In the media
First financial penalty under 2017 Horticulture
Code
A Sydney fruit and vegetable wholesaler is the first
business to pay a $10,500 infringement notice for an alleged breach
of the Horticulture Code, which was updated in 2017 to include
penalties for non-compliance (17 August 2018).
More...
Criminal cartel charges laid against CFMMEU and its ACT
branch secretary
The CFMMEU and Mr O'Mara are each charged with
attempting to induce suppliers of steel fixing services and
scaffolding services to reach cartel contracts, arrangements or
understandings containing cartel provisions in relation to services
provided to builders in the ACT in 2012 to 2013 (16 August 2018).
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AFL & NRL clubs fix refunds and returns
policies
Twenty-one Australian Football League
(AFL) and National Rugby League
(NRL) clubs have made changes to their returns and
refunds policies in relation to merchandise sales following an
investigation by the ACCC. From at least April 2018, 21 AFL and NRL
clubs made claims in their returns and refunds policies which the
ACCC considered were misleading, including that items must be
unworn, purchased at full price and returned within a specified
timeframe to qualify for a remedy (16 August 2018).
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Former energy exec slams power price gouging
Adrian Merrick, former group executive manager of retail
at EnergyAustralia, said the "gentailers" - power
generators and retailers - were reaping record profits from the
high wholesale price of electricity, when the underlying cost of
actually producing that energy hadn't changed (15 August 2018).
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ACCC threatens cartel charges for farmers collectively
culling piglets to cut costs
The Australian Competition and Consumer Commission
(ACCC) is threatening pig producers with cartel
charges if they collectively cull piglets to reduce pork supply (15
August 2018).
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Court orders penalties of $5.5m against Palram and
Ampelite for exclusive dealing
The Federal Court of Australia has declared (by consent)
that Palram Australia and Ampelite Australia engaged in exclusive
dealing having the purpose of substantially lessening competition.
The Court has ordered payment of pecuniary penalties totalling $5.5
million and has ordered implementation of a compliance training
program (13 August 2018).
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Aurizon prevented from closing Queensland intermodal
business
The Federal Court has ordered that Aurizon must continue
operating its Queensland intermodal business while the ACCC's
case against Pacific National and Aurizon is heard and determined.
The ACCC instituted proceedings against Pacific National and
Aurizon, and their related entities, for allegedly reaching an
understanding about Aurizon's intermodal business that had the
purpose and/or would be likely to have the effect of substantially
lessening competition in the supply of intermodal and steel rail
linehaul services (13 August 2018).
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Christou and Aecom in court over building's green
claims
It was designed with the highest of green ratings in
mind, but the City of Canning in Perth is taking design firm
Christou and consultant Aecom to court over alleged
"misleading or deceptive" conduct regarding the $37
million Cannington Leisureplex's ecologically sustainable
design (14 August 2018).
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Fears drought-stricken farmers are being ripped off by
suppliers
There are growing fears drought-stricken farmers, forced
to buy expensive fodder and grain to feed their stock, are being
ripped off. In some cases, people have been buying hay bales for
$100 each and reselling them for $400, adding extra pressure to
those who are already struggling to grow their crops. There are now
growing calls for the ACCC to step in and investigate the alleged
price gouging (09 August 2018).
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BHP settles US class action over Samarco dam failure for
$67 million
Mining giant BHP has agreed to settle a US class action
claim relating to the Samarco dam failure of 2015, which triggered
Brazil's worst environmental disaster, and agreed to pay the
plaintiffs $US50 million ($67.3 million). The Australian class
action alleges BHP breached its continuous disclosure obligations
under Australian law, and also alleges BHP engaged in misleading
and deceptive conduct (09 August 2018).
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High Court refuses leave for electrical cable cartel
appeal
The High Court has dismissed a special leave application
by electrical cable manufacturer Prysmian Cavi E Sistemi S.R.L.
(Prysmian), following a decision of the Full
Federal Court that upheld the trial judge's finding that the
company had engaged in cartel conduct in the supply of high voltage
land cables (08 August 2018).
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ACCC commences inquiry into regulation of wholesale
mobile voice and SMS services
ACCC Commissioner Cristina Cifuentes said regulation of
wholesale mobile termination has, in the past, helped to lower
retail prices for mobile services for the benefit of consumers.
This inquiry will consider whether continued regulation is needed
to deliver this result (7 August 2018).
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ACCC takes action against Seednet over barley
performance claims
The ACCC has instituted proceedings in the Federal Court
against Landmark Operations Limited (trading as Seednet) for
allegedly making false, misleading and deceptive claims in a fact
sheet for its barley variety known as 'Compass'. The ACCC
also alleges that Seednet misrepresented to farmers that Compass
had higher resistance to a disease known as 'leaf rust'
than it actually did in NSW, Victoria, Queensland, SA and WA (06
August 2018).
More...
Cases
Australian Competition and Consumer Commission v Oakmoore
Pty Ltd (No 2) [2018] FCA 1170
COMPETITION – collusive arrangement –
exclusive dealing – second respondent admitted to
contraventions of s.47 of the Competition and Consumer Act
2010 (Cth) – sixth respondent admitted to being directly
and knowingly concerned in third respondent's contraventions
within meaning of s.75B(1)(c) of the Act – enforcement and
remedies – application for agreed declarations, pecuniary
penalties, non-punitive orders, and disqualification order –
whether proposed declarations, penalties and orders appropriate
– consideration of principles – proposed declarations
and orders made and penalties imposed.
PRACTICE AND PROCEDURE – application for confidentiality
orders protecting financial information pursuant to s.37AF of the
Federal Court Act 1976 (Cth) on basis of "commercial
sensitivity" – consideration of principles –
application refused where information not of continuing commercial
significance.
Competition and Consumer Act 2010 (Cth) ss.47, 76, 86C,
86E; Federal Court Act 1976 (Cth) ss.21, 37AE, 37AF, 37AG,
37AJ; Trade Practices Act 1974 (Cth) ss.47, 76, 86C,
86E).
Australian Competition and Consumer Commission v Oakmoore
Pty Ltd [2018] FCA 1169
COMPETITION – collusive arrangement –
exclusive dealing – third respondent admitted to
contraventions of ss.45 and 47 of the Competition and Consumer
Act 2010 (Cth) – seventh respondent admitted to being
directly and knowingly concerned in third respondent's
contraventions within meaning of s.76(1)(e) of the Act –
enforcement and remedies – application for agreed
declarations, pecuniary penalties and non-punitive orders –
whether proposed declarations, penalties and orders appropriate
– consideration of principles – proposed declarations
and orders made and penalties imposed.
Butler and Commonwealth Scientific and Industrial Research
Organisation (Freedom of information) [2018]
AATA 2668
FREEDOM OF INFORMATION – where Applicant seeks
documents from the CSIRO regarding testing of fire alarms –
whether documents are exempted from the Freedom of Information
Act 1982 (Cth) – section 7 – whether request was
in respect of documents in respect of the CSIRO's commercial
activities – commercial activities – whether activities
undertaken on a commercial basis – whether the CSIRO was in
competition with others – the CSIRO was not in competition
with others – whether it was reasonably expected in the
foreseeable future that the CSIRO would be in competition with
others – the documents are exempted – decision under
review affirmed.
Freedom of Information Act 1982 (Cth), ss.3, 7, 11, 24,
24AA, 24AB, 55K; Science and Industry Research Act 1949
(Cth), ss.9, 9AA.
Legislation
Telecommunications Legislation Amendment (Competition
and Consumer) Bill 2018
Introduced with the Telecommunications (Regional Broadband
Scheme) Charge Bill 2017, the bill amends the: Competition and
Consumer Act 2010 and Telecommunications Act 1997 to:
remove regulation of networks servicing small business customers;
enable new superfast networks to operate on a functionally
separated basis with the approval of the ACCC; enable the ACCC to
exempt small start-up networks from separation regulation; provide
that all services supplied on networks that are wholesale-only or
functionally separated will be subject to clear non-discrimination
obligations; amend the enforcement regime, including conferring
additional powers on the ACCC. Also repeals four declarations.
Senate Second reading debate 16 August 2018.
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