Competition Law

Australian Competition Law and Policy Discussion

Posts Tagged ‘Legislation (TPA/CCA)’

Renaming of the TPA

Posted by Julie Clarke on 19 March 2010

As previously predicted, the TPA will be renamed the Competition and Consumer Act 2010 if the second phase of the Australian Consumer Law Amendments passes through Parliament.

The Trade Practices Amendment (Australian Consumer Law) (No 2) Bill 2009 was introduced into the House of Representatives on 17 March 2010.¬† Nestled in the monster bill, Schedule 5, s 2 includes the name change: “Omit “Trade Practices Act 1974 “, substitute “Competition and Consumer Act 2010“”


Posted in Legislation, Legislation (TPA/CCA) | Tagged: , , | 2 Comments »

Market definition in Australia

Posted by Julie Clarke on 20 October 2009

Earlier this month (on 2 October 2009) the Full Federal Court dismissed Singapore Airlines’ appeal against a decision of Justice Middleton which challenged ACCC investigation powers under s 155. A key issue was whether ‘routes between two points wholly outside Australia could be within a “market in Australia”.’ In rejecting the appeal, the Full Federal Court held that ‘prices fixed for legs of a journey which take place wholly outside Australia may ultimately affect competition in a market in Australia’. ACCC Chairman, Mr Graeme Samuel, noted that the decision was crucial in that it

‘confirms that the Act is able to reach cartels formed outside Australia affecting Australians. The Full Federal Court has also confirmed that the ACCC is fully able to investigate conduct occurring overseas. Here we are investigating a worldwide market for air cargo services.’¬† See ACCC Press Release.

The decision is a positive one. The definition of market in s 4E of the Trade Practices Act as one within Australia is artificial and distorting in cases where the reality is that the market is global or, at least, transnational.¬† It is not a problem that appears to arise in other jurisdictions which more sensibly focus on local effect on competition without the artificial market restriction.¬† Confirmation that a global market might be classified as a ‘market in Australia’, even where relevant conduct occurs entirely outside Australia is a positive step – and consistent with foreign approaches to the application of competition laws to conduct occurring abroad – but it is not a complete panacea for the problems generated by our restrictive market definition.

The last time this was officially reviewed was during the course of the Dawson Review of the competition law provisions of the Act which addressed it very briefly in the context of mergers (in which the definition of market is defined as a substantial market for goods or services in Australia, a State, a Territory or a Region of Australia: s 50(6)).¬† The Report concluded that this definition is not too restrictive and that it allows regard to be paid to foreign competition.¬† However it entirely glossed over the point that a market which is transnational cannot be.¬† I briefly discussed this in ‘The Dawson Report and Merger Regulation’ (2003) 8 Deakin Law Review (pages 59-61).¬†¬† See also submission by Dr Maureen Brunt – ‘Market Definition in the Trade Practices Act: the Challenge of Globalization’.

The issue has arisen in a number of cases recently, with judges taking vastly different approaches to the meaning of market in the TPA.  The importance of defining market in a realistic, rather than artificial, way has increased with the globalisation of markets and will continue to do so as more conduct occurring outside our territorial shores impacts on our domestic competitive environment.  It is time to revisit the issue of market definition for purposes of the competition law provisions of the TPA.

Posted in Cartels, Competition Policy, Evidentiary Issues, Jurisdiction, Legislation (TPA/CCA) | Tagged: , , , , , , | Leave a Comment »

Trade Practices Act – Time to Split it Up?

Posted by Julie Clarke on 23 July 2009

The Trade Practices Act (TPA)¬†is too big and too complicated. The Government has introduced phase I of their two-phase plan to implement a new Australian Consumer Law which will bulk up the Act even further (the Bill alone runs to 84 pages). ¬†The adds to the additional 90 pages of statutory text generated by the recent passage of the criminal cartel act.¬† It cannot go on … the annotated acts are bursting at their seems.

So what can be done to stem the flow of dense legislative supplements to what was once a neat little Act (the original 1974 Act comprised a little over 38,000 words of text; the current consolidation contains more than 305,000 words)?¬† The answer is probably nothing.¬†¬†It is unlikely there will be any substantive legislative repeals or genuine attempts at simplification, although this would be desirable, and the problem is likely to get worse with current inquiries into unconscionable conduct, creeping acquisitions and the meaning of ‘understanding’ in part IV of the Act likely to generate more legislative content in the near future.¬† Another answer is needed.

Chris Bowen MP, when he was then Minister for Competition Policy and Consumer Affairs, announced that the Government would change the name of the TPA to the ‘Australian¬†Competition and Consumer Act’ while in the process of implementing the Australian Consumer Law.¬† It was though that somehow this would ‘better reflect its purposes of promoting competition and empowering consumers’.¬† It is believed the Govenment is still intent on this name change.¬† Although, as a bit of a traditionalist, it hurts me to part with the term ‘Trade Practices Act’, of which I am now very fond, the proposed name change might present an opporunity.¬† While in the process of changing the Act’s name why not split it up?¬† Let’s divide it into a consumer act (‘Australian Consumer Act’ perhaps) and a competition act (‘Australian Competition Act’?).¬† These are two separate fields of law and policy (even if there may be some overlapping objectives) – they need not be married together in this legislative jungle.

While we’re in the process of splitting up the Act let’s also re-number it.¬† A multitude of additions and alterations over the years has led to an absurd numbering system.¬† The last part of the Act is Part XIII.¬† You might deduce from this that the Act has 13 parts.¬† You would be wrong; it in fact has 28 parts and a schedule.¬† Parts include IIIAA, XIAA, XIB etc.¬† All very logical!¬† The section numbering is even better. The new cartel laws begin with section 44ZZRA and end with section 44ZZRV.¬† Why?¬† Because the government wanted to slip them in between sections 44ZZR and 45.¬† Again, very logical and easy to follow for business trying to adhere to the law – and this is not the worst of it. This bizarre numbering is scattered throughout.¬† We have s 51ACAA (I kid you not), s 44AAGA, s 75AZQ, s 87CAA, s 95AZEA (seriously!), s 10.01 (yes, in Part X the numbering system completely changes – we go from s 119 to s 10.01 – 10.91 then we jump to s 150A at the start of Part XIA – there are no sections 120-150 in the Act) and my personal favorite, s 151BUAAA. ¬†It is simply absurd.

So, with the re-naming and and of the Act we can also begin a re-numbering system.¬† Nobody really loves s 151BUAAA or will be sorry to see it go.¬† Lets put what we want in the Act (or Acts), then start the renumbering of parts and sections from scratch.¬† No doubt future amendments will mess this up a little, but the Act cannot continue on it’s current numbering trajectory.

There are, of course, more serious issues than poor structure and numbering of the Act.  It is highly complex and, as a result, inaccessible for many of those parties to whom it is directed (consumers and business).  But a simplified structure (one that clearly separates consumer and competition legislation and policy) and a logical numbering system would, at the very least, be a good start.

Posted in Competition Policy, Legislation, Legislation (TPA/CCA) | Tagged: , , | 1 Comment »

Consolidated TPA

Posted by Julie Clarke on 23 July 2009

Treasury hasn’t produced one and there’s no current consolidation at ComLaw, so in light of the fact that the criminal cartel laws (and the new civil cartel laws) kick into operation tomorrow I have prepared an unofficial consolidation.¬† The process of reviewing the entire Act has reminded me what bad shape it is in – I thought the numbering of the new cartel provisions was bad, but I’ve been reminded that the numbering scheme is simply consistent (and in some respects simpler) than most of the rest of the Act …

Note: A current consolidation is now also available at ComLaw and AustLII

Posted in Cartels, Criminal Penalties, Legislation, Legislation (TPA/CCA) | Tagged: , , , , , | 1 Comment »

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