Major shake-ups to Australian competition laws are closer with
the release of three separate consultation packages today
implementing the Harper reforms and the flow-on changes needed to
the ACCC's practices and telecommunications laws.
The Exposure Draft of the Competition and Consumer Amendment
(Competition Policy Review) Bill 2016 embodies key Harper reforms
section 46 provisions on misuse of market power;
concerted practices; and
third party access.
Comments are due by:
5pm Friday 30 September 2016 for the Exposure
Draft of the Competition and Consumer Amendment (Competition Policy
Review) Bill 2016, and the Department of Communications'
consultations on competitive provisions in the telecommunications
5pm 3 October 2016 for the ACCC's draft
approach to enforcement.
Section 46 reforms - the effects tests
Competition would expressly include goods and services that are
capable of being imported, in addition to goods and services that
Other elements of the proposed reforms are:
"take advantage" is broadened to the effects test ie.
the conduct must have the purpose, effect or likely effect of
substantially lessening competition in that or any other
the specific prohibitions on predatory pricing and other
practices are removed
market participants can seek authorisation for an
pro- and anti-competitive factors must be taken into
Cartels scope to be limited to conduct affecting competition in
The cartel conduct provisions would only apply to:
cartel conduct occurring in trade or commerce within Australia,
or between Australia and places outside Australia;
between actual or likely competitors.
The exceptions for joint ventures and vertical
trading restrictions would also be broadened.
Goodbye separate prohibitions on price signalling and
exclusionary provisions, hello concerted practices
The price signalling provisions will be repealed. The separate
prohibition on exclusionary provisions within contracts,
arrangements or understandings will also go.
On the other hand, section 45 will be extended to prohibit a
person from engaging in a concerted practice with one or more other
persons that has the purpose, effect or likely effect of
substantially lessening competition.
Third party access
The declaration criteria that must be used by the Council and
designated Minister would be tweaked ? for example:
the decision-maker would no longer be required to consider
whether it is uneconomical for anyone to develop another facility
to provide the service ? instead, he or she must consider whether
total foreseeable market demand could be met by the facility at
instead of asking whether access would be contrary to the
public interest, the decision-maker must consider whether access
(or increased access) would promote the public interest.
The ACCC's draft frameworks for misuse of market power and
concerted practices guidelines
In parallel to the Federal Treasury's consultation process
on the exposure draft Bill, the ACCC is asking for feedback on a
framework for guidance on its proposed approach to section 46 and
It does not consider that the proposed section 46 would change
its approach to market definition, analysing substantial market
power, or substantially lessening competition. It has however given
examples of conduct that it considers could breach the new section
refusal to supply an essential input;
bundling a competitive product with a monopoly product.
Examples of conduct that would not breach section 46
research and development;
standardised or national pricing by large retail chains;
price war; and
investing in new production technology to increase
The ACCC is also seeking comments on the sorts of practices it
considers might fall foul of the new section 45, and the
competitive effect of a broader range of co-ordinated conduct to be
assessed than before.
Department of Communications and the Arts consultation on
telecommunications-specific anti-competitive conduct laws
In light of the proposed changes to the Competition and Consumer
Act, the Department of Communications and the Arts is also seeking
comment on what, if anything, needs to change in the
telecommunications-specific anti-competitive conduct laws in Part
should they be retained; and
what should be the role of competition notices?
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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