CLAW1001 Chapter Notes - Chapter 22: Amcor, Solidarity Action, Vertical Integration
PART 5: BUSINESS AND COMPETITIVE TRADING
CHAPTER 22: SUPPLY OF GOODS AND SERVICES
PART 1: COMPETITION AND REGULATION
COMPETITION, EFFICIENCY AND THE PUBLIC INTEREST
• Paul Keating (PM) – “the engine which drives efficiency is free and open competition”
• Trade Practices Act 1974 (TPA) à 1st body of law aimed at protecting and promoting competition
• 1993 Hilmer Report – National Competition Policy
o Recommended national uniform competition laws and regulation of business
o Expanded the Trade Practices Commission to become the ACCC
o Access rights for essential infrastructure
• Competition and Consumer Act 2010: to enhance the welfare of Australians through the promotion of competition
and fair trading and provision for consumer protection
• National Competition Policy Review 2015 (Harper Review): 56 recommendations
o Broadened Hilmer Report to include consideration of Aus’s wider competitive landscape
THE REGULATORY FRAMEWORK
• Competition and Consumer Act 2010 (Cth)
o Part IV prohibits anti-competitive practices that hinder the market for G+S from operating freely
o Based on corporations power in s51
• Economic not moral basis for trade practices law:
o Role in ensuring max benefits are obtained through efficient allocation of resources
o Aims at promoting efficiency through competition, ensuring goods provided at lowest price
• Nature of the prohibited conduct: different rules are appropriate for different conduct
o Per se offences: anti-competitive impact on competition is so unambiguous they are outright prohibited
§ Price fixing, collective or collusive primary boycotts, third-line forcing, resale price maintenance
o Other practices are prohibited only if a “substantial lessening of competition” is established
• Applications and exemptions:
o CCA now extends to virtually all sections of the Aus economy
o Limited exceptions: Conduct specifically authorised by Commonwealth, S/T law
COMPETITION IN A MARKET
• Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd [1982]
1. What is the market(s) in question?
2. What would be the probable extent of competition in the market BUT FOR the conduct?
3. What is the likely effect of the conduct on the market?
4. Will that conduct have the effect of substantially lessening competition in the market?
• The market: a space where 2+ businesses compete à some element of substitutability
o Four dimensions:
§ Product = type of G/S, substitutes
§ Geography = area the market covers
§ Function = stage in production and marketing chain
§ Time = size and scope of a market can change at any time
• Competition: rivalrous market behaviour à price, service, technology, quality, consistency of product
o Test = substantial lessening of competition: substantial is ambiguous, must be informed by context
AUTHORISING ANTICOMPETITIVE ACTIVITY
• In circumstances where competitive markets don’t work to deliver the most efficient outcomes, it may be in the
public interest to allow certain restrictions on competition
o E.g. market failure, doesn’t achieve most optimal outcomes
• Authorisation: ACCC à authorise conduct which may otherwise be in breach of the Act, on public benefit grounds
• Notification: exclusive dealing gains immediate + automatic immunity from legal action when notification given
• Public benefit: anything of value to the community, any contribution to the aims pursued by society
THE ACCESS TO ESSENTIAL FACILITIES REGIME
• Ensures that any party can obtain access to any natural monopoly declared to be of national significance à Hilmer
• Operation:
o Undertakings: with ACCC à sets out T&Cs on which 3rd parties will be granted access to service provided
o Declaration: if no effective access regime or voluntary undertakings exist
o Arbitration: if parties cannot reach an agreement on T&Cs = private arbitration
o Enforcement: undertakings and determinations can be enforced by Federal Court
ADMINISTRATION AND ENFORCEMENT
• Administration:
o Australian Consumer and Competition Commission (ACCC): Administration of CCA
§ Only agency with responsibility for enforcement of CCA + S/T application legislation
§ Responsible for authorisation and notification
§ Dissemination of information, law reform, research (s28)
Document Summary
Paul keating (pm) the engine which drives efficiency is free and open competition . Trade practices act 1974 (tpa) 1st body of law aimed at protecting and promoting competition. 1993 hilmer report national competition policy: recommended national uniform competition laws and regulation of business, expanded the trade practices commission to become the accc, access rights for essential infrastructure. The regulatory framework: competition and consumer act 2010 (cth, part iv prohibits anti-competitive practices that hinder the market for g+s from operating freely, based on corporations power in s51. Limited exceptions: conduct specifically authorised by commonwealth, s/t law. The market: a space where 2+ businesses compete some element of substitutability: four dimensions: Function = stage in production and marketing chain. Ensures that any party can obtain access to any natural monopoly declared to be of national significance hilmer. Undertakings: with accc sets out t&cs on which 3rd parties will be granted access to service provided.
