed decision date for Coles' proposed acquisition of 9 Supabarn supermarkets
At the request of the parties, the ACCC has extended the proposed decision date of 3 December 2015 in relation to Coles' proposed acquisition of 9 Supabarn supermarkets A new decision date is yet to be announced. See merger register.
30 November 2015 - Media and commentary on Government response to Harper Report
There has been plenty of media, academic and legal commentary on the Government's response to the Harper Report. See my media page for a collated set of links to media. See also government response page.
27 November 2015 - ACCC proposes to re-authorise Qantas - American Airlines Alliance
The ACCC has issued a draft determination proposing to re-authorise Qantas and American Airlines 'to continue to coordinate their operations on trans-Pacific routes for a further five years.' See media release. See authorisation register.
26 November 2015 - ACCC does not oppose FedEx's proposed acquisition of TNT
26 November 2015 - ACCC does not accept Brookfield's proposed undertakings
The ACCC has not accepted Brookfield's proffered behavioral undertakings relating to its proposed acquisition of Asciano. The ACCC is yet to determine whether it will oppose the proposed acquisition. See ACCC media release. See ACCC merger register.
26 November 2015 - ACCC does not oppose Transurban consortium's proposed acquisition of Brisbane's AirportLink M7
26 November 2015 - Yazaki guilty of colluding with its competitor
The Federal Court has found that Yazaki Corporation engaged in collusive conduct with its competitor when supplying wire harnesses to Toyota in Australia. The conduct took place in 2003 and 2008 and breached the exclusionary conduct provisions of the CCA and the Competition Code of Victoria. See ACCC, 'Federal court finds Yazaki corporation engaged in collusive conduct' (26 November 2015).
25 November 2015 - Merrett on government's response to Harper Report
Alexandra Merrett has an item published in The Conversation this morning focussing on the Governments agreement with the recommendation to establish a new body in charge of policy development - see Alexandra Merrett, 'Turf wars loom over new competition policy body', The Conversation, 26 November 2015.
25 November 2015 - Academic commentary on government's response to Harper Report
A couple of items were published on The Conversation website today. The first, by Prof Stephen King, praises the response (King, 'Harper response is good economics and smart politics', The Conversation, 25 November 2015); the second, by Prof Caron Beaton-Wells, is critical of the delayed response on the proposed effects test for misuse of market power (Caron Beaton-Wells, 'We’ve already had consultation on the effects test: more is just a political smoke screen', The Conversation, 25 November 2015)
25 November 2015 - Government response to Harper
I've summarised the response to most of the 'competition law' recommendations here. More detail to follow shortly.
24 November 2015 - Government releases Harper Response
The Government has accepted most recommendations, but has deferred discussion on the misuse of market power proposal. More specifically, the Government has supported, in whole or part, 44 of the 56 recommendations. Whether it accepts the remaining 12 will depend upon the outcome of further review and consultation. A press release accompanied the response - see 'Turnbull Government to promote more choice, better services, stronger growth' (Media Release, 24 November 2015). The ACCC has welcomed the Government's response - see ACCC, 'ACCC welcomes the Government's response to the Harper Review' (Media Release, 24 November 2015)'
Plenty of media. See, for example, Gareth Hutchens, 'Turnbull government responds to Harper review into competition laws, accepts majority of recommendations' (SMH, 24 November 2015), Anna Vidot, 'Federal Government again delays decision on 'effects test' in response to Harper Review' (ABC Rural, 24 November 2015), Jennifer Hewett, 'Competition law – Harper proposal for effects test has caused real concern' (AFR, 23 November 2015).
19 November 2015 - Morrison on Harper
Treasurer, Scott Morrison, yesterday spoke at the Bloombert Summit discussing (amongst other things) competition policy and noting, again, that the 'Government is committed to working with the states on a comprehensive response to the Competition Policy Review conducted by Professor Ian Harper'. See 'A National Platform for Economic Growth and Jobs' (Address to the Bloomberg Summit, Sydney, 18 November 2015) (scroll down to 'A more competitive Australia' toward the middle) See also, John Durie, 'Harper report front and centre' (The Australian, 19 November 2015) and John Durie, 'Canberra splits off Section 46 for separate discussion' (The Australian, 18 November 2015).
19 November 2015 - ACCC will not oppose Shell's acquisition of BG
18 November 2015 - Durie's Harper update
John Durie's latest column includes an update on the Harper Review debate (about half way down the column beginning 'Still harping on'). He notes Cabinet will consider the report next week before taking the package to the state treasurers meeting in early December. For now, the s 46 debate will be put on hold and a discussion paper on that section will be issued.
18 November 2015 - Sea Swift withdraws merger authorisation application but remain committed to the acquisition
Sea Swift has withdrawn its application for merger authorisation from the Australian Competition Tribunal. The application was lodged following the ACCC's announcement (on 9 July 2015) that it would oppose the merger. The Tribunal hearing was scheduled to commence on 30 November. Sea Swift's CEO, Fred White, has released a statement indicating that both Sea Swift and Toll remain 'fully committed to the proposed acquisition' and that it proposes to amend the application to strengthen the case for approval and then resubmit to the Tribunal. See also Notice of Withdrawal (PDF), ACCC media release.
17 November 2015 - Small business and the Harper Review
Alexandra Merrett's latest piece in The Conversation discusses some of the less talked about ('less sexy'), but nevertheless significant, recommendations made in the Harper Report which, if implemented, would benefit business - particularly small business. See Alexandra Merrett, 'Small business can't afford to overlook the little things in the Harper Review' (The Conversation, 17 November 2015).
17 November 2015 - New Zealand Commerce Act Review
The New Zealand Ministry of Business, Innovation and Employment today released an Issues Paper - Targeted Review of the Commerce Act 1986 - which addresses three key issues - misuse of market power (s 36), the cease and desist regime and a new market studies function. The issues paper notes that the Ministry's preliminary view is that the operation of s 36 has 'not been satisfactory' because it appears 'to be failing to maximise the long-term benefit of consumers', it is 'too complex to allow for cost-effective and timely application' and is 'misaligned with other prohibitions' in the Act by relying on a purpose test rather than an 'effects' test. Submissions on the issues paper may be made until 9 February 2016.
16 November 2015 - Gregory: 'The art of undermining the ACCC'
Mark Gregory has an item in today's Technology Spectator claiming that the threatening stance adopted by the government toward the ACCC could lead to adverse consumer outcomes. See, Mark Gregory, 'The art of undermining the ACCC' (The Australian, 16 November 2015)
16 November 2015 - ACCC Qube consortium bid review
On Friday the ACCC commenced a public informal review on Qube consortium's bid for Asciano. See merger register. See also John Durie, 'ACCC upgrades Qube bid review' (The Australian Business Review, 16 November 2015) and Jenny Wiggins, 'Asciano, Qube, spar over due diligence for $9bn takeover proposal' (SMH, 16 November 2015).
14 November 2015 - Could Sims ruin Christmas?
Patrick Durkin has an item in today's AFR discussing some of the proposed merger deals currently before the ACCC which are due to be determined just before Christmas. See Patrick Durkin, 'Why ACCC chairman Rod Sims might ruin Christmas' (Australian Financial Review, 14 November 2015).
10 November 2015 - Date for ihail authorisation decision extended
The ACCC has extended the date for making a decision on ihail's authorisation application after it received a 'submission from ihail proposing changes to how its smartphone taxi booking app will operate'. Comments are now invited on the revised proposal by 8 December 2015 with an anticipated final decision in Feb/March 2016. See ACCC media release; see authorisation register.
9 November 2015 - ACCC accepts SeaLink undertaking
The ACCC has 'accepted an undertaking from SeaLink Travel Group as part of its acquisition of Transit Systems Ferries Group', notwithstanding the fact that the acquisition itself 'does not raise competition issues'. See ACCC media release.
9 November 2015 - Commentary on ACCC/NDRC MOU
Emma White has published a piece on the recent MOU between the ACCC and China's NDRC (National Development and Reform Commission of the PRC) which provides for information sharing and cooperation in relation to competition enforcement, particularly in relation to cartels. See, Emma White, 'Mounting a coordinated approach to enforcement' (In Competition, 9 November 2015).
9 November 2015 - Liability for cartel facilitators
James Gould recently published an item on recent developments on liability for cartel facilitators in Europe and Australia - see James Gould, 'Recent developments on liability for cartel facilitators' (In Competition, 30 October 2015)
9 November 2015 - Sims on digital disruption
ACCC Chairman, Rod Sims, has given an interview to The Australian in which he discusses the proliferation of digital start-ups, like Uber and Airbnb. See 'ACCC chair welcomes digital disrupters' (The Australian, 9 November 2015) for the video (approx 6 minutes). The Chairman also notes in the interview that the ACCC has no competition issues with Coles and Woolworths and that it considers that the s 46 debate has nothing to do with Coles and Woolworths. For the full version of the interview - the lateset in the KGB Podcast series - see Episode 19 on Fair Competition.
9 November 2015 - Regulating unilateral supermarket misconduct
Prof Stephen Corones has a new article out in the latest ABLR on the regulation of unilateral supermarket misconduct as a customer/acquirer of goods and services with particular attention given to ACCC v Coles and the effectiveness of s 46 as a 'consumer protection measure': Stephen Corones, 'Regulating unilateral supermarket misconduct as customer/acquirer of goods and services' (2015) 43 Australian Business Law Review 400
9 November 2015 - ACCC to review Sonic Healthcare's proposed acquisition of Adelaide Pathology Partners
The ACCC has announced it will conduct a public review of Sonic's proposed acquisition of Adelaide Pathology Partners, noting that 'the position of Sonic and APP as two of the four biggest suppliers of pathology services in South Australia' means the focus of the investigation will be on 'whether the removal of APP as a competitor would substantially lessen competition between pathology service providers in South Australia'. Responses to a market inquiries letter are due by 13 November. The ACCC has not posted an expected decision date given it anticipates the proposed acquisition may be completed before the ACCC can finalise its review. See ACCC media release. See merger register.
7 November 2015 - Durie on ACCC's merger SOI's
John Durie's latest column discusses the ACCC's recent succession of merger SOIs, most recently the proposed Recall-First Mountain merger - see John Durie, 'ACCC waves red flag over Recall-First Mountain merger deal' (The Australian, 6 November 2015).
7 November 2015 - Telstra appeals ACCC pricing decision
Telstra has appealed the ACCC's recent fixed-line pricing decision to the Federal Court. See David Ramli, 'Telstra to fight ACCC price cuts in the Federal Court' (SMH, 6 November 2015) and Mitchell Bingemann, 'ACCC, Telstra on collision course' (The Australian, 6 November 2015).
5 November 2015 - Sims on media laws, IP and recent ACCC competition activity
ACCC Chairman, Rod Sims, delivered a speech at the RBB Economics Conference in Sydney this morning. See media release. View speech - 'Promoting innovation through competition'.
5 November 2015 - ACCC releases another Statement of Issues
The latest in a recent swath of SOI releases involves Iron Mountain's proposed acquisition of Recall Holdings. The ACCC's indicated that its 'preliminary view is that the proposed acquisition would raise competition concerns in a number of markets for the supply of physical document management services'. Submissions due by 19 November with announcement expected 15 December. View media release. View merger register.
5 November 2015 - ACCC will not oppose Vocus's proposed acquisition of M2
The ACCC has announced it will not oppose Vocus's proposed acquisition of M2. View media release.
5 November 2015 - China/Australia MOU
The ACCC and the National Development and Reform Commission of the PRC (NDRC) have signed a MOI relating to international cartel investigations which affect Australian and Chinese markets. See media release.
29 October 2015 - Sims: 'How did the light handed regulation of monopolies become no regulation?'
ACCC Chairman, Rod Sims, delivered a speech at the Gilbert + Tobin Regulated Infrastructure Policy Workshop in Melbourne today, calling for a 'return to the approach to regulation of monopoly infrastructure envisaged by the Hilmer Committee' and arguing 'it is wrong to suggest that we should not be concerned about high monopoly pricing of infrastructure because the result is only a pure transfer of economic rent.' View speech. View media release: 'ACCC believes price monitoring for monopoly infrastructure will damage Australia's economy'.
26 October 2015 - Federal Court declares Exclusive Dealing by Calvary
The Federal Court has declared (by consent) that Calvary (the Little Company of Mary Health Care Ltd and Calvary Health Care Riverina Ltd), by adopting by-laws relating to the accreditation of medical practitioners, had engaged in exclusive dealing conduct that was likely to have the effect of substantially lessening competition in the day surgery market in Wagga Wagga. Proceedings were otherwise dismissed, subject to the respondents paying the ACCC's costs in the agreed amount of $100,000. See ACCC media release.
23 October 2015 - ACCC to appoint Chief Economist
In his address to the Competition Law and Economics Workshop this morning, ACCC Chairman, Rod Sims, announced that the ACCC would 'shortly' be appointing a Chief Economist. View speech.
23 October 2015 - Sims opens competition conference
ACCC Chairman, Rod Sims, this morning gave the opening address at the 13th annual Competition Law and Economics Workshop in Adelaide, now co-hosted by the ACCC in conjunction with the University of South Australia. View speech. View ACCC media release.
23 October 2015 - ACCC issues SOI on proposed acquisition of Baker Hughes by Halliburton
The ACCC this morning issued a Statement of Issues on the proposed acquisition of Baker Hughes by Halliburton. The ACCC has expressed concern that the acquisition would result in the merged entity being one of only a small number of suppliers that could service the relevant markets' and particular concern 'in relation to the supply of complex or high-risk projects, such as off-shore drilling projects'. View media release. View merger register.
23 October 2015 - ACCC proposes to deny authorisation to Cotton Shippers Association
In a draft determination released this morning, the ACCC proposes to deny authorisation to Cotton Shippers Association 'for coordination between its merchant members to change the way the industry classes cotton for contracts between growers and merchants.' View media release. View authorisation register.
22 October 2015 - ACCC does not oppose Foxtel and Ten acquisitions
The ACCC today announced 'that it will not oppose the proposed acquisitions by Foxtel ... and Ten ...'. ACCC Chairman, Rod Sims, noted that while 'the acquisitions will lead to a greater alignment of Foxtel’s and Ten’s interests, and will increase the degree of influence Foxtel has over Ten, the ... proposed acquisitions, on their own, are unlikely to result in a substantial lessening of competition”. See media release. See merger register. See also, Max Mason, 'ACCC approves Ten and Foxtel tie-up' (SMH, 22 October 2015)
21 October 2015 - Menezes on Labor and the competition review
Economics Professor, Flavio Menezes, has an item in today's The Conversation, arguing that Labor should 'come to the party' on the Harper reforms. In relation to s 46, in particular, he argues that the proposed changes make sense and that while it is 'clear why big business would oppose such changes, the rationale for Labor’s opposition is less clear'. See Flavio Menezes, 'Why Labor should come to the party on the competition review' (The Conversation, 21 October 2015)
21 October 2015 - Sims on grocery code
ACCC Chairman, Rod Sims, has spoken at the Australian Food and Grocery Council Industry Leaders Forum in Canberra today. View speech. See also Sue Mitchell, 'ACCC chairman warns retailers over grocery code' (SMH, 21 October 2015)
21 October 2015 - ACCC releases SOI on GPC's proposed acquisition of Covs Parts
The ACCC has released a Statement of Issues on GPC Asia Pacific Pty Lt's proposed acquisition of the Covs Parts Business from Automotive Holdings Group Ltd. The ACCC's 'preliminary view is that the proposed acquisition would raise competition concerns in the supply of automotive parts and accessories to trade customers in nine regional towns in Western Australia'. Submissions may be made until 5 November. Final decision expected 26 November. See media release. See public register.
20 October 2015 - ACCC releases report on the private health insurance industry
19 October 2015 - ACCC reviewing proposed BrisConnections acquisition
The ACCC has commenced a review into the proposed acquisition of BrisConnections by a Transurban consortium. Submissions from interested parties are due by 30 October with a proposed date for decision of 26 November 2015. See merger register. See also John Durie, 'ACCC probes Transurban role in possible BrisConnections purchase' (The Australian, 19 October 2015).
18 October 2015 - Fisse on the Harper Report
Brent Fisse delivered a paper on the Harper Report in New Zealand on Friday - it provides a useful analysis of the key recommendations in the report relating to the competition laws. See Brent Fisse, 'The Australian Competition Policy Review Final Report 2015: Sirens' Call or Lyre of Orpheus?' (NZ Competition Law & Policy Institute, 26th Annual Workshop, Auckland, 16 Oct 2015) (PDF - available on Brent Fisse Lawyers website)
16 October 2015 - Harper Report back on agenda
Treasurer Scott Morrison met with state and territory treasurers in Sydney today, with the Harper Report high on the agenda. Mr Morrison has referred to the Harper Report as an 'outstanding report' 'has the potential to unlock, if acted upon, enormous economic opportunities for Australia'. In response to a direct question about when we can expect a formal response to the Harper Review, Mr Morrison indicated he would be looking to 'move that forward over the next few weeks and with Cabinet meeting between now and Christmas, well, I will look to a timetable that would see that to be able to be presented hopefully before Christmas ... it's an outstanding report and in many ways it's been overshadowed by just one recommendation regarding Section 46 which is a very important recommendation ... The broader more fundamental reforms that are proposed in the Harper Review, I think, you can expect the Government to have a very enthusiastic response to and I was encouraged by the state and territory Treasurers today about their willingness to engage in that type of process. ' See The Hon Scott Morrison MP, Transcript of Press Conference, Sydney, 16 October 2015. See also Gareth Hutchens, 'Turnbull government revives Harper review that was iced under Tony Abbott ' (SMH, 16 October 2015).
16 October 2015 - Foxtel-Ten decision expected next week
The ACCC will hand down its final decision on Foxtel's proposed investment in the Ten Network next week; see John Durie, 'ACCC to remain centre of attention with Foxtel-Ten decision' (The Australian, 16 October 2015). See merger register.
16 October 2015 - Global beer deal may face ACCC scrutiny
There is debate over whether the ACCC is likely to scrutinise the planned multi-billion dollar Anheuser-Busch InBev takeover of SABMiller; Compare Lincoln Feast, 'ACCC may torpedo $146b global beer deal to prevent 'cosy duopoly' (SMH, 16 October 2015) and Eli Greenblat, 'Anheuser-Busch InBev clinches deal to buy rival SABMiller for $142bn' (The Australian,13 October 2015) suggesting the deal was 'not expected to run up against any competition issues in Australia'.
15 October 2015 - Asciano media
Plenty of media following the ACCC's issue of a Statement of Issues on the proposed acquisition of Asciano Ltd by Brookfield. See, for example, Mitchell Neems, 'ACCC raises concerns over Asciano buy' (The Australian, 15 October 2015), Chris Pash 'The competition watchdog is concerned at the massive Asciano takeover' (Business Insider Australia, 15 October 2015), AAP, 'ACCC holds up $12 billion Asciano takeover' (SBS, 15 October 2015), Reuters, 'Australian regulator sees antitrust concerns on Brookfield Asciano buyout' (Reuters UK, 15 October 2015).
15 October 2015 - ACCC release SOI on proposed Brookfield acquisition of Asciano
The ACCC this morning released a Statement of Issues on the proposed acquisition of Asciano Ltd by Brookfield. It has noted concerns that the 'vertical integration lead to a substantial lessening of competition in related markets for the supply of above rail haulage services in WA and Queensland', noting that existing state access regimes do not currently address competition issues arising from vertical integration and also that 'competition is to be preferred to regulation whenever possible'. Submissions on the SOI are invited until 4 November 2015 with a final decision expected on 17 December 2015. See ACCC press release. See merger register.
14 October 2015 - CFMEU and Director, Fair Work Building Industry Inspectorate appeal heard
The Appeal against the Full Federal Court decision Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59 was heard by the full bench of the High Court yesterday. The outcome will have implications in relation to the submission of agreed penalties in civil cases. Decision reserved. View transcript.
14 October 2015 - Morrison on competition
Treasurer, Scott Morrison, who has now taken control of competition policy, held talks with Prof Ian Harper last week and has since indicated an intention to 'embrace th spirit of' the Harper Report, noting that the report is much broader than the 'effects test' recommendation that has dominated the debate. See David Uren, 'Scott Morrison to press state treasurers on driving competition' (The Australian, 14 October 2015).
14 October 2015 - Effect of effects test
Daniel Jacobs has an item in Dynamic Business on the effects test: see Daniel Jacobs, 'The effects test: What are the effects?' (Dynamic Business, 14 October 2015).
12 October 2015 - Effects test back in news
The effects test proposal for s 46 has found its way back into the news, with an AFR editorial arguing 'Turnbull should resist effects test' and Collin Bettles reporting on renewed calls for the amendment by Senator Canavan: see Editorial, 'Turnbull should resist effects test' (AFR, 11 October 2015) and Colin Bettles, 'Effects test' to protect farmers' (The Land, 12 October 2015)
12 October 2015 - ACCC proposes to deny authorisation of ihail taxi booking app
The ACCC is proposing to deny authorisation for a joint venture between ihail Pty Ltd and Australian and international taxi networks for a new smartphone taxi booking app. See ACCC media release and authorisation register. See also Matt O'Sullivan, 'ACCC rejects taxi industry's counter to Uber' (SMH, 12 October 2015).
9 October 2015 - ACCC requires drop in Telstra access price
In its final access decision today the ACCC has required Telstra to cut the access price to its declared fixed line services by 9.4% The new pricing begins from the start of November. See ACCC media release. See also Michael Roddan, 'ACCC orders Telstra to cut access prices' (Business Spectator, The Australian, 9 October 2015)
7 October 2015 - Merrett on "Supermarket Monsters"
Alexandra Merret has just published a LinkedIn item on "Supermarket Monsters", critiquing a book recently published by Malcolm Knox. See Alexandra Merrett, 'Supermarket Monsters: a reality check for another Australian myth' (LinkedIn Pulse, 7 October 2015). See also Alexandra Merrett and Rhonda L Smith, 'The Australian Grocery Sector: structurally irredeemable?' (2013) and Caron Beaton-Wells, 'Supermarket monsters can be agents of change' (The Conversation, 7 July 2015).
7 October 2015 - Online hotel price parity requirements under scrutiny
In response to the ACCC's industry consultation on price parity requirements in the industry, Expedia CFO, Mark Okerstrom, has claimed that the arrangements help to boost sales. See Jamie Freed, 'Expedia defends hotel contracts being scrutinised by ACCC' (The Age, 7 October 2015) . See also Jamie Freed, 'Hotels urge ACCC to take action against Expedia and Priceline' (SMH, 6 October 2015) and Jamie Freed, 'Expedia and Priceline pricing practices under ACCC scrutiny' (SMH, 10 September 2015).
6 October 2015 - Vertical integration ACCC's main concern in Brookfield/Asciano deal
ACCC Chair, Rod Sims, has indicated that the main concern raised in submissions on Brookfield's proposed takeover of Asciano relate to vertical integration. The ACCC is expected to indicate whether it has any concerns about the merger by 15 October. See Jenny Wiggins, 'Vertical integration 'the main issue' in Brookfield bid for Asciano, says ACCC chair' (SMH, 6 October 2015). See merger register.
3 October 2015 - Harper Review at top of agenda for next meeting of Australian treasurers
The Australian reports that new Treasurer, Scott Morrison, has put the Harper recommendations 'at the top of the agenda for the next meeting of Australian treasurers' on October 16. See Dennis Shanahan, 'Scott Morrison puts states on notice over health, education savings' (The Australian, 3 October 2015).
2 October 2015 - ACCC releases statement of issues on proposed acquisition of Energy Australia's Iona Gas Plant by APA Group
30 September 2015 - IPA calls for competition reform
The Institute of Public Accountants has 'called on the government to get on with the job of competition policy reform via the Harper Review' - see Mitchell Turner, 'IPA urges govt to "get on with it"' (Accountants Daily, 30 September 2015)
29 September 2015 - BCA warning on effects test
BCA president, Catherine Livingstone, has warned that the introduction of an effects test would threaten state-based pricing and technological innovation. See Joe Kelly, 'BCA’s Catherine Livingstone warns effects tests may curb innovation' (The Australian, 29 September 2015)
24 September 2015 - Food and Grocery code
The ACCC has issued a press release indicating concerns over the implementation of the Food and Grocery Code of Conduct. See ACCC, 'ACCC concerned over implementation of the Food and Grocery code' (ACCC Media Release, 24 September 2015).
22 September 2015 - Harris on competition reform: speech available
22 September 2015 - Harris on competition reform
Productivity Commission chairman, Peter Harris, will speak at the Australian Competition Policy Summit today, calling for action on the Harper competition policy reforms. He will claim the disproportionate focus on s 46 'as a totem for competition policy reform' is 'absurd', noting the significant scope for gains amongst the other proposed reforms. See Alan Mitchell, 'Peter Harris calls for action on competition reform' (AFR, 21 September 2015). See also, Mark Kenny and Peter Martin, 'Turbulent times ahead despite Malcolm Turnbull's strong start' (SMH, 22 September 2015) quoting Mr Harris as saying: "For too long now, under governments of both political persuasions, major reports seem to be left to languish if they no longer suit the immediate political agenda".
22 September 2015 - Rod Sims on the importance of effective competition
21 September 2015 - Durie: "Harper on Hold ..."
John Durie's piece in today's Australian discusses the appointment of new Assistant Treasurer, Kelly O'Dwyer, who will take over the small business portfolio, including the response to the Harper Report. He notes that the change in minister 'puts the Harper review on the backburner' for now, and speculates that the new Treasurer, Scott Morrison, may take control of competition policy. See John Durie, 'Harper Review decision on hold but watch this space' (The Australian, 21 September 2015).
21 September 2015 - Kelly O'Dwyer MP to replace Bruce Billson MP as small business minister
Malcolm Turnbull's cabinet reshuffle sees Kelly O'Dwyer MP take over from Bruce Billson MP as small business minister (with responsibility for the Harper Review). O'Dwyer also takes on the role of Assistant Treasurer. O'Dwyer (a lawyer who previously practised in corporate law) has been Parliamentary Secretary to the Treasurer since December last year and is Chairman of the House of Rep's Standing Committee on Economics, amongst other things. As economic policy adviser to the former Treasurer, Peter Costello, her responsibilities included competition law and policy and consumer protection. See, eg, Robert Gottliebsen, 'Turnbull’s reshuffle is an opportunity for good government' (The Australian, Business Spectator, 21 September 2015) (optimistic about the change) and cf Peter Switzer, 'Has Malcolm made a small business mistake already?' (Switzer Daily, 21 September 2015) (lamenting the loss of Bruce Billson from this role). See also Jacob Greber, 'Malcolm Turnbull's cabinet: Kelly O'Dwyer 'minister for revenue'' (AFR, 20 September 2015) and David Crowe, 'Malcolm Turnbull's reshuffle is a game changer' (The Australian, 21 September 2015).
18 September 2015 - The ACCC v Visa settlement
Glibert + Tobin's latest update in competition and regulation looks at the ACCC v Visa settlement - see Simon Snow, Matt Rubintein, Alexandra Lazar, 'Strange currencies: looking for meaning in the ACCC v Visa settlement' (Gilbert + Tobin, September 2015)
18 September 2015 - Billson rejects claims from anti-effects test lobby
Small Busines Minister, Bruce Billson, has again rejected claims by the BCA that the proposed s 46 effects test would threaten competition. See Catie Low, 'Bruce Billson rejects anti-effects test lobby's claims of voter backlash' (SMH, 17 September 2015).
17 September 2015 - Uren: 'Give healthy competition a chance'
David Uren has a piece in the Australian today calling on the new PM to follow through with the Harper competition reforms. See David Uren, 'Give healthy competition a chance' (The Australian, 17 September 2015)
17 September 2015 - ACCC will not oppose Macquarie's bid for Esanda
The ACCC has announced it will not oppose Macquarie's bid for the Esanda Dealer finance business from the ANZ, concluding that 'the possible acquisition was not likely to substantially lessen competition in the market for the supply of bailment finance and point-of-sale (POS) finance facilities to motor vehicle dealerships.' See ACCC media release. See merger register.
17 September 2015 - Statement of Issues released on proposed Shell acquisition of BG
The ACCC has released another Statement of Issues today - this time in relation to Royal Dutch Shell's proposed acquisition of BG Group. The ACCC has expressed concern that 'by aligning Shell’s interest in Arrow Energy with BG’s LNG facilities in Queensland, the proposed acquisition may change Shell’s incentives such that it will prioritise supply to BG’s LNG facilities over competing gas users. As a result, Shell could choose to direct more (and possibly all) of Arrow’s large gas reserves towards meeting BG’s contracts to supply LNG export markets. This would remove some or all of Arrow’s gas from the domestic market'. Submissions on the SOI are invited until 8 October 2015 with a final decision expected 12 November 2015. See ACCC Press Release. See merger register.
17 September 2015 - Sims on the 'importance of adequate competition for the east coast gas market
ACCC Chairman, Rod Sims, spoke at the Eastern Australia's Energy Markets Outlook conference in Sydney today, sharing some preliminary observations from the ACCC's inquiry into the east coast gas market. See speech. See ACCC media release.
16 September 2015 - Effects test back on the table as part of Nationals' coalition agreement with the new PM
Cabinet will seriously consider the 'effects test' as part of the new PM's deal with the Nationals. See, for example, Laura Tingle, 'Malcolm Turnbull woos Nationals with competition backflip, up to $4b deal' (AFR, 16 September 2015), AAP, 'Cabinet to consider 'effects test'' (Business Spectator, 15 September 2015), Nick Grimm, 'Why is the 'Effects Test' causing so much heartburn for businesses large and small?' (ABC News (3min audio), 16 September 2015) (featuring Allan Fels), Joe Kelly, 'Malcolm Turnbull: Nats win concessions as senators cross floor' (The Australian, 16 September 2015) and Phillip Coorey, 'Malcolm Turnbull unites Coalition, business hopes surge' (AFR, 15 September 2015)
15 September 2015 - Nationals cross floor on effects test
Three National party senators crossed the floor in support of a motion by the Greens advocating an effects test. Senator Whish-Wilson moved that the Senate note the call for the introduction of an effects test by the Harper Review, the support for it by a number of organisations and that the 'National Party unanimously passed a motion at its National Conference calling for the introduction of an effects test' and called on the Government to bring forward legislation to amend section 46. Statements were then made by Senator Whish-Wilson, Senator Fifield and Senator Canavan. The question was negatives by a vote of 33-17. See 'Nationals senators cross floor to back Greens on competition law changes' (The Guardian, 15 September 2015). See also Hansard.
14 September 2015 - ACCC releases Statement of Issues in relation to Foxtel/Ten deal
The ACCC has released a Statement of Issues in relation to Foxtel's proposed acquisition arrangements with the Ten Network. The ACCC has indicated it is concerned that the 'proposed acquisitions have the potential to substantially lessen competition for the supply of free-to-air television services in Australia, particularly in the broadcasting of sports content' and 'may increase the likelihood of Ten and Foxtel entering into joint bids and other commercial arrangements for acquisition of sports rights, to the exclusion of other free-to-air networks.' The ACCC has also expressed concern that 'the proposed acquisitions may reduce competition in the sale of advertising, including by further consolidation in this market, and by removing or reducing competition between Ten and Foxtel for advertising sales'. See media release and merger register for further details.
11 September 2015 - New The State of Competition out now
Issue 23 of The State of Competition was published today. In it, the authors (Alexandra Merrett, Rachel Trindade and Rhonda Smith) discuss 'competition policy for the oligopoly economy', focussing on the research conducted by Michal Gal on competition policy for small business.
11 September 2015 - Statement of Issues for Coles' proposed acquisition of Supabarn supermarkets
The ACCC today released a statement of issues in relation to Coles' proposed acquisition of 9 Supabarn supermarkets. See ACCC, 'ACCC calls for comment on Coles’ proposed acquisition of nine Supabarn supermarkets' (ACCC Media Release, 11 September 2015) and ACCC merger register.
9 September 2015 - ACCC delays Foxtel-Ten decision
The ACCC has delayed its announcement in relation to the proposed acquisition by Foxtel of a stake in the Ten Network. The announcement was due tomorrow, but will be deferred until Monday. See Darren Davidson, 'ACCC delays Foxtel-Ten decision to next week' (The Australian, 9 September 2015). See also merger register.
8 September 2015 - More on effects test
Another item today in SMH on the push by some coalition MP's to introduce the proposed effects test into s 46. See James Massola and Matthew Knott, 'Liberal MPs urge government rethink on effects test to help small business' (SMH, 8 September 2015)
4 September 2015 - Visa to pay $18m penalty for CCA breaches (but not s 46)
As foreshadowed on Tuesday, Visa has been ordered to pay a pecuniary penalty of $18m for anti-competitive conduct. However, the ACCC points out that, contrary to earlier reports, the matter was not resolved on the basis of admitted contraventions of s 46 of the Act; rather Visa admitted contravention of s 47 (exclusive dealing) and, to facilitate resolution, the ACCC did not press the section 46 claim. See ACCC media release.
4 September 2015 - 'Wesfarmers misreading review of competition law': Durie
John Durie had an item in the Austrlaian Wednesday on cabinet's decision to defer consideration of misuse of market power reforms. See John Durie, 'Wesfarmers misreading review of competition law' (The Australian Business Review, 2 September 2015)
4 September 2015 - 'Competition key to restoring Australia's productivity': Sims
ACCC Chairman, Rod Sims, addressed the Infrastructure Partnerships Australia Conference in Sydney today, pressing the case for implementation of key Harper Review reforms: see Sims, 'Competition key to restoring Australia's productivity' (Infrastructure Partnerships Australia Conference, Sydney, 4 September 2015). See also ACCC, 'Infrastructure reforms can help restore productivity' (ACCC media release, 4 September 2015). For media on this see, for example, Annabel Hepworth, 'ACCC head Rod Sims wants user fees put back into managing roads' (Friday 4 September 2015)
4 September 2015 - Part X of the CCA
Paddy Crumlin has an opinion piece in today's Australian on the Hutchison ports dispute. In it, he notes failed attempts to repeal Part X of the Act following the recommendations of several successive inquiries (including Harper): see Paddy Crumlin, 'Misguided competition policy behind Hutchison ports dispute' (The Australian, 4 September 2015)
4 September 2015 - ACCC draft final access determination for transmission services
The ACCC has issued a draft final access determination for the declared domestic transmission capacity service. Submissions are invited until 2 October 2015. See ACCC, 'ACCC releases its draft decision for regulated transmission services' (ACCC media release, 4 September 2015). See also Domestic transmission capacity service final access determination inquiry page.
3 September 2015 - Harper on the need for competition reform
Patrick Durkin has an item in the AFR this afternoon on the need for competition reform: see Patrick Durkin, 'Face up to 'tough' reform or risk recession, says Ian Harper' (The AFR, 3 September 2015).
3 September 2015 - ACCC delays decision on Shell's proposed acquisition of BG Group
The ACCC has delayed its decision on Shell's proposed acquisition of BG Group: see merger register. See also Robb M Stewart, 'ACCC defers decision on Shell's takeover of BG' (The Australian Business Review, 3 September 2015).
3 September 2015 - Fels: Reform incapacity?
The AFR has an opinion piece by former ACCC Chairman, Alan Fels: Alan Fels, 'Tony Abbott's Harper Review 'effects test' rejection shows reform incapacity' (AFR, 3 September 2015).
3 September 2015 - 'Big business should "hang their head in business shame"'
Eloise Keating has an item in Smart Company following cabinet's shelving of the effects test proposal: Eloise Keating, 'Big business should “hang their head in business shame” as cabinet crumbles under pressure on effects test, Peter Strong says' (Smart Company, 3 September 2015)
2 September 2015 - Visa to settle with ACCC in abuse of power case
Fairfax is reporting that the ACCC and Visa have reached a confidential settlement, to be brought before Justice Wigney on Thursday. The settlement stems from proceedings launched by the ACCC in February 2013 in which the ACCC alleged Visa had contravened the misuse of market power and exclusive dealing provisions of the CCA. The hearing was due to commence on Monday 31 August, but was adjourned until Thursday. See Patrick Durkin, 'Visa faces $20m fine in landmark ACCC case' (SMH, 1 September 2015).
1 September 2015 - Misuse of market power proposal splits cabinet
The Australian is reporting that Minister Billson's proposals for an effects test for s 46 have been shelved (at least for now) following division in cabinet: see David Crowe, 'Small business proposal shelved after cabinet division' (The Australian, 1 September 2015). See also, 'Coalition selling out small business to "big end of town", says lobbyists' (The Guardian, 1 September 2015)
1 September 2015 - Misuse of market power: Hockey v Billson
The Australian is reporting on the likely clash between Treasurer, Joe Hockey and Small Business Minister, Bruce Billson, over proposed changes to the misuse of market power laws to be considered by cabinet today: David Crowe, 'Small business reform to test resolve over Joe Hockey’s job' (The Australian, 1 September 2015). See also Lenore Taylor, 'Bruce Billson embroiled in cabinet split over tougher competition laws' (The Guardian, 1 September 2015)
1 September 2015 - Billson to take effects test to cabinet today
Small Business Minister, Bruce Billson, will put proposed changes to the misuse of market power test to the cabinet today. See Phillip Coorey, 'Cabinet split over crackdown on big business power' (AFR, 31 August 2015) (originally published as ' 'Cabinet to endorse crackdown on big business power'). The Minister also has an opinion piece in the AFR discussing the issue: Bruce Billson, 'Harper review misuse of market power clause would energise enterprise' (AFR, 31 August 2015).
28 August 2015 - ACCC applies for special leave in Flight Centre case
21 August 2015 - ACCC Agricultural Commissioner
Australian Farm Institute Executive Director Mick Keogh and former Regional Australia Institute CEO Su McCluskey (also a member of the Harper Panel) are said to be front runners for the ACCC's 'Agricultural Commissioner' role, recommended in July's AG White Paper. See Colin Bettles, 'Big names in running for ACCC ag role' (Australian Dairyfarmer, 21 August 2015).
21 August 2015 - Qantas/China Eastern media
There's also plenty of media following the ACCC's decision to grant conditional authorisation for the Qantas/China Eastern coordination agreement. See, eg, Matt O'Sullivan, 'ACCC drops opposition to Qantas-China Eastern alliance' (SMH, 21 August 2015), Michael Roddan, 'ACCC clears Qantas-China Eastern Deal' (The Courier Mail, 21 August 2015) and 'ACCC to approve Qantas-China Eastern alliance' (Australian Aviation, 21 August 2015)
21 August 2015 - Media on iiNet / TPG deal
Plenty of media following the ACCC's decision not to oppose TPG's proposed acquisition of iiNet. See, for example, Mitchell Bingemann, 'ACCC gives green light for TPG to take over iiNet' (The Australian, 20 August 2015), Mitchell Bingemann, 'TPG-iiNet approval marks the end of consolidation' (The Australian, 21 August 2015), 'ACCC Green Light for TPG-iiNet Merger Divides Oz Industry' (Smartoffice, 21 August 2015) and Nick Sas, 'ACCC ticks off $1.6b iiNet takeover' (The West Australian, 20 August 2015).
21 August 2015 - ACCC authorises Qantas/China Eastern Airlines deal
20 August 2015 - ACCC will not oppose acquisition of iiNet by TPG
20 August 2015 - OmniBlend fined for RPM
The Federal Court has ordered OmniBlend to pay a penalty of $17,500 for resale price maintenance in contravention of s 48 of the Act. Omniblend will also make payments towards the ACCC's costs and have given undertakings relating to compliance training. See ACCC media release. View decision at AustLII.
18 August 2015 - IP Review announced
The Treasurer today announced the terms of reference for a 12 month Productivity Commission inquiry into "Intellectual Property Arrangements", including their effect on competition and consumer welfare and having regard to, amongst other things, 'the findings and recommendations of the Harper Competition Policy Review in the context of the Australian Government's response, including recommendations related to parallel import restrictions in the Copyright Act 1968 and the parallel importation defence under the Trade Marks Act 1995'. View inquiry home page. View joint media release from the Treasurer and Minister for Small Business.
15 August 2015 - Sims' speech to the Law Council on industrial relations and competition law
Last night Rod Sims spoke to the Law Council of Australia, Business Law Section, discussing enforcement of competition law in relation to union behaviour. View speech (Meeting expectations: Industrial relations as a case study'). See also ACCC, 'ACCC on competition law enforcement in the broad industrial relations area' (media release, 15 August 2015) and Ken Phillips, 'The ACCC opens its eyes to Australia's dirty IR secret' (Business Spectator, 17 August 2015).
14 August 2015 - ACCC re-authorises Virgin/Delta Trans-Pacific alliance
The ACCC has re-authorised Virgin Australia and Delta Air Lines' coordination of operations between Australia and the US for a further five years. See ACCC media release.
13 August 2015 - ACCC will not oppose Pfizer's proposed acquisition of Hospira
13 August 2015 - ACCC will not oppose Staples' proposed acquisition of Office Depot
The ACCC has indicated it will not oppose Staples' proposed acquisition of Office Depot, which it considers is 'unlikely to substantially lessen competition in any office products market'. See ACCC media release. See ACCC merger register.
13 August 2015 - Former Woolies chairman calls for stronger competition laws
Former Woolies Chairman, John Dahlsen, takes aim at Bunnings and calls for stronger competition laws - see Sue Mitchell, 'Former Woolworths chairman John Dahlsen attacks Bunnings over competition' (SHM, 12 August 2015) and Broede Carmody, 'Bunnings ‘is like a vulture’: Small business backs former Woolies chief on how hardware giant screws competitors' (Smart Company, 13 August 2015).
12 August 2015 - Labor MP division on effects test ... continued
The Australian also has an item on MP division about the effects test - see Joe Kelly, 'Labor MPs divided on reining in big business' (The Australian, 12 August 2015)
12 August 2015 - Labor MP division on effects test
The AFR reports today that a number of Labor MPs and senators are concerned about Labor's stance on the introduction of an effects test for s 46. It is also suggested that the Liberal cabinet is divided over the proposal. See further Fleur Anderson, 'Labor MPs divided on effects test' (AFR, 11 August 2015). See also Harper recommendation on s 46.
10 August 2015 - Access and Ports
Gilbert + Tobin's latest client alert discusses the recent developments at the Port of Newcastle and Port of Melbourne- see Gilbert + Tobin, 'A tale of two ports' (August 2015).
7 August 2015 - Bowen on the effects test
This week's been all about the Harper proposal on the effects test for s 46. Today it's opposition treasury spokesman, Chris Bowen's, turn for an opinion piece in The Australian. See Chris Bowen, 'Tony Abbott’s effects test would throttle competition' (The Australian, 7 August 2015)
6 August 2015 - Durie on competition again
John Durie's in form this week, punching out another piece on the competition reforms - see John Durie, 'Small Business Minister Bruce Billson reverts to form' (The Australian, 6 August 2015)
6 August 2015 - Billson on misuse of market power
Following yesterday's Cabinet meeting yesterday, Small Business minister, Bruce Billson, issued a media release focussing on misuse of market power laws. In it, he clearly expresses his view that the current law on misuse of market power has failed and requires re-framing in accordance with the Harper recommendations. See The Hon Bruce Billson MP, 'Statement on making our misuse of market power laws workable, more predictable and more effective' (Media Release, 5 August 2015).
6 August 2015 - Sims opens ACCC/AER Regulatory Conference
ACCC Chairman, Rod Sims, opened the ACCC/AER Regulatory Conference today. View speech. See also ACCC media release regarding the conference, which will cover a variety of issues, including the trade-off between regulatory flexibility and certainty, net neutrality and extending competition law to government activity in trade or commerce.
5 August 2015 - John Durie on competition reform
John Durie also has an item in today's Australian on competition reform (which includes the phrase 'loony-tune amendment' - not to be missed): John Durie, 'The real threat to competition reform' (The Australian, 5 August 2015)
5 August 2015 - More on the effects test
Terry McCrann has an item in today's Herald Sun setting out his views on the proposed effects test (the item features not less than eight references to 'Kool-Aid' and, it appears, suggests wiping out any competition prohibitions that do not require proof of unlawful intent (because the 'absolute foundation of our legal system' is that 'intent' and not 'outcome' determines legality (so we'd also wipe out misleading conduct prohibitions as well and plenty of other civil prohibitions on this basis ...). McCrann also seems to suggest that the proposed change to an effects test would involve defining 'non anticompetitive' behaviour (?!) as 'small business not being hurt by the actions of a big company' - a criticism which, it seems to me, is much more appropriately leveled at the current and not the proposed provision ... ) - See Terry McCrann, 'Bruce fails his big effects test' (Herald Sun, 5 August 2015) (or just read John Durie's instead)
5 August 2015 - Baxt on s 46
Former Chairman of the competition watchdog, Prof Box Baxt, has warned introduction of effects test in s 46 is unlikely to do much to help retailers and small business, describing the ACCC's record in proving substantial lessening of competition as 'woeful'. See Richard Gluyas,' Former watchdog chief doubts change to market power' (The Australian, 5 August 2015)
5 August 2015 - Cabinet discusses competition reform
Federal Cabinet met in Adelaide today to discuss, amongst other things, the 56 Harper Review recommendations. The AFR reports that Small Business Minister, Bruce Billson, was given the green light to keep developing the proposal to introduce an effects test into s 46 of the Act. Phillip Coorey, 'Bruce Billson strikes back at BCA over effects test backlash' (AFR, 4 August 2015). Also, in response to Craig Emerson's opinion piece in the AFR Monday, ACCC Chairman, Rod Sims, has an opinion piece in the AFR, claiming the proposed changes to s 46 will help boost competition: Rod Sims, 'Why the change to Harper Competition Review law will help boost competition' (AFR, 4 August 2015)
4 August 2015 - Cabinet to discuss competition changes today
Federal Cabinet is meeting in Adelaide today and is expected to discuss proposed changes following the Harper Report, including the recommendation for the introduction of an effects test for misuse of market power. A couple of items in yesterday's AFR focus on the effects test proposal: see Phillip Coorey and Jacob Greber, 'Prime Minister takes on big business, retailers over tougher competition law' (AFR, 3 August 2015) and an opinion piece from former competition minister, Craig Emerson: 'The Coalition gives in to vested interests competition policy' (AFR, 3 August 2015).
3 August 2015 - Media on Flight Centre and ANZ
Plenty of media on the Flight Centre and ANZ appeal decisions. A couple of standouts - video interview with John Durie discussing the outcomes (John Durie and Eric George, 'ACCC setbacks could set a significant precedent' (Business Spectator, 31 July 2015)) and an item this morning from Jamie Freed (Jamie Freed, 'ACCC loss in Flight Centre, ANZ case clarifies price-fixing rules' (SMH, 3 August 2015) (also published in AFR here)). Also some firm commentary available; see, for example, commentary from Gilbert+Tobin and King & Wood Mallesons.
31 July 2015 - Reasons for judgment in Flight Centre appeal now published
The Federal Court has published its reasons for judgment in Flight Centre Limited v Australian Competition and Consumer Commission  FCAFC 104.
31 July 2015 - Reasons for judgment in ANZ appeal now published
The Federal Court has published its decision in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited  FCAFC 103.
31 July 2015 - ACCC releases statements on Flight Centre and ANZ appeals
The ACCC has issued media releases in relation to its losses in two Federal Court appeal cases today. See ACCC unsuccessful in appeal from judgment dismissing price fixing allegations against ANZ and ACCC unsuccessful in appeal by Flight Centre. In relation to both th ACCC has indicated it will 'carefully consider' the judgments.
31 July 2015 - ACCC loses ANZ appeal
The ACCC has been unsuccessful in its appeal against the decision of Justice Dowsett in ACCC v ANZ Ltd  FCA 1206.
31 July 2015 - Flight Centre wins price-fixing appeal
Flight Centre has won its appeal against Justice Logan's 2013 decision and the ACCC ordered to pay costs. See, for example, John Durie, 'Flight Centre wins price-fixing appeal against ACCC' (The Australian, 31 July 2015)
30 July 2015 - ACCC calls for comment on allegations of cartel conduct in Canberra construction industry
The ACCC has noted it is 'aware of serious allegations ... concerning alleged cartel conduct in the construction industry in Canberra, particularly concreting and scaffolding' and has urged anyone with information to contact the ACCC's cartel immunity hotline. See ACCC media release.
30 July 2015 - Flight Centre decision expected tomorrow
The decision in the Flight Centre appeal is expected tomorrow (scheduled for 9:30am). See also John Durie, 'Full Court set to rule on Flight Centre' (The Australian, 28 July 2015).
29 July 2015 - Proposed remedies for China Eastern/Qantas proposed JV
Jamie Freed has an item in the SMH today, noting remedies offered by China Eastern to ease ACCC concerns over its proposed JV with Qantas have been 'revealed to be seasonal'. See, Jamie Freed, 'China Eastern's proposed ACCC remedies for Qantas JV revealed to be seasonal' (SMH, 29 July 2015). See ACCC authorisation register.
28 July 2015 - Commentary on Foxtel-Ten deal
Plenty of commentary surrounding Foxtel's proposal to acquire up to 15% of Ten Network Holdings. See, for example, Joe Dimasi, 'Sport the crunch point for regulator in Foxtel-Ten deal' (The Conversation, 28 July 2015), Dominic White, 'Murdochs on notice over Foxtel grab for Ten' (AFR, 27 July 2015) and Elysse Morgan, 'Fairfax boss warns Foxtel's Ten play will entrench Murdoch dominance' (ABC News, 28 July 2015). See merger register (provisional date for the ACCC's announcement is 10 September)
26 July 2015 - Commentary on Pfizer litigation
Suiyi Zhang has a comment on Justice Flick's Pfizer decision earlier this year. See Suiqi Zhang, 'Australia’s turn at antitrust pharmaceutical litigation has so far yielded interesting results' (Chillin' Competition blog, 15 July 2015).
24 July 2015 - Telstra competitors demand Communications Dept withdraw submission to ACCC
It has been reported that the Competitive Carriers Coalition has demanded the Dept of Communications withdraw a submission to the ACCC that backs Telstra's efforts to increase the regulated price it charges for access to its fixed copper network. See Mitchell Bingemann, 'Telcos slam department's Telstra defence' (The Australian, 24 July 2015, page 21 (or online version)), Renai LeMay, '"Extraordinary": Telcos slam Turnbull's Dept for backing Telstra over consumers' (Delimiter, 24 July 2015) and Juha Saarinen, 'Telco rivals slam govt intervention in Telstra price decision' (itnews, 23 July 2015). See also Optus submission in response to Department of Communications submission, received and released today.
See also ACCC fixed line services FAD inquiry page, including Further draft decision page (with draft decision and submissions on draft decision). Submissions were invited until 17 July and a final decision is anticipated in September. Submissions were released on the ACCC website on 22 July 2015.
23 July 2015 - ACCC proposes to approve revised NBN/Optus arrangements
The ACCC is proposing to authorise provisions within revised agreements between NBN Co and Optus involving "progressive migration of Optus' HTC subscribers to the new multi-technology NBN ...'. View authorisation register. View draft decision. View press release.
22 July 2015 - ACCC's Jill Walker appointed to NZCC
Current ACCC Commissioner, Dr Jill walker, has been appointed to the New Zealand Commerce Commission for a five year term. The term will commence on 1 December; however, Dr Walker will continue to serve as an ACCC Commissioner until April 2016. View ACCC press release.
17 July 2015 - ACCC proposes to authorise credit reporting system
The ACCC 'proposes to grant authorisation for five years to the Australian Retail Credit Association Ltd (ARCA) in relation to principles for exchanging comprehensive consumer credit data between signatory credit reporting bodies and lenders'. View press release. See draft determination. See authorisation register.
16 July 2015 - Coles and Supabarn - plenty of chatter
There has been some chatter about Coles' proposed acquisition of nine Supabarn supermarkets over the last few days. Fairfax produced an editorial on the issue yesterday ('Coles' purchase of Supabarn faces competition test by ACCC' (The Canberra Times, 15 July 2015)) and, surprisingly enough, Master Grocers Australia has called for the acquisition to be blocked ('Supabarn to Coles should be blocked by ACCC, Master Grocers Australia says' (666 ABC Canberra, 15 July 2015) and John Thistleton, 'Independent supermarkets object to Coles buying Supabarn chain' (SMH, 14 July 2015)). It's such a hot topic the ACCC has even produced a Q&A on the proposed acquisition. The ACCC commenced an informal review on 22 June, with market inquiry letters sent on 25 June. Interested parties can make submissions until 20 July 2015. View merger register.
10 July 2015 - Sea Swift's proposed acquisition of Toll Marine Logistics heading to the Tribunal
Toll Marine Logistics looks set to take their proposed deal with Sea Swift to the Australian Competition Tribunal after yesterday's announcement by the ACCC's that it would oppose the deal. See, eg, John Durie, 'Japan Post to appeal ACCC rejection of Sea Swift merger deal' (The Australian, 10 July 2015) and Elliana Lawford, 'Toll Group to appeal to ACCC's decision to oppose NT freight assets sale to rival Sea Swift' (ABC News, 9 July 2015).
9 July 2015 - ACCC opposes Sea Swift's proposed acquisition of Toll Marine Logistics
The ACCC has 'decided to oppose the proposed acquisition by Sea Swift Pty Ltd of the Northern Territory and far north Queensland marine freight business of Toll Marine Logistics Australia ... because it would be likely to substantially lessen competition'. View media release. View merger register.
9 July 2015 - ACCC grants interim authorisation to Qantas and American Airlines
The ACCC 'has granted interim authorisation to Qantas ... and American Airlines so they can introduce additional joint services between Australia and the US under an expansion of their alliance.' View media release. View authorisation register.
4 July 2015 - Billson speech to CEDA available
Small Business Minister, Bruce Billson MP's, speech to CEDA on Wednesday is now available. On competition laws, Billson discusses (or at least mentions) s 46, merger clearance and authorisation, extension of the Act to a broader range of government activity and simplifying cartel conduct. View transcript.
3 July 2015 - Coles proposed acquisition of nine Supabarn supermarkets
The ACCC has invited submissions on the review of Coles' proposed acquisition of Supabarn supermarkets. See, ACCC, 'Q&A: Coles proposed acquisition of Supabarn supermarkets'. See also merger register.
2 July 2015 - ACCC will not oppose proposed lease acquisition by Coles, subject to divestiture
The ACCC 'has announced that it will not oppose the proposed acquisition by Coles Supermarkets Australia of a lease to operate a supermarket at Lakelands, Western Australia, after accepting a court-enforceable undertaking [which] requires Coles to divest its freehold interest in a nearby development at Singleton, WA to a purchaser approved by the ACCC within a specified period.' See media release. See merger register.
1 July 2015 - Government's Harper response delayed until September (at least)
Small Business Minister, Bruce Billson, spoke at CEDA today. He indicated (again) that he backs the proposed changes to s 46, but the Government response will be delayed until at least September. See John Durie, 'Harper competition review response delayed' (The Australian, 1 July 2015)
1 July 2015 - Harper consultation submissions available
Treasury has now published all non-confidential submissions made in response to its consultation on the Harper Review Final Report. Treasury received 140 submissions in response to this consultation. Of these submissions, 8 were confidential. View submissions.
1 July 2015 - Harper under wraps
In today's Australian John Durie notes that Small Business Minister, Bruce Billson MP, will not be giving the government's response to the Harper Review today as cabinet is yet to consider his recommendations. See John Durie, 'Harper Still Under Wraps' (The Australian, 1 July 2015, page 28). Small Business Minister Billson is speaking at CEDA today on Competition Policy Reform, together with Prof Allan Fels.
30 June 2015 - No cartel fines in Australia for 2015
The Australian has an item by Leo Shanahan this morning highlighting the disparity in cartel fines between Australia and other jurisdictions in the year to date. See Leo Shanahan, 'ACCC fails to impose fine for cartel conduct' (The Australian, 30 June 2015)
29 June 2015 - ACCC accepts Cabcharge undertaking
The ACCC has 'accepted a court enforceable undertaking from Cabcharge Australia Limited (Cabcharge) under which rival payment processors (third parties) will be able to process Cabcharge cards on their own in-taxi payment terminals'. See press release. See undertaking.
26 June 2015 - Gilbert + Tobin Competition Review 2015
Gilbert + Tobin has released its 2015 Gilbert + Tobin Competition Review, featuring Harper Review discussion (including interview with Michael O'Bryan QC), enforcement trends, mergers and acquisitions and plenty more.
26 June 2015 - High Court grants special leave in agreed penalties case
The High Court had granted the Commonwealth of Australia special leave to appeal the decision in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59 (1 May 2015), in which the Full Federal Court concluded that they should not have any regard to the figures agreed by the parties in relation to penalties.
25 June 2015 - ACCC authorises magazine distribution pilot program
The ACCC has authorised the Association of Magazine Publishers of Australia to run a pilot magazine distribution program over 3-6 months with the 40 newsagents that have agreed to participate' which 'will test the effectiveness of a proposed approach to address longstanding problems with the oversupply of magazines to newsagents. View ACCC press release. View authorisation register.
25 June 2015 - ACCC will not oppose JV between Patrick's and Australian Container Freight Services
The ACCC has announced it will not oppose the proposed Joint Venture between Patrick Container Ports Pty Ltd and Australian Container Freight Service Pty Ltd, finding that the provisions of the JV relating to the acquisition of shares or assets were unlikely to substantially lessen competition. See press release. See merger register.
24 June 2015 - Harris: Harper reforms key to lift the economy
The Productivity Commission Chairman, Peter Harris, has urged the government to take the recommendations of the Harper Review seriously, noting competition reform was needed for productivity growth. See David Uren, 'Harper reforms key to lift economy: PC boss Peter Harris' (The Australian, 24 June 2015).
19 June 2015 - ACCC to review Coles' proposed takeover of Supabarn stores
The ACCC will review the proposed acquisition by Coles of nine Supabarn stores. See ACCC press release and merger register. See also Michael Roddan, 'ACCC to review Coles' Supabarn buy' (The Australian, 19 June 2015), AAP, 'Watchdog to review Supabarn takeover' (SBS, 19 June 2015).
17 June 2015 - Media on ACCC Toll investigation
There is plenty of media relating to the ACCC's announcement yesterday that it did not consider that the alleged conduct contravened the CCA. See, for example: Ewin Hannan, 'Secret deals between Toll Holdings and the TWU did not breach competition laws, says ACCC' (AFR, 16 June 2015), Robert Gottliebsen, 'Old laws don’t work in the new era of industrial relations' (Business Spectator, 17 June 2015), Peter Trute, 'Union calls for end to commission "attack"' (The Australian, 16 June 2015) and 'ACCC gives Toll and TWU the all clear on agreements' (ATN, 16 June 2015)
16 June 2015 - ACCC concludes investigation into Toll - concludes no contravention of the CCA
The ACCC has concluded its investigation into alleged anti-competitive agreements between Toll Holdings Ltd and the Transport Workers Union of Australia and has concluded that the alleged conduct does not contravene the provisions of the CCA. See media release.
12 June 2015 - ACCC delays decision on Sea Swift's acquisition of Toll Marine Logistics at request of parties
The ACCC has indicated that although it was 'ready to make and announce a decision in this matter yesterday' it has delayed its decision in relation to Sea Swift's proposed acquisition at the request of the parties 'so that they could make submissions about changes to the transaction and a new proposed undertaking that will attempt to address [the ACCC's] preliminary competition concerns'. See media release. See merger register.
11 June 2015 - ACCC releases statement of issues on TPG's proposed acquisition of iiNet
The ACCC has released a Statement of Issues outlining the ACCC's preliminary views on the proposed acquisition of iiNet by TPG. A final decision is now expected on 20 August, with submissions on the statement of issues due by 2 July. See press release. See merger register.
11 June 2015 - ACCC proposes to authorise joint procurement for waste services by NSW and Victorian councils
The ACCC has issued draft determinations proposing to authorise:
- various councils in Victoria to have the Metropolitan Waste and Resource Recovery Group act on their behalf to jointly procure services relating to receiving and processing recyclable waste (see press release and authorisation register); and
- various councils in New South Wales to jointly procure organic waste collection and processing services (see press release and authorisation register)
11 June 2015 - ACCC releases SOI on Ramsay's proposed acquisition of Wollongong Day Surgery
The ACCC has released a Statement of Issues on the proposed acquisition by Health Care Corporation (Ramsay) of Wollongong Day Surgery, noting that the ACCC is 'concerned that the proposed acquisition is likely to substantially lessen competition in the supply of day surgery services to private health funds and the Department of Veteran Affairs'. Proposed date for final decision is now 27 August. Submissions on SOI due by 2 July. See press release. See ACCC merger register.
11 June 2015 - ACCC issues final determination on NBN Co's LTRCM
The ACCC has issued its final determination on NBN Co's Long Term Revenue Constraint Methodology fro the 2013-2014 financial year. See media release.
10 June 2015 - ACCC to rule on TPG's proposed acquisition of iiNet
The ACCC is expected to announce a decision on TPG's proposed acquisition of iiNet tomorrow. See, for example, John Durie, 'ACCC set to rule on TPG’s bid for rival iiNet' (The Australian, 8 June 2015).
4 June 2015 - Submissions to Treasury on Harper Review Final Report
Submissions to Treasury on the Harper Review Final Report were due last Tuesday but have yet to appear on the Treasury Consultation website. A number of organisations have posted their submissions on their own sites, including the ACCC, ACCI, Consumer Action Law Centre, FARE and the Insurance Council of Australia. A full list of the submissions I've found so far can by found on my consultation sub-page - more will be added as I find them.
4 June 2015 - ACCC proposes to re-authorise Virgin/Delta Trans-Pacific Alliance
The ACCC proposes to re-authorise Virgin/Delta Trans-Pacific Alliance for a period of five years. It has granted interim authorisation which will take effect from the date of expiry of the existing authorisation. See press release. See authorisation register. See also 'ACCC green lights extension of Virgin Australia-Delta trans-Pacific alliance' (Australian Aviation, 4 June 2015)
4 June 2015 - ACCC releases issues paper for the East Coast Gas Inquiry
2 June 2015 - Craft beer and exclusive contracts
The ABC has a story on craft beer and concerns from craft brewers about the exclusive contracts between pubs and major breweries. However, ACCC Chairman, Rod Sims, cautioned of the difference between 'exclusionary conduct that could lessen competition' and the 'proper working of the market'. Sims indicated that the ACCC's main concern is 'truth in advertising'. See Jeremy Story Carter, 'Brewers thirsty for change as craft concerns come to a head' (ABC Radio National, 2 June 2015). See also media from earlier this year - eg, Adele Ferguson, 'Beer battle 'priority' as ACCC puts heat on Lion, Carlton & United over beer tap deals' (SMH, 16 February 2015)
1 June 2015 - ACCC Harper Submission
The ACCC's submission on the Harper Review recommendations is now available online. See ACCC press release. See submission. For media on the submission see, for example, Michael Roddan, 'ACCC opposes Harper cartel change' (Business Spectator, 1 June 2015), Annabel Hepworth, 'Action on cartels open to abuse, says regulator' (The Australian, 2 June 2015)
1 June 2015 - Sims: Section 46: The Great Divide
30 May 2015 - Competition Law Conference 2015
Another great Competition Law Conference in Sydney today put together by Chris Hodgekiss. Paper and slides presented by Dr Martyn Taylor are available online: Martyn Taylor, 'Competition Law in High Technology Industries: Insights for Australia' (Competition Law Conference, Sydney, 30 May 2015)
28 May 2015 - The hidden cost of the free
Terrific seminar today by Michal Gal on the 'Hidden Costs of Free Goods' - based on a paper authored by Michal and Daniel L Rubinfeld ' 'The Hidden Costs of Free Goods: Implications for Antitrust Enforcement' (NYU Law and Economics Research Paper No. 14-44, January 2015). The seminar was the latest in the Competition Law and Economics Network's seminar series.
28 May 2015 - ACCI opposes proposal to axe role of ACCC small business commissioner
The AFR has an item today on the ACCI's submissions on the Harper Report - in particular its opposition to axing the role of small business commissioner in the ACCC and its support of proposed changes to 46. See Nassim Khadem, 'Don't forget small business or put competition policy reform in the too-hard basket, says ACCI' (AFR, 28 May 2015)
25 May 2015 - ACCC alleges cartel conduct in the NSW Government's Mount Penny coal exploration licence tender process
The ACCC has commenced proceedings in the Federal Court against eleven respondents alleging bid rigging involving mining exploration licences in the Bylong Valley. See ACCC press release. See also Leo Shanahan, 'ACCC takes action against Obeid family interests' (The Australian, 25 May 2015), Kate McClymont, 'Moses Obeid, Paul Obeid and businessmen accused of 'cartel conduct' by ACCC over Bylong Valley coal licences' (SMH, 25 May 2015), Michael Janda, 'ACCC launches cartel proceedings against Eddie Obeid's sons' (ABC, The World Today) (5 min audio) and Tony Boyd 'Obeids cop ACCC cartel allegations over Mt Penny coal' (AFR, 25 May 2015)
21 May 2015 - ACCC issues fifth water monitoring report
The ACCC 'has publicly released its fifth Water Monitoring Report [which] details the impact of water market and charge reforms on irrigators and infrastructure operators in the Murray-Darling Basin (MDB).' See media release.
21 May 2015 - ACCC will not oppose Federation Centres' proposed acquisition of Notion Property Group
The ACCC 'has announced that it will not oppose Federation Centres’ proposed acquisition of Novion Property Group after accepting court-enforceable undertakings from the parties to divest one of their shopping centres in South East Melbourne.' View media release. View merger register.
19 May 2015 - Samuel: Iron ore inquiry could damage investment reputation
Former ACCC Chairman, Graeme Samuel, has told the ABC that a parliamentary inquiry into the iron ore industry could damage Australia's investment reputation: see Peter Ryan, 'Iron ore inquiry could damage Australia's investment reputation: Samuel' (ABC news, 18 May 2015). See also Flavio Menezes, 'Competition the wrong test for iron ore inquiry' (The Conversation, 18 May 2015)
18 May 2015 - ACCC finds no evidence of cartel conduct by fuel retailers in Armidale
The ACCC has concluded an investigation into allegations of ant-competitive conduct be fuel retailers in Armidale, finding no evidence of cartel conduct. See press release.
14 May 2015 - ACCC and the budget
13 May 2015 - ACCC reports on Telstra's compliance with SSU
The ACCC annual report on Telstra's compliance with its Structural Separation Undertaking was tabled in Parliament on Tuesday. While generally compliant, the report notes Telstra failed to meet its obligations on a number of occasions. See ACCC press release. See also Chris Duckett, 'Telstra Retail had better ADSL tools than Wholesale: ACCC' (ZDNet, 13 May 2015) and Stan Beer, 'Telstra breached Structural Separation obligations in 2014: ACCC' (IT Wire, 13 May 2015)
8 May 2015 - Agreed penalties
Ayman Guirguis, Richard Filtcroft and Asa Lam at Corrs have a briefing on the recent Full Federal Court decision in CFMEU dealing with agreed penalties - 'Where to now for Agreed Civil Penalty Outcomes following the CFMEU and Barbaro Decisions' (Corrs Chambers Westgarth, 'Corrs in Brief', 8 May 2015). For links to cases and additional commentary click here.
6 May 2015 - Failing firms and mergers
Michael Corrigan and Ian Reynolds at Clayton Utz have a news item on the ACCC's approach to failing firm claims in merger clearance applications, focussing on the ACCC's recent decision not to oppose VIP Steel Packaging's proposed acquisition of certain steel drum assets from National Can Industries. See Michael Corrigan and Ian Reynolds, 'When will the ACCC clear a 'failing firm' transaction?' (Clayton Utz, 6 May 2015)
6 May 2015 - Draft ruling on network access
The ACCC has issued a draft decision 'on the regulated price that mobile network operators charge each other and fixed-line network operators for receiving calls on their mobile network'. The decision also 'sets a regulated price that mobile network operators may charge for receiving SMS messages'. Final decision is expected to be released in July. See ACCC press release. See Mobile terminating access service FAD inquiry 2014. See also Esther Han, 'Cheaper mobile calls and text as ACCC moves to slash wholesale fees' (SMH, 6 May 2015)
5 May 2015 - King and Samuel on misuse of market power - again
Professors Stephen King and Graeme Samuel have an item in today's Conversation about the proposed changes to the misuse of market power provision: Stephen King and Graeme Samuel, 'Competition law fix could seriously harm competition' (The Conversation, 5 May 2015)
5 May 2015 - ACCC and secondary boycotts
AFR has an opinion piece on the ACCC's approach to secondary boycotts: Stuart Wood 'Union thuggery is beyond ACCC's comfort zone' (AFR, 5 May 2015)
1 May 2015 - Russell Miller on Harper proposals
Russell Miller has an item in today's Conversation - 'Competition Debate must move beyond effects test battle' (The Conversation, 1 May 2015)
1 May 2015 - ICN meeting concludes in Sydney
The 2015 ICN Annual Meeting concluded in Sydney today. The International Competition Network comprises 130 competition agencies from 115 jurisdictions and the Meeting was attended by delegates from over 70 countries. See ACCC Press Release.
1 May 2015 - New State of Competition
The latest issue of The State of Competition is now available. This time Alexandra Merrett and Rhonda Smith focus on the pros and cons of adopting principles adopted in other jurisdictions. They focus on differences in the US and European systems as well as approaches taken in NZ. View Merrett and Smith, Here there be dragons: The pros & cons of overseas adventures' (April 2015) 22(1) The State of Competition (PDF)
1 May 2015 - ACCC closes investigation on Andrew Forrest's comments
The ACCC has closed its investigation into Andrew Forrest's comments calling for a cap on iron ore production and has decided against taking any further action. See ACCC, 'ACCC concludes assessment of Fortescue chairman’s call for cap on iron ore production (ACCC Media Release, 30 April 2015). See also Andrew Burrell, 'ACCC forgive Forrest's controversial iron ore 'cartel' call' (The Australian, 1 May 2015) and Amanda Saunders, 'Rio Tinto tells Fortescue billionaire Andrew Forrest to 'get your own house in order' (AFR, 1 May 2015)
30 April 2015 - Gilbert + Tobin release merger app
Gilbert + Tobin have released a guide to the merger clearance process in Australia, available through their G+T Insights app (for Android or iOS). It is also downloadable as PDF or for viewing online.
30 April 2015 - ACCC issues ACCCount for March quarter
The ACCC has published ACCCount for the March quarter 2015. View ACCCount 1 January to 31 March 2015.
30 April 2015 - Australia and Japan sign cooperation agreement
The ACCC and Japan Fair Trade Commission (JFTC) signed an agreement at the International Competition Network meeting in Sydney. Amongst other things, the agreement will enable the JFTC to 'share confidential information without getting a waiver'. This builds on the Agreement between Japan and Australia for an Economic Partnership (Signed on 8 July 2014 and entered into force on 15 January 2015) See ACCC press release. The agreement is not yet available on the ACCC's treaties and agreements page.
30 April 2015 - ACCC will not oppose VIP Steel's proposed acquisition of certain assets from National Can Industries
The ACCC 'has announced that it will not oppose the proposed acquisition by VIP Steel Packaging Pty Ltd’s (VIP Steel) ... of certain assets used in the manufacture of large steel drums from National Can Industries Pty Ltd (NCI)', concluding that the proposed acquisition would be unlikely to substantially lessen competition'. See press release. See merger register.
29 April 2015 - Prof Frédéric Jenny's Baxt lecture now available (audio and PPT)
The audio, slides and some images from the Sixth Annual Baxt Lecture, delivered by Prof Frédéric Jenny, are now available: 'The Institutional Design of Competition Authorities: International Debates and Trends'.
29 April 2015 - Harper argues for ACCC split
Ian Harper spoke at yesterday's World Bank-IBA conference, ahead of the ICN Meeting in Sydney. He spoke (amongst other things) about the proposals in the Harper Report to split the ACCC - in particular, to create the Australian Council for Competition and to give existing ACCC functions in relation to energy, water and telecommunications to a separate agency. See John Durie, 'Harper makes case to split the ACCC into two bodies' (The Australian, 29 April 2015)
28 April 2015 - International Competition Network Annual Meeting begins in Sydney today
Competition heavyweights from around the world are converging on Sydney for the 14th International Competition Network annual meeting, this year hosted by the ACCC in Sydney. The meeting begins this evening with a welcome reception at the Sydney Opera House and then it's down to business from tomorrow until Friday afternoon. The ACCC was one of the founding 16 member agencies of the Network which now comprises over 100 competition agencies from almost as many jurisdictions. For details about the conference see the conference home page.
27 April 2015 - ICC launches SME toolkit and recommendations on pre-merger notification regimes in Sydney today
The ICC held its 7th Annual Roundtable on Competition Policy in Sydney today. Following a keynote speech by ACCC Chairman, Rod Sims, the ICC launched the ICC SME Toolkit, designed to improve SME antitrust compliance and later released ICC Recommendations on Pre-Merger Notification Regimes. See media release.
27 April 2015 - Rod Sims rejects claim effects test will hurt shoppers
ACCC Chairman, Rod Sims, has (again) expressed his view that the introduction of the effects test for misuse of market power, as proposed in the Harper Report, is 'sensible' and in no way targeted at particular segments of the economy. See Esther Han, 'ACCC boss Rod Sims rejects supermarket claims effects test will hurt shoppers' (SMH, 27 April 2015)
27 April 2015 - Supermarket Power Project launched
A new Australian Research Council (ARC) - funded project on Supermarket Power in Australia was launched today. Visit Supermarket Power Project website for more details.
27 April 2015 - Australia's cartel Immunity Policy
Paul Schoff at Minter Ellison has provided a briefing on the operation of Australia's cartel immunity policy: see Paul Schoff, 'Australian competitive edge: cartel immunity policy' (The Lawyer, 27 April 2015)
24 April 2015 - ACCC grants interim authorisation for BP participation in Velocity Frequent Flyer Program
The ACCC has granted 'interim authorisation to allow BP and participating BP branded fuel retailers to participate in the Velocity Frequent Flyer Program'. See ACCC updates and authorisation register.
24 April 2015 - Billson hosts first Competition Policy Review consultation Roundtable
Small Business Minister, Bruce Billson MP, hosted the first consultation Roundtable on the Harper Competition Policy Review today. View press release.
24 April 2015 - ACCC authorises Medicines Australia code
24 April 2015 - Prof Frédéric Jenny delivers Sixth Annual Baxt Lecture
24 April 2015 - April issue of ABLR
The April issue of the Australian Business Law Review has also been published. The key contribution of interest for competition law is the article by Rhonda Smith and Arlen Duke entitled: 'Information exchange, hub and spoke arrangements and collusion'.
24 April 2015 - Latest CCLJ out now
The latest Competition and Consumer Law Journal has now been published and features three articles on parallel import restrictions:
- Edgar Lazeanu, Repealing the parallel importation restrictions for books: The case for an ‘Author Offset’
- Susy Frankel, Chris Nixon, Megan Richardson and John Yeabsley, 'Parallel importing — The New Zealand experience with book publishing'
- Arlen Duke and Matthew E Taylor, 'Parallel import restrictions: Core intellectual property rights or unjustified restraints on trade?'
It features a further two articles on statutory undertakings and financial advice reforms:
- Justice Alan Robertson, 'Statutory undertakings: Their history, use and utility and the perspective of the court'
- Gill North, 'The future of financial advice reforms: Will they achieve their long term objectives?'
23 April 2015 - The Harper Review and privatisation
In a speech to CEDA today, ACCC Chairman, Rod Sims, discussed three key issues affecting competitiveness of Australian markets; section 46, concerted practices and privatisation. See ACCC, 'The Harper Review and Privatisation' (ACCC Media Release, 23 April 2015) (the full speech is not yet available on the ACC website, but the press release quotes heavily from the speech on all three issues)
23 April 2015 - Sims accuses supermarkets of confusing debate around s 46
At a speech to CEDA today, ACCC Chairman, Rod Sims, See Eli Greenblat, 'ACCC raps supermarkets for ‘confused’ debate' (The Australian, 23 April 2015) (speech not yet available on ACCC website)
23 April 2015 - Sims warns of gaps in cartel laws
At a speech to CEDA today, ACCC Chairman, Rod Sims, warned of gaps in cartel laws. See Mark Ludlow, 'ACCC's Rod Sims warns of 'gaps' in cartel laws' (AFR, 23 April 2015) (speech not yet available on ACCC website)
23 April 2015 - Ian Harper speeks on pharmacy restrictions
At a speech to CEDA today, Prof Ian Harper focussed on pharmacy restrictions, claiming existing anti-competitive measures were not in the public interest: see Glen Norris, 'Harper Review recommendations on competition a bitter pill for pharmacies' (Courier-Mail, 23 April 2015)
23 April 2015 - ACCC will not oppose AAT's proposed acquisition of lease to operate auto terminal at Port of Fremantle
The ACCC will not oppose AAT’s proposed acquisition of the lease to operate the automotive terminal at Port of Fremantle, subject to a s 87 Undertaking addressing the ACCC's vertical competition concerns. See ACCC Press Release. See merger register.
21 April 2015 - Telstra slams ACCC access pricing rulings
Telstra has described recent ACCC's rulings on access pricing as 'baffling' and 'strange'. See Mitchell Bingemann, 'ACCC has lost the plot on access pricing: Telstra' (Herald Sun, 21 April 2015) or Mitchell Bingemann, "Telstra slams ACCC price rulings in transition to NBN" (The Australian, 20 April 2015)
20 April 2015 - Harper Review and cartel immunity
Arnold Bloch Leibler partners, Zaven Mardirossian and Matthew Lees argue that the Harper Review missed an opportunity to tackle the ACCC's immunity policy for cartel conduct, disagreeing with the Panel's conclusion that the current regime provides an adequate level of certainty: See Zaven Mardrirossian and Matthew Lees, 'Harper Review leaves cartel immunity uncertain' (The Australian, 20 April 2015)
20 April 2015 - ACCC extends consultation period for proposed China Eastern/Qantas deal
On 16 April the ACCC extended the deadline for consideration of the authorisation application until 31 August 2015; in accordance with s 90(10A) of the Act they are seeking agreement from the parties (requested by 21 April) for the extension. This follows a request by Qantas for additional time to provide its submission in response to the ACCC's draft determination. On On 24 March the ACCC released a draft determination proposing to deny authorisation. See authorisation register. See also Matt O'Sullivan, 'Pressure grows on ACCC to drop opposition to Qantas-China Eastern alliance' (SMH, 20 April 2015) and 'ACCC extends consultation period for proposed China Eastern-Qantas alliance' (Australian Aviation, 20 April 2015)
20 April 2015 - ACCC monitoring Staples Inc's proposed acquisition of Office Depot
The ACCC is monitoring the proposed acquisition of Office Depot by Staples and will commence informal review following receipt of further information from the parties. See merger register. See also John Durie, 'Scrutiny on US office supplies merger' (The Australian, 20 April 2015)
17 April 2015 - Allens >< Linklaters Competition Law Update
The latest 'In Touch' Competition Law Update from Allens >< Linklaters is now available.
17 April 2015 - Michael O'Bryan QC on the Harper Report
Harper Review panelist, Michael O'Bryan QC, discusses the Harper recommendations in today's Financial Review: see Katie Walsh, 'Courts, business up to the challenge: Harper panellist & silk' (AFR, 17 April 2015)
16 April 2015 - Harper Review video commentary from KWM
In a series of recent video's King & Wood Mallesons partners discuss some key Harper Review proposals:
- Peta Stevenson and Lisa Huett, discuss the Harper Review's key enforcement recommendations: Matt Sherman, 'Powers and Penalties - The Harper Review's Key Enforcement Recommendations' (KWM, In Competition, 16 April 2015)
- Sharon Henrick and Caroline Coops discuss the Harper Committee's recommendations in relation to merger control: Martine Phillips, 'Clearing the way for Improvements to Australia's Merger Control Processes' (KWM, In Competition, 16 April 2015)
- Andrew Monotti and Wayne Leach discuss privatisation: Susan Zhuang, 'Privatisation: A hot topic of public conversation' (KWM, In Competition, 13 April 2015)
16 April 2015 - The Role of the ACCC in Court Proceedings
In King&Wood Mallesons' latest In Competition blog post, partners Trish Henry and Stephen Ridgeway discuss the role of the ACCC in Court proceedings, noting increased litigation by the ACCC. See Tamara Hunter, 'Current Trends in Competition Law Litigation' (In Competition, 16 April 2015).
16 April 2015 - Sims on Google
On Wednesday, following a lengthy investigation, the European Commission sent a Statement of Objections to Google. The SO set out the EC's preliminary view that Google has abused its dominant position in breach of Article 102 TFEU by favouring its own comparison shopping product in its search results. Yesterday, in an interview on ABC's 'The World Today', ACCC Chairman, Rod Sims, indicated that they are monitoring what the EC is doing but are not planning their own investigation at this stage. See Pat McGrath, 'ACCC lets EU do heavy lifting on Google competition investigation' (ABC, The World Today with Eleanor Hall, 16 April 2015). See also EC Google Case page. On the same day it issued the SO to Google in relation to it shopping search results, the EC also opened a separate competition investigation into Google's conduct with regard to the open-source Android operating system. See further Evgenia Kanellopoulou, 'Google and Android in the firing line as EU pulls trigger on competition inquiry' (The Conversation UK, 16 April 2015).
16 April 2015 - Harper speech to CEDA
The speech given to CEDA by Competition Policy Review Chair, Prof Ian Harper, on Tuesday is now available online. View speech. Video of Professor Harper's speech is also available from the CEDA website.
14 April 2015 - ACCC investigating allegations of misuse of market power in relation to Telstra's wholesale 4G services
The Australian reports that the ACCC is investigating claims Telstra is misusing its market power by 'refusing to wholesale its superfast 4G services to rival telcos': see Mitchell Bingemann, 'Watchdog probes Telstra's 4G delays' (The Australian, 13 April 2015, page 17. See also Rohan Pearce, 'ACCC mulls response to Telstra 4G wholesale complaint' (Computerworld, 13 April 2015)
14 April 2015 - No cross-subsidy of contestable services by Australia Post
The ACCC's tenth report assessing cross-subsidy between Australia Post services has concluded that Australia Post 'is not using profits from its monopoly reserved letter services to unfairly compete in other markets'. See Press Release.
14 April 2015 - ACCC's proposal to block Qantas/China Eastern coordination agreement criticised by Infrastructure Department
On 24 March the ACCC issued a draft determination proposing to deny authorisation for Qantas and China Eastern to coordinate operations between Australia and China. One of the submissions to the ACCC in response to the draft decision came from the Aviation Industry Policy Branch of the Department of Infrastructure and Regional Development, arguing that the proposed alliance would be 'positive for the Australian economy'. See Matt O'Sullivan, ''No reason to deny' Qantas-China Eastern deal' (The Australian Financial Review, 14 April 2015, page 18), Steve Creedy, 'ACCC slammed over decision to block Qantas-China Eastern link' (The Australian, 13 April 2015) and Dow Jones Newswires, 'Govt slams ACCC on airline tie-up' (Herald Sun, 13 April 2015).
13 April 2015- ACCC to conduct inquiry into competitiveness of wholesale gas prices
The Government has directed the ACCC to commence a '12 month public inquiry into the competitiveness of wholesale gas prices in Eastern and Southern Australia'. See press release. View my review page. See also Mark Ludlow, 'ACCC to probe wholesale gas prices on east coast and South Australia' (AFR, 14 April 2015)
10 April 2015 - Shadow treasurer rejects effects test for section 46
Shadow Treasurer, Chris Bowen MP, has an opinion piece in today's AFR in which he opposes the introduction of an effects test for section 46, claiming it represents 'dangerous economic policy': see Chris Bowen, 'Effects test will hamper competitors' (AFR, 10 April 2015). See other Harper Review media here.
10 April 2015 - ACCC will not oppose Dometic's aquisition of Aircommand
7 April 2015 - Harper media and commentary
There continues to be plenty of media and commentary surrounding the Harper Review Final Report. I have linked to much of it here, including links to firm commentaries, academic and professional commentary, media commentary and industry responses.
7 April 2015 - ACCC re-authorises Bulk Electronic Clearing System (BECS) regulations
The ACCC has re-authorised the suspension and termination provisions of the Australian Payments Clearing Association's (APCA) BECS regulations for a period of ten years. See ACCC update. See authorisation register.
2 April 2015 - Federation-Novion proposed merger decision delayed to allow further information
On 1 April the ACCC extended the provisional decision date for their review of the Federation Centres proposed merger with Novion to allow parties to provide further information. See merger register. See further Greg Brown, 'ACCC extends review of Novion-Federation deal' (The Australian, 7 April 2015)
2 April 2015 - ACCC will will not oppose VQIRT’s proposed acquisition of lease to operate automotive terminal at Port of Fremantle
The ACCC has announced that it 'will not oppose the proposed acquisition by Victoria Quay International RoRo Terminal Pty Ltd (VQIRT) of a long-term lease to develop and operate the Automotive and RoRo Terminal at the Port of Fremantle, after accepting a court-enforceable undertaking.' See press release. See merger register.
2 April 2015 - ACCC seeks views of Viterra's application to introduce long term agreements at SA wehat ports
The ACCC 'is seeking comment from interested parties in the bulk wheat export industry on Viterra’s application to introduce long term agreements for shipping at its six South Australian wheat port terminals.' See press release.
1 April 2015 - Harper Report update
There has been plenty of media following the release of the Harper Report. I am compiling links to relevant media on my Harper Media Page (far too many to list here). I have also created a separate 'final recommendations page' extracting only the 56 recommendations in the report (including downloadable PDF version) and a page comparing the draft and final recommendations. More detail will follow progressively.
31 March 2015 - Harper Report - further consultation
Small Business Minister, Bruce Billson, has launched a consultation on the Harper Review Final Report. Details here. Submissions due by 26 May 2015
31 March 2015 - Harper Report out now
31 March 2015 - Harper Report release now 3:15pm
Small Business Minister, Bruce Billson's, press conference releasing the Harper Report is now expected at 3:15pm
31 March 2015 - Harper Report due 2pm
Small Business Minister, Bruce Billson, will release the Final Report of the Harper Competition Policy Review at a press conference in Melbourne at 2pm today. See James Bennett, 'Harper Review to be released today; Federal Government commits to act on report' (ABC News, 31 March 2015).
31 March 2015 - New legislation proposes to remove s 5 requirement for ministerial consent
On 18 March the Small Business Minister, Bruce Billson MP, introduced the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 into the House. If passed, it will remove the requirement for private parties to seek Ministerial consent when bringing an action for a breach that takes place overseas. The Bill also proposes amendment to s 155 to give the Court power to compel compliance with a s 155 notice. The Bill has now been referred to the Senate Economics Committee for consideration. Submissions close on 21 April with a report due on 13 May.
31 March 2015 - Harper Review final report out today
The Final Report of the Harper Competition Policy Review will be released today by Small Business Minister, Bruce Billson. Media ahead of the release includes the following: Marianna Papadakis and Jacob Greber, 'Power plays by big companies under Harper review spotlight' (AFR, 30 March 2015) and Katie Walsh, 'Harper's competition a threat to public services: ACOSS' (AFR, 30 March 2015).
31 March 2015 - 'PM declares war on spud board'
Ahead of the release of the Competition Policy Review Final Report later today, Small Minister Bruce Billson, has accused the anti-competitive WA Potato Marketing Corporation of imposing a net detriment on WA citizens of around $3.8 million a year. See Andrew Probyn and Shane Wright, 'PM declares war on spud board' (The West Australian, 31 March 2015).
30 March 2015 - Harper Review final report due tomorrow
The Final Report of the Harper Competition Policy Review will be released tomorrow by Small Business Minister, Bruce Billson. The Minister has an opinion piece in today's Australian - see Bruce Billson, 'Harper holds promise of greater competition' (The Australian, 30 March 2015)
29 March 2015 - ICN Conference to cost $500k
Featuring prominently in the news today is the anticipated cost of the next International Competition Network conference, to be hosted by the ACCC in Sydney next month. This will be the 14th annual conference of the ICN, which was established in 2001. The ACCC was one of the founding 16 member agencies of the Network which now comprises over 100 competition agencies from almost as many jurisdictions. See Matthew Knott, 'ACCC International Competition Network conference to cost $500k' (SMH, 29 March 2015). For details about the conference see the conference home page.
27 March 2015 - Harper Report to be released next Tuesday
The Harper Report is now with Bruce Billson MP and will be released next Tuesday. This will be followed by a further period of consultation of 8-10 weeks. See Report page. See further 'Ian Harper competition policy review’s path to growth' (The Australian, 27 March 2015) and Joe Aston, 'Bruce Billson, Barnaby Joyce and lots of paper' (AFR, 26 March 2015).
26 March 2015 - ACCC watching Heinz-Kraft merger
Fairfax is reporting that the ACCC is watching the proposed merger between Heinz and Kraft, announced overnight. The transaction is subject to the receipt of regulatory approvals (among other things). See Madeleine Heffernan, 'ACCC keeps its eye on Heinz-Kraft $59b merger' (AFR, 26 March 2015) (also on SMH website). See also Heinz, 'H.J. Heinz Company and Kraft Foods Group Sign Definitive Merger Agreement to Form The Kraft Heinz Company' (Heinz Press Room, 25 March 2015).
26 March 2015 - Fortescue releases statement on Forrest's iron ore comments
Fortescue Metals has released a statement relating to Chairman, Andrew Forrest's, comments relating to capping iron ore production. In it, reference is made to the provisions of section 51(2)(g) of the Act dealing with goods exclusively exported. The ACCC has, however, observed that iron ore is not exclusively exported from Australia. The statement can be viewed from the ASX site or attached to the following article: Elysse Morgan, 'Fortescue Metals defends chairman Andrew Forrest's 'cap iron ore' comments' (ABC News, 26 March 2015).
Plenty of media on the issue as well. See, for example:
- Stephen Bartholemuesz, 'Why the ACCC was so quick to leap on Twiggy' (Business Spectator, 25 March 2015)
- Matthew Stevens, Phillip Coorey and Tess Ingram, '' (AFR, 26 March 2015)
- Matthew Stevens, 'Fortescue's Andrew Forrest says Rio Tinto, BHP Billiton face iron ore 'prisoner's dilemma' (AFR, 26 March 2015)
- Matt Chambers and David Crowe, 'ACCC concerned about Andrew Forrest’s call for an iron ore cartel' (The Australian, 26 March 2015)
25 March 2015 - ACCC responds to Forrest's comments
ACCC Chairman, Rod Sims, has indicated that the ACCC will be looking closely at Andrew Forrest's comments calling for iron producers to work together to cap iron ore production, noting that 'any attempt by Australian businesses to encourage competitors to restrict outputs is a matter of grave concern to the ACCC'. See press release. See also Matt Chambers and David Crowe, 'ACCC investigates Andrew Forrest call for cap on iron ore production (The Australian, 25 March 2015) and Phillip Coorey and Lisa Murray, 'Joe Hockey rejects Andrew Forrest's 'cartel' call for iron ore cap' (AFR, 25 March 2015)
24 March 2015 - Fortescue's Andrew Forrest calls for iron ore production cap
At a dinner in Shanghai last night Andrew Forrest, founder and chairman of Fortescue Metals Group' called for a cap in iron ore production to respond to price drops. See AAP, 'Twiggy hits back at big miners over glut' (Trading Room, 25 March 2015); Lisa Murray, 'Twiggy Forrest calls on iron ore miners to cap production to end price rout' (SMH, 25 March 2015) and Lisa Murray, 'Fortescue's Andrew Forrest calls for iron ore production cap' (AFR, 25 March 2015). Wow.
24 March 2015 - ACCC proposes to deny Qantas/China Eastern coordination agreement
The ACCC has issued a draft determination proposing to deny authorisation for Qantas and China Eastern to coordinate operations between Australia and China. Submissions on the draft decision are due by 8 April 2015. See press release. See authorisation register.
23 March 2015 - ACCC does not oppose Denka/Mitsui’s proposed acquisition of DuPont’s chloroprene rubber business
The ACCC has announced it 'will not oppose Denka Performance Elastomer LLC’s proposed acquisition of E. I. du Pont de Nemours and Company (DuPont)’s chloroprene rubber business'. See ACCC press release. See merger register.
22 March 2015: Ferguson: 'Business awaits Ian Harper's report on competition policy'
Adele Ferguson has an item in today's Financial Review regarding the imminent release of the Harper review final report. See Adele Ferguson, 'Business awaits Ian Harper's report on competition policy' (AFR, 22 March 2015)
19 March 2015 - Bannerman Lecture published
The High Court has now published Chief Justice French's Bannerman Lecture, delivered on 26 February 2015: French, The Moving Finger Writes and, Having Writ, Rewrites, Bannerman Lecture, Sydney, 26 February 2015.
18 March 2015 - ACCC to appeal Pfizer
17 March 2015 - Harper Report to be released later this month
The Harper Report, expected for release this week, has now been delayed for release later this month.
17 March 2015 - ACCC reviewing Ramsay's proposed acquisition of Wollongong Day Surgery
The ACCC yesterday commenced an informal review of Health Care Corporation Pty Ltd (Ramsay's) proposed acquisition of Wollongong Day Surgery. Market inquiry letters have been sent with a closing date for submission of 2 April 2015. View merger register. See John Durie, 'Ramsay Health Care facing competition health check' (The Australian, 17 March 2015)
17 March 2015 - Grocery code of conduct review
The Senate Economics Legislation Committee is examining whether the proposed voluntary code would be effective and will report by the end of the month. The review follows the tabling of the new Food and Grocery Code of Conduct regulations in parliament on 2 March. Submissions closed on 13 March 2015; five submissions were received (NZ Food & Grocery Council, Office of the Australian Small Business Commissioner, Law Council of Australia, Australian Dairy Farmers and Retail & Supplier Roundtable). See my review page for more detail.
16 March 2015 - Container port regulation
The AFR has an item on Sims' call for the ACCC to be given authority to intervene in pricing disputes at Australia's ports. See Jenny Wiggins, 'Container ports need regulation to prevent soaring rents: ACCC chief Rod Sims' (Australian Financial Review, 16 March 2015). See also Lucille Keen and Jenny Wiggins, 'ACCC needs bigger role in regulating ports, says Asciano CEO' (SMH, 11 March 2015) and Eli Greenblat, 'Asciano and DP World urge ACCC action on ports' (The Australian, 12 March 2015).
16 March 2015 - ACCC monitoring TPG Telecom's proposed takeover of iiNet
The ACCC is monitoring TPG Telecom's proposed acquisition of iiNet Limited, noting a public review will be commenced once a submission is received from the merger parties (see merger register). See Paul Garvey, 'ACCC ready to review TPG-iiNet merger' (The Australian, 16 March 2015). See also John Durie, 'TPG-iiNet takeover deal cheered by market' (The Australian, 14 March 2015)
12 March 2015 - ACCC and AER publish International Insights for the Better Economic Regulation of Infrastructure
ACCC and AER have jointly published their tenth working paper, titled International Insights for the Better Economic Regulation of Infrastructure. See press release. View other working and discussion papers relating to regulated infrastructure.
12 March 2015 - ACCC proposes to authorise magazine pilot program
The ACCC has issued a draft determination proposing to authorise the Association of Magazine Publishers of Australia to run a pilot program with 20 newsagents to 'test the effectiveness of a proposed approach to address longstanding problems with the oversupply of magazines to newsagents'. See ACCC press release. See authorisation register.
12 March 2015 - Senate Economics Committee recommends s 46 divestiture bill not be passed
A couple of weeks ago Senate Economics Legislation Committee released its report on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2014. The bill was introduced by Independent Senator, Nick Xenophon, last year and would have introduced a divestiture remedy for contraventions of the misuse of market power provision. The Committee (Senator Xenophon dissenting) recommended that the Senate not pass the bill. See my Inquiry page for further details.
11 March 2015 - Draft access price for Telstra's copper network
10 March 2015 - Harper: public policy matters
The AFR has an item today on Ian Harper and the Competition Policy Review. See Katie Walsh: '"I'm an economist because public policy matters for people's lives": Ian Harper' (Australian Financial Review, 10 March 2015)
10 March 2015 - First ACCC regional petrol market study to take place in Darwin
The ACCC has announced that Darwin will be the first regional location to be studied under the new petrol monitoring arrangements. See ACCC press release.
5 March 2015 - Durie on Harper Reforms
John Durie has an item in today's Australian on the Harper Reforms, with the final report of the panel expected to be released later this month. See John Durie, 'Harper review to test Canberra’s mood for reform' (5 March 2015, The Australian)
5 March 2015 - ACCC Annual telecommunications report (2013-2014) tabled in Parliament
The ACCC's annual telecommunications report for 2013-2014 was tabled in Parliament yesterday and show a drop in prices paid by consumers for telecommunications services during that time. See ACCC press release.
5 March 2015 - ACCC will not oppose Woodside's propsed acquisition of Apache Corporations interests in the Wheatstone, Balnaves and Kitimat Projects
The ACCC has announced that it will not oppose Woodside’s proposed acquisition of Apache Corporation’s interests in the Wheatstone and Balnaves Projects (in the Northern Carnarvon Basin, off WA) and the Kitimat Project (in Canada). See Press release. See merger register.
2 March 2015 - ACCC will not oppose Seven's proposed acquisition of share s in Foxtel's Presto Entertainment service
The ACCC has announced 'that it will not oppose the proposed acquisition of shares in the Presto Entertainment subscription video on demand (SVOD) service by Seven Network Operations, a subsidiary of Seven West Media'. See press release. View merger register.
27 February 2015 - Chief Justice delivers inaugural Bannerman lecture
Chief Justice of the High Court, Robert French AC, delivered the inaugural Bannerman lecture in Sydney yesterday. Ron Bannerman was the Commissioner of Trade Practices from 1966 to October 1974. He was appointed Chairman of the Trade Practices Commission when it was established in October 1974 and remained Chairman until his retirement in December 1984. ACCC Chairman, Rod Sims, also launched a biography of Ron Bannerman (Ronald Moore Bannerman AO - Honesty, Responsibility & Competition) at the event. See ACCC press release.
27 February 2015 - ACCC will not oppose Macquarie, Fairfax radio merger
The ACCC has announced that it will not oppose Macquarie Radio Network Limited’s (MRN) proposed acquisition of the radio assets of Fairfax Media Limited or Fairfax's proposed acquisition of 54.5% of MRN. The ACCC concluded that 'the combined Macquarie/Fairfax radio business would continue to face strong competition from other commercial radio stations. See press release. See merger register.
26 February 2015 - Pfizer judgment now available
26 February 2015 - Media on Pfizer case
More media on the Pfizer case this morning. See, for example, Leo Shanahan, 'Pfizer court win on Lipitor a blow for ACCC' (The Australian, 26 February 2015), Melissa Davey, 'Court dismisses case accusing Pfizer Australia of anti-competitive conduct' (The Guardian, 25 February 2015). The reasons for judgment are expected to be made public today.
26 February 2015 - ACCC releases first quarterly petrol report
The ACCC this morning released its first quarterly report into the Australian petroleum industry for 2015. The report covers the period June-December 2014, with some additional information relating to January 2015. View ACCC press release.
25 February 2015 - Federal Court dismisses Pfizer case
The Federal Court today handed down it's judgment in ACCC v Pfizer Australia. The ACCC had alleged misuse of market power and exclusive dealing in relation to Pfizer's supply of atorvastatin to pharmacies. Justice Flick dismissed the ACCC's application and awarded costs to the Pfizer. The misuse of market power case failed on the basis that the requisite proscribed purpose was not established and that (post-2012) Pfizer's market power was not 'substantial' (the controversial 'take advantage' element was established). The exclusive dealing claim failed on the basis that Pfizer did not have the purpose of substantially lessening competition.
The reasons for judgment are expected to be made public tomorrow. View ACCC press release. See also Peta Stevenson, 'ACCC Pfails in section 46 prosecution - in brief' (King & Wood Mallesons, In Competition blog, 25 February 2015) and Simon Thomsen, 'ACCC loses misuse of market power case against Pfizer over cholesterol lowering drug' (Business Insider Australia, 25 February 2015).
24 February 2015 - ACCC enforcement priorities
Clayton Utz's Kirsten Webb and Ian Reynolds have published an update on the ACCC's enforcement priorities following the release of the ACCC's Compliance and Enforcement Policy last week: 'ACCC enforcement priorities 2015: old chestnuts and new acorns' (24 February 2015)
20 February 2015 - ACCC will not oppose GSK - Novartis deal
The ACCC has today announced that it will 'not oppose GlaxoSmithKline’s and Novartis’ transactions involving over-the-counter consumer products, human vaccines and oncology products'. See press release. View merger register.
19 February 2015 - ACCC's 2015 compliance and enforcement policy
ACCC Chairman, Rod Sims, launched the 2015 edition of the ACCC Compliance and Enforcement Policy today. The following areas related to competition law and policy re listed as priorities:
- competition and consumer issues in the health and medical sectors
- cartel conduct impacting on government procurement
- ensuring compliance with new or amended industry codes of conduct, including the Franchising Code and the proposed Food and Grocery Code
- competition and consumer issues in highly concentrated sectors, including issues identified through the ACCC’s monitoring of the fuel industry
The policy notes that 'some forms of conduct that are so detrimental to consumer welfare and the competitive process that the ACCC will always regard them as a priority' including 'cartel conduct, anti-competitive agreements and practices, and the misuse of market power.' Matters falling outside these priority areas will also be given priority where they demonstrate particular factors - these factors include:
- conduct of significant public interest or concern
- conduct resulting in a substantial consumer (including small business) detriment
- conduct demonstrating a blatant disregard for the law
- conduct involving issues of national or international significance
- conduct involving essential goods and services
- conduct in concentrated markets which impacts on small business consumers or suppliers
- conduct involving a significant new or emerging market issue
- where ACCC action is likely to have a worthwhile educative or deterrent effect, and/or
- where the person, business or industry has a history of previous contraventions of competition, consumer protection or fair trading laws.
19 February 2015 - ACCC issues draft determination on NBN Co's LTRCM
The ACCC has today issued a draft determination on NBN Co's Long Term Revenue Constraint Methodology, concluding that NBN Co's proposal 'meets the expenditure criteria set out in the Special Access Undertaking'. Stakeholder views are due by 27 March 2015. See press release. See NBN Co - Special Access Undertaking implementation page.
19 February 2015 - Sims outlines ACCC priorities
ACCC Chairman, Rod Sims, has outlined the ACCC's priorities in his first speech of the year. Launching the 2015 edition of the ACCC Compliance and Enforcement Policy at CEDA today, Sims announced 'cartel conduct in government procurement, truth in advertising, competition and consumer issues in the health sector and industry codes as new priorities'. Sims' speech also sets out the ACCC's activities in relation to a number of areas of competition law (cartels, anti-competitive agreements and practices, MMP (noting the ACCC has 'about' 10 in depth investigations underway)) and touches on the Harper Review and Murray Report as well as key issues surrounding privatisation, communications and water. View speech. View related media release.
19 February 2015 - ACCC releases Statement of Issues on proposed Sea Swift acquisition of Toll Marine Logistics
The ACCC has released a Statement of Issues on the proposed acquisition by Sea Swift of the NT and North Qld marine freight business of Toll Marine Logistics. The ACCC has raised concerns that the proposed acquisition may SLC in the supply of marine freight services in NT and Qld; in particular, concern has been raised that 'the proposed acquisition is likely to lead to significant price increases as it will result in a monopoly on many routes'. Submissions on the SOI close on 13 March and a final decision from the ACCC is expected on 16 April. View press release. View merger register.
16 February 2015 - Beer investigation now ACCC priority
Media reports today that the ACCC's investigation into beer tap arrangements by Lion and Carlton & United has been elevated to a 'priority matter'. See Adele Ferguson, 'Beer battle 'priority' as ACCC puts heat on Lion, Carlton & United over beer tap deals' (SMH, 16 February 2015). See also Pat McGrath, 'Small brewers locked out of pubs by big corporates: Choice' (ABC News, 11 February 2015).
13 February 2015 - Jurisdictional limits of cartel laws
DLA Piper's latest Competition and Regulation update focuses on jurisdictional limits of cartel laws in Australia and NZ - see David Bamberger, Simon Uthemeyer and Alec White, 'Jurisdictional limits of cartel laws in Australia and the United States - ACCC v Air New Zealand and Motorola Mobility v AU Optronics' (DLA Piper, Competition and Regulation Update, February 2015)
12 February 2015 - Cartel Law and Enforcement
Global Legal Group Ltd, London, have published the third edition of Global Legal Insights - Cartels. Peta Stevenson, Wayne Leach and Sharon Henrick of King&Wood Mallesons contributed the chapter on Australia. The chapter can be viewed online or purchased online - you can access from the following link: Peta Stevenson, 'Cartel Law and Enforcement' (In Competition, 9 February 2015).
11 Feburary 2015 - More Harper submissions
Three more submissions on the Harper Review Draft Report were published on 6 February:
- Department of Communications (acknowledges draft reports's recognition of new technologies and applications 'digitally disrupting' the way markets operate, but suggests final report 'would benefit from a stronger focus on the impact of digital disruption and new technologies in offering the potential to identify new competitive opportunities for industries across the economy, and opening up many existing markets to greater competition'. The Department's 10-page submission goes on to make 'observations in relation to digital disruption and enablement' in relation to several of the draft recommendations - includes reference to Vertigan panel recommendations).
- Prof H Ergas and Prof J Pincus (addresses recommendations relating to pharmacy recommendations)
- Northern Territory Government (runs through each of the draft policy recommendations (most supported in principle - some with reservations), supports measures to 'streamline and simplify' competition laws but 'reserves its position on the application of competition law to government activities' until it can fully assess implications on the Territory, runs through institutions and governance recommendations (establishment of ACCP and its proposed roles is supported in principle; recommends ACCP have mandatory information-gathering powers for purpose of undertaking market studies; generally supports other recommendations on institution and governance, but requires more information before view can be formed 'as to whether access and pricing functions should be undertaken by a single regulator'), discusses retail markets recommendations (supports removal of restrictions on retail trading hours and removal of pharmacy ownership and location rules).
9 February 2015 - RPM authorisation
Johnson Winter & Slattery's Sar Katdare has published a piece on the ACCC's recent authorisation of RPM conduct by Tooltechnic Systems - it provides a useful overview of the relevant issues and decision in the Tooltechnic case. See Sar Katdare, 'Landmark decision by ACCC to authorise resale price maintenance on public benefit grounds - will this open the floodgates?' (Johnson Winter & Slattery, February 2015)
6 February 2015 - ACCC opposes move to allow competition law exemptions at grain ports
The ACCC told a Senate Inquiry yesterday that it disagrees with moves by Agriculture Minister, Barnaby Joyce, to allow competition law exemptions at grain ports. See Sarina Locke, 'Australian Competition and Consumer Commission concerned over grain transport monopoly in Western Australia' (ABC Rural, 6 February 2015). Transcript not yet available.
6 February 2015 - ACCC calls for public comment on proposed Federation/Novion merger
The ACCC commenced an informal review of the proposed Federation/Novion merger on Wednesday. Submissions from interested parties are due on 25 February. See ACCC Merger Register. See also John Durie, 'ACCC steps in over Federation, Novion deal' (The Australian, 6 February 2015) and Michael Roddan, 'Federation Centres, Novion in $11 billion merger plan' (Business Spectator, 3 February 2015)
4 February 2015 - ACCC will not oppose JBS's proposed acquisition of Primo
2 February 2015 - ACCC to review allegations of price-fixing involving supply of chicken
The Australian reports that the ACCC will probe allegations of price-fixing involving Australia's biggest chicken supplier, Baiada. See Ben Butler, 'ACCC to probe alleged price-fixing involving biggest chicken supplier' (The Australian, 2 February 2014). See also Stephen Drill, 'Chicken giant Baiada reported for alleged price fixing' (Herald Sun, 1 February 2015)
2 February 2015 - Too big to care - Coles and Woolies in 2015
Alexandra Merrett has another great piece in The Conversation today about Coles and Woolworths - reviewing the conduct and legal investigations in 2014 and making some predictions about 2014. View article.
30 January 2015 - ACCC authorises Etihad/Alitalia alliance
The ACCC has granted authorisation to Etihad and Alitalia in relation to a co-operation agreement relating to the supply of international air transport services. See media release. See authorisation register.
27 January 2015 - NBN - Variation of Telstra's Migration Plan
The Government has finalised two regulatory instruments supporting the variation of Telstra's migration plan. They can be found here. This allows Telstra to lodge its revised Migration Plan with the ACCC. See ACCC 'Telstra's migration plan' website. See also Richard Chirgwin, 'Government's rushed NBN migration plan off to the ACCC: Consultation? We've heard of it' (27 January 2015)), Josh Taylor, 'Turnbull ticks Telstra-NBN HFC migration plan' (ZDNet, 27 January 2015) and Baker & McKenzie, 'Telecommunications Regulatory Update - December 2014'.
23 January 2015 - More Harper submissions published
Some more Harper Review submissions have been published on the Review website. These include submissions from the Queensland and Tasmanian Governments and the Office of the Australian Small Business Commissioner. See also my submissions page (summaries still in progress).
16 January 2015 - Durie: ACCC to review Macquarie, Fairfax radio merger
John Durie has a piece in the Australian today about the ACCC's review of the Macquarie, Fairfax merger. See John Durie, 'ACCC to review Macquarie, Fairfax radio merger' (The Australian, 16 January 2015). See ACCC merger register.
16 January 2015 - In Competition: ACCC hot hits for 2015
King & Wood Mallesons' Blog, In Competition, has kicked of the year with a post by Annabel Deans which analyses 'recent trends to assess any similarities in enforcement priorities between regulators in the UK and Australia.' See Annabel Deans and Taylor MacDonald, '2015 Hot Hits for the ACCC and CMA' (In Competition, 16 January 2015)
15 January 2015 - ACCC Petrol Price Reports
The ACCC will produce at least eight petrol price reports in 2015 following a direction by Minister Bruce Billson. These will include quarterly macro reports and at least four market studies reports. See ACCC, 'ACCC's new petrol price reports' (ACCC media release, 15 January 2015). See also Lisa Visentin, 'Allegations of petrol price gouging in rural areas prompts ACCC scrutiny' (SMH, 15 January 2015)
14 January 2014 - Woodside deal to be assessed by ACCC
The ACCC will review Woodside's multi-billion dollar deal to buy Apache Corporation's interests in the Wheatstone, Balnaves and Kitimat projects. The ACCC commenced its review on 24 December. Market inquiry letters were sent on 12 January with submissions due 2 Feb 2015. The provisional date for an ACCC announcement is 5 March 2015. See merger register. See also Angela Macdonald-Smith, 'Woodside deal under ACCC scrutiny' (SMH Business Day, 14 January 2015)
13 January 2014 - Expedia PCA released
The ACCC has released their public competition assessment relating to Expedia's acquisition of Wotif. The 16 page assessment can be viewed here.