The power of the ACCC and where it is being applied

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1 The power of the ACCC and where it is being applied Trends and patterns in ACCC actions and investigations Douglas Shirrefs Barrister

2 Outline Some background details and context Some public priorities. A practitioner s perspective Questions and war stories.

3 Context objectives of ACCC Make use of the changes in the ACL Act against widespread consumer detriment Maintain or enhance competition in concentrated markets Reinvigorate the debate on regulated monopolies Increase ACCC engagement internationally Source ACCC and AER Annual Report , p.5 (ACCC,11-12)

4 Make use of the changes in the ACL Year 2 of ACL Full application since 1 January 2011 Arguably a world leading regime now 34 infringement notices s.134 Alternative to pecuniary penalty how realistic? s134a reasonable grounds to believe The first ban of a company officer ss86e and 248 ACL Awareness heightened around consumer rights Frequent publications; you need to stay up to date Audit notices on 20 franchisors and 9 horticultural traders s51add Remember there are four Codes the trigger is in 51ADD(1) (ACCC, 11-12)

5 Act against consumer detriment Rationale is bang for buck Apple product suitability for Australia Google misleading and deceptive conduct (Snapshots (2012) 20 AJCCL 207 at 208) Harvey Norman bait advertising Optus internet plans Energy retailers misleading churn sales

6 Maintain or enhance competition in concentrated markets Air cargo biggest investigation ever Required consideration of jurisdictional nexus Ticketek a rare win for misuse of market power The question remains; how effective is section 46? Woolams cover pricing an old chestnut Groceries Metcash: a debacle (Snapshots (2012) 20 AJCCL 207 at 207) Forecast developments in stevedoring Virgin et al v Qantas what will happen next?

7 Reinvigorate the debate on the effective regulation of monopolies Please do. Its pretty much about Telstra AND the NBN AER proposed rule changes in 2013 AEMC to consider rule changes by AER Part IIIA has it delivered? Greenfields rail development? logistics hubs Where is the step change reform? Has the building block model really delivered the anticipated welfare gains?

8 Increased international engagement East Asia Top Level Officials Meeting on Competition Policy Australia has a seat at the regional reform table International conferences next year The airline cargo cartel is proof of the benefits International Cooperation Act

9 Enforcement and compliance priorities Carbon price claims Another GST exercise Its all about misleading and deceptive conduct Repair Replace Refund Concentrated sectors Price signalling Are the banks next? A second go at petrol pricing? Door to Door sales Recent fines and guidelines Easy runs for ACCC (ACCC 11-12, p 8)

10 Personal perspectives 1 Franchising movement in the onus? Transit Freighters Pty Ltd v Billy Baxters (Franchising) Pty Ltd [2012] VSCA 71 Income guarantees are they penalties or liquidated damages? Audits as a leverage tool in disputes? Be careful what you wish for

11 Personal perspectives 2 Misleading and deceptive conduct debt collectors representations about conduct Anti-competitive conduct small players are always at risk you must understand your clients businesses to add value Cover pricing a cooling economy means pressures mount on business to do deals Consumer Guarantees restatement of the statutory warranties limitation of liability Golden Rules and compliance programs/training

12 What to do if you get the call? Be honest. Do you understand the process? Fast Track? Application? Interim injunction? Who are the relevant stakeholders? What is the appropriate tariff if you breach? Doing the deal. Agreed facts? Undertakings?

13 Compliance and enforcement policies For most businesses only two things really matter First, the compliance and enforcement policy Published in Feb 2012; the most recent statement Second, the cooperation policy for enforcement matters The magic link automatic notice of updates

14 War stories/ lessons Get it in writing Low hanging fruit is the easiest to pick Managing the relationship can be as important as understanding the law Its easier for the ACCC than it was NEVER underestimate the value of training and compliance programmes A basis for a discount A basis for a defence - evidence

15 Douglas Shirrefs Greens List PRACTICES AND PRIORITIES