ACCC welcomes changes to competition law

Two legislative amendments.

The ACCC has welcomed two legislative amendments to Australian competition law that have passed Parliament, following recommendations from the 2015 Harper Competition Policy Review.

The Competition and Consumer Amendment (Competition Policy Review) Bill passed Parliament, following the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 (Cth) which was passed on 23 August 2017.

The Competition Policy Review legislation contains a broad range of amendments to the Competition and Consumer Act 2010 in areas such as cartels, price signalling and concerted practices, exclusionary provisions, third line forcing, resale price maintenance, merger authorisations and non-merger authorisations, notifications and class exemptions, access and evidentiary provisions.

The Misuse of Market Power legislation is intended to strengthen the prohibition on the misuse of market power by corporations. The current ‘purpose’ test will be replaced with a ‘purpose or effects test’, prohibiting a corporation with a substantial degree of market power from engaging in conduct with the ‘purpose, effect or likely effect’ of substantially lessening competition.

ACCC chairman, Rod Sims said, “I am pleased to see these important reforms pass through the Parliament. The reforms to the misuse of market power prohibition and the new prohibition of anti-competitive concerted practices will improve our ability to target conduct harming the Australian economy.”

“The reforms also bring changes to the options available to merger parties to have their transactions cleared on either competition or net public benefit grounds. The merger authorisation and formal clearance processes will now be combined and streamlined, with the ACCC as the first-instance decision maker.

“These new laws have far reaching implications for the Australian economy and should significantly boost growth. The Harper Review recommended these changes to enhance the benefits that should flow to consumers and businesses when markets operate efficiently,” he said.

To facilitate effective compliance with, and enforcement of the legislation, the ACCC has established a Substantial Lessening of Competition Unit (SLC Unit), which will be responsible for misuse of market power and concerted practices investigations and litigation within the ACCC.

The SLC Unit will soon release guidance on the new misuse of market power and concerted practice provisions to help businesses understand and comply with these new laws.

“A dedicated team within the ACCC will work with businesses to ensure they have a clear understanding of how the changes to the law will affect them. The ACCC looks forward to the challenges and opportunities that will come with enforcing this legislation for the benefit of Australia’s economy and consumers,” Sims said.

The Competition Policy Review legislation and the Misuse of Market Power legislation are scheduled to come into effect in the coming weeks.

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