Update

What’s happened to the Dawson Bill?

The 2005 Dawson Bill was passed by the House of Representatives in early 2005 and was to be considered by the Senate in the sitting that concluded on Friday 19 August 2005. However, the Bill was not debated during that sitting and, in the meantime, it has been reported that the Government will retain the current outright prohibition of third line forcing in the TPA thereby scrapping the introduction of a competition defence for third line forcing conduct.

This development means that the amendments will need to be put before the House of Representatives and this may lead to further delays in the passing of the 2005 Dawson Bill. If you would like more information on the 2005 Dawson Bill or, in particular, the third line forcing issue, please contact one of the Competition group specialists listed at the back of this update.

Changes to Part IIIA of the TPA

On 2 June 2005, the Federal Government introduced the Trade Practices Amendment (National Access Regime) Bill 2005 (Bill). The Bill is intended to enhance the National Access Regime in Part IIIA of the TPA.The proposed changes should provide greater certainty and transparency for infrastructure investors and users who are subject, or potentially subject, to the national access regime.

The key proposed changes are as follows:

• An objects clause will be inserted into Part IIIA. One effect of the clause will be that decision makers must give overarching weight to the effects of their decisions on investment in infrastructure.
• The Government will introduce pricing principles to guide decision makers and parties negotiating access to a service under Part IIIA.
• Government sponsored infrastructure resulting from a competitive tender process may be exempted from declaration under Part IIIA.
• The criteria for declaration will make it clear that declaration must result in a material increase in competition. A material increase in competition means "more than trivial".
• A decision to accept an access undertaking will be subject to full merits review by the Australian Competition Tribunal.
• Time limits will be introduced for decisions made by the National Competition Council, the ACCC and the Australian Competition Tribunal. It will be possible to extend the time limits in certain circumstances.

On 15 June 2005 the Bill was referred to the Senate Economics Committee, which is due to report its findings on 5 September 2005.

For more information on the Bill see our Competition law alert dated 8 June 2005 which can be found in the publications section of our competition homepage: www.mallesons.com/expertise/competition

ACCC v Baxter Healthcare - continued

Our last update mentioned that on 16 May 2005 Justice Allsop of the Federal Court handed down judgment in the case of ACCC v Baxter Healthcare. At that time the judgment remained confidential. An abridged version of the judgment has now been publicly released.

In the judgment, Justice Allsop dismissed the ACCC's action against Baxter Healthcare on the basis that Crown immunity extended to Baxter's conduct in dealing with state purchasing authorities. Justice Allsop held that if Crown immunity did not apply then Baxter's conduct would have contravened sections 46 (misuse of market power) and 47 (exclusive dealing) of the TPA. The ACCC has appealed the decision on the application of the principle of Crown immunity and several findings regarding sections 46 and 47.

For an in depth analysis of the judgment see our Competition law alert dated 24 June 2005 which can be found in the publications section of our competition homepage: www.mallesons.com/expertise/competition