Major Reform Of Australian Competition Laws.

 

3 May, 2018

 

 

The most signi cant changes to Australian competition law in 20 years commenced on 6 November 2017.

 

A number of amendments were made to Australia’s Competition and Consumer Act 2010 (CCA), following recommendations arising from the ‘root and branch review’ of competition law and policy commenced by the Federal Government in 2015 (commonly known as the ‘Harper Review’).

 

A summary of the changes is set out below, and a detailed article on the changes is available here:

 

• Introduction of a new prohibition against misuse of market power (and repealing the previously applicable prohibition). Under the new provision, a person who has a substantial degree of power in a market must not engage in conduct which has the purpose, e ect, or likely e ect of substantially lessening competition in that market, or in any market in which the corporation or a related body supplies or acquires goods or services or is likely to do so.
• Introduction of a broad prohibition against ‘concerted practices’, which is broadly understood to mean a form of coordination between competing businesses by which, without them having entered a contract, arrangement or understanding, practical cooperation between them is substituted for the risks of competition.
• Consolidating the various authorisation provisions applicable under the CCA into a single authorisation process (including for merger authorisations).
• Providing the ACCC with power to grant ‘class exemptions’, similar to the block exemption power which is available in Europe.
• Expanding the defence available for ‘joint ventures’ to the prohibition against cartel conduct, while also introducing signi cant restrictions to the availability of the defence. In addition to the revisions to the joint venture defence, a number of signi cant, common sense changes to the provisions of the CCA relating to ‘cartel provisions’.
• Changing the National Access Regime set out in Part IIIA of the CCA, including amending and clarifying the declaration criteria used by the Council and designated Minister.
• Abolishing the per se prohibition against “third line forcing”. Consistent with other forms of exclusive dealing, third line forcing is now only illegal if it has the purpose, e ect or likely e ect of substantially lessening competition.
• Introducing a streamlined noti cation process to obtain an exemption from liability for resale price maintenance arrangements where the bene ts of the arrangement outweigh the likely detriment of the arrangement to competition.
• Amending the de nition of ‘competition’ under the CCA to clarify that competition includes competition from goods and services that are capable of importation, in addition to those actually imported. 
• Amending the de nitions of ‘contract’ and ‘party’ to expressly include ‘covenants’, while removing provisions referring to covenants which are now redundant.
• Extending the ACCC’s powers to obtain information, documents and evidence under section 155 of the CCA, including in relation to investigation of compliance with s.87B enforceable undertakings and in connection with merger authorisation determinations.
• Introducing an express ‘reasonable search’ defence to failure to comply with a section 155 request for information, documents and evidence.
• Extending the scope of section 83 of the CCA, in order to allow parties bringing private proceedings to rely on admissions of fact made by a person, or ndings of fact made by a Court, in certain separate proceedings against that person.
• The ACCC will now be the decision maker on merger authorisation applications at rst instance, with the ACCC’s decisions reviewable by the Australian Competition Tribunal on appeal. 

 

Written by Josh Simons, partner at Thomson Geer Lawyers.

 

 

Adam Ferguson, Eversheds

adamferguson@eversheds.com