Australia: Competition Review: November 2015

Last Updated: 12 November 2015
Article by Eddie Scuderi and Mark McCowan


ACCC takes action against Unique International College after joint investigation with NSW Fair Trading

On 27 October 2015, the ACCC and the Commonwealth (on behalf of the Department of Education and Training) have instituted proceedings against Unique International College Pty Ltd (Unique) after conducting a joint investigation with NSW Fair Trading into the conduct of private colleges.

Unique markets VET FEE-HELP Diploma courses costing $22,000 to $25,000 per course through face-to-face marketing, such as door-to-door sales. In the 2014-2015 financial year, it was paid approximately $57 million by the Commonwealth in relation to over 3,600 students enrolling in its courses.

It is alleged that Unique made false or misleading representations and engaged in misleading or deceptive and unconscionable conduct in breach of the Australian Consumer Law when selling VET FEE-HELP funded courses between July 2014 and September 2015 in NSW. In particular, the ACCC claims that Unique:

  • offered prospective students free incentives in the form of a free laptop; and
  • represented that their courses were free or were free if the student did not earn more than approximately $50,000 per annum, without referring to the fact that a VET FEE-HELP debt payable to the Commonwealth Government was incurred.

The ACCC and Commonwealth are seeking declarations, injunctions, redress for affected consumers (by cancelling VET FEE-HELP debts) and repayment of course fees paid by the Commonwealth to Unique in respect of any VET FEE-HELP loans which are cancelled.

Calvary agrees to remove exclusive dealing by-laws following ACCC action

On 26 October 2015, Little Company of Mary Health Care Ltd (LCMHC) and Calvary Health Care Riverina Ltd (together known as Calvary) have been found to have engaged in exclusive dealing conduct that was likely to have an anti-competitive effect in the supply of day surgery services in Wagga Wagga.

Calvary, a national healthcare organisation, operates day surgery facilities throughout Australia. To operate at Calvary facilities, medical practitioners needed to seek accreditation by LCMHC. On LCMHC accepting the application for accreditation from a medical practitioner, LCMHC and that medical practitioner would enter into a contract that required the parties to comply with LCMHC's by-laws.

From March 2011 to 12 October 2015, Calvary imposed by-laws that meant that medical practitioners wanting to establish competing day surgery facilities risked losing their accreditation to operate at Calvary facilities. Calvary admitted to the fact that they engaged in the practice of exclusive dealing by adopting the by-laws.

In its Amended Statement of Claim, the ACCC did not seek a pecuniary penalty. The Federal Court declared that Calvary had contravened section 47 of the Competition and Consumer Act 2010 as the conduct would likely have the effect of substantially lessening competition in the day surgery market in Wagga Wagga. Calvary was also ordered to pay $100,000 in costs.


ACCC releases SOI on Brookfield's proposed acquisition of Asciano

A consortium assembled by Brookfield Asset Management Inc. that includes Brookfield Infrastructure Partners L.P. (Brookfield) proposes to acquire 100% of the shares in the Australian freight logistics company, Asciano Limited (Asciano).

Brookfield is a global asset manager with interests in property, renewable power and infrastructure assets. Brookfield's principal Australian businesses are Brookfield Rail in Western Australia and Dalrymple Bay Coal Terminal (DBCT). Asciano's primary businesses include:

  • Pacific National – above rail haulage services across the coal, intermodal and bulk sectors;
  • Patrick Terminals and Logistics – national container terminal operator and provider of stevedoring services to major shipping lines at ports in Sydney, Melbourne, Brisbane and Perth, combined with an integrated landside logistics network; and
  • Patrick Bulk & Automotive Port Services – provider of bulk port and automotive processing services across over 40 sites in Australia and New Zealand.

The ACCC is not aware of any areas where Brookfield and Asciano supply goods or services in competition with each other. However, the Statement of Issues (SOI) (see here) published on 15 October 2015 focuses on the ACCC's concerns that the vertical integration of Brookfield's Brookfield Rail network with Asciano Pacific National above rail business would lead to a substantial lessening of competition in the relevant markets in which above rail services providers compete to haul general freight, bulk grain and bulk ore and minerals using the Brookfield Rail network.

The ACCC is also concerned that the vertical integration of Brookfield's DBCT with Asciano's Pacific National above rail business would lead to a substantial lessening of competition in the relevant markets in which above rail service providers compete to haul coal to DBCT.

Feedback from market participants states that the current access regimes and operational arrangements would be incapable of dealing with all of the vertical integration concerns arising from the proposed acquisition. The ACCC noted the following:

  • Where the infrastructure is of a technical nature and it is vertically integrated with one of a very limited number of users of the infrastructure, an access regime may not be capable of averting a substantial lessening of competition that would otherwise arise.
  • The only way to avoid the risks to competition that are likely to be created by vertical integration is to avoid the creation of a vertically integrated market structure altogether.
  • The access regimes and related regulatory arrangements that apply to the Brookfield Rail network and DBCT, and the operational arrangements that apply to DBCT, are subject to future change that the ACCC cannot take account of at the time of this review.
  • The ACCC recognises that access regimes may be modified to enhance protections against competition issues arising from vertical integration. However, the ACCC considers that where an owner or long-term lessee of significant infrastructure is likely to have a relatively unconstrained ability to discriminate between access seekers (absent regulation), the competition issues that would arise from vertical integration of that infrastructure are better dealt with by maintaining a non-vertically integrated market structure.

Submissions to the ACCC closed on 4 November 2015. The ACCC intends to publicly announce its final view by 17 December 2015.

Proposed acquisition of Ten Network shareholding by Foxtel

On 22 October 2015, the ACCC announced that it will not oppose the proposed acquisition of partial shareholdings (15%) in Ten Network Holdings Ltd (Ten) by Foxtel Management Pty Ltd (Foxtel) while Ten proposes to acquire a 24.99% stake in Multi Channel Network (MCN) and an option to acquire 10% of Presto TV (a joint venture between Foxtel and Seven Network) (together, the Proposed Acquisitions).

The ACCC is yet to publish its Public Competition Assessment but the ACCC's decision raises several issues relevant to the media industry:

  1. Continued focus on sporting content

The ACCC's primary concern with the Proposed Acquisitions is whether it will cause Foxtel to favour Ten over other free-to-air (FTA) networks such that those FTA networks would no longer be able to compete effectively in the acquisition of sports and premium non-sport content (such as high-profile reality TV shows).

Ultimately, the ACCC decided not to oppose the Proposed Acquisitions as they are, on their own, unlikely to result in a substantial lessening of competition. The ACCC considered that other FTA networks, subscription television (STV) providers and subscription video-on-demand (SVOD) providers will continue to have sufficient alternatives to allow them to obtain attractive content and that Foxtel and Ten will continue to face competition from remaining FTA networks.

Rod Sims, ACCC Chairman, recently stated that access to sporting content is vital to the ability of FTA networks to compete strongly.

  1. A possible shift towards a broader market definition

The ACCC has acknowledged, for some time, that technological developments have prompted significant structural change in the media industry. Recent developments have seen huge growth in SVOD services through the entry of Netflix, Stan and Presto. Additionally, the ability for consumers to download content and movies through smart TVs and other platforms is resulting in traditional FTA networks offering a blend of linear and on-demand content.

Interestingly, the ACCC, in its analysis of the Proposed Acquisitions, defined separate national markets for each of FTA, STV and SVOD but also acknowledged that a broader, convergent market encompassing at least FTA and STV (and possibly also SVOD) may also be relevant. Of the three services, the ACCC noted greater substitutability between FTA and STV services for sports content whereas SVOD is unlikely to be a close substitute.

  1. Further regulatory reform signalled

In announcing its decision not to oppose the Proposed Acquisitions, the ACCC hinted that future regulatory reform would be required to promote competition and that existing regulations, such as the 75% reach rule, are no longer effective due to technological developments in the industry.

ACCC releases SOI on Halliburton's proposed acquisition of Baker Hughes

On 23 October 2015, the ACCC released a SOI (see here) on its preliminary views on competition issues arising from Halliburton Company's (Halliburton) proposed acquisition of Baker Hughes Incorporated (Baker Hughes). The global merger is valued at approximately US$34.6 billion and is conditional on the parties obtaining regulatory approvals.

Halliburton and Baker Hughes offer goods and services across a broad range of oilfield products, in many countries around the world. Oilfield services comprise products which are acquired to facilitate the exploration for and production of oil and gas. The merger parties are close competitors across a large number goods and services in Australia.

Based on total annual revenues, Schlumberger Limited (Schlumberger) is the largest global and Australian oilfield services provider. The merger parties are currently the second (Halliburton) and third (Baker Hughes) largest providers both globally and in Australia.

The ACCC's preliminary view is that there are strong risks of unilateral and coordinated effects arising from the proposed acquisition. The advantages the merged firm and Schlumberger would have suggest that post-acquisition they are not likely to face strong competitive constraints from rivals or entrants in a number of markets.

Submissions on the SOI close on 12 November 2015.


ACCC proposes to deny authorisation to the Cotton Shippers Association for an industry standard

The ACCC has issued a draft determination denying authorisation to the Australian Cotton Shippers Association (the ACSA) for the coordination between its merchant members to change the way the industry classes cotton for contracts between growers and merchants.

The ACSA is an industry association whose members include the largest cotton merchants in Australia, representing the vast majority of Australian cotton exports. These merchants purchase cotton from Australian cotton growers and sell that cotton into the global market.

The ACSA and its members seek authorisation for a coordinated move whereby all purchases from cotton growers are to be priced using a grading system based on machine classing of the colour and leaf of cotton. Under the proposal, merchants could refuse to acquire cotton from growers that have not been graded by an approved machine service.

Currently classes of cotton are classified by a mix of visual and machine tests. Cotton growers are concerned that full machine testing could mean that they receive less for their cotton. Currently individual merchants are free to move to the machine classing system on a sale by sale basis.

The ACCC was not satisfied that the proposal would result in a public benefit that outweighed the anti-competitive detriment. The ACCC is concerned that the proposal could lead to a lowering of competition between merchants and increased potential for collusion between merchants on matters including price. A final decision is expected in December 2015.


ACCC report on the private health insurance industry

On 20 October 2015, the ACCC released a report on the private health insurance industry (see here). The report made three key observations:

  • There are market failures in the industry, which reduce consumers' ability to compare policies and make informed choices about their future medical needs.
  • Existing regulatory settings can change consumers' incentives in purchasing health insurance. As insurers respond to market demands for affordable policies there are greater risks of unexpected out-of-pocket costs for consumers.
  • Current practices by some insurers are at risk of breaching the consumer laws.

Unfair contract term protections extended to small business contracts

Legislation has been passed to extend the unfair contract term protections to small business contracts. For more information, see the Corrs in Brief article here.

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.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

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.

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”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions