Consequential amendments to Competition and Consumer Regulations

(Harper Review)

The purpose of the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017 (the Regulations) is to make consequential amendments to the Competition and Consumer Regulations 2010 (the CCA Regulations) following amendments that will be made to the Competition and Consumer Act 2010 by the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 and the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (the amending Bills).

In 2014, the Government commissioned a ‘root and branch’ review of Australia’s competition laws and policy to ensure Australia continued to experience long-term productivity growth. The Final Report of the Competition Policy Review, released on 31 March 2015, made 56 recommendations on competition law, policy and institutions. The Government Response, released on 24 November 2015, supported 40 recommendations in full or in principle and 5 recommendations in part, and noted or remained open to the remaining 11 recommendations subject to further review and consultation. In relation to the National Access Regime, the Government adopted the recommendations made by the Productivity Commission in its 2013 inquiry report into the Regime.

The amending Bills will implement a significant number of the reforms to competition law which the Government supported in its response to the Competition Policy Review, including:

• strengthening the prohibition against the misuse of market power (section 46 of the Act);
• replacing the price signalling provisions with a general prohibition on concerted practices with the purpose, effect or likely effect of substantially lessening competition;
• abolishing the merger clearance process and providing for merger authorisation applications to be heard in the first instance by the Australian Competition and Consumer Commission (ACCC) instead of the Australian Competition Tribunal, which would become the review body;
• significantly simplifying complex provisions  in the Act governing the authorisation process;
• introducing class exemptions for conduct that the ACCC determines does not raise competition concerns;
• broadening the joint venture exemption to cartel prohibitions, while strengthening safeguards around this exemption; and
• amending Part IIIA of the Act (the National Access Regime) to ensure it better targets the lack of competition in markets for infrastructure services where third party access is required.

The Regulations will make a number of consequential amendments to the CCA Regulations, following changes made to the Act by the amending Bills. Key amendments to the CCA Regulations will include:

• removing references to provisions of the Act which are to be repealed;
• repealing prescribed forms for authorisation and notification, which will instead be approved by the Australian Competition and Consumer Commission (the ACCC);
• introducing a new form for applications to the Australian Competition Tribunal, for  review in relation to new decisions which the ACCC or the Minister will be able make (such as a decision of the ACCC to extend a stop notice for collective boycotts beyond 90 days);
• amending or introducing requirements for existing and new applications under Part IIIA of the Act; and
• prescribing details for new procedures to be introduced to the Act (such as a time after which resale price maintenance notifications commence and a fee for such notifications).