Competition Law

Australian Competition Law and Policy Discussion

Archive for April, 2009

ACCC Comments on Pratt Proceedings

Posted by Julie Clarke on 30 April 2009

While proceedings were ‘live’ the ACCC remained silent on its role in the criminal charges against Pratt which arose from their investigations into the cardboard cartel.  This was despite almost daily verbal attacks on the ACCC and, in particular, Graeme Samuel.  The ACCC has now released a press release detailing its role in the proceedings.  In particular, it states

“The ACCC has a public duty to refer all matters which may warrant criminal prosecution to the CDPP, together with relevant evidence.  The CDPP alone determines whether a prosecution will proceed. He does so pursuant to the Prosecution Policy of the Commonwealth. That policy has two pillars:

  • that there are reasonable prospects of conviction, and
  • and that the prosecution is in the public interest.

This is the process that was adopted by the ACCC in the proceedings relating to Mr Pratt.”


“The ACCC maintains that it has acted at all times in accordance with its public responsibility, and remains cognisant of the fact that both it and the CDPP must at all times have regard to the public interest in pursuing actions of this nature.”

Posted in Cartels, Criminal Penalties | Tagged: , | 1 Comment »

Mergers – creeping acquisitions

Posted by Julie Clarke on 16 April 2009

A discussion paper on creeping acquisitions was released by Chris Bowen MP in September last year; submissions closed on 10 October 2008.

Today, for the first time, there has been some indication that the discussion paper has not been forgotten; Chris Bowen, in an interview with Kieren Gilbert on SkyAgenda, stated that

“In the not too distant future I will be releasing some more information about a proposed way forward, and we will again be consulting on that. But we will make no apologies for proceeding resolutely, but cautiously, because this has the potential to be a very important change but we need to make sure we get the balance very clearly right.” [it’s a pity the same approach does not appear to have been adopted for criminal cartel laws … but that’s another issue]

He later said that the Government would deal with the issue this term, that once ‘we put out the proposed way forward there will be a period of consultation’ and that he hopes to ‘have legislation into the Parliament this year’.

In the course of the interview Bowen also stated that:

“Other countries have divestiture powers, which the ACCC doesn’t have, we have taken the view that we should go down the creeping acquisitions route.”

Of course, Australia does have divestiture powers – the ACCC does not have them directly (nor do most regulators), but may apply to the Court for a divestiture order under s 81(1) of the Act.  It also regularly administers enforceable undertakings (often at the ACCC’s instigation) which may include divestiture obligations – it is currently considering one such proposal for Baiada Poultry.  Divestiture is, arguably, a more important remedy in Australia than other jurisdictions given that there is no compulsory notification regime in Australia to ensure that all potentially anti-competitive mergers are vetted before consummation.  In any event, it is not clear why creeping acquisition laws should be viewed as an ‘alternative ‘ to divestiture.  Hopefully the report will enlighten us further …

Posted in Mergers | Tagged: , | 2 Comments »

Access Regime Reform

Posted by Julie Clarke on 7 April 2009

Chris Bowen MP (Assistant Treasurer and Minister for Competition Policy and Consumer Affairs) today announced that he had commenced consultation with States and territories on reforms to the National Access Regime which aim to ‘improve the efficiency, timeliness and effectiveness of regulatory decision-making’ under Part III of the TPA.  Legislation to amend the Regime is expected to be introduced in mid-2009, following the consultation process.

View Press Release.

Posted in Access Regime | Tagged: | 1 Comment »

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