Competition Policy Review
Submissions and consultation

(Harper Report 2015 consultation)

Consultation on Final Report | Submissions on Final Report consultation | Consultation on Misuse of Market Power | Submissions on MMP consultation

Consultation on final report

Commenced 31 March 2015

 

The Final Report of the Harper Competition Policy Review was released on 31 March 2015.

Small Business Minister, Bruce Billson MP, launched a consultation on the Final Report on the same day, together with a ‘fact sheet’ on competition policy.

“The focus of this consultation is to seek feedback from industry, consumers and all levels of government on the Competition Policy Review’s final recommendations to strengthen Australia’s Competition and Consumer Act 2010 (CCA) and issues concerning small businesses, especially where there have been changes since the draft report. This will inform the Government’s response to the report later in the year. Following the Government’s response, appropriate legislative changes will be developed for further consultation.“

Submissions to consultation on final report

 

While indicating that the Government supports the broad direction of the Competition Policy Review's Final Report, the consultation sought feedback on the final recommendations 'and issues concerning small businesses, especially where there have been changes since the draft report', which will inform the Government's response to the report later this year.

Treasury received 140 submissions; all but eight of which are available on the Treasury website.

Consultation on Misuse of Market Power

11 December 2015 - 11 February 2016

 

A separate consultation process took place in relation to misuse of market power from 11 December 2015 until 11 February 2016. It followed the release of a discussion paper, available at the official site:

“The Final Report of the Competition Policy Review (the Harper Review) made 56 recommendations on Australia’s competition framework spanning most sectors of the economy and with implications for all levels of government.

On 24 November 2015 the Australian Government released its response to all recommendations.

The Government will work with the States and Territories to reinvigorate competition reform, find more innovative ways to deliver services and above all to further drive Australia’s economic performance and living standards through stronger productivity growth.

In relation to the misuse of market power provision, the Government has listened to the views of affected stakeholders and decided that further consultation is needed before responding to the Review’s recommendation.

The purpose of this discussion paper is to seek the views of interested parties on options to strengthen the misuse of market power provision (section 46) of the Competition and Consumer Act 2010 (CCA).”

Discussion paper

The draft report which presented six options for possible reform:

  • Option A
    Making no amendment to the current provision

  • Option B
    Amend the existing provisions by removing the words 'take advantage'

  • Option C
    Amend the existing provision by removing the words 'take advantage', including a 'purpose of substantially lessening competition' test, making authorisation available, and the ACCC issuing guidelines regarding its approach to the amended provision

  • Option D
    Amend the existing provision by removing the words 'take advantage', including a 'purpose of substantially lessening competition' test, including mandatory factors for the courts' consideration, making authorisation available, and the ACCC issuing guidelines regarding its approach to the amended provision

  • Option E
    Amend the existing provision by removing the words 'take advantage', including a 'purpose, effect or likely effect of substantially lessening competition' test, making authorisation available, and the ACCC issuing guidelines regarding its approach to the amended provision

  • Option F
    Amend the existing provision by adopting the full set of changes recommended by the Harper Panel (different from Option E in that it incorporates mandatory factors for the court to have regard to when assessing effects)

The discussion paper also invited other suggestions.

Submissions to consultation on Misuse of Market Power

Due: 12 February 2016

 

Overview

Submissions were due by 12 February. Seventy submissions were received; 7 were confidential. All non-confidential submissions can be downloaded from the Review website.

The sixty-three* non-confidential submissions were published on 16 February 2016. These can be broadly categorised as follows:

  • 36 submissions supported Options E, F or an effects test generally
    Option E = effects test (almost full Harper recommendation) and Option F = full Harper recommendation
    Of the 36 in this category, 20 supported option F (full Harper), 7 supported Option E (effects test - almost full Harper but without mandatory factors to consider) and the remaining nine expressed general support for an effects test without making any express reference to the discussion paper options

  • 15 submissions supported Option A
    (no change to current law)

  • 13 submissions did not support a specific option
    These ranged from submissions that either proposed an alternative option or made general observations without identifying a preferred reform option.

* Note, this amounts to 64 submissions; the Law Council of Australia submission incorporated submissions by both the Competition and Consumer Committee of the Business Law Section and the SME Business Law Committee of the Business Law Section; as each committee supported a different option I've listed them separately.