Australia: Significant competition law reforms well under way in Australia

HG Competition and Trade Practices Alert: 8 October 2014
Last Updated: 9 October 2014
Article by Brett Bolton and Borcsa Vass

The Australian Government is currently undertaking the most significant review of the nation's competition laws in more than 20 years.

In this Alert, Special Counsel Brett Bolton and Solicitor Borcsa Vass discuss the proposed changes and, if adopted, how these will impact all Australians and force many businesses to rethink their strategies.

The Report

The recently released Competition Policy Review Draft Report (Report) aims to address the major changes to our society and economy that have taken place since the Hilmer Report in 1993.

The flavour of the report is more deregulation. It proposes a number of changes to policies and laws that are designed to improve competition in the marketplace and that will have significant and far-reaching impacts on businesses and consumers if implemented. Many recommendations are politically difficult for the federal government and, if accepted, will require skilful negotiation with state governments and other stakeholders.

Competition Policy

Retail trading hours

Trading hours have been progressively deregulated in New South Wales, Victoria, Tasmania, the ACT and the Northern Territory. However, they remain regulated in Queensland, Western Australia and South Australia.

The Report asserts that full deregulation of retail trading hours is overdue and that any remaining restrictions should be limited to Christmas Day, Good Friday and the morning of ANZAC Day.

The current restrictions on small retailers have arguably reduced their competitiveness due to consumers' ability to shop online around the clock. Many small businesses do not have the resources to create an online presence or compete with the businesses that do. However, the Report also notes that concerns have been raised that more deregulation will actually harm competition and may not be in the interests of all small businesses or consumers.

Liquor and gambling

Liquor retailing and gambling are two heavily regulated sectors of the economy. The Report notes some of the concerns about the social impacts of problem drinking and gambling but also acknowledges that the regulation of alcohol sales restricts competition and consumer choice.

The Report recommends that the impact of the current regulations and restrictions on the ability of small businesses to compete in the liquor retailing and gambling markets be considered in more detail.

Intellectual property

The Report acknowledges the influence that Australia's intellectual property rights have on facilitating or inhibiting innovation, competition and trade. Given the constant and rapid progress in technology and how people share ideas and information (from newspapers to the internet and #selfies), the law must keep up with these changes and ensure that an appropriate balance is struck between fostering innovation through sharing ideas and giving businesses an incentive to do so through the ability to protect and exploit their innovations.

Currently, the law does not prohibit most of the anti-competitive conduct in Part IV of the Competition and Consumer Act 2010 (Cth) (CCA) if the contravention happens because of the creation or transfer of intellectual property rights. The Report recommends that this protection be removed.

This would mean that if a company creates a new product or improves an existing product and, in the course of that process, creates copyright works or registers a patent, and this prevents others from competing with that product, the company may breach the CCA. In turn, this can put companies off attempting to create new products or improve existing products which would ultimately benefit consumers.

It will be interesting to see what responses the panel receives in relation to this recommendation.

Competition Laws


The Report asserts that the current cartel laws are too complex and recommends that their scope be modified. If accepted, these recommendations would narrow the application of the cartel prohibitions.

Misuse of market power

The Report's recommendation on changing the misuse of market power prohibition has received significant publicity. The current prohibition is complex and difficult to understand or apply.

The prohibition as it currently stands stops a company with substantial market power from taking advantage of that power for the purpose of eliminating or substantially damaging a competitor, preventing the entry of a person into the market or deterring or preventing a person from engaging in competitive conduct in the market. The Report suggests that the prohibition be re-framed so that it focuses on the effect of particular conduct rather than its purpose. The Report endeavours to address the concerns expressed by business groups and the large supermarket chains about moving to an "effects-based" test by suggesting it be a defence to any claim if the defendant could prove that the relevant conduct was a rational business decision and that the effect of the conduct would benefit the long-term interests of consumers.

There is considerable doubt though about whether such a defence will be any easier to interpret or apply given the potential difficulties in determining what a "rational business decision" is, what factors will be taken into account in determining this, and how the "long-term interests of consumers" will be assessed.


Submissions in response to the Report are due by 17 November 2014. We will keep you informed of important developments in this key area.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Brett Bolton
Borcsa Vass
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.