Australia: Asia Pacific Competition Highlights, Q3 2020

This update was published on 16 October 2020, as part of our quarterly newsletter, Asia Pacific Competition Highlights. Click here to access the full report, which covers the most notable antitrust developments across 11 Asia Pacific jurisdictions.

ACCC enters multilateral framework to strengthen cross-border enforcement

The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (“MMAC”) came into effect on 2 September 2020. Its members comprise the ACCC, US DOJ, US FTC, UK CMA, CB of Canada and NZCC (Members).

While the ACCC has cooperated with overseas agencies for many years, ACCC Chairman Mr. Rod Sims says that the MMAC will improve the effectiveness and efficiency of cross-border competition investigations.

The MMAC will allow the Members to share intelligence and case theories, and request offshore investigative assistance. Key aspects of the MMAC provide that:

• members are expected to assist each another in the course of conducting investigations by sharing information, coordinating investigative activities, facilitating witness interviews, and adhering to any other reasonable requests for cooperation or assistance
• members intend to exchange information on competition issues, policies, laws, and experiences of competition advocacy, outreach and enforcement
• members intend to provide inter-agency training, advice and events

The MMAC contains a Model Agreement, which provides a template for member authorities to request one another’s assistance, and sets out protocols for information sharing and investigative processes such as conducting witness interviews and search and seizure.

A committee comprising of individuals from member authorities will be established to oversee the operation of the MMAC. The framework also incorporates a 5-year review mechanism.

The MMAC can be found here.​

Guilty please in first criminal charge for obstructing ACCC investigation

On 1 September 2020, a former general manager of BlueScope Steel Limited pleaded guilty to criminal charges relating to the obstruction of an ACCC cartel investigation.

This is the first time an individual has been criminally charged for obstruction of a Commonwealth public official in relation to an ACCC investigation.

The individual admitted to inciting two fellow BlueScope employees to give false evidence to the ACCC regarding discussions he and those employees had in meetings with various steel companies.

While cartel conduct itself can constitute a criminal and/or civil offence, this case demonstrates that the obstruction of an ACCC investigation can also constitute a criminal offence for which an individual may be convicted. Even if a party is absolved from allegations of cartel conduct, the way that party engages with the ACCC in the course of an investigation could separately constitute a criminal offence if it obstructs the investigation.

This matter reiterates the importance of understanding your rights and obligations if you are involved in an ACCC investigation.

Merger review round up; non-publication of post-merger investigations

The ACCC has recently cleared a number of mergers including Metcash’s acquisition of Total Tools; Bayer’s acquisition of Elanco; Mitolo’s acquisition of Thomas Foods International’s potato business; and Alstom SA’s acquisition of Bombadier Inc.’s transportation business.

The ACCC has also published Statements of Issues and moved to phase two reviews of Google’s proposed acquisition of Fitbit and South Pacific Laundry’s proposed acquisition of Spotless Laundries.

On 31 August 2020, the ACCC informed competition law practitioners that from 1 September 2020 investigation into completed mergers would no longer be published on the ACCC’s website.

While not required by law, the ACCC has historically placed investigations of completed mergers on their public merger register. The information typically made available included, market inquiries letters and, where applicable, the ACCC’s Statement of Issues.

Consistent with the ACCC’s new practice, the ACCC’s merger register has removed current post-completion merger investigations.

The ACCC confirmed this does not imply they will no longer be investigating post-completion mergers.

The ACCC’s merger registers can be found here.

Digital Platforms Inquiry update: draft bargaining code; platforms respond

On 31 July 2020, the ACCC released its draft news media bargaining code (“Code”) between news media companies and large digital platforms. A notable feature of the Code is the “final offer” arbitration process, which would allow an independent arbitrator to determine payment terms by which the digital platform must pay for particular news media content.

The Code provides that the ACCC can issue infringement notices of up to AUD 133,200 for contraventions. Should the ACCC institute court proceedings, the penalties available would be the same as for competition law contraventions, i.e. up to the greater of AUD 10 million, three times the benefit obtained from the conduct (if calculable) or 10% of annual turnover in Australia in the previous 12 months. The digital platforms have criticized the Code and, in particular the potentially damaging effect of the Code on the digital economy.

Public consultation in respect of the Code concluded on 28 August 2020 and legislation to implement the Code in Parliament is to be introduced shortly.

The ACCC’s recent media release regarding the draft Code can be found here.

Criticisms about the code by the digital platforms can be found here and here.

The ACCC’s responses to these criticisms can be found here.