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Price signalling laws pass Parliament

​Last night, the Senate passed the Government’s Bill to prohibit price signalling.  The new prohibitions on price signalling will come into force six months after the Bill receives Royal Assent for the banking industry (the only industry to which the laws will initially apply). 

Next steps

Now that the price signalling laws have been passed by Parliament, the next significant steps in the introduction of these laws will be the release of the regulations which will define the scope of the ‘banking sector’ to which these laws will initially apply, and the release by the Australian Competition and Consumer Commission of a statement about how it will deal with notifications and applications for authorisation of proposed price signalling.

Given the breadth of the new laws, corporations in the banking sector should review all of their current practices regarding the disclosure of pricing information, to assess compliance with the new laws.

What is price signalling?

The new laws prohibit two types of price signalling:

  • corporations are prohibited from making ‘private disclosures’ of pricing information to actual or potential competitors, regardless of the purpose of the disclosure or its effect upon competition; and
  • corporations are prohibited from disclosing information (publicly or privately) about their prices, capacity or strategy for the purpose of substantially lessening competition in a market.

The new laws also include various anti-avoidance provisions, which provide that a private disclosure of pricing information can contravene the new prohibitions even if it occurs via an intermediary, or is made to both competitors and non-competitors, and regardless of whether the information disclosed is (or becomes) publicly available. 

Prohibitions initially apply only to banking sector

The new laws will only apply to the types of goods and services prescribed by regulation.  The Government has stated that the price signalling prohibitions will initially apply only to the banking sector, though the Government is yet to release the regulations that will define the banking sector.  Accordingly, the initial scope of the prohibitions is not yet certain. 

The operation of the price signalling prohibitions may be extended to other industries or sectors.  The regulations will set out a process to be followed before additional goods or services (or sectors) will be subject to the prohibitions on price signalling.  The Government has indicated that it will only apply the price signalling prohibitions to additional sectors after “further detailed consideration”.

Disclosures ‘in the ordinary course of business’ excluded from private disclosures of pricing information

The prohibition upon private disclosures of pricing information will not apply to disclosures that occur ‘in the ordinary course of business’.  Although this may seem to exclude a wide variety of conduct, it is not clear how this phrase will be interpreted by the Courts (or the Australian Competition and Consumer Commission).

There is an existing exemption in the Competition and Consumer Act 2010 for assets acquired in “the ordinary course of business” which has been considered by the Federal Court of Australia on at least one occasion. 

On that occasion, the Court observed that “the exclusion does not refer to the ordinary course of … [a particular person’s] particular business - it refers to the ordinary course of business”, indicating that the test for whether a disclosure occurs in “ordinary course of business” has an objective element to it and may depend upon the usual practice in a particular industry.1

On this basis, we believe the exclusion is likely to operate where:

  • disclosures of the kind in question are made in the ordinary course of business, in general, and the disclosure is made for a legitimate business purpose; and
  • if disclosures of the kind in question occur in relation to novel or innovative business conduct, the disclosure is made for a legitimate purpose.

General exceptions to the price signalling prohibitions

Due to the broad language in which the new prohibitions are framed, the new laws provide a number of exceptions to the prohibitions.  These include:

  • disclosures made for the purpose of complying with the continuous disclosure obligations under the Corporations Act;
  • disclosures authorised by or under a law of Commonwealth, a State or a Territory;
  • disclosures made to a related body corporate;
  • disclosures of information to an agent of the disclosing corporation, where the disclosure is not for the purposes of subsequent disclosure to third parties;
  • disclosures that are immunised in advance by the Australian Competition and Consumer Commission (e.g. disclosures that are authorised by or notified to the Commission, and certain disclosures made amongst the contracting parties to a collective bargaining notice that is in force).  It is not yet clear how the Commission’s existing processes for immunising conduct will apply to proposed price signalling, especially how the Commission will respond to requests for confidentiality; and
  • information disclosed by accident or due to some course beyond the control of the corporation.

Exceptions to private disclosures of pricing information

In addition to the general exceptions outlined above, the new laws also provide a number of specific exceptions from the prohibition on private disclosures of pricing information.  These include:

  • supplier/customer relationships - disclosures by a corporation relating to good or services supplied (or likely to be supplied) to the recipient of the information, or vice versa;
  • syndicated loans - disclosures relating to loans or credit services that are supplied, or are likely to be supplied, by the corporation that makes the disclosure or to whom the disclosure is made.  In order for the exception to apply, the relevant corporations must be providing (or considering whether to provide) loan or credit services to a borrower and the disclosure must be related to the provision (or potential provision) of those services to the borrower;
  • credit service providers - disclosures between credit providers and credit service providers made in the course of their relationship as a credit provider and a credit service provider;
  • corporate workouts - disclosures between lenders regarding existing or potential loans or credit where a borrower is (or may become) insolvent, and one or more of the lenders are considering taking measures to return the borrower to solvency or avoid or reduce the risk of the borrower becoming insolvent;
  • disclosures to customers - disclosures of pricing information made to a person who is, or is likely to, acquire or supply the goods or services the subject of the disclosure from the corporation making a disclosure;
  • joint ventures - disclosures made during the course of negotiations for, or for the purposes of, a joint venture;
  • unknown competitors - disclosures to a person not known to be an actual or potential competitor; and
  • acquisitions - disclosures made in connection with a contract, arrangement or understanding that provides, or would provide, for the acquisition of shares or assets by or from the corporation.

Footnote

[1] See Burchett J in Trade Practices Commission v Gillette Company (No 1.) (1993) ATPR 41-267, at 41, 610.

 

Author(s)

  • Anthony Haly - Senior Associate | Email
 

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