Competition and Consumer Point-in-Time Service Updates

The Competition and Consumer Point-in-Time Service has been updated to include the latest amendments from the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (114 of 2017), the Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 (116 of 2017), the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017, as well as the updated commencements for the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (87 of 2017).

Act 114 of 2017

This Act makes a number of significant amendments to the Competition and Consumer Act 2010 as a result of the Competition Policy Review (Harper Review).  Key amendments have been made to: 

• clarify that ‘competition’ includes competition from goods and services that are capable of importation, in addition to those actually imported; 
• confine the application of cartel conduct provisions to conduct affecting competition in Australian markets; 
• change the scope of the joint venture exceptions; 
• remove provisions relating to the anti-competitive disclosure of pricing and other information (known as price signalling); 
• prohibit a corporation from engaging in a concerted practice that has the purpose, effect or likely effect of substantially lessening competition; 
• remove the separate prohibition on exclusionary provisions; 
• define ‘contract’ and ‘party’ to include covenants; 
• increase the maximum penalty applying to breaches of the secondary boycott provisions;
• prohibit third line forcing only where it has the purpose, effect or likely effect of substantially lessening competition; 
• enable a corporation or person to notify the Australian Competition and Consumer Commission (ACCC) of resale price maintenance conduct, as an alternative to seeking authorisation from the commission for such conduct; 
• provide an exemption from the resale price maintenance prohibition for conduct between related bodies corporate; 
• consolidate authorisation provisions, including those relating to mergers, into a single authorisation process; 
• grant the ACCC with ‘class exemption’ and ‘stop notice’ powers; 
• provide for reviews by the Australian Competition Tribunal of merger authorisation determinations by the ACCC; 
• enable a party bringing certain proceedings to rely on both admissions of fact and finding of fact made in certain other proceedings; 
• extend the ACCC’s power to obtain information, documents and evidence in relation to investigations of alleged contraventions or court enforceable undertakings and merger authorisation determinations, and introduce a ‘reasonable search’ defence in relation to the failure or refusal to comply with a notice to produce such documents; 
• implement recommendations made by the Productivity Commission in relation to the National Access Regime.

Act 116 of 2017

This Act amends the Competition and Consumer Act 2010 to prevent the Australian Competition Tribunal from reviewing certain decisions made under the national energy laws and to ensure that decisions made by the Australian Energy Regulator under those laws are not subject to merits review by any other State or Territory body.

Competition and Consumer Amendment (Competition Policy Review) Regulations 2017

The purpose of the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017 ('the Regulations') is to make consequential amendments to the Competition and Consumer Regulations 2010 ('the CCA Regulations') following amendments that will be made to the Competition and Consumer Act 2010 by the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 and the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (the amending Acts).
The Regulations will make a number of consequential amendments to the CCA Regulations, following changes made to the Act by the amending Acts. Key amendments to the CCA Regulations will include:

• removing references to provisions of the Act which are to be repealed;
• repealing prescribed forms for authorisation and notification, which will instead be approved by the Australian Competition and Consumer Commission (the ACCC);
• introducing a new form for applications to the Australian Competition Tribunal, for review in relation to new decisions which the ACCC or the Minister will be able make (such as a decision of the ACCC to extend a stop notice for collective boycotts beyond 90 days);
• amending or introducing requirements for existing and new applications under Part IIIA of the Act; and
• prescribing details for new procedures to be introduced to the Act (such as a time after which resale price maintenance notifications commence and a fee for such notifications).

These new Acts and the new Regulation have been updated in the Point-in-Time Competition and Consumer Service current to 15 November 2017. (NB: Subscription required).

If you are not already a subscriber to this or other Point-in-Time Services then please contact us to find out more or to take a free trial.