Harper Review in full swing

The Harper Review (Competition Policy Review) is in full swing.  The wide ranging Issues Paper has led to an equally wide ranging set of submissions (currently standing at 236 publicly released).  I have begun to summarise and collate them here (the Review site keeps changing the URL on the submissions page which is most unhelpful).  For the most part they are not an impressive bunch – plenty of self interest, industry-specific requests/recommendations and lots of supermarket bashing (sometimes thoughtful and measured; often not), but there are exceptions.  So far (and noting that I have not read all of the latest 74 submissions released last Friday) they can be classified into:

• broad policy submissions, often referencing particular industry-specific competition issues or excess regulatory
• submissions on secondary boycotts (many submissions arguing to retain exceptions relating to environmental issues and consumer welfare and several employee groups arguing that they should extend to protect secondary industrial action)
• shipping submissions (to retain Part X)
• consumer law submissions (mixed bunch; many to extend unfair terms laws to small business – several opposed to such a move as well as broader submissions on unconscionable conduct and other consumer laws)
• IP exemptions (lots of submissions with mixed bag for/against retaining s 51 exemption (eg CHOICE against and Australian Copyright Council for) and more discussing parallel imports and international price discrimination and a few arguing for a ‘fair use’ exemption to copyright laws)
• Part IV CCA discussion (relatively few submissions discuss Pt IV issues)
  • cartels (several calls for simplification and JV clarification; see, eg, Beaton-Wells and Fisse)
  • price signalling (mainly to repeal; some suggest expand industry wide (eg, ACCC))
  • misuse of market power (largely around effects test; some for (like ACCC); other opposed; some to scrap Birdsville (worth a try – but compare Aust Dairy Farmers Ltd); some for divestiture powers in cases of MMP contravention)
  • mergers (a few on creeping acquisition laws – grocery sector focus; a few on notification process.  See in particular Herbert Smith Freehills focusing exclusively on mergers)
  • exclusive dealing – third line forcing (for removal of per se ban – even the ACCC is seeking competition test)
  • price discrimination (some recommend re-introduce/some oppose – but not much here – main focus on international price discrimination)
  • RPM (some to remove per se ban; some to retain (eg ACCC); Minter Ellison goes further)
• Access (mixed bag)
• Powers and functions of ACCC (most want to keep ACCC in tact – no comp/consumer etc split; some call for more powers; some call for market studies and ex post review powers/obligations; some discussion of s 155 powers (ACCC want extended; others critical of breadth of s 155)
• Government and competitive neutrality (mixed bag)

Of those released so far the ACCC’s 145 page submission (view on ACCC website), which it released on 25 June, has probably received the most attention.  For a brief overview click here.

More detail will follow once I get a chance to review all the most recent submissions.  However, based on the scope and diversity of the submissions released so far, I don’t envy the Panel their task!