Step towards the next phase of the Australian Consumer Law - 19 November 2009
On 16 November 2009, the Standing Committee of Officials of Consumer Affairs (SCOCA) released a consultation paper with draft Regulatory Impact Statements (RIS) for best practice and product safety reform proposals. This consultation paper formally kicks off the second phase of the Australian Consumer Law (ACL), with the first phase (consisting of the national unfair contract terms regime and new consumer protection enforcement powers) currently before the Senate.
China's intervention in global M&A heats up while AML private actions cool down - 4 November 2009
China’s Ministry of Commerce (MOFCOM) has again imposed conditions on the merger clearance of yet another global transaction, the acquisition by Panasonic Corporation (Panasonic) of Sanyo Electric Co. Ltd. (Sanyo), while the conclusion of two private actions (one dismissed and one involving a nominal settlement) under the Anti-Monopoly Law (AML) suggests that firms still have some time to prepare before the threat of further private actions becomes a reality.
Proposed changes aim to enhance and streamline access to infrastructure
As foreshadowed in April 2009 (and our previous alert), a package of reforms designed to improve the efficiency of regulatory decision making under the National Access Regime in Part IIIA of the Trade Practices Act 1974 (TPA) has been released.
Government proposes to delay unfair terms commencement - 30 October 2009
The Government has circulated its proposed amendments to the national unfair terms regime contained in the Trade Practices Amendments (Australian Consumer Law) Bill 2009 that is currently before the Senate (Bill).
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Regulatory investigation and waiver of privilege - ASIC v Lindberg - 16 October 2009
The recent decision of the Victorian Court of Appeal in ASIC v Lindberg [2009] VSCA 234 considered whether someone who holds legal professional privilege (LPP) can assert that privilege in information that is in the hands of a third party who has obtained it from someone other than the holder of the LPP.
Telstra encouraged to structurally separate under important telecommunications reforms
On 15 September 2009, the Federal Government released the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 (the Bill), which proposes important changes to Australian telecommunications regulation. The Bill will be the subject of considerable debate over several months and may require the support of all independents in the Senate.
Competition Quarterly Update - August 2009
Tribunal grants Telstra exemption from access obligations - 28 August 2009
Mallesons Stephen Jaques has assisted Telstra in winning regulatory rollback from the Australian Competition Tribunal (Tribunal).
Comments sought on review of statutory implied conditions and warranties - 30 July 2009
The Minister for Competition Policy and Consumer Affairs has released an Issues Paper on behalf of the Commonwealth Consumer Affairs Advisory Council (CCAAC), examining existing laws on implied conditions and warranties (implied terms). Issues being considered include the potential introduction of “lemon laws” in Australia; allowing a regulator to take action for breach of an implied term; the offering of extended warranties by retailers; and whether statutory implied terms should be extended, for example, to apply to sales by auction.
Chinese competition regulators focus on cartels and sharpen their investigatory tools - 14 July 2009
China’s Anti-monopoly Commission (AMC) has published guidelines that provide a basis for all enforcement activity under the Anti-Monopoly Law (AML) that involves defining the relevant market. Firms should now prepare themselves for possible dawn raids and other enforcement action by the National Development and Reform Commission (NDRC) against pricing cartels.
Unfair Contracts Bill: implications for financial services providers - 30 June 2009
Financial services providers will be regulated under a proposed national unfair contracts regime (“regime”) from 1 January 2010. The regime will apply to new contracts entered into after 31 December 2009, and also affect contracts that are varied after that date (but only to the extent of the variation). The first step will be to identify the affected products and services.
Unfair terms Bill introduced into Federal Parliament - 24 June 2009
The Minister for Competition Policy, Craig Emerson, today introduced the much-anticipated Trade Practices Amendments (Australian Consumer Law) Bill 2009 (Bill) into Federal Parliament.
Cartel conduct criminalised in Australia - 17 June 2009
The Federal Parliament has passed the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. This Act significantly amends Part IV of the Trade Practices Act 1974 (Cth) by introducing parallel civil and criminal sanctions for cartel conduct. Criminalising cartel conduct is long overdue (it was proposed in the Dawson review in 2003), and will bring Australia into line with many other OECD countries
Chinese antitrust regulators signal the commencement of AML investigations and fines - 9 June 2009
中文版
On 5 June 2009, China’s State Administration of Industry and Commerce (SAIC) officially issued its first two procedural rules under the Anti-Monopoly Law (AML), signalling that from 1 July 2009, firms will need to be ready for SAIC investigations and the risk of fines being imposed. These rules outline the procedures SAIC will follow when investigating abuse of administrative power and non-price related abuses of dominant market position and entering into anti-competitive arrangements.
Competition Quarterly Update - June 2009
India’s new competition laws: regulating anti-competitive conduct - 22 May 2009
On 20 May 2009, the Indian Government formally notified provisions in the Competition Act of India (Act) relating to anti-competitive agreements and abuse of dominance. The provisions relating to mergers (combinations) have yet to be brought into operation, but are likely to be in force later this year. In addition to this, the Indian Government has now made the Competition Commission of India (CCI), a body set up to oversee the operation of the Act, fully functional.
Exposure Draft on unfair terms released - 12 May 2009
In February 2009, we reported a key milestone in the Rudd Government’s quest towards a national consumer protection law: the announcement by the Minister for Competition and Consumer Affairs to fast track the proposed national unfair terms regime. Yesterday, Minister Bowen released part of the blueprint for this regime - the Trade Practices Amendments (Australian Consumer Law) Bill 2009 (Exposure Draft), which will amend both the Trade Practices Act 1974 (Cth) and Australian Securities Investment Commission Act 2001 (Cth).
ACCC issues guidelines on new component pricing laws - 7 May 2009
The Australian Competition & Consumer Commission yesterday released guidelines to the new changes to the component pricing legislation. The changes affect the way in which business can advertise “part prices” under section 53C of the Trade Practices Act 1974 and will come into effect on 25 May 2009.
Creeping acquisitions - Government releases second discussion paper - 6 May 2009
The Government today released a second discussion paper calling for public comment on the best way to address the issue of creeping acquisitions. The discussion paper puts forward two models and invites submissions on these models, and any other appropriate options, by 12 June 2009.
Chinese regulators nearly battle ready - 30 April 2009
Predictions of a Chinese antitrust/competition law revolution appear to be well founded following new incentives to encourage whistle-blowing, unique minimum fines of one per cent of turnover, a court system increasingly prepared to accept private actions and another conditional merger control decision.
Government flags speedier resolution to infrastructure access disputes - 8 April 2009
The Minister for Competition Policy and Consumer Affairs, Mr Chris Bowen, has flagged a package of reforms to streamline the National Access Regime in Part IIIA of the Trade Practices Act (TPA). Following consultations with the States and Territories, legislation to amend the National Access Regime is expected to be introduced to Parliament in mid 2009.
New Master Agreement for Financial Derivatives in China - 18 March 2009
On 16 March 2009 the China Interbank Market Financial Derivatives Master Agreement (2009 version) (NAFMII Master Agreement (2009 version)) as well as a relevant notice (NAFMII Notice (No.5)) by the National Association of Financial Market Institutional Investors (NAFMII) was released. This is the latest step by the Chinese authorities to regulate and further support the development of the financial derivatives market in China.
Competition Quarterly Update - March 2009
New national consumer law - submissions due in one month - 18 February 2009
On Tuesday 17 February 2009 the Consumer Affairs Minister, Chris Bowen MP, announced that the Federal Government is fast tracking a new Australian Consumer Law. Key planks of the new law, including unfair contract terms provisions, new civil penalties and new regulator enforcement powers, will be introduced into the Federal Parliament within five months. The Minister also launched an information and consultation paper on the new law (Consultation Paper). Comments in response to the Paper are sought by 17 March 2009.
Chinese merger control - new draft measures mean greater risk - 11 February 2009
中文版
On 6 February 2009, the Chinese Ministry of Commerce’s Anti-Monopoly Bureau (“AMB”) issued draft interim measures concerning the AMB’s merger control procedures. These measures regulate the investigation and disposal of mergers or “concentrations of undertakings” that are below prescribed notification thresholds but suspected to have or may have the effect of eliminating or restricting competition (“New Measures”).
Further developments in Chinese merger control to welcome in the New Year - 9 January 2009
The Chinese Ministry of Commerce’s Anti-Monopoly Bureau (AMB) has issued a series of guidelines on the merger review framework and process, including guidelines on the information required by the AMB about transactions that must be notified to the AMB in accordance with the compulsory pre-merger notification regime under the PRC Anti-Monopoly Law (AML).
Competition Quarterly Update - December 2008
ACCC releases new Merger Guidelines 2008 - 25 November 2008
On 21 November 2008, the Australian Competition and Consumer Commission (ACCC) released its new Merger Guidelines (New Guidelines). The New Guidelines replace the original Merger Guidelines issued by the ACCC in 1999.
Chinese merger review receives its first toast - 21 November 2008
On 18 November 2008, the Chinese Ministry of Commerce (MOFCOM) announced that it has cleared the acquisition by InBev N.V./S.A. (InBev) of Anheuser Busch Companies Inc. (A-B), the largest transaction it has yet considered under China's new Anti-Monopoly Law (AML). The parties announced that the transaction had closed shortly thereafter.
A Closer Look at Cartel Criminalisation - 7 November 2008
In this Alert, we take a closer look at some of the practical impacts of the Government’s Trade Practices Amendment (Cartel Conduct and other Measures) Bill 2008, which is due to be introduced into Parliament before the end of the year and is likely to become law in the first half of 2009.
Cartelists Closer to the Clink - 28 October 2008
Cartelists are now one step closer to the clink, with Assistant Treasurer Hon Chris Bowen’s release of the finalised Bill to criminalise cartel conduct. The proposals have undergone several key changes since their release as a draft exposure Bill in January this year. Most significantly, the maximum period of imprisonment has doubled to a world-leading 10 years and the much-debated “dishonesty” element has been dropped.
Back on track: Pilbara rail access applications to proceed - 25 September 2008
On 24 September 2008, the High Court handed down its decision in BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45. It was held that the Pilbara below rail services sought by Fortescue from BHP Billiton Iron Ore (BHPBIO) did not involve the “use of a production process” and were therefore not excluded from third party access regulation under the Trade Practices Act 1974 (TPA).
ACCC proposes more roll back of access regulation - 16 September 2008
On 5 September 2008, the Australian Competition and Consumer Commission (ACCC) released its draft decision exempting Telstra from its obligation to supply the Public Switched Telephone Network Originating Access in 15 CBD and 248 metropolitan exchange service areas.
Competition Quarterly Update- September 2008
Government releases discussion paper on creeping acquisitions - 1 September 2008
Today the Government released a Discussion Paper calling for public comment on the best way forward for a creeping acquisitions law. The discussion paper outlines two proposals to deal with creeping acquisitions, and invites submissions in relation to this issue by 10 October 2008.
ACCC grants Telstra exemption from access obligations - 28 August 2008
Mallesons Stephen Jaques has assisted Telstra winning significant regulatory rollback from the ACCC.
China's merger control laws - an event of Olympic proportions - 22 August 2008
China’s new Anti-Monopoly Law (AML), including its new merger control regime, recently came into effect. Under the new merger control regime, transactions that meet specified turnover thresholds must be notified to, and cannot be closed until they are cleared by, the Chinese merger control authority.
The National Consumer Framework - 15 August 2008
On Friday 15 August 2008 a national consumer law was endorsed in a joint communiqué released by the Ministerial Council on Consumer Affairs (MCCA). The MCCA’s joint communiqué promotes the key recommendations of the Productivity Commission’s Review of Australia’s Consumer Policy Framework.
Key findings of the ACCC's grocery inquiry - 6 August 2008
The ACCC’s Report of its inquiry into the competitiveness of retail prices for standard groceries (Report) was publicly released 5 August 2008. The Report took into account 265 public submissions and extensive information, data and documents from industry participants including Coles and Woolworths.
Productivity Commission Review of Australia's consumer policy framework - 14 May 2008
The Productivity Commission (Commission) released its final Report - Review of Australia’s Consumer Policy Framework (Report) on 8 May 2008. The Report contains responses to the public submissions invited in November 2007.
ACCC draft decision to grant Telstra exemption applications - 30 April 2008
The Australian Competition and Consumer Commission (ACCC) has made a draft decision to exempt Telstra from its obligation to supply the wholesale line rental service (WLR) and local carriage service (LCS) within 229 exchange service areas (ESAs) in metropolitan Australia.
Bye Bye Birdsville - 28 April 2008
On Monday 28 April 2008, the Rudd Government followed through with its pre-election promise by announcing a series of proposed amendments aimed at protecting small business from anti-competitive conduct.
China publishes draft filing obligations for merger control regime - 3 April 2008
In preparation for its first Anti-Monopoly Law (AML), which will take effect on 1 August of this year, the State Council of the People’s Republic of China has released draft Implementing Regulations for public consultations.
Proposed changes to component pricing - 2 April 2008
On 30 March 2008, the Minister for Competition Policy and Consumer Affairs unveiled a proposed amendment to the Trade Practices Act 1974 (TPA) relating to the use of component pricing in consumer advertising. If passed, the proposed changes will affect consumer advertising across the board.
Competition Quarterly Update - February 2008
Hitting home- extradition for cartel criminals / The exposure draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 would allow persons in Australia to be extradited to a foreign country for trial under the laws of that foreign country for criminal cartel conduct.
ACCC releases new draft merger guidelines 2008 - Safe harbours and first ports of call - 14 February 2008
On 8 February 2008, the ACCC released its Draft Merger Guidelines 2008 for public consultation. The new guidelines will replace the original Merger Guidelines issued in 1999.
Too green to be true? The ACCC's investigation into carbon neutral claims – 5 February 2008
On 16 January 2008, the ACCC released an Issues paper entitled “The Trade Practices Act and carbon offset claims”.
Oil Over Troubled Water – The Petrol Inquiry – 22 January 2008
On 18 December 2007, the ACCC publicly reported on its inquiry into the cost of petrol in Australia.
Cracking Cartels - Kevin Contemplates The Clink - 15 January 2008
On Friday 11 January 2008, Chris Bowen, the new Assistant Treasurer and Minister for Competition Policy, released the exposure draft Trade Practices Amendment (Cartel Conduct and other Measures) Bill 2008 to criminalise serious cartel conduct for public comment.
Competition Quarterly Update - November 2007
On 27 July 2007 Justice Sackville delivered his reasons for judgment in one of the largest cases in Australian legal history, finding against the applicants, Seven Network Limited and C7 Pty Limited (together ‘Seven’) on all claims: Seven Network Limited v News Limited [2007] FCA 1062.
Proposed transmission and generation cross ownership rules - 18 October 2007
The Ministerial Council on Energy released a Regulatory Impact Statement on 16 October 2007 with specific recommendations to maintain separation between generation and transmission activities.
Pricing and bundling in the spotlight - 16 October 2007
Courts, regulators and governments alike are showing increasing vigilance towards certain business practices of corporations with a strong market position.
India's New Competition (Amendment) Bill 2007 - 5 October 2007
Both Houses of Parliament in India have passed the Competition (Amendment) Bill 2007. After the bill receives Presidential Assent it will be mandatory for entities to notify the Competition Commission of India (CCI) of qualifying mergers and acquisitions and wait for approval before completing the transaction.
High court endorses need for regulatory certainty in access regulation - 11 October 2007
On 27 September 2007 the High Court of Australia handed down a decision in East Australian Pipeline Pty Limited v ACCC [2007] HCA 44 (EAPL v ACCC), finding against the ACCC.
Parliament poised to amend Section 46 to prohibit predatory pricing - 14 September 2007
The Federal Government has approved further amendments to section 46 of the Trade Practices Act 1974 (Cth) (TPA) which will introduce a new prohibition in Part IV of the TPA, aimed at targeting predatory, below-cost pricing.
China passes Anti-Monopoly Law - 31 August 2007
The National People's Congress today finally passed China's first anti-monopoly law after over a decade of drafts and debates. The law will take effect on 1 August, 2008.
Competition Quarterly Update - August 2007
High Court rejects derivative Crown immunity for companies dealing with State procurement entities: ACCC v Baxter [2007] HCA 38.
Amendments to Trade Practices Act introduced into Parliament - 20 June 2007
The Federal Government has introduced legislation into Parliament today to amend Australia’s Trade Practices Act. The proposed amendments represent one of the final tranches of changes following the reports of the Dawson Committee and the Senate Economics Committee.
A lack of understanding: ACCC fails in price fixing case - 1 June 2007
On 29 May 2007 the Australian Competition and Consumer Commission failed in its bid to have eight Geelong petrol retailers found guilty of price-fixing by the Federal Court.
Competition update - 28 February 2007
This update focuses on cartels and the ACCC's immunity policy, it considers the possibility of facing a damages action if you apply for immunity and covers five things you need to know about cartels.
Competition update - 30 November 2006
This update looks at giving undertakings to the ACCC in merger reviews, gives you a refresher on bait advertising, considers recent international news, notes some of our recent publications, and looks at five things you need to know about joint ventures.
Consumer Affairs Victoria taskforce cracks down on unfair terms in consumer contracts - 28 November 2006
Consumer Affairs Victoria (CAV) has reviewed many gift voucher and loyalty programs to ensure that they comply with the unfair terms provisions of the Victorian Fair Trading Act 1999. With this increased vigilance in reviewing consumer contracts and a willingness to take action, companies may want to audit their consumer contracts, including any terms and conditions of loyalty or bonus schemes.
The new formal merger clearance process available for complex mergers - 23 November 2006
Last months amendments to the Trade Practices Act introduced a new option of seeking a formal clearance of a merger. Although the option offers some advantages, you will need to carefully consider when to use the new formal merger process.
The Dawson Bill - Amendments to the Trade Practices Act 1974 - 20 October 2006
Long-awaited reforms to the Trade Practices Act 1974 have cleared both Houses of Parliament. New processes for merger clearances and authorisations have been created, collective bargaining and joint venture procedures have been liberalised and the ACCC's enforcement powers have been strengthened.
Key media ownership reforms passed - 18 October 2006
On 18 October 2006, the Australian Parliament passed the three key pieces of legislation that make up the Governments media reform package. The Government stated that the new regime would allow Australia to prepare for and respond to a media environment that faces dramatic change in the availability of communication platforms. The legislation will become law once Royal Assent is given (expected shortly). The media ownership changes will take effect on a date to be proclaimed some time in 2007.
Competition update - 16 August 2006
This update examines whether failing to disclose information in the course of commercial negotiations can be misleading or deceptive conduct in breach of section 52 of the TPA. The update also highlights the trade practices risks inherent in dealing with competitors. And we look at five things you need to know about expert witnesses in the Federal Court.
More energy reform - poles apart? - 19 July 2006
On 6 July 2006, the Energy Reform Implementation Group (ERIG) released an issues paper which explores further energy reform in the areas of electricity transmission, energy market structure and energy financial markets. Submissions are due by Friday, 4 August 2006.
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