Miller’s Australian Competition and Consumer Law Annotated has recently been revised and updated by author Russell Miller to include the Government response to the recommendations of the Competition Policy Review (Harper Review) released on 24 November 2015.
The following is a sample of the annotations updated:
Proposals for Change
On 24 November 2015, the Government announced that it supports the recommendation of the Competition Policy Review (Harper Review) that the current definition be retained but that the definition of “competition” in s 4 be amended to ensure that competition in Australian markets includes competition from goods imported or capable of being imported, and services rendered (or capable of being rendered) by persons not resident or carrying on business in Australia.
The Government stated that it supports the need for a body to oversee progress on competition reform and will discuss its design, role and mandate with the States and Territories. The Government also stated that it “remains open” to a recommendation that governments, jointly or individually, should have the capacity to issue references for competition studies of a particular market or competition issue.
The Government announced that it supports the recommendation that the Authorisation provisions should be simplified to ensure that only a single Authorisation application is required for a single business transaction or arrangement and to empower the ACCC to grant an exemption from ss 45, 46, 47 and 50 if it is satisfied that the conduct would not be likely to substantially lessen competition or that the conduct would result in a benefit to the public that would outweigh any detriment.
The Government stated that it supported the ACCC taking steps to improve its communications with small businesses (and complainants more generally), adding that the Government had asked the ACCC to consider introducing changes to improve transparency and clarity for small businesses on why it is unable to pursue certain complaints.
Exemption: quality standards
The Government supports the recommendation that, given the unique position of Australian Standards, any standards not mandated by Government should be subject to periodic review by Standards Australia against a public interest test. The test should be that the standard should not restrict competition unless it can be demonstrated that the benefits to the community as a whole outweigh the costs and the objectives of the standard can only be achieved by restricting competition.
The Competition Policy Review (Harper Review) recommended the repeal of Div 1A and amendment of s 45 to extend it to prohibit a person engaging in a concerted practice with one or more other persons that has the purpose, effect or likely effect of substantially lessening competition.