A toothless chihuahua? : the Australian Competition and Consumer Commission, neoliberalism and supermarket power in Australia

During the Senate Inquiry into 'milk price wars' in 2011, Senator Nick Xenophon accused the Australian Competition and Consumer Commission (ACCC) of being 'less effective than a toothless Chihuahua'. This follows the ACCC's lack of action regarding the reported abuse of market power of Australia's supermarket duopoly, where an extensive inquiry into the competitiveness of retail prices in 2008 found grocery retailing to be 'workably competitive' despite numerous claims to the contrary. How can farmers' submissions to the inquiry that cite market abuse be reconciled with the ACCC's finding that all is well in the food supply chain? Following an in-depth examination of 53 farmer submissions to the inquiry, we conclude that the findings of the ACCC are commensurate with the neoliberal economisation of the political sphere, where commercial entities 'legitimately' govern beyond their corporate boundaries, often using disciplinary measures that were once exclusive to governments. We argue that such clear structural inequalities between farmers and major corporations is reason to re-regulate markets and reinsert a stronger role for government to 'level the playing field'.

Software developer policies : economics and s 46 of the Competition and Consumer Act 2010

This article considers the impact of developer policies that hinder or restrict cross platform application development. We suggest that policies that hinder or restrict cross platform development have the potential to erode competition within the market for smartphones. The article also considers the relevance of dominance measures in software markets, arguing that conventional economic approaches may not be applicable. Furthermore, while most monitoring activities tend to focus primarily on protection of consumers, the article points out that modern electronic/information technology markets are multi-sided and there is a need for monitoring of practices designed to attract and retain the favour of developers. While the article is written in the context and application of the applicable Australian legislation, this being s 46 of the Competition and Consumer Act 2010 (Cth), our findings are equally relevant to other jurisdictions.

Standardised packaging and new enlarged graphic health warnings for tobacco products in Australia--legislative requirements and implementation of the Tobacco Plain Packaging Act 2011 and the Competition and Consumer (Tobacco) Information Standard, 2011

This paper describes the development, content and implementation of two pieces of Australian tobacco control legislation: one to standardise the packaging of tobacco products and the other to introduce new, enlarged graphic health warnings. It describes the process of legislative drafting, public consultation and parliamentary consideration. It summarises exactly how tobacco products have been required to look since late 2012. Finally, it describes implementation, most particularly, the extent to which packs compliant with the legislation became available to consumers over time.

Building an effective trade practices commission : the role of Professor Robert Baxt AO

Bob Baxt, the third Chairman of the Trade Practices Commission, served for a single three year term from 1988 to 1991. He followed Bob McComas, who had deliberately adopted a non-litigious approach to preserving the competitive process, believing that he understood business as an insider and that much of what it did was not anti-competitive, when correctly viewed. Baxt was far more pro-active in his approach, and more closely aligned with that of the first Chairman, Ron Bannerman. Baxt sought to push the frontiers of investigation and precedent, and perhaps, more significantly, sought to influence his Ministers, the government, public servants and public opinion about the need to expand the coverage of the Trade Practices Act, increase penalties and properly resource the Commission so that it could perform its assigned roles. This article examines Baxt’s early and on-going role in teaching Australian students and professionals through his interdisciplinary Trade Practices Workshops, the political context of Baxt’s tenure, including his relations with the Attorney-General ,Michael Duffy, and his skilful handling of the Queensland Wire case.

Joint ventures and the Competition and Consumer Act

The purpose of this chapter is to analyse the way in which joint venture agreements can fall within the competition provisions of the Competition and Consumer Act 2010, and the circumstances in which authorisation may be available for joint venture collaborations.

Regulating unilateral supermarket misconduct as customer/acquirer of goods and services

Supermarkets in Australia may have substantial market power as buyers in wholesale markets for grocery products. They may also have substantial bargaining power in negotiating contracts with their suppliers of grocery products. The Competition and Consumer Act 2010 (Cth) (CCA) regulates misconduct by supermarkets as customer/acquirers in three ways. First, s 46(1) of the CCA prohibits the ‘taking advantage’ of buyer power for the purpose of damaging a competitor, preventing entry or deterring or preventing competitive conduct. Secondly, s 21 of the ACL prohibits unconscionable conduct in business–to–business transactions. Thirdly, Pt IVB of the CCA provides for the promulgation of mandatory and voluntary industry codes of conduct. Since 1 July 2015 the conduct of supermarkets as customer/acquirers has been regulated by the Food and Grocery Industry Code of Conduct. This article examines these three different approaches. It considers them against the background of the misconduct at issue in ACCC v Coles Supermarkets Australia Pty Ltd which the ACCC chose to litigate as an unconscionable conduct case, rather than a misuse of market power case. The article also considers the strengths and weaknesses of each of the three approaches and concludes that while the three approaches address different problems there is scope for overlap and all three should be retained for compete coverage.

The relevance of import competition to merger assessment in Australia

The Australian Competition and Consumer Commission has been criticised for failing to take due account of the impact import competition has on domestic firms when assessing whether or not a proposed merger will be likely to substantially lessen competition. This article reviews the approach taken by the ACCC to import competition in its merger assessments. Consideration is given to both the policy adopted by the ACCC and the statistical relevance that has, in fact, been placed on import competition in merger assessment. A conclusion is then drawn as to the appropriateness of the ACCC's current policy and practice.

Australian law students' perceptions of their values: interim results in the first year--2001--of a three--year empirical assessment

This study attempts to answer an essential social policy question: what values are characteristic of the mass of Australian lawyers' in their last year of law school and their early careers, and how do these values develop or degrade over time? This question is important because of the concern felt in the community as to the activities of lawyers. In recent years the Australian legal profession has sustained more scrutiny by governments, regulators and consumer movements than in any previous period of our history. The perception that practitioners' competencies and ethics are deficient and materially linked both to reduced standards of performance and to higher levels of public complaints, has received attention from academics, law societies, parliamentary committees and the Australian Competition and Consumer Commission.

Online scams and fraud: Australians lose over $90 million in 2014

According to the Australian Competition and Consumer Commission (ACCC) Australians gave more than $90 million to scammers in 2014, which is a slight increase on the 2013 figures. And while dating and romance scams still make up a large proportion of the fraud being committed, the most complaints to the ACCC are related to advance fee fraud – those scams where you receive a message from someone who needs your help to get money out of a foreign bank account.

Retail competition and consumer choice:contextualising the “food deserts” debate

The “food deserts” debate can be enriched by setting the particular circumstances of food deserts – areas of very limited consumer choice – within a wider context of changing retail provision in other areas. This paper’s combined focus on retail competition and consumer choice shifts the emphasis from changing patterns of retail provision towards a more qualitative understanding of how “choice” is actually experienced by consumers at the local level “on the ground”. This argument has critical implications for current policy debates where the emphasis on monopolies and mergers at the national level needs to be brought together with the planning and regulation of retail provision at the local, neighbourhood level.

Commercial vulnerability of tenant : a special disadvantage?

The Full Federal Court has once again been called upon to explore the limits of s51AA of the Trade Practices Act 1974 (Cth) in the context of a retail tenancy between commercially experienced parties. The decision is Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62.

Enforceable undertakings : a new mechanism for minimum labour standards’ enforcement

Regulatory commentators have identified the need for more responsive regulation to allow enforcement agencies to respond to different types and degrees of non-compliance. One tool considered to support responsive enforcement is the Enforceable Undertaking (EU). EUs are used extensively by Australian regulators in decisions that forego litigation in exchange for offenders promising to (amongst other things) correct behaviour and comply in the future. This arguably allows regulatory agencies greater flexibility in how they obtain compliance with regulations. EUs became an additional enforcement tool for the Fair Work Ombudsman (FWO) under the Fair Work Act 2009. This paper is a preliminary exploration of the comparative use of EUs by the Australian Competition and Consumer Commission and the FWO to assess their effectiveness for the minimum labour standards' environment.

Love hurts: The costly reality of online romance fraud

Online dating and romance scams continue to lure in Australians with figures this week showing people have lost more than A$23 million this year alone, with average individual losses at A$21,000 – three times higher than other types of fraud. The Australian Competition and Consumer Commission (ACCC) set up the Scam Disruption Project in August to help target those it believes have been caught in such scams. Over three months it sent 1,500 letters to potential victims in New South Wales and the Australian Capital Territory. The figures released this week show that 50 people have been scammed, losing a total A$1.7 million – that’s an average of A$34,000 per victim. Almost three quarters of the scams were dating and romance related, which saw it evolve into the number one category of fraud victimisation. Romance scams continue to pose a problem – despite the efforts of the police and ACCC – so why is it that people continue to fall for them?