Background and timeline

Election promise
The Liberal Party pledged a 'root and branch' review of competition policy as part of its 2013 election campaign.

Terms of Reference
Draft terms of reference were released in December 2013.

The final Terms of Reference were released 27 March 2014

Panel members announced
27 March 2014

Issues paper
Released 14 April 2014

Submissions on Issues Paper
Due 10 June 2014 (almost 350 received)

Draft report
Released 22 September 2014

Submissions on Draft Report
Due 17 November 2014 (almost 500 non-confidential submissions received)

Final report
Released on 31 March 2015

Government response and consultation

Consultation
Government consultation on final report (submissions were due by 26 May 2015)

Government response
Released on 24 November 2015

Consultation
Additional consultation on misuse of market power.
Discussion paper released on 11 December 2015.

Government response on Misuse of Market Power
Announced 16 March 2016
(Government announced it would adopt Harper recommendations)

Implementation

Government Exposure Draft bill ➤
Exposure draft bill released 5 September 2016

Misuse of Market Power Bill ➤
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was introduced on 1 December 2016

Senate Economics Committee review of MMP Bill ➤
The misuse of market power bill was referred to the Senate Economics Committee, which reported on 16 February 2016, recommending passage of the bill, but with the 'mandatory factors' for consideration to be removed

Competition Policy Reform Act 2017
The Competition and Consumer Amendment (Competition Policy Reform) Bill 2017 (the main Harper bill) was introduced on 30 March 2017.

The Government responded to the Harper Report on 24 November 2015.

In its original response the Government deferred consideration of the controversial ‘effects test’ for misuse of market power, enabling it to focus on the bulk of the recommendations largely free from the distractions caused by that recommendation.

See my separate government response page for full details.

Briefly, of the 56 Harper recommendations:

• 39 were supported in full or in principle

• 5 were supported in part

• the Government remained 'open' to 12 recommendations

In relation to the competition laws, the following key responses were received:

Cartels
Agreed with recommendation 27 that cartel laws required simplification and to amend the joint venture exemption

Price signalling
Agreed with recommendation 29 that separate price signalling laws should be repealed and s 45 be amended to include prohibition of concerted practices which SLC

Exclusionary conduct (primary boycotts)
Agreed the separate exclusionary conduct provision should be repealed in accordance with recommendation 28

Misuse of market power
The government noted the recommendation and indicated it would engage in further consultation. On 11 December 2015 it released a discussion paper. A response on the discussion paper is expected by the end of March 2016.

Exclusive dealing and third line forcing
Agreed third line forcing should be subject to a competition test (rec 32). Recommendations on repeal of exclusive dealing prohibition in s 47 noted and to be considered as part of misuse of market power consultation and general proposal to simplify the laws.

Resale price maintenance
Agreed per se prohibition should be retained but notification should be allowed (rec 34).

Mergers
Supported recommendation 35 to combine formal merger clearance and authorisation; exposure draft legislation will be produced.

Access
The government supported recommendation 42 in part. It agreed to respond to the Productivity Commission's inquiry (which reported in Feb 2014) as part of its response to Harper. It decided to adopt the recommendations of the PC, including on criteria (a) and (b), which differ from the Harper recommendations. In particular, the government has accepted that criteria (b) should include a ‘natural monopoly’ test rather than a ‘private profitability’ test, which will restore the position to the test applied prior to the High Court decision in 2012.

Ministerial consent
Agreed with recommendation 26 to remove need for private parties to seek ministerial consent before relying on extraterritorial conduct in private actions

Authorisation and notification
Supported recommendation 38 – will be simplified so only single application required per transaction and ACCC can consider both competition and public benefit considerations.

Block exemption
Supported recommendation 39 to introduce block exemption power; exposure draft legislation will be produced.

Admissions of fact
Supported recommendation 41 that s 83 be amended to extend to admissions of fact.

The draft report was released on 22 September 2014.

See my draft report page for details

Review Panel Chair, Prof Ian Harper, released a video with the draft report outlining the context for the Review and discussing competition institutions.

Media, including speeches and transcripts, can be found on the official website. ➤

Government response to Competition Policy Review (November 2015)

Government response to the Competition Policy Review (24 November 2015) ➤
ISBN 978-1-925220-70

See also government response page.

Prof Ian Harper speech (April 2015)

Speech given to CEDA by Competition Policy Review Chair, Prof Ian Harper (14 April 2015) ➤

Video of Professor Harper's speech is also available from the CEDA website ➤

Announcing further public forums (October 2014)

Media release announcing further public forums (16 October 2014) [not accessible]

Prof Harper presentation to Sydney Institute (October 2014)

’Competition Policy - the Next 20 Years’ ➤

(Transcript and podcast available)
14 October 2014, The Gallipoli Club, 12 Loftus St, Sydney

Following draft report (Sept 2014)

Media Release accompanying the release of the draft report (22 September 2014)

Prof Harper speeches (August-Sept 2014)

Professor Ian Harper, Presentation to ACAPMA National Conference (10 August 2014) (PPS file) ➤

Professor Ian Harper, Speech to the 12th National Small Business Summit, 8 August 2014 ➤

Prof Harper discussing issues raised in submissions (August 2014)

Presentation by Professor Ian Harper to the UNSW Competition Law and Policy Conference (PPS file) ➤
The presentation was delivered on 6 August 2014 and highlights some of the issues raised by submissions to the review. It also notes that the panel 'will work through the issues raised, but will not adjudicate them' (noting Panel is 'looking at broad principles and institutional frameworks') and that a draft report is expected at the end of September - further submissions may be made in response to that draft report.

Following consultation on the issues paper (July 2014)

Video statement by Professor Harper following first round of consultation (approx 8 mins) ➤ (4 July 2014)

Ministerial speech (May 2014)

Speech to the Committee for Economic Development of Australia ➤
Minister for Small Business, The Hon Bruce Billson MP, 9 May 2014

‘Today I want to talk about the Government’s Review of Competition Policy, and about why it’s so important for Australia’s productivity, growth and living standards that we get Australia’s competition settings right. …’

Following release of issues paper (April 2014)

‘Release of Issues Paper’ (Treasury Media Release, 14 April 2014) [not currently accessible]

Announcement of Panel members (March 2014)

Government names competition review panel (Media Release by The Hon Bruce Billson MP Media, 27 March 2014) [not currently accessible]

• Press conference transcript, 27 March 2014 [not currently accessible]

• Transcript of Interview with Brooke Corte and Carson Scott, Trading Day, Sky News Business [not currently accessible]

Announcing the review (December 2013)

Prime Minister and Minister for Small Business, 'Review of Competition Policy' (Press release announcing review, 4 December 2013) [not currently accessible]

The final terms of reference were released on 27 March 2014. They are very extensive and list the following key areas of focus:

• 'identify regulations and other impediments across the economy that restrict competition and reduce productivity, which are not in the broader public interest;

• examine the competition provisions of the Competition and Consumer Act 2010 (CCA) to ensure that they are driving efficient, competitive and durable outcomes, particularly in light of changes to the Australian economy in recent decades and its increased integration into global markets;

• examine the competition provisions and the special protections for small business in the CCA to ensure that efficient businesses, both big and small, can compete effectively and have incentives to invest and innovate for the future;

• consider whether the structure and powers of the competition institutions remain appropriate, in light of ongoing changes in the economy and the desire to reduce the regulatory impost on business; and

• review government involvement in markets through government business enterprises, direct ownership of assets and the competitive neutrality policy, with a view to reducing government involvement where there is no longer a clear public interest need.'

The Panel is required to engage with stakeholders, including publishing an issues paper, holding public hearings and receiving written submissions. It is also required to publish a draft report followed by further consultation. A final report is due within 12 months.

View full terms of reference

Changes from Draft Terms of Reference

Not a lot changed from the draft terms of reference (DTOR). The changes were:

• The 'background' contained in the DTOR has been replaced with an 'Overview' which sets out 'key areas of focus for the review'.

• Para 1: the words 'and the policy priorities' has been added to the end of the paragraph

• Para 1.1: the words 'against the public interest' have been added - it now reads: 'no participant in the market should be able to engage in anti-competitive conduct against the public interest within that market and its broader value chain'

• Para 4.5: the word 'and' has been added to the end of the paragraph to avoid any doubt that all sub-paragraphs needed to be considered.

View full draft terms of reference.