Australia: Competition and Consumer Law - What's News - 30 September 2015

In the media

ACCC investigates claims Woolworths, Aldi 'off to a bad start' under supermarket code of conduct
The competition watchdog is investigating concerns that Woolworths and Aldi "have not got off to a good start" under the new Grocery Code of Conduct. The Code was set up to ensure retailers deal with their suppliers 'in good faith', after years of complaints from farmers and food manufacturers about unfair treatment (24 September 2015).  More...  More...

Stockbroker DJ Carmichael fined $300,000
Western Australian stockbroking firm DJ Carmichael has paid a $300,000 infringement notice penalty for "creating a false or misleading appearance with respect to price" of a listed investment company (23 September 2015).  More...  More...

ACCC to investigate banks for shutting down Bitcoin accounts
‎Australia's competition watchdog is set to investigate the country's biggest banks for shutting down the accounts of Bitcoin traders, accused of denying services to fledgling Bitcoin and digital currency operators (anti-competitive purpose)  (23 September 2015).  More...

Rod Sims emphasises importance of effective competition
ACCC Chairman, Rod Sims, has spoken to the 'Australian Competition Policy Summit on the importance of competition and the Harper Review', mentioning changes aimed at improving our price signalling, merger and misuse of market power laws and, importantly, bringing them into line with overseas practice are to be welcomed (21 September 2015).  More...

Billson rejects anti-effects test lobby claims
The Small Business Minister, Bruce Billson, has again rejected claims by the BCA that the proposed s 46 effects test would threaten competition. The Business Council of Australia (BCA), has linked the inclusion of an effects test with higher prices and consumer malcontent (17 September 2015).  More...

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 (17 September 2015).  More...

ACCC releases Statement of Issues on proposed acquisition of BG by Shell
The ACCC has released a Statement of Issues on the proposed acquisition by Royal Dutch Shell (Shell) of BG Group (BG). The Statement of Issues seeks industry views and more information on the competition issues that have arisen in the ACCC's review to date (17 September 2015).  More...

Cabinet to consider 'effects test'
The Nationals have won a significant concession from the government, which will take a hard look at beefing up competition law. As it stands, competition law bars big firms from taking advantage of their market power. Under the effects test, the regulator would consider the actual effect on the market, a lower threshold (15 September 2015).  More...

National senators cross floor on effects test
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 (15 September 2015).  More...  More...

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 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 (14 September 2015).  More...

In practice and courts, published reports

Harris on competition reform: speech
Productivity Commission chairman, Peter Harris, speaks at the Australian Competition Policy Summit, calling for action on the Harper competition policy reforms and 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 (22 September 2015).  More...

The importance of adequate competition for the east coast gas market: speech
ACCC Chairman, Rod Sims, at the Eastern Australia's Energy Markets Outlook conference in Sydney, states many aspects of the east coast gas market are opaque and complicated (market is dominated by confidential, bi-lateral contractual arrangements which make price discovery almost impossible; the market is dominated by large players in the value chain) (17 September 2015).  More...

ACCC draft final access determination for transmission services
The ACCC has issued adraft final access determination for the declared domestic transmission capacity service. Submissions are invited until 2 October 2015.  More...  More...

The State of Competition, Issue 23, 11 September 2015
The latest Issue 23 of The State of Competition covers 'competition policy for the oligopoly economy', focussing on the research conducted by Michal Gal on competition policy for small business.

Cases

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 [2015] FCA 1007
CONSUMER LAW  – internet sports betting – promotional headline offers of free bets and deposit bonuses for new customers – offers subject to terms and conditions – alleged contraventions of Australian  Consumer Law  – alleged misleading or deceptive conduct and false representations – dominant message conveyed – enticement into marketing web – whether adequate disclosure of terms and conditions – liability as principal contravener – whether conduct of subsidiaries attributable to group holding company – contraventions established in part.  Authorised Betting Operations Act 2000 (SA) ss 6A(1)(b), 62C.  Competition and Consumer Act 2010 (Cth) s 84(2), Sch 2, ss 18, 29, 224(1), 232(1).  More...

Australian Competition and Consumer Commission v RL Adams Pty Ltd [2015] FCA 1016
TRADE PRACTICES – where company failed to comply with a notice issued under s 155(1) of the Trade Practices Act 1974 (Cth) in contravention of s 155(5) of that Act.  CONSUMER LAW – contraventions of Australian Consumer Law admitted – admitted facts concerning "free range" representations – need for general deterrence – appropriateness of submissions concerning the pattern of existing and pending cases and matters relating to general deterrence – totality principle – impermissible submissions concerning quantum of penalty – whether injunction should be ordered.  Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss 6A, 18, 29(1)(a), 33, 224, 224(2), 224(3), 232(4), 246.  More...

Ashwell v Commissioner for Consumer Protection [2015] WASC 337
Criminal law - Appeal - Convictions against company and individual for breaching the prescribed requirement for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy - Appeal against convictions - Whether magistrate erred in allowing prosecution to rely upon a document disclosed shortly before hearing - Whether magistrate erred in refusing to allow appellants to tender an affidavit - Whether prosecution failed to prove that the incorporated accused was connected with the alleged offence - Whether prosecution discriminated against the appellants by prosecuting them and not other for similar offences.  Criminal law - Appeal - Convictions against company and individual for breaching the prescribed requirements for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy - Appeal against sentences - Whether the sentences imposed were manifestly excessive. Competition and Consumer Regulations 2010 (Cth), r 90.  More...

Capogreco v Rogerson [2015] NSWSC 1371
MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect.   CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.  More...

Legislation

Commonwealth

Australian Small Business and Family Enterprise Ombudsman Act No 123 of 2015
An Act to establish the Australian Small Business and Family Enterprise Ombudsman, and for related purposes.  Registered 15 September 2015. Date of Assent 10 September 2015.  More...

Australian Small Business and Family Enterprise Ombudsman (Consequential and Transitional Provisions) Act 2015
An Act to amend laws, and deal with transitional matters, in connection with the Australian Small Business and Family Enterprise Ombudsman Act 2015, and for related purposes.  Registered 15 September 2015.  Date of Assent 10 September 2015.  More...

Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015
Senate Standing Committees on Economics report on Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 [Provisions], tabled 14 September 2015.  Senate - Bill passed with amendments, 14 September 2015.  Transcript of Senate Economics Legislation Committee, Thursday 3 September, 2015, Melbourne.  More...

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Ian Robertson
 
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