6 March 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.
- ACCC announces its annual enforcement priorities
- Consultation open for energy sector Consumer Data Right
- ACCC seeks further input from advertising industry
- ACCC releases its annual communications market review
- Bingo! Dial-a-Dump acquisition given green light, subject to divestiture undertaking
- Labor announces post-merger review policy
A number of industries and issues are in the spotlight following the release of the ACCC's 2019 Enforcement and Compliance Priorities by Chairman Rod Sims on 26 February.
See our Client Update: ACCC 2019 Enforcement Priorities, which provides a snapshot of these focus areas for 2019.
The ACCC has released a consultation paper seeking feedback on how to implement the Consumer Data Right (the CDR) in the energy sector. The paper outlines three potential data access models for the energy sector CDR, along with the principles the ACCC will use to assess which model is most appropriate.
The CDR will allow consumers to access certain information about or related to them that is held by designated organisations, and direct that information to be shared with accredited third parties. The CDR is due to be implemented in the banking sector in July 2019, with the energy and telecommunications sectors to follow shortly after. The ACCC's consultation paper (which follows the ACCC's publication of the Rules Outline for the CDR last December) indicates the CDR is intended to commence in the energy sector by early 2020.
Submissions on the consultation paper are due by 5pm AEST 22 March 2019.
See our detailed publication on the application of the CDR in the energy sector here.
ACCC Chairman Rod Sims has encouraged the advertising industry to provide further feedback on the preliminary recommendations of the ACCC's digital platforms inquiry. In a speech delivered at an event of the Australian Association of National Advertisers and ThinkTV on 27 February, Mr Sims emphasised that, despite the deadline for submissions on the Preliminary Report having passed, the ACCC is continuing to engage with the media and advertising industry to fully inform the recommendations it will make in its final report, due in June this year.
The ACCC has released its Communications Market Report for 2017–18, which provides a snapshot of the key developments across communications markets, and ACCC regulatory and enforcement actions during the year.
Key market findings set out in the report include that:
- consumers are benefiting from increased data allowances and lower prices on both mobile phone and fixed broadband services;
- consumers are increasingly taking up higher-speed internet products, and nbn speeds have shown significant improvement; and
- the number of consumer complaints to the ACCC and Telecommunications Industry Ombudsman remains high, particularly in regard to mobile services.
In relation to its areas for focus, the ACCC indicates that it remains concerned about improving end users' experience on the nbn, and is considering a series of regulatory and policy measures to assist in improving regional mobile coverage.
The ACCC has announced it will not oppose the proposed acquisition by Bingo of waste management business Dial-a-Dump, after accepting a court-enforceable undertaking from Bingo to divest its Banksmeadow processing facility.
Both parties collect and process building and demolition (B&D) waste in Sydney. They are also set to own and operate large dry landfills, with Dial-a-Dump already operating a site at Eastern Creek, and Bingo set to open a site at Patons Lane later this year.
The ACCC's investigation focused on a number of key concerns. First, the regulator was concerned about the loss of competition in B&D waste processing in Sydney's eastern suburbs and inner city. It decided that, subject to divestiture of the Banksmeadow facility by Bingo, competition in the market would be maintained. Second, the ACCC was concerned about the effect of the acquisition on future competition between the parties' dry landfills at Eastern Creek and Patons Lane. A key consideration was whether Bingo would be able to use its increased vertical integration to stop competing B&D waste processors from accessing dry landfill at competitive prices – however, the ACCC was ultimately satisfied that most B&D waste processors would have sufficient dry landfill alternatives. Its investigation of the proposed acquisition was extensive, having been first listed on the ACCC's public mergers register in September 2018.
The Australian Labor Party has announced that, if elected at this year's federal election, it will introduce requirements for the ACCC to conduct post-merger reviews twice in the decade after it approves a merger.
These post-merger reviews would test the claims made at the time of merger approval, and consider the impact of the merger on economic outcomes including productivity, prices, employment and wages. The intention is that if a review were to find the merged firm had engaged in anti-competitive behaviour or had not complied with undertakings given in connection with the merger, the ACCC would consider taking enforcement action.
Under the policy, the ACCC would also be given a larger litigation budget and increased powers to conduct market studies.
Currently, the ACCC is not required to conduct post-merger reviews, but may do so in practice – eg where the merger did not receive ACCC clearance or authorisation, and where it raises significant competition law issues. If the ACCC concludes in such a review that a merger did, or is likely to, substantially lessen competition in a market, it may bring enforcement action in the courts.
- 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
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