The Asia-Pacific Antitrust Review 2019

Australia: Overview

18 March 2019

Herbert Smith Freehills LLP

The year 2018 was significant for competition law in Australia. Following significant amendments to the Competition and Consumer Act 2010 (Cth) (CCA) in November 2017, the Australian Competition and Consumer Commission (ACCC) was active in a broad range of competition and consumer law matters. Of particular interest was the commencement of criminal cartel proceedings against individuals in two separate matters. In October 2018, the Australian government announced that ACCC chairman Rod Sims was reappointed for an unprecedented third term. Chairman Sims has proven to be a successful leader of the ACCC, the legislative remit and scope of expertise of which has expanded under his watch. The initial statements made by Chairman Sims following his reappointment suggest that the ACCC will continue to be an active regulator, which will be prepared to commence legal proceedings in difficult matters and continue to seek larger penalties for competition law contraventions. These objectives are likely to play out in 2019.

Areas of focus in 2019

On 26 February 2019, Rod Sims set out the ACCC's competition enforcement priorities for 2019. The ACCC noted the benefits of increased budget support, which has allowed the ACCC to expand the matters it is considering and increase its workload. Chairman Sims noted the development of the Substantial Lessening of Competition Unit (SLC Unit), which is focusing on market power and concerted practices matters. The concerted practices prohibition was introduced into Australian competition law in 2017, as well as significant amendments to the misuse of market power pro­visions. Chairman Sims said he was confident that the ACCC will bring proceedings under these provisions this year.

The ACCC will also continue its focus on the financial services sector. The results of the recent Royal Commission into the Financial Services Sector focused on matters that were principally the responsibility of the Australian financial and insurance services regulators. However, the ACCC noted that a theme in the final report was that competition is not vigorous in the financial sector. Against that background, the ACCC has established a Financial Services Competition Branch, which includes a permanent competition investigation team, as well as a market studies team. The ACCC expects that team to complete a number of in-depth investigations that may result in court proceedings this year.

The ACCC has indicated that the commercial construction sector will continue to be an area of focus in the coming year, and that it will continue to take an active role advocating for changes in the law. Of particular interest is its statement that it is concerned that the test for establishing a substantial lessening of competition is too high and suggesting that it may be advocating changes in Australian merger control law.

Amendments to the CCA

Following significant amendments in 2017, there were limited amendments to the CCA in 2018. Of most significance, recent amendments to the CCA aligned the maximum penalties for consumer law contraventions with the maximum penalties for competition law contraventions.

On 18 February 2019, the Australian government passed legislation to repeal section 51(3) of the CCA. This section provided a limited intellectual property rights exemption for certain types of anticompetitive conduct. Australian businesses that have structured intellectual property arrangements that rely on this exemption will have six months from the date of royal assent to ensure compliance with the CCA.

Increased penalties

In recent years, the ACCC has pushed for larger penalties for contraventions of Australia's compe­tition and consumer laws, both before the courts and as a matter of public advocacy. In 2018, the ACCC made significant note of the OECD 2018 Report 'Pecuniary Penalties for Competition Law Infringements in Australia', which suggested there is a comparative disparity in Australian ­penalties when considered against other OECD countries. We expect that the ACCC will continue to seek larger penalties for competition law contraventions, especially where large or multi­national companies are involved.

Mergers

Introduction

The principal form of merger clearance in Australia is informal clearance, an administrative process whereby merger parties consult with the ACCC on whether the proposed acquisition is likely to have the effect of substantially lessening competition. The 2017 amendments to the CCA resulted in a fusion of what was an unused formal merger clearance process administered by the ACCC and a separate merger authorisation process before the Australian Competition Tribunal. Under the new regime, formal merger clearance and merger authorisation are considered in the first instance by the ACCC under a single process.

The legal prohibition

The CCA prohibits mergers and acquisitions that have the effect or likely effect of substantially lessening competition in any market in Australia.

The prohibition applies to direct and indirect acquisitions of shares or assets. Accordingly, the acquisition of a controlling interest, or of a minority shareholding that does not confer ­control, may be sufficient to attract competition law review. The ACCC Merger Guidelines encourage merger parties to notify the ACCC well in advance of completing a merger where:

  • the products of the merger parties are either substitutes or complements; and
  • the merged firm would have a post-merger market share of greater than 20 per cent in the relevant markets.

The ACCC does not have direct power to prevent a merger and instead must take enforcement action in the Federal Court. Where the ACCC considers that an acquisition contravenes the CCA, it can apply to the Federal Court for an injunction, divestiture orders and penalties. Third parties can also apply for declarations and divestiture orders (including setting aside the acquisition in certain cases).

As noted above, there is no mandatory requirement to notify the ACCC about a proposed merger or acquisition. However, because of the risk that the ACCC may take enforcement action, merging parties generally seek ACCC clearance where there is a potential that the merger raises competition law concerns. Even if the ACCC is not notified, it can investigate any merger that it considers may raise competition issues.

Clearance options

Following 2017 changes to the CCA, there are now two potential routes for obtaining regulatory certainty or comfort in relation to a proposed merger.

Informal clearance from the ACCC

This is a form of regulatory comfort letter in which the ACCC states that it does not propose to take any action in relation to the proposed merger. Informal clearance is not legally binding on the ACCC or third parties. However, it is overwhelmingly the most popular form of clearance for merger parties.

Merger authorisation from the ACCC

Alternatively, a statute-based clearance process is available that is binding on the ACCC and third parties on the basis that either:

  • the merger will not (or is not likely to) substantially lessen competition; or
  • the public benefits of the merger outweigh the public detriments.

Prior to the 2017 amendments, parties could opt to pursue formal merger clearance with the ACCC or make an application to the Australian Competition Tribunal (Tribunal) for merger authori­sation on public benefit grounds. While there have been a number of applications to the Tribunal, the formal merger process was never used as parties have relied on the informal merger process.

The merger parties themselves may also seek a declaration from the Federal Court that their merger does not contravene the CCA. This approach is rarely used.

Are decisions of the ACCC appealable?

Informal clearance

There is no right of appeal in relation to the ACCC's decision in an informal merger clearance process. If the ACCC chooses to oppose a proposed merger, the merger parties could offer an undertaking to attempt to address the ACCC's concerns, defend any court proceedings initiated by the ACCC or institute court proceedings themselves, seeking a declaration that the proposed acqui­sition does not contravene the CCA. There are very few examples of court proceedings following a decision by the ACCC not to grant informal merger clearance.

Authorisation

Following the amendments to the CCA, the Tribunal acts as a merits review body of ACCC authori­sation decisions. Both the ACCC and the Tribunal will be subject to strict time limits for making authorisation decisions.

Timing of processes

Informal clearance

According to the ACCC's Informal Merger Review Process Guidelines, a Phase I review typically takes approximately six to twelve weeks after an initial pre-assessment stage, during which the ACCC confidentially considers whether, based on the information provided, a public review is required. The pre-assessment process itself typically takes around two to four weeks.

If a Statement of Issues is released at the end of Phase I, the timeline will be extended to allow a Phase II review (typically for a further six to twelve weeks).

Timelines are indicative and can be suspended or extended at any stage. The parties may request that the time frame be suspended for commercial reasons, or the ACCC may suspend the time frame if it is awaiting additional information from the parties.

Authorisation

Under the merger authorisation regime, the ACCC is required to make a decision within 90 days unless the applicant agrees to an extension. If appealed, the Tribunal is required to issue its determi­nation on an authorisation application within 90–120 days of receiving a valid application.

Undertakings

Merger parties can provide the ACCC with a court-enforceable undertaking to implement structural, behavioural or other measures that address the competition concerns identified by the ACCC. The Merger Guidelines indicate a preference for undertakings that include structural rather than behavioural remedies.

The ACCC will ordinarily consult the market on a proposed draft undertaking. The ACCC will not accept undertakings if it is not satisfied that they address its competition concerns.

Cartels

The CCA strictly prohibits any contract, arrangement or understanding (CAU) between competitors (or potential competitors) that has:

  • the purpose or effect of fixing or influencing prices; or
  • the purpose of:
    • restricting output;
    • colluding in tenders or rigging bids; or
    • sharing markets by allocating customers, suppliers, territories, product lines or areas of business.

The criminal offence requires proof that there was knowledge or belief that the CAU contained a cartel provision. Under the CCA, the offence applies to companies but individuals can be held liable, including criminally (eg, a person who attempts to contravene, or who aids, abets, counsels or procures, induces or is in any way 'knowingly concerned' in a contravention).

Parallel criminal and civil sanctions exist for making or giving effect to a 'cartel provision'.

Criminal cartel proceedings

The ACCC is responsible for investigating cartel conduct and will refer serious cartel conduct to the Commonwealth Director of Public Prosecutions (CDPP), who is responsible for prosecuting offences under Commonwealth law.

The ACCC has entered into a memorandum of understanding (MoU) with the CDPP. Among other things, the MOU outlines factors that are indicative of serious cartel conduct. The ACCC and CDPP also work together in assessing applications for immunity from criminal proceedings.

In July 2016, the ACCC secured a guilty plea from Nippon Yusen Kabushiki Kaisha. This was the first criminal prosecution of cartel conduct since the criminal prohibition was introduced in 2009. The matter followed overseas proceedings in respect of similar conduct.

The year 2018 was significant in that it brought the first criminal cartel prosecutions in respect of a solely Australian cartel and also, and more significantly, saw criminal proceedings ­commenced against individuals implicated in corporate cartel conduct for the first time.

In February 2018, criminal charges were laid against Country Care and certain current and former employees for cartel conduct involving assistive technology products used in aged care and rehabilitation. And in June 2018, criminal charges were laid against Citigroup, Deutsche Bank and ANZ, as well as three executives from Citigroup, two former executives of Deutsche Bank, and one executive from ANZ. The charges involve alleged cartel arrangements relating to trading in ANZ shares held by Deutsche Bank and Citigroup following an ANZ institutional share placement in August 2015.

Joint venture exception

The CCA contains a joint venture exception to cartel conduct. Where the exception applies, a cartel provision will only contravene the CCA if it has the purpose, effect or likely effect of substantially lessening competition.

Relevantly, the joint venture exemption will apply if:

  • the cartel provision is for the purposes of the joint venture;
  • the cartel provision is reasonably necessary for undertaking the joint venture; and
  • the joint venture is for the production, supply or acquisition of goods or services.

There have not been any judicial decisions regarding the scope of the joint venture exception. Determining whether a provision is 'reasonably necessary' for the joint venture, will continue to pose some difficulties prior to any judicial consideration.

Concerted practices

The 2017 amendments introduced a prohibition against concerted practices that have the purpose, effect or likely effect of substantially lessening competition. While the concept of concerted practices is familiar internationally, the concept is new to Australian law and proceedings are yet to be brought under the new legislation.

'Concerted practice' is not defined in the CCA but is intended to capture conduct that falls short of a CAU, which constitutes a form of cooperation between two or more companies or people with the proscribed purpose or likely effect. The Explanatory Memorandum (EM) for this prohibition referred to the European law on concerted practices as an example of what the law is intended to capture.

The EM provides some guidance as to the type of conduct that could be characterised as a concerted practice.

  • It is not necessary for any of the parties to act in the same manner or market or at the same time.
  • A concerted practice may involve, but does not require:
    • the formality or legally enforceable obligations of a contract;
    • the express communication of an arrangement (it may be established in the absence of any direct contact); or
    • the commitment of an understanding (it may be established even if none of the parties is obliged to act in a particular way).
  • It is not necessary for a concerted practice to have an anticompetitive provision as the focus is on the purpose, effect or likely effect of the practice itself.
  • The concept is not intended to capture innocent parallel conduct, such as where two firms determine prices independently but happen to charge similar prices for the same product, or public disclosure of pricing information that facilitates price comparison by consumers.
  • A concerted practice may arise from a single instance, rather than a course of conduct, and does not require that the practice is reciprocated or that the actions of other parties are altered in response. This raises questions about whether businesses that are unwitting recipients of information may be caught up in concerted practices.

Misuse of market power

The CCA prohibits corporations with a substantial degree of market power from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition:

  • in a market where it has a substantial degree of power; or
  • in any other market in which the corporation or a related corporation supplies, acquires or is likely to supply or acquire goods or services directly or indirectly.

Following the 2017 amendments, a party may now seek authorisation for conduct that would other­wise contravene the misuse of market power prohibition on public benefit grounds.

What is the applicable test for market power?

The applicable test is whether a corporation has a 'substantial degree of power in a market'. Market power is determined in part by the ability to act free from constraints by competitors or ­customers/suppliers in a market. Market power can be evidenced by factors such as:

  • a corporation's ability to raise prices without rivals taking away customers;
  • whether a corporation is vertically integrated (although this is not on its own determinative);
  • a corporation's ability to set non-price terms and conditions; or
  • the barriers to entry into the market by new entrants.

'Substantial' is generally understood to mean 'large or weighty' or 'considerable, solid or big'. A corporation may have substantial power in a market even if it does not:

  • control the market; or
  • have absolute freedom from constraint by the conduct of competitors, customers or suppliers.

There is no market share threshold above which a corporation will be presumed to have sub­stantial market power. However, a high market share is often a factor that tends to indicate, along with the other factors listed above, that a corporation has substantial power in a market.

It is possible for two or more corporations to simultaneously have a substantial degree of power in the same market.

Vertical arrangements

The main provisions that govern specific vertical arrangements are the prohibitions against:

  • exclusive dealing (including third-line forcing) where they have the purpose, effect or likely effect of substantially lessening competition; and
  • resale price maintenance, which is strictly prohibited.

The prohibition on resale price maintenance does not apply to:

  • genuine recommended resale prices;
  • genuine maximum resale prices; and
  • a refusal to supply loss-leading sellers.

The CCA contains notification and authorisation processes that will provide legal immunity for exclusive dealing and resale price maintenance. A notification process for resale price maintenance was introduced following the 2017 amendments. Prior to this, authorisation was the only way to obtain legal protection for RPM conduct. Authorisation will continue to be available, so businesses proposing to engage in resale price maintenance now have a choice of lodging a notification or seeking authorisation. As compared to authorisation, notification is a simpler and more timely process. The ACCC may grant authorisation for resale price maintenance for conduct if satisfied the conduct will provide a net public benefit.

Public enforcement

The ACCC is the principal regulatory body charged with enforcement of Australian competition laws. In respect of any criminal contraventions, the ACCC will work closely with the CDPP and Australian Federal Police (AFP).

A competition investigation typically commences with an information-gathering phase where the ACCC seeks to obtain information relating to suspected contraventions of the CCA.

There is no set timetable governing the period of time in which the ACCC must complete an investigation or decide to bring court proceedings. However, the ACCC must bring any civil action for damages, pecuniary penalties or other remedial orders within six years of the contravention. Criminal prosecution of cartel provisions is not subject to any statutory limitation period.

ACCC investigatory powers

Voluntary and compulsory production powers

In the first instance, the ACCC will usually consider whether it is appropriate to gather relevant information, documents and evidence on a voluntary basis.

However, where the ACCC has reason to believe that a person or corporation is capable of ­furnishing information, producing documents or giving evidence that relates to a possible ­contravention, it may issue a section 155 notice to the relevant person or corporation that ­compels them to provide relevant information or documents. Privileged documents do not need to be ­provided to the ACCC.

The ACCC can also compel individuals named in a section 155 notice to appear before the ACCC to give oral evidence in relation to a possible contravention.

Dawn raids

The ACCC has the power to conduct dawn raids, although the use of such power is less common in Australia compared with some other jurisdictions. The ACCC must apply to a magistrate for a search warrant. A search warrant will only be granted where the ACCC can satisfy the magistrate that the ACCC has reasonable grounds for suspecting there is evidence on a premises that is ­relevant to a contravention of the CCA.

A search warrant gives the ACCC wide-ranging powers, including the power to copy or seize documents or electronic equipment, operate electronic equipment on a premises and take photo­graphs or video recordings. The ACCC can also require that individuals answer questions or ­produce documents that may provide evidence in relation to a contravention.

Cartel investigation powers

As noted above, the ACCC and the AFP may conduct a joint investigation in relation to suspected criminal cartel conduct.

If the ACCC becomes aware of ongoing cartel conduct that could constitute a criminal offence, it may notify the AFP, which may obtain one or more of the following warrants:

  • telephone interception warrant;
  • stored communication warrant (voicemail and emails);
  • surveillance device warrants; and
  • telecommunications data collation.

Immunity and cooperation policies

Consistent with other jurisdictions, the ACCC maintains Immunity and Cooperation Policies as a key component of its compliance and enforcement arsenal. The Immunity Policy only applies to cartel conduct, whereas the Cooperation Policy extends to any matter that may involve a contra­vention of the CCA.

Immunity and Cooperation Policy

The Immunity and Cooperation Policy provides for the granting of immunity from civil cartel proceedings by the ACCC to the first eligible cartel participant to report involvement in a cartel, subject to satisfying the criteria outlined below.

An application for immunity can only be made by a single person or corporation. However, where a corporation is granted immunity, this may be extended to related bodies corporate, and to current and former directors, officers and employees of the corporation in certain circumstances.

Immunity applicants must also satisfy the following criteria to receive immunity:

  • they must have been a party to the cartel;
  • they must admit that their conduct may contravene the cartel provisions of the CCA;
  • they must not have coerced others to participate in the cartel;
  • they must have ceased involvement in the cartel;
  • any admissions made by a corporation must be a 'truly corporate act' (rather than isolated confessions of individual representatives); and
  • they must provide full disclosure and cooperation with the ACCC's investigation and any ­ensuing court proceedings.

For criminal cartel conduct, the ACCC will make recommendations to the CDPP about whether immunity from criminal prosecution should be granted. While the CDPP exercises independent discretion, it is unlikely to refuse immunity from criminal prosecution in circumstances where the ACCC has granted immunity from civil prosecution.

When a person or entity is not eligible for 'first-in' immunity from cartel proceedings, the ACCC recognises individual and corporate cooperation in both civil and criminal cartel investigations.

The ACCC will identify cooperation to the court in any proceedings by way of submissions to the court. Cooperation is ordinarily a mitigating factor relevant to determining penalties. While the ACCC may make penalty recommendations on the basis of cooperation, ultimately penalties are a matter for the court.

Cooperation Policy

The ACCC's Cooperation Policy sets out possible leniency measures that the ACCC may adopt when dealing with entities that cooperate with ACCC investigations.

The ACCC is most likely to consider adopting leniency in respect of a corporation or individual that:

  • comes forward with valuable and important evidence of a contravention of the CCA of which the ACCC is otherwise unaware or has insufficient evidence to initiate proceedings;
  • provides the ACCC with full and frank disclosure, including all relevant documentary evidence available to it;
  • cooperates fully with the ACCC's investigation and any ensuing litigation; and
  • has not compelled or induced any other person or corporation to take part in the contravening conduct and was not a ringleader or originator of that conduct.

Penalties

Civil pecuniary penalties apply to contraventions of the competition prohibitions of the CCA. The maximum civil penalty per contravention is:

  • for companies, the greater of A$10 million, three times the value of the benefit obtained that is reasonably attributable to the contravention, or (where benefits cannot be determined) 10 per cent of the annual turnover connected with Australia of the company and related bodies ­corporate; and
  • for individuals, up to A$500,000.

For companies, the same maximum penalties apply in respect of a criminal cartel contravention.

An individual convicted of a criminal cartel offence can face up to 10 years' imprisonment and a fine of up to A$420,000.

It is illegal for corporations to indemnify officers, employees or agents in respect of penalties and legal costs.

Other non-pecuniary penalties include declarations, injunctions, community service orders, adverse publicity orders and disqualification of a person from managing corporations.

Penalties in Australia have not generally been anywhere near the statutory maximum. The ACCC has been seeking larger penalties and its approach appears to be resonating with the court. For example, in the Nippon Yusen Kabushiki Kaisha criminal cartel decision, the maximum penalty that could have been imposed was A$100 million. The court concluded that the appropriate penalty would have been A$50 million, which would have been the largest penalty ever in Australia, but ordered a A$25 million penalty that included a 50 per cent discount for the early plea, past and future assistance and cooperation and contrition on the part of Nippon Yusen Kabushiki Kaisha.

International aspects

Extra-territorial application of CCA

Conduct occurring wholly outside Australia may come within the jurisdiction of the CCA if the contravening entity is:

  • an Australian citizen;
  • a person ordinarily resident in Australia;
  • a body corporate incorporated in Australia; or
  • a body corporate carrying on business in Australia.

What will amount to 'carrying on business' in Australia has been the subject of extensive judicial interpretation. It is possible that a foreign corporation operating in Australia through a wholly-owned subsidiary may be considered to 'carry on business' in Australia. Similarly, supplying goods or services to distributors in Australia (including from overseas), or supplying or acquiring intellectual property rights in Australia, may also amount to 'carrying on business' in Australia.

ACCC cooperation with competition authorities in other jurisdictions

The ACCC has signed cooperation agreements with a number of countries or other bodies, including the United States, Taiwan, Papua New Guinea, New Zealand, Canada, Fiji, the Republic of Korea, the United Kingdom, the OECD, the European Commission, India, China, Japan and the Philippines. The agreements deal with mutual assistance and coordination of enforcement activities.

The ACCC is also a member of the International Competition Network, which focuses on addressing antitrust enforcement and policy issues of common concern to its members worldwide.

In addition, the CCA enables the ACCC to disclose 'protected cartel information' (provided by successful immunity applicants) to overseas competition authorities.

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