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Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights

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Abstract

The Australian competition law regime is primarily governed by the Competition and Consumer Act 2010 (Cth) (the “CCA”) and is based on both private and public enforcement. However, Australian competition law is primarily enforced and regulated publicly by the Australian Competition and Consumer Commission (the “ACCC”). The ACCC has investigative and information-gathering powers under Part XID of the CCA. It resolves matters either by administratively encouraging consultation or negotiation to settle disputes or via litigation. Nevertheless, only the court has the power to declare whether particular conduct contravenes the CCA and make findings of liability. The ACCC is empowered to institute proceedings in the court for the declaration of an infringement of the CCA and for the recovery of a pecuniary penalty on behalf of the Commonwealth. The ACCC may also apply for injunctions, damages and a range of orders.

The law in this chapter is up-to-date as at 1 January 2015.

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Notes

  1. 1.

    The Act was previously named the Trade Practices Act 1974 (Cth).

  2. 2.

    The ACCC was established by the Competition Policy Reform Act 1995 (Cth). It replaced the existing Trade Practices Commission. Australia has another regulator, the Australian Energy Regulator, which was established by the Trade Practices Amendment (Australian Energy Market) Act 2004 (Cth).

  3. 3.

    See ACCC, Compliance & enforcement policy (February 2014), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy.

  4. 4.

    See ss76–77 of the CCA.

  5. 5.

    The Australian competition law/policy regime is in the early stages of a major Competition Policy Review (colloquially known as the ‘Root and Branch Review’). It is likely that the review will have an impact on transactional institutions. See Australian Government, Competition Policy Review http://competitionpolicyreview.gov.au/.

  6. 6.

    Transactional resolutions are summarised in the ACCC’s ‘Cooperation Policy for Enforcement Matters’ policy (July 2002). See also ACCC, Compliance & enforcement policy (February 2014), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy.

  7. 7.

    The Cooperation Policy is available at https://www.accc.gov.au/publications/accc-cooperation-policy-for-enforcement-matters. It was developed and evolved from a 1998 ACCC guideline dealing with cooperation.

  8. 8.

    See, for example, TPC v TNT Australia Pty Ltd and Others [1995] FCA 1046 at [21] to [22]; (1995) ATPR 41–375 at pp. 40,169 to 40,170; and TPC v Patterson Cheney Pty Ltd and Others [1990] FCA 421 at [11]; (1990) ATPR 41–059 at p. 51,759.

  9. 9.

    Justice French in TPC v CSR Ltd [1990] FCA 521; (1991) ATPR 41–076 at pp. 52,155 to 52,156.

  10. 10.

    See ACCC v BAJV Pty Ltd [2014] FCAFC 52 at [54] to [62] and [69] to [70].

  11. 11.

    CDPP, Immunity from Prosecution in Serious Cartel Offences, made under s9(6D) of the Director of Public Prosecutions Act 1983 (Cth); ACCC Immunity and Cooperation Policy for Cartel Conduct (September 2014), paras 31–59.

  12. 12.

    Available at http://www.accc.gov.au/publications/accc-immunity-cooperation-policy-for-cartel-conduct. The ACCC Immunity and Cooperation Policy for Cartel Conduct 2014 replaced the ACCC Immunity Policy for Cartel Conduct from July 2009 and its guidelines.

  13. 13.

    See ACCC Media Release “Draft Leniency Policy to break hard core cartels issued”—4 July 2002 at www.accc.gov.au/media-release/draft-leniency-policy-to-break-hard-core-cartels-issued.

  14. 14.

    ACCC v FFE Building Services Ltd [2003] FCA 1542 at [30].

  15. 15.

    The Immunity Policy is restricted to cartel conduct; however, the cooperation policy is general and is capable of applying to any area of competition law.

  16. 16.

    A corporation can also apply for so-called derivative immunity for its current and former employees, directors and officers, and it can even apply for derivative immunity for its corporate entities.

  17. 17.

    Immunity and Cooperation Policy for Cartel Conduct, paras 16 and 28.

  18. 18.

    Immunity Policy for Cartel Conduct, para 8.

  19. 19.

    See, e.g., ACCC v Leahy Petroleum Pty Ltd, [2007] FCA 794, [42]–[55], [128]–[901].

  20. 20.

    Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth).

  21. 21.

    Immunity and Cooperation Policy for Cartel Conduct, paras 31–59, 63 and 80.

  22. 22.

    Ibid., paras 68–84.

  23. 23.

    Ibid., paras 85–90.

  24. 24.

    Such an agreement has a basis in s191(3)(a) of the Evidence Act 1995 (Cth).

  25. 25.

    ACCC v Ticketek Pty Ltd [2011] FCA 1489; see also, ACCC v Telwater Pty Ltd (2009) ATPR 42-276; ACCC v Qantas Airways Ltd (2008) ATPR 42-266; ACCC v Hobie Cat Australasia Pty Ltd [2008] FCA 402; (2008) ATPR 42-225; ACCC v Fchem (Australia) Ltd [2008] FCA 344; ACCC v Francis (2004) 142 FCR 1; ACCC v SIP Australia Pty Ltd [1999] FCA 858 (1999) ATPR 41-702; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546.

  26. 26.

    See Justice Sheppard in TPC v Allied Mills Industries Pty Ltd (No. 4) [1981] FCA 142; (1981) 37 ALR 256 at 259. This process was subsequently applied in 1995 by Justice Burchett in TPC v TNT Australia Pty Ltd and Others. [1995] FCA 1046 at [6] to [8].

  27. 27.

    NW Frozen Foods Pty Ltd v ACCC [1996] FCA 1134; (1996) 71 FCR 285.

  28. 28.

    Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.

  29. 29.

    ASIC -v- Ingelby [2013] VSCA 49; and see “Some Recent Developments in Corporate Regulation – ASIC from a Judicial Perspective” Paper by Justice Mark Weinberg, Court of Appeal, Supreme Court of Victoria presented to the Monash University Law School, Commercial CPD Seminar, Melbourne 16 October 2013, especially at p14 [50] to p22 [80]. Available at www.supremecourt.vic.gov.au/find/publications/speeches.

  30. 30.

    See, ACCC v ABB Transmission and Distribution Ltd [2001] FCA 383; (2001) ATPR 41-815, at 42,936.

  31. 31.

    Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCACFC 72; (2004) ATPR 41-993, at 51; also see, e.g., ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413, at [118]–[121]; ACCC v Cargolux Airlines International SA [2009] FCA 342, (2009) ATPR 42-282; ACCC v Westminster Retail Pty Ltd [2005] FCA 1299, (2005) ATPR 42-084.

  32. 32.

    NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546.

  33. 33.

    ACCC v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) ATPR 41-673.

  34. 34.

    Ibid, at 42,599; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546, at 43,580.

  35. 35.

    See, ACCC v ABB Transmission and Distribution Ltd [2001] FCA 383; (2001) ATPR 41-815, at 42,936; R Baxter, ‘Trade Practices – Agreeing the Level of Penalties with the Trade Practices Commission in Lieu of Prosecution’ (1995) 69 ALJ 243.

  36. 36.

    See, e.g., TPC v Allied Mills Industries Pty Ltd (1981) ATPR 40-241. For further discussion on public values in connection with penalties and their reduction, see Sect. 2.1.2.

  37. 37.

    TPC v Allied Mills Industries Pty Ltd (1981) ATPR 40-241 at 43,182. See also ACCC v SIP Australia Pty Ltd [1999] FCA 858 (1999) ATPR 41-702, at 43,000; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546, at 43,557-8.

  38. 38.

    See, TPC v Simsmetal Ltd (1996) ATPR 41-449; TPC v TNT Australia Pty Ltd (1995) ATPR 41-375; TPC v Axive Pty Ltd (1994) ATPR 41-368.

  39. 39.

    TPC v Allied Mills Industries Pty Ltd (1981) ATPR 40-241.

  40. 40.

    It has continued to be applied and to expand into other areas of law including consumer law—see ACCC v AGL Sales Pty Ltd [2013] FCA 1030 at [12] to [45]; corporations law—see ASIC in the matter of Chemaq Ltd v Chemaq Ltd [2006] FCA 936 at [90] to [104]; customs law (Customs Act 1901 (Cth))—see CEO of Customs by Robert Harry Wales his duly authorised Delegate v Corniche Motors Pty Ltd & Others [2003] WASC 244 at [3] to [15]; health law (Therapeutic Goods Act 1999 (Cth))—see Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [17] to [42]; media law (Broadcasting Services Act 1992 (Cth))—see Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd [2009] FCA 754; industrial law—see Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 at [34]; environment law (Environment Protection and Biodiversity Conservation Act 1999 (Cth))—see Minister for Sustainability, Environment, Water, Population and Communities v De Bono [2012] FCA 643 at [15]; and tax law (Tax Agent Services Act 2009 (Cth))—see Tax Practitioners Board v Shanahan [2013] FCA 764 at [14] to [23].

  41. 41.

    Barbaro v R; Zirilli v R, [2014] HCA 2; (2014) 88 ALJR 372.

  42. 42.

    Ibid., at [7].

  43. 43.

    See Tax Practitioners Board v Dedic [2014] FCA 511 at [3]; ACCC v Mandurvit Pty Ltd [2014] FCA 464 at [37] to [80] and ACCC v Energy Australia Pty Ltd [2014] FCA 336 at [113] to [152].

  44. 44.

    A Full Court of the Federal Court is reconsidering and reviewing the agreed penalty process for civil penalties in the Queensland case of Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union (CFMEU) & Anor QUD257 of 2013. The hearing was held in mid August 2014, and judgment was reserved and is still pending. However, as discussed above, a Full Court of the Federal Court approved the negotiated penalty process for competition law in NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546. The process has also been accepted in a non-competition law context by a Full Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCACFC 72; (2004) ATPR 41-993.

  45. 45.

    See Sect. 2.2.1; see also C. Parker, Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings (2004) 67(2) The Modern Law Review, 209, 214, 219; M. Duffy, Trade Practices Amendment Bill 1992, Second Reading Speech, Parliament of Australia, 2405, 3 November 1992.

  46. 46.

    See, M. Nehme, “Enforceable Undertaking: A Restorative Sanction?” (2010) 36 Monash U.L.Rev. 108; C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209.

  47. 47.

    See ACCC, Compliance & enforcement policy (February 2014), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy.

  48. 48.

    For further discussion on enforceable undertakings, see Sects. 2.2.1, 2.4.1 and 2.5.1.1. Undertakings are also commonly used in Merger Control. This is discussed in Sect. 2.6.

  49. 49.

    Authorisation is possible for mergers, but only the Australian Competition Tribunal has the power to grant authorisation (see Sect. 2.6). It is possible for the ACCC to grant authorisation in relation to certain acquisitions occurring outside Australia (s 88(9)); however, no such authorisation applications have been, or are likely to be, made given the limited application of s 50A of the CCA.

  50. 50.

    Section 88 CCA.

  51. 51.

    The ACCC is empowered to withdraw the protection but must undertake various inquiries and comply with a pre-determination hearing procedure before making its decision to withdraw the protection [sections 93(3), (4) and (5) of the CCA].

  52. 52.

    Notification for some forms of exclusive dealing do not take effect for 14 days to enable the ACCC to consider its position whether or not to allow those notifications to stand.

  53. 53.

    This is determined based on the value of the transactions involved.

  54. 54.

    See ACCC, ‘Authorisations Register’ www.accc.gov.au/authorisationsregister.

  55. 55.

    Section 90A(1) of the CCA.

  56. 56.

    See sections 90A(6) and (7) of the CCA.

  57. 57.

    Section 90A(11) of the CCA.

  58. 58.

    See section 93A of the CCA.

  59. 59.

    For example, see Jones v ACCC [2003] FCAFC 164; (2003) 131 FCR 216—where the Full Court of the Federal Court set aside an ACCC authorisation decision because the application for authorisation was not valid; also see Hospital Benefit Fund of WA v ACCC [1997] FCA 655; (1997) 76 FCR 369—where the court set aside an ACCC decision to allow a third line forcing notification to stand (which had the effect of removing a private cause of action instituted against the conduct). The ACCC had not provided the third party affected an opportunity to be heard in the matter.

  60. 60.

    See, TPC v Simsmetal Ltd (1996) ATPR 41-449; TPC v TNT Australia Pty Ltd (1995) ATPR 41-375; TPC v Axive Pty Ltd (1994) ATPR 41-368.

  61. 61.

    Section 87B of the CCA.

  62. 62.

    [2014] FCA 363.

  63. 63.

    [2014] FCA 364.

  64. 64.

    They are similarly expressed by the ACCC in its Guideline on Section 87B of the Competition and Consumer Act April 2014, p. 3. See www.accc.gov.au/publications/section-87b-of-the-competition-consumer-act.

  65. 65.

    Australian Law Reform Commission, Compliance with Trade Practices Act 1974, Report No 68 (1994) 38. Corrective measures are more common in consumer law undertakings than in competition law undertakings.

  66. 66.

    See, e.g., M. Nehme, “Enforceable Undertaking: A Restorative Sanction?” (2010) 36 Monash U.L.Rev. 108; C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209.

  67. 67.

    C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209, 211.

  68. 68.

    See, M. Nehme, “Enforcable Undertaking: A Restorative Sanction?” (2010) 36 Monash U.L.Rev. 108; C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209.

  69. 69.

    ACCC, Compliance & enforcement policy (February 2013), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy; Australian Law Reform Commission (ALRC), Compliance with the Trade Practices Act 1974, Report 68, Sydney, June 1994, [11.5]; see, C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209, 216; ACCC, Public Register of Undertakings, available at http://registers.accc.gov.au/content/index.phtml/itemId/815599.

  70. 70.

    Corrective advertising and other corrective measures are usually utilised in consumer law undertakings. They are not common in competition law undertakings. See an empirical study: C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209, 214–220.

  71. 71.

    K. Yeung, Securing Compliance: A Principled Approach, Hart Publishing 2004, pp. 211–212.

  72. 72.

    See, ACCC, Public Register of Undertakings, available at http://registers.accc.gov.au/content/index.phtml/itemId/815599; C. Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67(2) The Modern Law Review, 209, 218.

  73. 73.

    See ACCC v Coles Group Ltd [2014] FCA 363 and ACCC v Woolworths Ltd [2014] FCA 364.

  74. 74.

    See, for example, L. Sylvan, Australia’s competition and consumer law: ensuring compliance and enforcing the law (Trade Practices & Competition Law Conference, Sydney, 16 February 2004) https://www.accc.gov.au/system/files/Australias%20competition%20and%20consumer%20law%20ensuring%20compliance%20and%20enforcing%20the%20law.pdf. See also ACCC, ‘ACCC Compliance and Enforcement Policy’ (February 2014) http://www.accc.gov.au/publications/compliance-and-enforcement-policy.

  75. 75.

    Former policy: Trade Practices Commission, Guideline on administrative resolution (TPC Canberra 1993); also see ACCC, Compliance & enforcement policy (February 2013), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy.

  76. 76.

    ACCC, Compliance & enforcement policy (February 2013), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy; for the former policy, see Trade Practices Commission, Guideline on administrative resolution (TPC Canberra 1993).

  77. 77.

    See, for example, ACCC and Australian Energy Regulator, Annual Report: 2012-13, Canberra, p. 35.

  78. 78.

    See, for example, Australian Law Reform Commission (ALRC), Compliance with the Trade Practices Act 1974, Report 68, Sydney, June 1994, [11.1].

  79. 79.

    ACCC and Australian Energy Regulator, Annual Report: 2012-13, Canberra, p. 57.

  80. 80.

    For instance, on 25 February 2014, the ACCC instituted court proceedings against supermarket chains, Coles and Woolworths, claiming they had breached the enforceable undertakings.

  81. 81.

    Compare F. Zumbo, “Section 87B undertakings: there’s no accounting for such conduct!” (1997) 5 Trade Practices Law Journal 121.

  82. 82.

    See R. Creyke and J. McMillan, Control Government Action: Text, Cases & Commentary, 3rd ed., LexisNexis Butterworths 2012, Chapter 10.

  83. 83.

    Section 151AKA, s152BCF, s152BCG and s152BD of the CCA.

  84. 84.

    ACCC, Compliance & enforcement policy (February 2013), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy. For the discussion about the principle of proportionality, see Sect. 2.4.

  85. 85.

    The decision by the Tribunal can be appealed to the Federal Court on a question of law (s44ZR of the CCA).

  86. 86.

    The Commonwealth Ombudsman does not have enforcement powers.

  87. 87.

    Commonwealth Ombudsman, Administrative Deficiency, available at http://www.ombudsman.gov.au/.

  88. 88.

    Subsections 5(2)(d) and 6(2)(d).

  89. 89.

    SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, [756].

  90. 90.

    Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431, [8].

  91. 91.

    See Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1, 195 ALR 502, [22]–[23]; A. Mason, Procedural Fairness: Its Development and Continuing Role of Legitimate Expectation (2005) AJAL 103. Federal courts have no jurisdiction to review merits of administrative decisions. However, the judicial review on reasonable person grounds (discussed in Sect. 2.4) has the highest possible threshold and thus almost overlaps with the concept of a judicial review on merits. See discussion in P. Billings and A. E. Cassimatis, “Statutory Judicial Review in Australia” (2013) 23 JJA 73, 105–109; and application in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] to [30]; [63] to [76] and [105].

  92. 92.

    Subsection 75(v) of the Commonwealth of Australia Constitution Act 1900.

  93. 93.

    Section 39B Judiciary Act 1903 (Cth) and in the Administrative Decisions (Judicial Review) Act 1977 (Cth).

  94. 94.

    See Australian Petroleum Pty Ltd v ACCC (1997) 73 FCR 75; (1997) ATPR 41-155 Justice Lockhart held (pp. 43,685–43,688).

  95. 95.

    See Muin v Refugee Review Tribunal (2002) 190 ALR 601; Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550.

  96. 96.

    See subsections 5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Nevertheless, in Australia, there is a tendency for the courts to apply a test of ‘reasonable proportionality’ in public law, most notably in constitutional law. The test of reasonable proportionality is used to determine the existence of a valid connection between executive action and the source of authority for that particular action. See R. Creyke and J. McMillan, Control Government Action: Text, Cases & Commentary, 3rd ed., LexisNexis Butterworths, 2012, p. 448. The test of reasonable proportionality was applied in the following cases in connection with administrative regulations: Vanstone v Clark (2005) 147 FCR 299, 224 ALR 666, 88 ALD 520; South Australia v Tanner (1989) 166 CLR 161, 83 ALR 631.

  97. 97.

    ACCC, Compliance & enforcement policy (February 2014), available at http://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy.

  98. 98.

    Ibid.

  99. 99.

    Ibid.

  100. 100.

    See Australian Law Reform Commission (ALRC), Compliance with the Trade Practices Act 1974, Report 68, Sydney, June 1994, [11].

  101. 101.

    S. Ratnapala and J. Crowe, Australian Constitutional Law: Foundations and Theory, 3rd ed., Oxford University Press 2012, p. 400.

  102. 102.

    See section 80 and subsection 51(xxxi) of the Constitution.

  103. 103.

    See S. Ratnapala and J. Crowe, Australian Constitutional Law: Foundations and Theory, 3rd ed., Oxford University Press 2012, pp. 400–407.

  104. 104.

    Ibid, pp. 400–401.

  105. 105.

    Ibid, pp. 402–403.

  106. 106.

    For the punitive aim, see ACCC v ABB Transmission & Distribution Ltd [2001] FCA 383, at [7] and [9].

  107. 107.

    Questions of law.

  108. 108.

    See J McPhee & Son (Australia) Pty Ltd v ACCC [2000] FCA 365, (2000) 172 ALR 532; Pye Industries Sales Pty Ltd v TPC (1979) ATPR 40-124.

  109. 109.

    As discussed previously (Sect. 2.1), the court usually accepts any reduced penalty agreed between the ACCC and the defendant, provided it is within the appropriate range for the infringement in question (see, e.g., ACCC v Chaste Corp Pty Ltd [2004] FCA 398; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285) with the result that an appeal relating to agreed penalties is highly unlikely.

  110. 110.

    See, e.g., ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413, at [112]; ACCC v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153, at [32]; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, at 294–295; Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 (CSR) at 52,152; TPC v Mobil Oil Australia Ltd (1985) 4 FCR 296, at 298; Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896.

  111. 111.

    See, e.g., ACCC v ABB Transmission & Distribution Ltd [2001] FCA 383, at [7] and [9].

  112. 112.

    See, e.g., ACCC v ABB Transmission & Distribution Ltd [2001] FCA 383, at [5].

  113. 113.

    ACCC v ABB Transmission & Distribution Ltd [2001] FCA 383, at [5].

  114. 114.

    ACCC v ABB Transmission & Distribution Ltd [2001] FCA 383, at [6].

  115. 115.

    See, e.g., ACCC v Chaste Corp Pty Ltd [2004] FCA 398.

  116. 116.

    See, e.g., ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413, at [118]–[121]; ACCC v Cargolux Airlines International SA [2009] FCA 342, (2009) ATPR 42-282; ACCC v Westminster Retail Pty Ltd [2005] FCA 1299, (2005) ATPR 42-084; Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCACFC 72; (2004) ATPR 41-993, at 51.

  117. 117.

    See, e.g., ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413, at [12]–[16], [118]–[121]; ACCC v Ticketek Pty Ltd [2011] FCA 1489; ACCC v Tyco Australia Pty Ltd [2000] FCA 401; TPC v Carlton & United Breweries Ltd (1990) 24 FCR 532.

  118. 118.

    Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.

  119. 119.

    Electricity Supply Association of Australia Ltd v ACCC (2001) 113 FCR 230 at [76]–[79].

  120. 120.

    Australian Petroleum Pty Ltd v ACCC [1997] FCA 175; (1997) ATPR 41-155.

  121. 121.

    Ibid., at 43,685–43,688.

  122. 122.

    Application by Medicines Australia Inc [2007] ACompT 4 at [135].

  123. 123.

    [2007] ACompT 4 at [93] to [134]; (2007) ATPR 42-164 at 47,515 [93] to 47,524 [134].

  124. 124.

    See, for example, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Sir Frank Kitto, “Why Write Judgments?” (1992) 66 ALJ 787; Sir Harry Gibbs, “Judgment Writing” (1993) 67 ALJ 494; Sir Laurence Street, introduction to “The Writing of Judgments: A Forum” (1992) 9 ABR 130; The Hon L J Priestley, ‘The Writing of Judgments: A Forum’ (1992) 9 ABR 130; The Hon John Doyle, ‘Judgment Writing: Are there needs for change?’ (1999) 73 ALJ 737.

  125. 125.

    (1994) 181 CLR 41; see also Ebner v Official Trustee in Bunkruptcy (2000) 205 CLR 337; 63 ALD 577.

  126. 126.

    See Re JRL; Ex parte CJL (1986) 161 CLR 342; Robin Creyke and John McMillan, Control Government Action: Text, Cases & Commentary, 3rd ed., LexisNexis Butterworths, 2012, p. 644.

  127. 127.

    The High Court of Australia, therefore, denies ensuring the right to equal treatment [see Kruger v Commonwealth (1997) 190 CLR 1; Leeth v Commonwealth (1992) 174 CLR 455] unless it relates to religion, which is present in s116 of the Constitution, or non-discrimination based on the grounds of residency in a particular State of Australia, as provided in s117. Nevertheless, Australian legislation can, and for different situations does, protect equal treatment to outlaw arbitrary discrimination.

  128. 128.

    Lowe v The Queen (1984) 154 CLR 606, at 609: ‘[P]ersons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence.’

  129. 129.

    See, ACCC v Australian Abalone Pty Ltd [2007] FCA 1834; ACCC v SIP Australia Pty Ltd [2003] FCA 336; ACCC v ABB Transmission & Distribution Ltd (No 2—Distribution Transformers) [2002] FCA 559, (2002) 190 ALR 169; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285.

  130. 130.

    See Part XIA and Schedule 1, the Schedule version of Part IV of the CCA.

  131. 131.

    See, e.g., s19 of the Competition Policy Reform (New South Wales) Act 1995 (NSW).

  132. 132.

    See Part XIA of the CCA; Jurisdiction of Courts Legislation Amendment Act 2000 (Cth).

  133. 133.

    Section 150H of the CCA; also see, e.g., s34 of the Competition Policy Reform (New South Wales) Act 1995 (NSW).

  134. 134.

    The ACCC cannot sue for damages because, as a specialist, independent public enforcement regulator, it does not suffer loss or damage.

  135. 135.

    ACCC v Monza Imports Pty Ltd [2001] FCA 1455, [2001] ATPR 41-843.

  136. 136.

    Ibid, at [24]–[26].

  137. 137.

    ACCC v ABB Transmission and Distribution Ltd [No 2] [2002] FCA 559, at [51]. The court referred to Dawson v Great Central Railway (1919) 88 LJKB 1177.

  138. 138.

    Transactional resolutions for mergers (merger remedies) are considered in Sect. 2.6, below.

  139. 139.

    ACCC, Section 87B of the Trade Practices Act (September 2009), p. 5. See also, for example, ACCC, ‘ACCC accepts Ray White Real Estate administrative undertakings’ (Media Release 016/05, 28 January 2005), at http://www.accc.gov.au/media-release/accc-accepts-ray-white-real-estate-administrative-undertakings as an example of a less formal administrative undertaking.

  140. 140.

    See, ACCC immunity and cooperation policy for cartel conduct (September 2014).

  141. 141.

    See, for example, ALRC, ‘Uniform Evidence Law’ (ALRC Report 102) chapter 15 http://www.alrc.gov.au/publications/15.%20Privilege%3A%20Other%20Privileges/privilege-respect-self-incrimination-other-proceedings.

  142. 142.

    Section 155(7) and 154X(3) CCA.

  143. 143.

    Section 155(7) and 154X(4) CCA.

  144. 144.

    See, for example, I. Wylie, “When too much power is barely enough – s155 of the Trade Practices Act and noblesse oblige” (2009) 16 Competition and Consumer Law Journal 314.

  145. 145.

    Section 155(1) CCA.

  146. 146.

    Section 155(5)(5A)(6A)CCA.

  147. 147.

    I. Wylie, “When too much power is barely enough – s155 of the Trade Practices Act and noblesse oblige” (2009) 16 Competition and Consumer Law Journal 314, 330 and ACCC v Rana [2008] FCA 374.

  148. 148.

    Section 154X(2) CCA.

  149. 149.

    Section 154R CCA.

  150. 150.

    See further, ACCC ‘Discussion Paper: Review of the ACCC’s Leniency Policy for Cartel Conduct’ (2004) (https://www.accc.gov.au/system/files/Discussion%20paper%20-%20Review%20of%20the%20ACCC%27s%20leniency%20policy%20for%20cartel%20conduct.pdf) accessed 25 April 2014.

  151. 151.

    See also Beaton-Wells and Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context, Cambridge University Press 2011, 147. Compare Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 (comments of Gordon J).

  152. 152.

    ACCC immunity and cooperation policy for cartel conduct (Draft, April 2014), para 50. See also A. Guirguis, Risk of Disclosure of Immunity Applicant Confidential Information and Documents – The Position in Australia (IBA Annual Conference, Dublin) http://www.corrs.com.au/assets/thinking/downloads/Cartel-Paper-Ayman-Guirguis-IBA-Annual-Conference-Dublin.pdf.

  153. 153.

    Defined in this section to mean information given to the ACCC in confidence and relating to breach or possible breach of the cartel provisions.

  154. 154.

    Section 157B(5).

  155. 155.

    ACCC immunity and cooperation policy for cartel conduct (Draft, April 2014), para 51.

  156. 156.

    See further R. Johnstone and C. Parker, Enforceable Undertakings in Action – Report of a Roundtable Discussion with Australian Regulators, February 2010, available at http://www.law.unimelb.edu.au/files/dmfile/ParkerandJohnstoneEnforceableUndertakingsinActionReportofaRoundtableDiscussionwithAustralianRegulatorsFinalEUWorkingPaper17Feb20101.pdf.

  157. 157.

    ACCC, ‘Section 87B of the Trade Practices Act’ (September 2009) p. 5.

  158. 158.

    Ibid.

  159. 159.

    Compare F. Zumbo, “Section 87B undertakings: there’s no accounting for such conduct!” (1997) 5 Trade Practices Law Journal 121.

  160. 160.

    Daniels Corp International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543.

  161. 161.

    This followed a decision in the Federal Court, which found that legal professional privilege was not protected in relation to s155 notices. See further A. Bruce, “The Trade Practices Act 1974 (Cth) and the Demise of Legal Professional Privilege” (2002) 30 Federal Law Review 373.

  162. 162.

    Review of the Competition Provisions of the Trade Practices Act (January 2003) chapter 13 http://tpareview.treasury.gov.au/content/report.asp.

  163. 163.

    Section 155(7A).

  164. 164.

    See, for example, ACCC v Metcash Trading Limited [2011] FCA 967 and ACCC v Metcash Trading Limited [2011] FCAFC 151 (appeal).

  165. 165.

    AGL v ACCC (No. 3) [2003] FCA 1525.

  166. 166.

    AGL v ACCC (No.3) [2003] FCA 1525 at [1] to [10] and [600] to [612]; (2003) ATPR 41-966 at 47,632 [1] to 47,634 [10] and 47,762 [600] to 47,765 [612].

  167. 167.

    Ibid, at [612]; 47,765 [612].

  168. 168.

    Section 87B CCA.

  169. 169.

    See A. Guirguis, R. Flitcroft and S. Godden, “The Australian merger process: Challenges to ACCC views on mergers by litigation and in an administrative context” (2013) 58 The Antitrust Bulletin 401, 420–421.

  170. 170.

    Australian Petroleum Pty Ltd v ACCC (1997) ATPR 41-555.

  171. 171.

    See, for example, ACCC, Formal Merger Review Process Guidelines (2008), para 3.13 and CCA s95AE and regulation 73.

  172. 172.

    See, for example, ACCC, Formal Merger Review Process Guidelines (2008), para 2.9.

  173. 173.

    See A. Guirguis, R. Flitcroft and S. Godden, “The Australian merger process: Challenges to ACCC views on mergers by litigation and in an administrative context” (2013) 58 The Antitrust Bulletin 401, 421.

  174. 174.

    CCA, section 87B(4).

  175. 175.

    See ACCC, Merger Review Process Guidelines (September 2013) and ACCC, Formal Merger Review Process Guidelines (June 2008), parta 3.102.

  176. 176.

    See, for example, F. Zumbo, “Section 87B undertakings: there’s no accounting for such conduct!” (1997) 5 Trade Practices Law Journal 121.

  177. 177.

    Barbaro v R; Zirilli v R, [2014] HCA 2; (2014) 88 ALJR 372.

  178. 178.

    NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285; (1997) ATPR 41-546.

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Authors and Affiliations

  1. TC Beirne School of Law, The University of Queensland, St Lucia, QLD, Australia

    Barbora Jedličková

  2. School of Law, Deakin University, Waurn Ponds, VIC, Australia

    Julie Clarke

  3. Victorian Bar and New South Wales Bar, Melbourne, VIC, Australia

    Sitesh Bhojani

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  2. de Weck, Zoells & Kobel, Geneva, Switzerland

    Pierre Kobel

  3. Këllezi Legal, Geneva, Switzerland

    Pranvera Këllezi

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Jedličková, B., Clarke, J., Bhojani, S. (2016). Australia. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-27158-3_2

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