17 April 2019
In Touch looks at what's been happening in the Australian competition, consumer and regulatory world, and what it means for your business.
We hope you find this issue interesting and helpful. Please let us know if you would like us to investigate any competition news and, as always, feel free to get in touch with our team.
- Criminal cartel charges laid for alleged forex price fixing
- Three container stevedore companies remove contract terms likely to be unfair
- ACCC takes iSelect to court over alleged misleading energy plan comparisons
- ACCC grants interim authorisation for mortgage broking disciplinary rules
- Closer ties across the Pacific as ACCC and FBI sign cooperation agreement
The Commonwealth DPP has laid criminal cartel charges against Vina Money Transfer Pty Ltd, a money transfer business, for allegedly fixing the Australian dollar / Vietnamese dong exchange rate and transaction fees charged to customers when sending money from Australia to Vietnam between 2011 and 2016. The Commonwealth DPP has also laid charges against five individuals for allegedly being knowingly concerned with some or all of the conduct.
The charges arose from a joint ACCC and AFP investigation into alleged price fixing by several Sydney and Melbourne money transfer businesses, which relates to more than two-thirds of all the number of money transfer transactions, and almost a quarter of the amount of money transferred, from Australia to Vietnam during the relevant period.
The charges were filed in the Magistrates’ Court of Victoria. If a Magistrate determines at a committal hearing that there is sufficient evidence for the matter to proceed, the matter will likely be heard in the Federal Court.
Following the ACCC raising concerns, DP World Australia, Hutchison Ports Australia and Victoria International Container Terminal (VICT) agreed to remove or amend terms in their standard form contracts with land transport businesses that the ACCC considered were likely to be 'unfair' under the Australian Consumer Law (ACL).
The terms in DP Worlds' and Hutchison's contracts included ones:
- allowing a stevedore to unilaterally vary an agreement without notice, including in relation to fees paid by the land transport operators; and
- limiting the stevedores' liability for loss or damage suffered by the transport businesses, with no corresponding protection for the transport businesses.
The terms in VICT's contracts included ones:
- requiring transport businesses to indemnify VICT for loss or damage, with no reciprocal obligation on VICT; and
- requiring transport businesses to pay stevedores' legal costs and expenses, where such payments would normally be determined by court order.
While all three stevedores agreed to amend their standard contract terms, Hutchison has provided its commitment in the form of a court enforceable undertaking, and agreed to publish a corrective notice on its website and customer portal, and put in place an ACL compliance program.
The ACCC has commenced proceedings in the Federal Court against iSelect, alleging that it engaged in misleading or deceptive conduct and false or misleading representations in relation to its energy plan comparison service.
The ACCC alleges that, since at least November 2016, iSelect has claimed that consumers using its comparison website would benefit from comparing all plans available from partner retailers in a specific location, and that it would recommend the most competitive plan to consumers.
The ACCC alleges that iSelect did not compare all available plans and thus did not necessarily recommend the most competitive plan to consumers. Instead, iSelect is alleged to have limited the number of plans it compared based on commercial arrangements it had with the energy retailers, and that this was not disclosed to consumers.
The ACCC is seeking pecuniary penalties, injunctions, declarations, a corrective notice and costs.
Pricing of essential services – in particular, energy services – is a key compliance and enforcement priority for the ACCC this year.
The ACCC has granted an interim authorisation to allow the Mortgage and Finance Association of Australia (MFAA) to continue to administer its existing disciplinary rules that apply to mortgage and finance brokers, which were previously authorised by the ACCC.
The interim authorisation was granted so that MFAA would have the time to consider and make changes to its governance regime, in line with Financial Services Royal Commission recommendations that impact the mortgage broking industry. Once these changes have been made, the ACCC will recommence its assessment of MFAA's application for authorisation of its updated disciplinary rules and code of practice.
ACCC authorisation removes the risk of legal action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010 (Cth).
The ACCC and the United States FBI signed a new Memorandum of Cooperation (MOC) last week in Washington, D.C. The MOC provides for the exchange of expertise and staff between the two agencies, and aims to strengthen their joint efforts in the detection, investigation and prosecution of criminal cartel conduct.
The MOC complements an existing intergovernmental agreement between Australia and the US, and builds on the relationship between the ACCC and various US competition law enforcement bodies.
- Jacqueline DownesPartner, Practice Group Leader, Competition, Consumer & Regulatory,
Ph: +61 2 9230 4850
- Fiona CrosbieChairman,
Ph: +61 2 9230 4383
- Carolyn OddiePartner,
Ph: +61 2 9230 4203
- Ted HillPartner,
Ph: +61 3 9613 8588
- John HedgePartner,
Ph: +61 7 3334 3171
- Rosannah HealyPartner,
Ph: +61 3 9613 8421
- Robert WalkerPartner,
Ph: +61 3 9613 8879
- Felicity McMahonManaging Associate,
Ph: +61 2 9230 5242
You can leave a comment on this publication below. Please note, we are not able to provide specific legal advice in this forum. If you would like advice relating to this topic, contact one of the authors directly. Please do not include links to websites or your comment may not be published.