Australian Competition Law overview
Please note that this information provides only a brief overview of Australia's competition laws. The links to the left will take you to more detailed information about each topic. Please note I am in the process of refreshing these pages so some look a little different than others during the refresh process (April 2016).
Australia's core competition law provisions are contained in Part IV of the Competition and Consumer Act 2010 (CCA) (previously named the Trade Practices Act 1974 (Cth)). In addition, separate prohibitions have been created in relation to anti-competitive conduct in the telecommunications industry and a regime for access to essential facilities has been developed. The following provides a brief overview of the core elements of Australia's competition policy - in each case more detailed information is available by following the relevant link to the left.
Note that in 2014-2015 a major review of Australian competition law and policy was undertaken: see Harper Review page. The Government has provided an initial response and undertaken further consultation on the misuse of market power provision. It has accepted the majority of the Harper Panel's recommendations in relation to changes to the competition laws - including its recommendations in relation to the misuse of market pwoer provision.
Law and Policy
Competition policy refers to the 'set of policies and laws that protects, enhances and extends competition' (Harper Review Issues Paper para 1.7). Competition, in this context, has been described as follows:
Competition is the process by which rival businesses strive to maximise their profits by developing and offering desirable goods and services to consumers on the most favourable terms [Harper Review Issues Paper para 1.1]
Competition is a process rather than a situation. Dynamic processes of substitution are at work. Technological change in products and processes, whether small or large, is ongoing and there are changing tastes and shifting demographic and locational factors to which business firms respond. ... Where there is effective competition, it is the on-going substitution process that ensures that any achievement of market power will be transitory. [Maureen Brunt, 'Market Definition Issues in Australian and New Zealand Trade Practices Litigation' (1990) 18 Australian Business Law Review 86-128 (para 96)]
The appropriate policy objective for competition law - actual and desired - has been the subject of much debate in Australia and elsewhere. Debate has centred around whether or not the competition laws are intended to promote competition per se or whether it has a broader purpose and/or is intended to operate for the benefit of particular groups; in this respect 'small business has often been singled out. The Harper Review has made clear in its report that competition policy should be about protecting the competitive process and not individual competitors or interest groups.
There was no objects clause in the original Act, but in his Second Reading Speech, then Attorney-General, Senator Lionel Murphy, stated that its purpose was 'to control restrictive trade practices and monopolies and to protect consumers from unfair commercial practices.' The purpose of the Act was also described as being 'to promote efficiency and competition in business, to reduce prices and to protect all Australians against unfair practices.' As the current Chief Justice of the High Court, Robert French AO, observed in a 2004 speech, '[b]eyond that very broad statement of intent and the other statements referred to earlier there was not much in the way of a coherent policy framework or theory to explain the presence in the one statute of its seemingly disparate measures.'
In 2005 the Competition Policy Reform Act 1995 (Act 88 of 1995) inserted an objects clause in s 2, which provides: 'The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.'
In 2014-2015 a major Competition Policy Review was conducted in Australia.
Cartel conduct is now (since 24 July 2009) prohibited by a new Division 1 of Part IV of the Competition and Consumer Act 2010 (CCA). It is prohibited civilly and it constitutes a criminal offence. The former definition of price fixing in s 45A has been repealed. Cartel conduct is now defined in s 44ZZRD as including four forms of activity: price fixing (defined in the same way as the former s 45A), market division, restricting outputs and bid rigging. This conduct is prohibited where made or given effect to in a 'contract, arrangement or understanding' and two or more of the parties involved are competitors (or would be but for the conduct). In relation to price fixing the provision must have the 'purpose or effect' of price fixing; in relation to the other forms of conduct the provision must have the requisite 'purpose'.
Criminal penalties of up to $220,000 per offence or up to 10 years imprisonment will be available for individuals found to have committed a cartel offence. The civil penalties for making or giving effect to a cartel provision are the same as those currently available for other contraventions of Part IV.
A limited defence is available for joint venture contracts.
Certain forms of price signalling are now also prohibited (since 6 June 2012). See price signalling page.
See also the cooperation and immunity policy page.
Section 45 of the Competition and Consumer Act 2010 (CCA) prohibits contracts, arrangements or understandings containing a provision which has the purpose, effect or likely effect of substantially lessening competition. These arrangements will generally be horizontal in nature, but this is not a requirement of s 45 (and as a number of anti-competitive vertical arrangements are caught by other more specific provisions in Part IV, anti-overlap provisions will give those specific provisions priority over s 45). Legislation introduced in 2006 (Trade Practices Legislation Amendment Act (No 1) 2006) permits certain collective bargaining arrangements. A joint venture exemption is also available where the joint venture itself does not have an anti-competitive purpose or effect.
The conduct of dual listed companies is now assessed under s 49 which prohibits parties making (or giving effect to) a dual listed company arrangement if a provision of the proposed arrangement would have the purpose, effect or likely effect of substantially lessening competition.(Note this forms part of the cartels page)
Exclusionary Provisions (Boycotts)
In addition to prohibiting anti-competitive agreements generally, section 45 prohibits exclusionary provisions (more commonly referred to as primary boycotts) per se. This is in addition to the prohibition on output restrictions contained in the new cartel prohibitions. Exclusionary provisions are defined broadly in s 4D. A limited defence is available in relation to joint venture agreements that do not substantially lessen competition.
Misuse of Market Power
Section 46(1) prohibits a corporation with substantial market power taking advantage of that market power for a prohibited anti-competitive purpose.
In 2007 s 46(1AA) was introduced to specifically target predatory pricing. Under this provision predatory pricing is prohibited where a corporation having substantial market share supplies goods or services below cost for a sustained period for one of the three prohibited anti-competitive purposes.
The Harper Panel made significant recommendations for change to this provision; in particular, it recommended introduction of an 'effects test' to replace the current purpose-based test. The Government has accepted these recommendations.
(1) the conditional supply (or acquisition) of goods or services (conditions may relate to the ability to re-supply, exclusivity, limits on ability to acquire from competitors etc)
(2) refusing to supply for specified reasons (eg, because purchaser refuses to agree to a conditional supply).
Most forms of exclusive dealing (including full line forcing) are captured only if it can be demonstrated that they substantially lessen competition (s 47(10)). However, third line forcing is captured regardless of its anti-competitive effect.
Recognising potential benefits associated with exclusive dealing, a system of notification and authorisation is available. Authorisation may be provided on public benefit grounds. More commonly, parties will notify the ACCC of conduct that might fall within the various definitions of exclusive dealing and, while the notification stands, they will not be held in breach of s 47. The ACCC can only remove the notification if they consider the conduct substantially lessens competition and that there are no benefits to the public that would outweigh the anti-competitive detriment.
Resale Price Maintenance
Section 48 of the CCA prohibits a corporation from engaging in the practice of resale price maintenance. Resale price maintenance is defined in Part VIII. It captures various forms of minimum RPM, both in relation to goods and services (including withholding supply as a result of failure to agree to or adhere to a RPM requirement). Maximum RPM is not prohibited (even if it substantially lessens competition!) A person does not engage in RPM merely by providing a statement of recommended prices (s 97).
In Australia mergers are prohibited if it can be demonstrated that they will have the effect or likely effect of substantially lessening competition in a market (section 50 CCA). It is possible to obtain clearance (formal or informal) or authorisation for proposed mergers, but there is no mandatory notification process.
Clearance will be granted only if the ACCC does not believe the merger will SLC (s 95AN). Authorisation, on the other hand, may be granted by the Australian Competition Tribunal even where the merger will SLC if it can be demonstrated that the merger would lead to such a benefit to the public that it should be allowed to occur (s 95AZH).
Section 50A deals with mergers occurring outside Australia.
Authorisation and Notification
Authorisation is available for all forms of conduct prohibited by Part IV of the CCA, save for misuse of market power. Authorisation is granted either where public benefit can be demonstrated to outweigh any anti-competitive detriment or where the public benefit is such that the conduct should be permitted (although different tests apply to different conduct, in practice they seem to apply in the same way).
Access to Essential Services
The Competition Policy Reform Act 1995, following recommendations of the Hilmer Committee in 1993, introduced a formal system of access to essential facilities. This is provided for in Part IIIA of the CCA. Subsequently a separate system of access to telecommunications facilities was established. The access regime was recently the subject of a Productivity Commission review.
Australian Competition and Consumer Commission
Although individuals may commence actions for damages and other remedies, the ACCC is the primary enforcer of Part IV of the CCA. If it believes there has been a contravention of the CCA it may commence proceedings for pecuniary penalties, injunctions, divestiture in the case of mergers and it may accept understandings (s 87B) designed to alleviate competition concerns. It has powers to obtain evidence pursuant to s 155 and, subject to obtaining a search warrant, has search and seizure powers to assist in its investigations.
The ACCC also provides a semi-judicial role, having the power to grant 'authorisation' of conduct that would otherwise contravene Part IV (other than for mergers in which it plays an advisory role) on public benefit grounds (appeal is available to the Australian Competition Tribunal (ACT)). It also has the power to revoke notifications made in respect of exclusive dealing or collective bargaining, again on public benefit grounds (appeal is available to the ACT).
The ACCC also has a role in relation to the access regime; in particular, it is involved in the arbitration of access disputes, the registration of access contracts and may assess and accept undertakings from providers of declared services.
Australian Competition Tribunal (ACT)
The Tribunal’s main function is to hear appeals from decisions of the ACCC relating to authorisation and notification. There is also a review function in relation to the access regime. Since the passage of the 2006 Amendment Act the Tribunal now hears merger authorisations applications directly and they may hear appeals from formal merger clearance decisions of the ACCC. The President and Deputy Presidents must be judges of the Federal Court and other members must be experienced in industry, commerce, economics or public administration.
Commonwealth Director of Public Prosecutions (CDPP)
The CDPP determines which matters it will prosecute as a 'cartel offence'. The ACCC will make recommendations to the CDPP about which matters it considers appropriate to pursue criminally and the CDPP will make a determination based on the MOU between the ACCC and CDPP and on the Prosecution Policy of the Commonwealth. The CDPP may also grant immunity from prosecution for whistle-blowers meeting set criteria.
National Competition Council (NCC)
The Council was established as a result of the Hilmer Reforms in 1995. It is composed of a President and three other members, having the primary roles of advising about competition law matters and making recommendations in relation to access declarations.
Federal Court of Australia
The Federal Court of Australia has primary jurisdiction in relation to competition law matters (to the exclusion of other courts). The Federal Court is also given exclusive jurisdictions under the state and territory Competition Codes.
Both civil remedies and criminal penalties are available for contraventions of Part IV of the CCA. Civil remedies include:
(1) pecuniary penalties (s 76)
(2) damages (s 82)
(3) injunctions (s 80)
(4) divestiture (in relation to mergers) (s 81)
(5) non-punitive orders (eg, community service) (s 86C)
(6) punitive orders - adverse publicity orders (86D)
(7) disqualification from directorship (86E)
(8) other orders (s 87)
Criminal fines and imprisonment for up to 10 years is available for contraventions of the cartel provisions in Division 1 of Part IV of the CCA.
Immunity and Cooperation Policies
The ACCC has developed a policy to encourage cooperation and, in the case of cartels, an immunity policy to encourage whistle-blowers. A new immunity and cooperation policy was published by the ACCC on 10 September 2014.
Restraint of Trade
In Australia the common law doctrine of restraint of trade continues to operate where it does not conflict with the Competition and Consumer Act 2010. Briefly, the doctrine renders provisions which impose restrictions on a person's freedom to engage in trade or employment illegal and therefore unenforceable at common law unless they are demonstrated to be reasonable. The provision must be reasonable both in the interests of the parties and in the interests of the public.