Competition

On 4 August 2017, the Chairman of the ACCC, Mr Rod Sims, confirmed a major shift in ACCC policy towards “more intensive information-gathering” when it is reviewing contentious merger proposals. The new approach in contentious merger cases will include more extensive informal voluntary information requests and an increase in formal mandatory information requests (s155 Notices). As a consequence, the duration of informal clearance reviews of contentious mergers will be prolonged.

On 1 July 2017, the value of a penalty unit for the commission of an offence by a corporation or individual increased from $180 to $210. This means higher penalties now apply for various breaches (or alleged breaches) of the Competition and Consumer Act 2010 (CCA) and the Australian Consumer Law (Schedule 2 of the CCA) (ACL).

In recent weeks, the ACCC has commenced its first two cases under the unfair terms (small business contracts) regime against JJ Richards & Sons Pty Ltd (JJ Richards) and Servcorp Ltd and two of its subsidiaries (Servcorp).

With the passage of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (Misuse of Market Power Bill or Bill) our Federal Parliament has taken an important step toward implementing a key recommendation of the ‘Harper’ Competition Policy Review.

The recent decision upholding the declaration of the Port of Newcastle shipping channel

On 16 August 2017, the Full Federal Court rejected an application for judicial review in respect of the Australian Competition Tribunal’s (Tribunal) decision to declare shipping channel services provided by the Port of Newcastle under Part IIIA of the Competition and Consumer Act (Part IIIA).

On 3 August 2017 Nippon Yusen Kabushiki Kaisha (NYK) was fined $25 million in the first ever criminal cartel prosecution commenced in Australia. Cartel conduct became criminal under Australian competition law in 2009. This is the second highest monetary penalty for cartel conduct in Australia. The decision of the Federal Court in this case outlines how the Court will determine penalties for criminal cartel conduct including discounts available for early cooperation and the little assistance offered by penalties in civil cartel cases.