By Luke Woodward, Graeme Edgerton, Tadeusz Gielas and Genevieve Harris
New cartel provisions in the Trade Practices Act took effect in July 2009. The most significant change is the introduction of criminal sanctions for individuals and corporations which gives effect to parallel civil prohibitions and criminal offences for cartel conduct. Significant fines and jail terms are possible under the new provisions.

ACCC investigations will now be supported by the Australian Federal Police with wire tapping and other surveillance powers. As the ACCC has made it clear it will refer all serious cartel conduct to the DPP, it is important for businesses to understand the implications of the changes.

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By Luke Woodward and Angie Ng
In this article, we outline in detail the parameters of the prohibition against misuse of market power pursuant to section 46 of Australia's Trade Practices Act 1974.
We address a range of issues, including: (a) the basic elements of the section 46 offence; (b) whether section 46 applies to public bodies; (c) how "substantial degree of power in a market" is defined and established; (d) how "take advantage of" is defined; (e) how recoupment is relevant to the evaluation of predatory pricing; (f) how refusal to deal is dealt with; and (g) whether there are any defences to this prohibition.
This article appeared in the 1st edition of The International Comparative Legal Guide to: Dominance 2009; published by Global Legal Group Ltd, London www.iclg.co.uk in August 2009.

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by Gina Cass-Gottlieb, Simon Snow, Liza Carver, Luke Woodward, Nick Taylor, Charlie Beasley

The Assistant Treasurer and Minister for Competition Policy and Consumer Affairs has now released a second discussion paper seeking comments on "the best way forward to address the issue of creeping acquisitions".

As to the discussion paper's purpose, the Assistant Treasurer has stated:

The paper continues the consultation process that has been important in broadening the discussion and understanding around creeping acquisitions and should ultimately lead to a more effective and a balanced approach to the issue.

The paper contains within it a new suite of "creeping acqusitions" law reform proposals. Of these proposals, the paper states that they seek to address the concerns raised by stakeholders previously that the “creeping acqusitions” proposal (in the form previously discussed) represented a disproportionate regulatory intervention and would hinder “greenfields” and organic development, stating that the solution eventually adopted would not have this effect.

Submissions in relation to the models proposed by the government, as well as any other regulatory or non-regulatory options that should also be considered are due by 12 June 2009.

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by Elizabeth Avery

This paper was prepared for the American Bar Association Section of International Law 2009 Spring Meeting. The paper discusses recent major developments in competition law and merger review in Australia, including:
- recent developments in the merger review process;
- the new Merger Guidelines in Australia published by the Australian Competition and Consumer Commission (ACCC) in November 2008;
- use of the failing firm argument;
- the proposed introduction of a “creeping acquisitions” law to close of perceived gap in merger regulation in Australia; and
- the initial attempts by the ACCC to extend merger control under s 50 of the Trade Practices Act 1974 (Cth) to enable it to review acquisitions of assets involved in a firm’s organic development.

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by Simon Snow, Luke Woodward, Jessica Orchard

The Trade Practices Amendment (Clarity in Pricing) Act 2008 (Amendment) was passed by the Senate on 11 November 2008 and received the royal assent on 25 November 2008. The Amendment will commence within 6 months of the royal assent, that is, on or before 25 May 2009.

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