Competition Policy Review final report

The final report of the Competition Policy Review (Harper Review) states

The Review’s Terms of Reference require an assessment of Australia’s competition policy, laws and institutions to determine whether they remain fit for purpose, especially in light of the opportunities and challenges facing Australia into the foreseeable future. In this Part, we summarise the findings of this assessment and set out recommendations to address deficiencies the Panel has identified.

Chapter 2 presents the Panel’s recommendations for priority areas of reform in competition policy. These are informed by a set of competition principles attuned to the challenges and opportunities likely to face the Australian economy in coming decades. A key lesson from the National Competition Policy (NCP) experience is the importance of an agreed framework, which can then be applied by governments in their own jurisdictions and adapted to local conditions as necessary. A further lesson from NCP is that all reform initiatives cannot be progressed simultaneously. The Panel recognises the importance of assigning priorities to reform initiatives so that those with the greatest potential benefit to Australians are progressed first. Moreover, priorities will change as technology changes — for instance, the development of the National Broadband Network (NBN) and mobile telephony infrastructure have meant that access to the ‘unbundled local loop’ (i.e., the copper network) is a less significant issue than it was in 1995. Competition policy reforms most likely to generate large net benefits are those that: benefit a sizeable part of the economy or have deep links to other sectors; remove a significant barrier to competition; or subject activities with significant government involvement to greater contestability and consumer choice.

Chapter 3 outlines the Panel’s recommendations for changes to the Competition and Consumer Act 2010 (CCA). The Panel has viewed reform of the CCA through the lens of fitness for purpose. In some areas, we recommend substantive changes to the way the law is drafted. In other areas, our recommended changes go to clarifying and simplifying the law. On some issues, the Panel finds the law itself fit for purpose but shares concerns expressed by stakeholders, especially small business, about access to remedies under the law.

Chapter 4 outlines the Panel’s recommendations on the institutional structures most likely to sustain enduring reform. Like the Hilmer Review, we recognise that policy reform will only gain and sustain momentum if it is supported by all jurisdictions. Australia has been well served by its competition policy institutions, yet this is not sufficient reason to retain the framework in its current form. The flagging momentum of competition reform points to the need for reinvigoration through strong institutional frameworks. The Panel has identified a clear gap in the competition framework: an institution is needed to advocate for competition reform and to oversee the implementation of reforms instituted by governments in the wake of this Review.

Chapter 5 outlines the Panel’s recommendations relating to concerns that small business has raised with us. Access to remedies has been a roadblock for many small businesses, and the Panel finds that access should be improved. We recommend that the collective bargaining framework should be enhanced and made more flexible. We also make recommendations on competitive neutrality and regulations that can restrict the way small businesses operate.

Chapter 6 highlights recommendations made in other parts of this Report addressing issues raised with the Panel that relate to retail markets, particularly supermarkets.

Chapter 7 presents the Panel’s views on the best method to implement a national competition reform agenda. We also recommend economic modelling of the package of recommendations in this Review, which will inform governments’ discussions of policy proposals they will pursue.

It goes on to comment

As originally crafted, the National Competition Policy (NCP) reflected the challenges Australia faced more than 20 years ago. The focus of the NCP reforms was on exposing some previously sheltered activities to competition and applying a more national approach to competition issues.

The six elements of competition policy identified in the Hilmer Review were: • limiting anti competitive conduct of firms; • reforming regulation which unjustifiably restricts competition; • reforming the structure of public monopolies to facilitate competition; • providing third party access to certain facilities that are essential for competition; • restraining monopoly pricing behaviour; and • fostering ‘competitive neutrality’ between government and private businesses when they compete. The Panel endorses competition policy that focuses on making markets work in the long term interests of consumers. Legislative frameworks should continue to limit anti competitive conduct of firms. However, through its commercial arrangements entered into with market participants, the Crown (whether in right of the Commonwealth, state, territory or local governments) also has the potential to harm competition.

The Panel therefore concludes that the anti competitive conduct provisions of the Competition and Consumer Act 2010 (CCA) should cover government activities that have a trading or commercial character.

Moreover, the Crown’s capacity to enhance or harm competition reaches beyond the scope of the CCA and includes a range of policies and regulations. In particular, procurement, which ranges from buying goods and services through to public private partnerships (PPPs) and privatisations, should be designed with competition policy in mind.

The Panel believes that the focus of competition policy should be widened beyond infrastructure public monopolies and government businesses, to encompass the provision of government services more generally.

By promoting user choice and encouraging a diversity of providers, competition policy plays an important role in improving performance in sectors such as human services. Choice and diversity have the potential to improve outcomes for users, especially but not only by stimulating innovation. Independent regulation can encourage market entry since it provides a level of certainty about the regulatory environment. Similarly, separating the interests of providers from those of funders and regulators encourages accountability, innovation and a level playing field between public and other providers.

The Panel believes that declaration and third party access to infrastructure should only be mandated when it is in the public interest. The onus of proof should lie with those seeking access to demonstrate that it would promote the public interest rather than on infrastructure owners to demonstrate that access would be contrary to the public interest.

Acknowledging the diverse circumstances of each jurisdiction, the Panel supports the flexibility built into the NCP for the Australian Government and state and territory governments to decide how best to implement competition principles in their jurisdictions. Competition policy should continue to apply explicitly to local government.

Agreeing a set of principles would guide the Australian Government, state, territory and local governments in implementing those aspects of competition policy for which they are responsible. The principles in Recommendation 1 broaden the NCP agenda to include all government services in trade or commerce and promote the role of choice.

In applying these principles the Panel endorses a ‘public interest’ test as a central tenet of competition policy. The Panel recommends continuing with the NCP public interest test, namely that legislation or government policy should not restrict competition unless: • the benefits of the restriction to the community as a whole outweigh the costs; and • the objectives of the legislation or government policy can only be achieved by restricting competition.

The report makes the following recommendations -

R1 — Competition principles

The Australian Government, state and territory and local governments should commit to the following principles: • Competition policies, laws and institutions should promote the long term interests of consumers. • Legislative frameworks and government policies and regulations binding the public or private sectors should not restrict competition. • Governments should promote consumer choice when funding, procuring or providing goods and services and enable informed choices by consumers. • The model for government provision or procurement of goods and services should separate the interests of policy (including funding), regulation and service provision, and should encourage a diversity of providers. • Governments should separate remaining public monopolies from competitive service elements, and also separate contestable elements into smaller independent business activities. • Government business activities that compete with private provision, whether for profit or not for profit, should comply with competitive neutrality principles to ensure they do not enjoy a net competitive advantage simply as a result of government ownership. • A right to third party access to significant bottleneck infrastructure should be granted where it would promote a material increase in competition in dependent markets and would promote the public interest. • Independent authorities should set, administer or oversee prices for natural monopoly infrastructure providers. Applying these principles should be subject to a public interest test, such that legislation or government policy should not restrict competition unless: • the benefits of the restriction to the community as a whole outweigh the costs; and • the objectives of the legislation or government policy can only be achieved by restricting competition.

R2 — Human services

Each Australian government should adopt choice and competition principles in the domain of human services. Guiding principles should include: • User choice should be placed at the heart of service delivery. • Governments should retain a stewardship function, separating the interests of policy (including funding), regulation and service delivery. • Governments commissioning human services should do so carefully, with a clear focus on outcomes. • A diversity of providers should be encouraged, while taking care not to crowd out community and volunteer services. • Innovation in service provision should be stimulated, while ensuring minimum standards of quality and access in human services.

R3 — Road transport

Governments should introduce cost reflective road pricing with the aid of new technologies, with pricing subject to independent oversight and revenues used for road construction, maintenance and safety. To avoid imposing higher overall charges on road users, governments should take a cross jurisdictional approach to road pricing. Indirect charges and taxes on road users should be reduced as direct pricing is introduced. Revenue implications for different levels of government should be managed by adjusting Australian Government grants to the States and Territories.

R4 — Liner shipping

Part X of the CCA should be repealed. A block exemption granted by the ACCC should be available for liner shipping agreements that meet a minimum standard of pro competitive features (see Recommendation 39). The minimum standard of pro competitive features to qualify for the block exemption should be determined by the ACCC in consultation with shippers, their representative bodies and the liner shipping industry. Other agreements that risk contravening the competition provisions of the CCA should be subject to individual authorisation, as needed, by the ACCC. Repeal of Part X will mean that existing agreements are no longer exempt from the competition provisions of the CCA. Transitional arrangements are therefore warranted. A transitional period of two years should allow for the necessary authorisations to be sought and to identify agreements that qualify for the proposed block exemption.

R5 — Cabotage — coastal shipping and aviation

Noting the current Australian Government Review of Coastal Trading, cabotage restrictions on coastal shipping should be removed, unless it can be demonstrated that the benefits of the restrictions to the community as a whole outweigh the costs, and the objectives of the government policy can only be achieved by restricting competition. The current air cabotage restrictions should be removed for all air cargo as well as passenger services to specific geographic areas, such as island territories and on poorly served routes, unless it can be demonstrated that the benefits of the restrictions to the community as a whole outweigh the costs, and the objectives of the restrictions can only be achieved by restricting competition. Introducing an air cabotage permit system would be one way of regulating air cabotage services more effectively where necessary.

R6 — Intellectual property review

The Australian Government should task the Productivity Commission to undertake an overarching review of intellectual property. The Review should be a 12 month inquiry. The review should focus on: competition policy issues in intellectual property arising from new developments in technology and markets; and the principles underpinning the inclusion of intellectual property provisions in international trade agreements. A separate independent review should assess the Australian Government processes for establishing negotiating mandates to incorporate intellectual property provisions in international trade agreements. Trade negotiations should be informed by an independent and transparent analysis of the costs and benefits to Australia of any proposed intellectual property provisions. Such an analysis should be undertaken and published before negotiations are concluded.

R7 — Intellectual property exception

Subsection 51(3) of the CCA should be repealed.

R8 — Regulation review

All Australian governments should review regulations, including local government regulations, in their jurisdictions to ensure that unnecessary restrictions on competition are removed. Legislation (including Acts, ordinances and regulations) should be subject to a public interest test and should not restrict competition unless it can be demonstrated that: • the benefits of the restriction to the community as a whole outweigh the costs; and • the objectives of the legislation can only be achieved by restricting competition. Factors to consider in assessing the public interest should be determined on a case by case basis and not narrowed to a specific set of indicators. Jurisdictional exemptions for conduct that would normally contravene the competition law (by virtue of subsection 51(1) of the CCA) should also be examined as part of this review, to ensure they remain necessary and appropriate in their scope. Any further exemptions should be drafted as narrowly as possible to give effect to their policy intent. The review process should be transparent, with highest priority areas for review identified in each jurisdiction, and results published along with timetables for reform. The review process should be overseen by the proposed Australian Council for Competition Policy (see R43) with a focus on the outcomes achieved rather than processes undertaken. The Australian Council for Competition Policy should publish an annual report for public scrutiny on the progress of reviews of regulatory restrictions.

R9 — Planning and zoning

Further to R8, state and territory governments should subject restrictions on competition in planning and zoning rules to the public interest test, such that the rules should not restrict competition unless it can be demonstrated that the benefits of the restriction to the community as a whole outweigh the costs, and the objectives of the rules can only be achieved by restricting competition. The following competition policy considerations should be taken into account: • Arrangements that explicitly or implicitly favour particular operators are anti competitive. • Competition between individual businesses is not in itself a relevant planning consideration. • Restrictions on the number of a particular type of retail store contained in any local area is not a relevant planning consideration. • The impact on the viability of existing businesses is not a relevant planning consideration. • Proximity restrictions on particular types of retail stores are not a relevant planning consideration. • Business zones should be as broad as possible. • Development permit processes should be simplified. • Planning systems should be consistent and transparent to avoid creating incentives for gaming appeals. An independent body, such as the Australian Council for Competition Policy (see R43) should be tasked with reporting on the progress of state and territory governments in assessing planning and zoning rules against the public interest test.

R10 — Priorities for regulation review

Further to R8, and in addition to reviewing planning and zoning rules (R9), the following should be priority areas for review: • Taxis and ride sharing: in particular, regulations that restrict numbers of taxi licences and competition in the taxi industry, including from ride sharing and other passenger transport services that compete with taxis. • Mandatory product standards: i.e., standards that are directly or indirectly mandated by law, including where international standards can be adopted in Australia.

R11 — Standards review

Given the unique position of Australian Standards under paragraph 51(2)(c) of the CCA, Australian Standards that are not mandated by government should be subject to periodic review against the public interest test (see R8) by Standards Australia.

R12 — Retail trading hours

Remaining restrictions on retail trading hours should be removed. To the extent that jurisdictions choose to retain restrictions, these should be strictly limited to Christmas Day, Good Friday and the morning of ANZAC Day, and should be applied broadly to avoid discriminating among different types of retailers. Deregulating trading hours should not prevent jurisdictions from imposing specific restrictions on trading times for alcohol retailing or gambling services in order to achieve the policy objective of harm minimisation.

R13 — Parallel imports

Restrictions on parallel imports should be removed unless it can be shown that: • the benefits of the restrictions to the community as a whole outweigh the costs ; and • the objectives of the restrictions can only be achieved by restricting competition. Consistent with the recommendations of recent Productivity Commission reviews, parallel import restrictions on books and second hand cars should be removed, subject to transitional arrangements as recommended by the Productivity Commission. Remaining provisions of the Copyright Act 1968 that restrict parallel imports, and the parallel importation defence under the Trade Marks Act 1995, should be reviewed by an independent body, such as the Productivity Commission.

R14 — Pharmacy

The Panel considers that current restrictions on ownership and location of pharmacies are not needed to ensure the quality of advice and care provided to patients. Such restrictions limit the ability of consumers to choose where to obtain pharmacy products and services, and the ability of providers to meet consumers’ preferences. The Panel considers that the pharmacy ownership and location rules should be removed in the long term interests of consumers. They should be replaced with regulations to ensure access to medicines and quality of advice regarding their use that do not unduly restrict competition. Negotiations on the next Community Pharmacy Agreement offer an opportunity for the Australian Government to implement a further targeted relaxation of the location rules, as part of a transition towards their eventual removal. If changes during the initial years of the new agreement prove too precipitate, there should be provision for a mid term review to incorporate easing of the location rules later in the life of the next Community Pharmacy Agreement. A range of alternative mechanisms exist to secure access to medicines for all Australians that are less restrictive of competition among pharmacy service services providers. In particular, tendering for the provision of pharmacy services in underserved locations and/or funding through a community service obligation should be considered. The rules targeted at pharmacies in urban areas should continue to be eased at the same time that alternative mechanisms are established to address specific issues concerning access to pharmacies in rural locations.

R15 — Competitive neutrality policy

All Australian governments should review their competitive neutrality policies. Specific matters to be considered should include: guidelines on the application of competitive neutrality policy during the start up stages of government businesses; the period of time over which start up government businesses should earn a commercial rate of return; and threshold tests for identifying significant business activities. The review of competitive neutrality policies should be overseen by an independent body, such as the proposed Australian Council for Competition Policy (see R43).

R16 — Competitive neutrality complaints

All Australian governments should increase the transparency and effectiveness of their competitive neutrality complaints processes. This should include at a minimum: • assigning responsibility for investigation of complaints to a body independent of government; • a requirement for government to respond publicly to the findings of complaint investigations; and • annual reporting by the independent complaints bodies to the proposed Australian Council for Competition Policy (see R43) on the number of complaints received and investigations undertaken.

R17 — Competitive neutrality reporting

To strengthen accountability and transparency, all Australian governments should require government businesses to include a statement on compliance with competitive neutrality principles in their annual reports. The proposed Australian Council for Competition Policy (see R43) should report on the experiences and lessons learned from the different jurisdictions when applying competitive neutrality policy to human services markets.

R18 — Government procurement and other commercial arrangements

All Australian governments should review their policies governing commercial arrangements with the private sector and non government organisations, including procurement policies, commissioning, public private partnerships and privatisation guidelines and processes. Procurement and privatisation policies and practices should not restrict competition unless: • the benefits of the restrictions to the community as a whole outweigh the costs; and • the objectives of the policy can only be achieved by restricting competition. An independent body, such as the Australian Council for Competition Policy (see R43), should be tasked with reporting on progress in reviewing government commercial policies and ensuring privatisation and other commercial processes incorporate competition principles.

R19 — Electricity and gas

State and territory governments should finalise the energy reform agenda, including through: • application of the National Energy Retail Law with minimal derogation by all National Electricity Market jurisdictions; • deregulation of both electricity and gas retail prices; and • the transfer of responsibility for reliability standards to a national framework administered by the proposed Access and Pricing Regulator (see R50) and the Australian Energy Market Commission (AEMC). The Panel supports moves to include Western Australia and the Northern Territory in the National Electricity Market, noting that this does not require physical connection. The Australian Government should undertake a detailed review of competition in the gas sector.

R20 — Water

All governments should progress implementation of the principles of the National Water Initiative, with a view to national consistency. Governments should focus on strengthening economic regulation in urban water and creating incentives for increased private participation in the sector through improved pricing practices. State and territory regulators should collectively develop best practice pricing guidelines for urban water, with the capacity to reflect necessary jurisdictional differences. To ensure consistency, the Australian Council for Competition Policy (see R43) should oversee this work. State and territory governments should develop clear timelines for fully implementing the National Water Initiative, once pricing guidelines are developed. The Australian Council for Competition Policy should assist States and Territories to do so. Where water regulation is made national, the responsible body should be the proposed national Access and Pricing Regulator (see R50) or a suitably accredited state body.

R21 — Informed choice

Governments should work with industry, consumer groups and privacy experts to allow consumers to access information in an efficient format to improve informed consumer choice. The proposed Australian Council for Competition Policy (see R43) should establish a working group to develop a partnership agreement that both allows people to access and use their own data for their own purposes and enables new markets for personal information services. This partnership should draw on the lessons learned from similar initiatives in the US and UK. Further, governments, both in their own dealings with consumers and in any regulation of the information that businesses must provide to consumers, should draw on lessons from behavioural economics to present information and choices in ways that allow consumers to access, assess and act on them.

R22 — Competition law concepts

The central concepts, prohibitions and structure enshrined in the current competition law should be retained, since they are appropriate to serve the current and projected needs of the Australian economy.

R23 — Competition law simplification

The competition law provisions of the CCA should be simplified, including by removing overly specified provisions and redundant provisions. The process of simplifying the CCA should involve public consultation. Provisions that should be removed include:  subsection 45(1) concerning contracts made before 1977; and ss 45B and 45C concerning covenants.

R24 — Application of the law to government activities

Ss 2A, 2B and 2BA of the CCA should be amended so that the competition law provisions apply to the Crown in right of the Commonwealth and the States and Territories (including local government) insofar as they undertake activity in trade or commerce.

R25 — Definition of market and competition

The current definition of ‘market’ in section 4E of the CCA should be retained but the current definition of ‘competition’ in section 4 should be amended to ensure that competition in Australian markets includes competition from goods imported or capable of being imported, or from services rendered or capable of being rendered, by persons not resident or not carrying on business in Australia.

R26 — Extra territorial reach of the law

S 5 of the CCA, which applies the competition law to certain conduct engaged in outside Australia, should be amended to remove the requirement that the contravening firm has a connection with Australia in the nature of residence, incorporation or business presence and to remove the requirement for private parties to seek ministerial consent before relying on extra territorial conduct in private competition law actions. Instead, the competition law should apply to overseas conduct insofar as the conduct relates to trade or commerce within Australia or between Australia and places outside Australia. The in principle view of the Panel is that the foregoing changes should also be made in respect of actions brought under the Australian Consumer Law.

R27 — Cartel conduct prohibition

The prohibitions against cartel conduct in Part IV, Division 1 of the CCA should be simplified and the following specific changes made: • The provisions should apply to cartel conduct involving persons who compete to supply goods or services to, or acquire goods or services from, persons resident in or carrying on business within Australia. • The provisions should be confined to conduct involving firms that are actual or likely competitors, where ‘likely’ means on the balance of probabilities. • A broad exemption should be included for joint ventures, whether for the production, supply, acquisition or marketing of goods or services, recognising that such conduct will be prohibited by section 45 of the CCA if it has the purpose, effect or likely effect of substantially lessening competition. • An exemption should be included for trading restrictions that are imposed by one firm on another in connection with the supply or acquisition of goods or services (including intellectual property licensing), recognising that such conduct will be prohibited by section 45 of the CCA (or section 47 if retained) if it has the purpose, effect or likely effect of substantially lessening competition.

R28 — Exclusionary provisions

The CCA should be amended to remove the prohibition of exclusionary provisions in subparagraphs 45(2)(a)(i) and 45(2)(b)(i), with an amendment to the definition of cartel conduct to address any resulting gap in the law.

R29 — Price signalling

The ‘price signalling’ provisions of Part IV, Division 1A of the CCA are not fit for purpose in their current form and should be repealed. Section 45 should be extended to prohibit a person engaging in a concerted practice with one or more other persons that has the purpose, effect or likely effect of substantially lessening competition.

R30 — Misuse of market power

The primary prohibition in section 46 of the CCA should be re framed to prohibit a corporation that has a substantial degree of power in a market from engaging in conduct if the proposed conduct has the purpose, or would have or be likely to have the effect, of substantially lessening competition in that or any other market. To mitigate concerns about inadvertently capturing pro competitive conduct, the legislation should direct the court, when determining whether conduct has the purpose, effect or likely effect, of substantially lessening competition in a market, to have regard to: • the extent to which the conduct has the purpose, effect or likely effect of increasing competition in the market, including by enhancing efficiency, innovation, product quality or price competitiveness; and • the extent to which the conduct has the purpose, effect or likely effect of lessening competition in the market, including by preventing, restricting or deterring the potential for competitive conduct in the market or new entry into the market. Such a re framing would allow the provision to be simplified. Amendments introduced since 2007 would be unnecessary and could be repealed. These include specific provisions prohibiting predatory pricing, and amendments clarifying the meaning of ‘take advantage’ and how the causal link between the substantial degree of market power and anti competitive purpose may be determined. Authorisation should be available in relation to s 46, and the ACCC should issue guidelines regarding its approach to the provision.

R31 — Price discrimination

A specific prohibition on price discrimination should not be reintroduced into the CCA. Where price discrimination has an anti competitive impact on markets, it can be dealt with by the existing provisions of the law (including through the Panel’s recommended revisions to s 46 (see R30)). Attempts to prohibit international price discrimination should not be introduced into the CCA on account of significant implementation and enforcement complexities and the risk of negative unintended consequences. Instead, the Panel supports moves to address international price discrimination through market solutions that empower consumers. These include removing restrictions on parallel imports (see R13) and ensuring that consumers are able to take lawful steps to circumvent attempts to prevent their access to cheaper legitimate goods.

R32— Third line forcing test

Third line forcing (subsections 47(6) and (7) of the CCA) should only be prohibited where it has the purpose, effect or likely effect of substantially lessening competition.

R33 — Exclusive dealing coverage

S 47 of the CCA should be repealed and vertical restrictions (including third line forcing) and associated refusals to supply addressed by sections 45 and 46 (as amended in accordance with R30).

R34 — Resale price maintenance

The prohibition on resale price maintenance (RPM) in s 48 of the CCA should be retained in its current form as a per se prohibition, but notification should be available for RPM conduct.  The prohibition should also be amended to include an exemption for RPM conduct between related bodies corporate, as is the case under ss 45 and 47.

R35 — Mergers

There should be further consultation between the ACCC and business representatives with the objective of delivering more timely decisions in the informal merger review process. The formal merger exemption processes (i.e., the formal merger clearance process and the merger authorisation process) should be combined and reformed to remove unnecessary restrictions and requirements that may have deterred their use. The specific features of the review process should be settled in consultation with business, competition law practitioners and the ACCC. However, the general framework should contain the following elements: • The ACCC should be the decision maker at first instance. • The ACCC should be empowered to authorise a merger if it is satisfied that the merger does not substantially lessen competition or that the merger would result, or would be likely to result, in a benefit to the public that would outweigh any detriment. • The formal process should not be subject to any prescriptive information requirements, but the ACCC should be empowered to require the production of business and market information. • The formal process should be subject to strict timelines that cannot be extended except with the consent of the merger parties. • Decisions of the ACCC should be subject to review by the Australian Competition Tribunal under a process that is also governed by strict timelines. • The review by the Australian Competition Tribunal should be based upon the material that was before the ACCC, but the Tribunal should have the discretion to allow a party to adduce further evidence, or to call and question a witness, if the Tribunal is satisfied that there is sufficient reason. Merger review processes and analysis would also be improved by implementing a program of post merger evaluations, looking back on a number of past merger decisions to determine whether the ACCC’s processes were effective and its assessments borne out by events. This function could be performed by the Australian Council for Competition Policy (see R44).

R36 — Secondary boycotts

The prohibitions on secondary boycotts in ss 45D - 45DE of the CCA should be maintained and effectively enforced. The ACCC should pursue secondary boycott cases with increased vigour, comparable to that which it applies in pursuing other contraventions of the competition law. It should also publish in its annual report the number of complaints made to it in respect of different parts of the CCA, including secondary boycott conduct and the number of such matters investigated and resolved each year. The maximum penalty level for secondary boycotts should be the same as that applying to other breaches of the competition law.

R37 — Trading restrictions in industrial agreements

Ss 45E and 45EA of the CCA should be amended so that they apply to awards and industrial agreements, except to the extent they relate to the remuneration, conditions of employment, hours of work or working conditions of employees. Further, the present limitation in ss 45E and 45EA, such that the prohibitions only apply to restrictions affecting persons with whom an employer ‘has been accustomed, or is under an obligation,’ to deal, should be removed.  The ACCC should be given the right to intervene in proceedings before the Fair Work Commission and make submissions concerning compliance with ss 45E and 45EA. A protocol should be established between the ACCC and the Fair Work Commission. The maximum penalty for breaches of ss 45E and 45EA should be the same as that applying to other breaches of the competition law.

R38 — Authorisation and notification

The authorisation and notification provisions in Part VII of the CCA should be simplified to: • ensure that only a single authorisation application is required for a single business transaction or arrangement; and • empower the ACCC to grant an exemption from ss 45, 46 (as proposed to be amended), 47 (if retained) and 50 if it is satisfied that the conduct would not be likely to substantially lessen competition or that the conduct would result, or would be likely to result, in a benefit to the public that would outweigh any detriment.

R39 — Block exemption power

A block exemption power, exercisable by the ACCC, should be introduced and operate alongside the authorisation and notification frameworks in Part VII of the CCA. This power would enable the ACCC to create safe harbours, where conduct or categories of conduct are unlikely to raise competition concerns, on the same basis as the test proposed by the Panel for authorisations and notifications (see R38). The ACCC should also maintain a public register of all block exemptions, including those no longer in force. The decision to issue a block exemption would be reviewable by the Australian Competition Tribunal.

R40 — Section 155 notices

The s 155 power should be extended to cover the investigation of alleged contraventions of court enforceable undertakings. The ACCC should review its guidelines on section 155 notices having regard to the increasing burden imposed by notices in the digital age. S 155 should be amended so that it is a defence to a ‘refusal or failure to comply with a notice’ under paragraph 155(5)(a) of the CCA that a recipient of a notice under paragraph 155(1)(b) can demonstrate that a reasonable search was undertaken in order to comply with the notice. The fine for non compliance with s 155 of the CCA should be increased in line with similar notice based evidence gathering powers in the Australian Securities and Investments Commission Act 2001.

R41 — Private actions

S 83 of the CCA should be amended so that it extends to admissions of fact made by the person against whom the proceedings are brought in addition to findings of fact made by the court.

R42 — National Access Regime

The declaration criteria in Part IIIA of the CCA should be targeted to ensure that third party access only be mandated where it is in the public interest. To that end: • Criterion (a) should require that access on reasonable terms and conditions through declaration promote a substantial increase in competition in a dependent market that is nationally significant. • Criterion (b) should require that it be uneconomical for anyone (other than the service provider) to develop another facility to provide the service. • Criterion (f) should require that access on reasonable terms and conditions through declaration promote the public interest. The Competition Principles Agreement should be updated to reflect the revised declaration criteria. The Australian Competition Tribunal should be empowered to undertake a merits review of access decisions, while maintaining suitable statutory time limits for the review process.

R43 — Australian Council for Competition Policy — Establishment

The National Competition Council should be dissolved and the Australian Council for Competition Policy (ACCP) established. Its mandate should be to provide leadership and drive implementation of the evolving competition policy agenda. The ACCP should be established under legislation by one State and then by application in all other States and Territories and at the Commonwealth level. It should be funded jointly by the Australian Government and the States and Territories. The ACCP should have a five member board, consisting of two members nominated by state and territory Treasurers and two members selected by the Australian Government Treasurer, plus a Chair. Nomination of the Chair should rotate between the Australian Government and the States and Territories combined. The Chair should be appointed on a full time basis and other members on a part time basis. Funding should be shared by all jurisdictions, with half of the funding provided by the Australian Government and half by the States and Territories in proportion to their population size.

R44 — Australian Council for Competition Policy — Role

The Australian Council for Competition Policy should have a broad role encompassing: • advocacy, education and promotion of collaboration in competition policy; • independently monitoring progress in implementing agreed reforms and publicly reporting on progress annually; • identifying potential areas of competition reform across all levels of government; • making recommendations to governments on specific market design issues, regulatory reforms, procurement policies and proposed privatisations; • undertaking research into competition policy developments in Australia and overseas; and • ex post evaluation of some merger decisions.

R45 — Market studies power

Australian Council for Competition Policy (ACCP) should have the power to undertake competition studies of markets in Australia and make recommendations to relevant governments on changes to regulation, or to the ACCC for investigation of potential breaches of the CCA. The ACCP should have mandatory information gathering powers to assist in its market studies function; however, these powers should be used sparingly.

R46 — Market studies requests

All governments, jointly or individually, should have the capacity to issue a reference to the Australian Council for Competition Policy (ACCP) to undertake a competition study of a particular market or competition issue. All market participants, including small business and regulators (such as the ACCC), should have the capacity to request market studies be undertaken by the ACCP. The work program of the ACCP should be overseen by the Ministerial Council on Federal Financial Relations to ensure that resourcing addresses priority issues.

R47 — Annual competition analysis

The Australian Council for Competition Policy should be required to undertake an annual analysis of developments in the competition policy environment, both in Australia and internationally, and identify specific issues or markets that should receive greater attention.

R48 — Competition payments

The Productivity Commission should be tasked to undertake a study of reforms agreed to by the Australian Government and state and territory governments to estimate their effect on revenue in each jurisdiction. If disproportionate effects across jurisdictions are estimated, competition policy payments should ensure that revenue gains flowing from reform accrue to the jurisdictions undertaking the reform. Reform effort should be assessed by the Australian Council for Competition Policy based on actual implementation of reform measures, not on undertaking reviews.

R49 — ACCC functions

Competition and consumer functions should be retained within the single agency of the ACCC.

R50 — Access and Pricing Regulator

The following regulatory functions should be transferred from the ACCC and the NCC and be undertaken within a single national Access and Pricing Regulator: • the telecommunications access and pricing functions of the ACCC; • price regulation and related advisory roles of the ACCC under the Water Act 2007 (Cth); • the powers given to the ACCC under the National Access Regime; • the functions undertaken by the Australian Energy Regulator under the National Electricity Law, the National Gas Law and the National Energy Retail Law; • the powers given to the NCC under the National Access Regime; and • the powers given to the NCC under the National Gas Law. Other consumer protection and competition functions should remain with the ACCC. Price monitoring and surveillance functions should also be retained by the ACCC. The Access and Pricing Regulator should be constituted as a five member board. The board should comprise two Australian Government appointed members, two state and territory nominated members and an Australian Government appointed Chair. Two members (one Australian Government appointee and one state and territory appointee) should be appointed on a part time basis. Decisions of the Access and Pricing Regulator should be subject to review by the Australian Competition Tribunal. The Access and Pricing Regulator should be established with a view to it gaining further functions if other sectors are transferred to national regimes.

R51 — ACCC governance

Half of the ACCC Commissioners should be appointed on a part time basis. This could occur as the terms of the current Commissioners expire, with every second vacancy filled with a part time appointee. The Chair could be appointed on either a full time or a part time basis, and the positions of Deputy Chair should be abolished. The Panel believes that current requirements in the CCA (paras 7(3)(a) and 7(3)(b)) for experience and knowledge of small business and consumer protection, among other matters, to be considered by the Minister in making appointments to the Commission are sufficient to represent sectoral interests in ACCC decision making. Therefore, the Panel recommends that the further requirements in the CCA that the Minister, in making all appointments, be satisfied that the Commission has one Commissioner with knowledge or experience of small business matters (subsection 10(1B)) and one Commissioner with knowledge or experience of consumer protection matters (subsection 7(4)) be abolished. The ACCC should report regularly to a broad based committee of the Parliament, such as the House of Representatives Standing Committee on Economics.

R52 — Media Code of Conduct

The ACCC should establish, publish and report against a Code of Conduct for its dealings with the media with the aim of strengthening the perception of its impartiality in enforcing the law. The Code of Conduct should be developed with reference to the principles outlined in the 2003 Review of the Competition Provisions of the Trade Practices Act.

R53 — Small business access to remedies

The ACCC should take a more active approach in connecting small business to alternative dispute resolution schemes where it considers complaints have merit but are not a priority for public enforcement. Where the ACCC determines it is unable to pursue a particular complaint on behalf of a small business, the ACCC should communicate clearly and promptly its reasons for not acting and direct the business to alternative dispute resolution processes. Where the ACCC pursues a complaint raised by a small business, the ACCC should provide that business with regular updates on the progress of its investigation. Resourcing of the ACCC should allow it to test the law on a regular basis to ensure that the law is acting as a deterrent to unlawful behaviour. Small business commissioners, small business offices and ombudsmen should work with business stakeholder groups to raise awareness of their advice and dispute resolution services. The Panel endorses the following recommendations from the Productivity Commission’s Access to Justice Arrangements report: • R8.2 and 8.4 to ensure that small businesses in each Australian jurisdiction have access to effective and low cost small business advice and dispute resolution services; • R8.3 to ensure that small business commissioners, small business offices or ombudsmen provide a minimum set of services, which are delivered in an efficient and effective manner; • R9.3 to ensure that future reviews of industry codes consider whether dispute resolution services provided pursuant to an industry code, often by industry associations or third parties, are provided instead by the Australian Small Business Commissioner under the framework of that industry code; • R11.1 to broaden the use of the Federal Court’s fast track model to facilitate lower cost and more timely access to justice; and • R13.3 to assist in managing the costs of litigation, including through the use of costs budgets for parties engaged in litigation

R54 — Collective bargaining

The CCA should be reformed to introduce greater flexibility into the notification process for collective bargaining by small business. Reform should include allowing: • the nomination of members of the bargaining group, such that a notification could be lodged to cover future (unnamed) members; • the nomination of the counterparties with whom the group seeks to negotiate, such that a notification could be lodged to cover multiple counterparties; and • different timeframes for different collective bargaining notifications, based on the circumstances of each application. Additionally, the ACCC should be empowered to impose conditions on notifications involving collective boycott activity, the timeframe for ACCC assessment of notifications for conduct that includes collective boycott activity should be extended from 14 to 60 days to provide more time for the ACCC to consult and assess the proposed conduct, and the ACCC should have a limited ‘stop power’ to require collective boycott conduct to cease, for use in exceptional circumstances where a collective boycott is causing imminent serious detriment to the public. The current maximum value thresholds for a party to notify a collective bargaining arrangement should be reviewed in consultation with representatives of small business to ensure that they are high enough to include typical small business transactions. The ACCC should take steps to enhance awareness of the exemption process for collective bargaining and how it might be used to improve the bargaining position of small businesses in dealings with large businesses. The ACCC should also amend its collective bargaining notification guidelines. This should include providing information about the range of factors considered relevant to determining whether a collective boycott may be necessary to achieve the benefits of collective bargaining.

R55 — Implementation

The Australian Government should discuss this Report with the States and Territories as soon as practicable following its receipt.

R56 — Economic modelling

The Productivity Commission should be tasked with modelling the recommendations of this Review as a package (in consultation with jurisdictions) to support discussions on policy proposals to pursue.