A Damp Squib – A Short Note on the Harper Review Draft Report

Introduction[1]

The recommendations contained in the Harper Review’s Draft Report have not received a great deal of support from either competition law specialists or the general community. Indeed, a brief review of the 200 plus submissions lodged in response to the Draft Report show a great deal of dissatisfaction with many of the recommendations. Particular areas of concern relate to the recommendations concerning proposed changes to section 46, retail trading hours and road pricing. However, the most serious weakness of the Draft Report is its failure to put forward any meaningful recommendations to assist the small business sector. This is despite Harper’s earlier claims that he would not let small business down.

In many respects, the Draft Report demonstrates the extent to which the Harper Review is out of touch with the small business sector. This lack of understanding is amply demonstrated by the claims in the Draft Report that particular recommendations will assist small business, when in reality most of these recommendations will have the opposite effect – ie they will further damage and disadvantage small businesses in their ability to compete with larger businesses.

Competition not competitors

The Harper Review claims throughout its Draft Report that the Competition and Consumer Act 2010 (CCA) should be aimed at protecting competition and not competitors. Indeed, this statement has become the catchcry of many groups seeking to make the CCA more big business friendly.

The first concern about this claim is that it is not a correct statement of the actual objects of the CCA. Section 2 of the CCA states:

The object of this Act is to enhance the welfare of Australian through the promotion of competition and fair trading and the provision of consumer protection.

The CCA is aimed at the promotion of both competition and fair trading. It is implicit in the term “fair trading” that the CCA is aimed at preventing firms from engaging in unfair trading practices towards both consumers and their competitors. The unconscionable conduct provisions are the clearest example of this legislative intent.

The Second Reading Speech for the Trade Practices Act also made it clear that the policy objectives of the CCA involved a wider range of considerations than suggested in the Draft Report. As stated by the Hon. Senator Murphy on 30 July 1974:

The purpose of the Bill is to control restrictive trade practices and monopolisation and to protect consumers from unfair commercial practices. The Bill will replace the existing Restrictive Trade Practices Act, which has proved to be one of the most ineffectual pieces of legislation ever passed by this Parliament. The Bill will also provide on a national basis long overdue protection for consumers against a wide range of unfair practices. Restrictive trade practices have long been rife in Australia. Most of them are undesirable and have served the interests of the parties engaged in them, irrespective of whether those interests coincide with the interests of Australians generally. These practices cause prices to be maintained at artificially high levels. They enable particular enterprises or groups of enterprises to attain positions of economic dominance which are then susceptible to abuse; they interfere with the interplay of competitive forces which are the foundation of any market economy; they allow discriminatory action against small businesses, exploitation of consumers and feather-bedding of industries.

The policy objectives of the TPA/CCA are much broader than the promotion of competition, but rather extend to the removal of unfair practices including the prevention of discriminatory action against small businesses.

Similarly, Senator Murphy noted the policy objectives behind section 46 in his Second Reading speech:

The clause [46] covers various forms of conduct by a monopolist against his competitors or would-be competitors. A monopolist for this purpose is a person who substantially controls a market. The application of this provision will be a matter for the Court. An arithmetical test such as one third of the market- as in the existing legislation- is unsatisfactory. The certainty which it appears to give is illusory.

Clause 46 as now drafted makes it clear that it does not prevent normal competition by enterprises that are big by, for example, their taking advantage of economies of scale or making full use of such skills as they have; the provision will prohibit an enterprise which is in a position to control a market from taking advantage of its market power to eliminate or injure its competitors.

The provision will not apply merely because a person who is in a position to control a market engages in conduct within one of the classes set out in the clause. It will be necessary for the application of the clause that, in engaging in such conduct, the person concerned is taking advantage of the power that he has by virtue of being in a position to control the market. For example, a person in a position to control a market might use his power as a dominant purchaser of goods to cause a supplier of those goods to refuse to supply them to a competitor of the first mentioned person- thereby excluding him from competing effectively. In such circumstances the dominant person has improperly taken advantage of his power.

Again, the policy objective behind section 46 was and is to prevent firms with market power from engaging in conduct which will eliminate or injure their competitors.

Senator Murphy recognised that competition does not occur in a vacuum, but rather manifests itself in a practical sense through rivalrous behaviour between competing firms. In other words, the legislative intention behind the TPA and the CCA was that competition was best safeguarded by preventing unfair trading between competitors.

The reality is that Part IV of the CCA has long been applied in a way which has the practical effect of protecting competition. Indeed, very few of these provisions could be applied in ways which would protect competitors whilst not at the same time protecting competition.

Section 45 prohibits agreements between firms which have the purpose and or effect of substantially lessening competition. Most of the provisions of section 47 are also subject to a requirement that the prohibited conduct must substantially lessen competition.

Even section 46 states that a firm with a substantial degree of market power must not use that power for the purpose of either eliminating or substantially damaging a competitor, preventing entry or preventing competitive conduct.

It is apparent that under section 46 conduct by a firm with market power which has the purpose of eliminating or substantially damaging its competitor will also inevitably have the effect of further entrenching that firm’s market power, which in turn will substantially lessen competition.

In addition, conduct by a firm with market power which is aimed at preventing entry by another firm will have a profoundly negative effect on competition. Indeed, successfully preventing new entry will permit the firm with market power to continue charging high prices.

The final proscribed purpose in section 46 is the clearest example of a prohibition on conduct which damages competition. This proscribed purpose is aimed at preventing firms with market power from engaging in conduct which deters or prevents competitive conduct.

As is apparent, each of the prohibitions contained in section 46 is aimed at protecting the competitive process by protecting competitors. All the provision does is recognise the practical reality that businesses with market power will seek to achieve the goal of substantially lessening competition by taking steps to damage their competitors.

Given the vigor with which various commentators claim that section 46 needs to be changed so to protect competition rather than competitors, one would think that section 46 litigation is replete with examples of the section being used to protect competitors and not competition. This is not the case. It is clear that all successful section 46 cases have shown damage to competition through actions aimed at damaging competitors.

Small Business concerns

The Harper Review’s failure to make meaningful recommendations in relation to small business can be traced back to a more fundamental failure – namely, a failure to gain a proper understanding of small business concerns. It is quite apparent from reading the Draft Report that the Harper Review does not understand small business or small business issues. This is disappointing as it is not particularly difficult to identify the main concerns facing small businesses.

One of the major concerns of small business is that they are often unable to buy goods from their suppliers at the wholesale level at prices which are lower than the prices at which their larger competitors are selling the same products at the retail level. For example, small businesses are often concerned that they are paying their supplier, say, $10 for an item at the wholesale level, whilst their major competitor is selling the same product to consumers at, say, $8.

As is apparent, small businesses find it hard to understand how such a situation can arise. Is it a case of their suppliers selling goods to their larger competitors at extremely low prices or is it rather that their larger competitors are engaging in predatory pricing?

Small businesses will often challenge their suppliers about these pricing disparities, only to be told by their suppliers that they are in fact paying similar wholesale prices to their major competitors. However, what is often not made clear to small businesses is that their suppliers are also providing these large competitors with a wide range of additional discounts and rebates which significantly reduce their final wholesale unit price.

Small businesses also have some difficulty differentiating whether their large competitors pricing is loss leader pricing or predatory pricing. This is understandable given that it is often very difficult to distinguish between loss leader pricing and predatory pricing.

From an economic perspective, the whole concept of loss leader pricing is irrational. Consumers should not form the view based on loss leader pricing on a small number of goods that a particular retailer is generally cheaper and as a consequence make a decision to purchase a number of other higher priced items from that retailer. Indeed, the entire concept of loss leader pricing relies on the consumer making irrational decisions, based largely on customer inertia.

The Harper Review has not demonstrated that it has gained any understanding of the above issues. Nor has the Review spent any time investigating the reasons for such large pricing discrepancies or the distinctions between loss leader pricing and predatory pricing.

Another concern which small business suppliers have relates to the rise of homebrands. The increase in homebrands amongst the two major retailers is having the effect of squeezing smaller brands off shelves. While there is little that can be done about decisions by the two major retailers to offer more and more homebrands, there is valid concern about the pricing of such homebrands.

The Chicago School has expressed a great deal of scepticism about the prevalence of predatory pricing. As a result, many commentators appear to have dismissed predatory pricing as a mere historical and theoretical curiosity. However, this is not to say that predatory pricing cannot and does not occur.

A particular area where predatory pricing is likely to be occurring is in relation to homebrands. As is apparent, both of the two major retailers are offering their homebrand products at very low prices.

The effect of this conduct is to drive smaller lower cost manufacturers out of business, as they are unable to secure shelf space and match the lower homebrand prices. This trend is likely to result, over time, in markets being populated by a lesser numbers of brands and suppliers. Indeed, it is likely that over time many markets will be characterised by a two or three higher priced or premium brands and two or three homebrand products.

It is inevitable in such narrow markets that the major retailers will decide increase the prices of their homebrand products so that they approach the prices of the higher priced premium brand products available in their stores. This conduct sounds like classical predatory pricing.

Third line forcing and RPM

The Harper Review recommendations in relation to third line forcing amply demonstrates its blasé attitude to small business concerns. In their draft report there is no consideration of the likely market effects of this recommendations on small business. Rather, the Harper Review limits its discussion to the following two paragraphs:

As a general principle, the CCA should not interfere with trading conditions agreed between buyers and sellers in connection with the acquisition and supply of goods and services unless those conditions have the purpose, or would have or be likely to have the effect, of substantially lessening competition.

Consistent with that principle, the Panel sees no need for third‑line forcing to be singled out from other forms of vertical trading conditions and prohibited per se. As notifications to the ACCC demonstrate, third‑line forcing is a common business practice and very infrequently has anti‑competitive effects.

It is quite staggering for the Harper Review to conclude that third line forcing “very infrequently has anti-competitive effects”, given that this conclusion is in direct contradiction to the finding reached by the Swanson Committee in 1976 on the same issue. As stated in the Swanson Committee report:

In the opinion of the Committee the practice of forcing another person's product may be justifiable in certain cases. However, the Committee is of the opinion that the practice will, in virtually all cases, have an anti-competitive effect and that it should accordingly, continue to be capable of justification upon the ground only of public benefit.

As correctly pointed out by the Swanson Committee, third line forcing will virtually always be anti-competitive. Such conduct is by its very nature anti-competitive as it involves one firm forcing another firm to purchase a product which it either does not wish to purchase from that particular firm or does not wish to purchase at all.

Furthermore, the practice of third line forcing offends another fundamental legal principle – namely, freedom of contract. As a general rule, a party should be able to choose the products it wishes to purchase, and to purchase such products from whomever it wishes.

The main concern about removing the per se prohibition on third line forcing is that it will no doubt result in an explosion of such arrangements. Furthermore, it is small businesses which will bear the brunt of any such explosion of third line forcing arrangements.

The Harper Review’s treatment of RPM was similarly cursory. The following is the extent of it discussion of this issue:

The appropriateness of a per se prohibition of resale price maintenance (RPM) has been debated for many years, both in Australia and overseas. When the per se prohibition was enacted in Australia in the mid‑1970s, it reflected the law in many comparable jurisdictions. However, over the last 20 years some countries — particularly the US and Canada — have moved away from the per se prohibition of resale price maintenance. Other countries, including Europe and New Zealand, have retained the per se prohibition.

The Panel considers that there is not a sufficient case at this time for changing the prohibition of RPM from a per se prohibition to a competition‑based test. It would be appropriate, though, to allow business to seek exemption from the prohibition more easily. This could be achieved through allowing RPM to be assessed through the notification process, which is quicker and less expensive for businesses than authorisation. This change would also have the advantage of allowing the ACCC to assess RPM trading strategies more frequently, and thereby provide better evidence as to the competitive effects of RPM in Australia.

Unfortunately, the Harper Review does not appear to have examined the issue of RPM in any depth. It noted that other jurisdictions have removed the per se prohibition, and then recommends the extension of the notification process to cover RPM. However, there is no discussion on whether the practice of RPM is anti-competitive or pro-competitive.

The idea that one firm should be permitted to force another firm to sell a good, which that second firm has purchased and has title in, at a higher price than they wish, is the very definition of anti-competitive conduct. Unfortunately, this very simple truth has been entirely lost in the debate, particularly in the US, which is dominated by esoteric and unrealistic arguments about free riding and intra-brand and inter-brand competition. As a result, the US Supreme Court has effectively concluded in Leegin that RPM is likely to be pro-competitive in most cases, despite the clear evidence showing the opposite effect.

Any relaxation of the rules in relation to RPM is again going to adversely affect small businesses, particularly small business discounters. As a result, small businesses will be prevented from engaging in vigorous price competition to both their own competitive detriment and the detriment of competition more generally.

Conclusion

The Harper Review’s Draft Report is a great disappointment. The Harper Review has failed to look deeply into many important issues, instead taking a cursory and simplistic approach. Of particular concern is the failure of the Harper Review to come to grips with the challenges facing small businesses, particularly in relation to significant pricing differentials and the rise of homebrand products. It is hoped that the Harper Review will spend more time listening to small business and trying to understand their concerns before finalising its deliberations.

---

[1] A squib is a type of firework consisting of a small container filled with chemicals which explodes to produce bright lights and loud noises. However, damp or wet squib will not explode.

Trial by Media Revisited - the ACCC and the sub judice rule

Introduction

In a recent post, I discussed the practice of the ACCC making sub judice comments about the cases which they are litigating in the Federal Court. In that post, I argued that the ACCC’s conduct was exposing the organisation and its senior officials to an action for sub judice contempt. I also called on the Commonwealth Attorney General to intervene to direct the ACCC to cease engaging in this conduct.

Valve Corporation
Just when one thought it could not get any worse, we have today seen an even more clear cut example of the ACCC making sub judice comments about one of its court cases.

Earlier today, the ACCC commenced legal proceedings against Valve Corporation alleging that the company made false or misleading representations regarding the application of the consumer guarantees under the Australian Consumer Law (ACL).[1] In particular, the ACCC claimed that Valve had represented that:

• consumers were not entitled to a refund for any games sold by Valve via Steam in any circumstances;

• Valve had excluded, restricted or modified statutory guarantees and/or warranties that goods would be of acceptable quality;

• Valve was not under any obligation to repair, replace or provide a refund for a game where the consumer had not contacted and attempted to resolve the problem with the computer game developer; and

• the statutory consumer guarantees did not apply to games sold by Valve.

While the ACCC should have ended its commentary about the case at this stage, it chose to go much further by making the following sub judice comments:

The Australian Consumer Law applies to any business providing goods or services within Australia. Valve may be an American based company with no physical presence in Australia, but it is carrying on business in Australia by selling to Australian consumers, who are protected by the Australian Consumer Law.

In other words, the ACCC decided to include an analysis in its media release of the key jurisdictional issue which will arise in the case. Such a jurisdictional issue should not be the subject of media comment, but rather should be left to the judge hearing the case to consider and decide.

The publication of the ACCC’s media release was followed by further comment by the ACCC, including this quite remarkable discussion of the case:

ACCC Chairman Speaks: Here's Why We're Suing Valve[2]

“Under Australian Consumer Law, everybody who buys a product or a service has a right to a refund if the product doesn’t work. They have a right to a refund, or a repair. Those rights are enshrined in Australian Law, and our allegation is that Valve sought to remove those consumer rights which is a breach of Australian Consumer Law,” Sims said in an interview this morning. “The fact that they [Valve] are an offshore company doesn’t affect the rights for consumers.”

So how many customers have been affected by the alleged Valve refund drama?

Speaking to us this morning, Sims believes that that’s the wrong way to think about it.

He says that Valve misrepresented itself to each and every one of its 1.3 million Australian Steam customers. 

“We’re focussing on liability here. We’re not thinking about a [specific] number of breaches in this case. Step one in this case is the Court deciding if there’s been a breach of [Australian Consumer Law]. We know they’ve got about 1.3 million active customers in Australia. I’m not sure we know how many have been affected by denying their rights, but the representations themselves are on their websites and in their agreements with [all of] those customers. Those representations are going out to all 1.3m customers.”

“We’ve also had a large number of complaints from individuals and consumer organisations. There’s a lot of concerns. We allege that the denial of consumer guarantee rights is pretty clear in that case.”

The Chairman added that the watchdog had been in contact with Valve over the issues, but added that the alleged breaches of the Australian Consumer Law are so severe that they need to go in front of a judge:

We felt that the nature of this behaviour was better to be put before the court,” the Chairman said, adding that sometimes the ACCC needs to make an example out of big companies to keep the others in line.

If every time a company — and I’m speaking generally now — said they’d stop [breaching the Act] when we asked them to, companies in Australia would have carte blanche to know that if we just knocked on the door and asked them to stop, they [wouldn't have to pay penalties],” Sims specifies.

This is the Chairman who has led the consumer watchdog to some of its most profitable wins yet against some of its biggest opponents. The ACCC in the last few years has taken Optus for $3.5 million, Apple for $2.5 million over the iPad 4G and a number of energy companies to the tune of $1.5 million. Rod Sims and his independent agency are out to set a fierce precedent that Australia is not somewhere you can misrepresent yourself as a big company.

We want all companies doing business in Australia, even if they’re doing business offshore to comply [with Australian Consumer Law]. Big media companies doing business in Australia have to comply with Australian consumer law. Point number one is if you’re going to do business in Australia, you have to comply with Australian law. The second is don’t have blanket conditions around the world without bothering to check,” Sims warns.

Whether or not we accept an undertaking prior to court depends very much on how blatant the behaviour was. In each of these cases it depends on the approach of the company that we’re taking action against. They can either move quickly [to settle]…or they can fight the case.

If they [Valve] want to reach an early resolution it could be over in a month or two. They’re a huge company with massive resources, so if they want to fight it could go one or two years.

We’ll wait and see to see if they want to do.

The ACCC does not seem to understand that making such statements as the above is likely to raise sub judice concerns on a number of grounds. As stated by the NSW Law Reform Commission Report in its report “Contempt by publication”:[3]

6.3 Under existing law, a publication relating to civil proceedings may amount to contempt in three sets of circumstances. These are where the publication:

• has the potential to prejudice a juror or witness; or
• places pressure on a party to litigation to discontinue or compromise that party’s action or defence; o
• prejudges the issues at stake in particular proceedings

6.4 This last ground of contempt, prejudging issues at stake, is commonly referred to as the “prejudgment principle”. The prejudgment principle is part of the sub judice rule, but does not rely on the traditional formulation of a tendency to cause prejudice to specific proceedings. It is concerned with ensuring that media publicity does not compromise the general administration of justice, as distinct from administration of justice in a particular case, by usurping the courts’ role and undermining public confidence in the court system.

The ACCC’s comments in relation to the Valve case appear to be prejudging a number of the issues at stake in the proceedings, including whether there ACL applies to Valve, whether there has been a breach of the law, and the level of detriment caused by Valve’s alleged illegal conduct. As made clear in the NSW Law Reform Commission Report, these types of comments are of particular concern because of their potential to compromise the general administration of justice by “usurping the courts’ role and undermining public confidence in the court system”.

The ACCC’s comments about the Valve case may also be objectionable sub judice comments to the extent they could be seen a placing pressure on Valve to compromise any defence which they were proposing to make to the ACCC proceedings. As stated at paragraph 6.22 of the NSW Law Reform Commission report:

6.22 A publication may constitute contempt if it tends to impose improper pressure on a party to civil proceedings as to the conduct of those proceedings. In particular, a publication may exert undue pressure on a party to discontinue or settle a claim which he or she has instigated or is defending. The basis for restricting the publication of material in this context is concern that the individual party, as well as litigants and potential litigants generally, will be discouraged from seeking access to the courts for vindication of their legal rights, and in this way the due administration of justice will be impeded.

Indeed, it is hard to imagine a clearer example of sub judice commentary than the ill-advised comments by the ACCC in relation to the Valve proceedings.

Conclusion

The case for intervention by the Commonwealth Attorney General is getting stronger each day. In my view, some action must be taken to make it clear to the ACCC that litigation is supposed to be tried in the court according to law, and not in the media.

---

[1] https://www.accc.gov.au/media-release/accc-takes-action-against-alleged-pyramid-scheme-operator

[2] http://www.gizmodo.com.au/2014/08/accc-commissioner-heres-why-were-suing-valve

[3] http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/report_100.pdf

Trial by Media – the ACCC and the sub-judice rule

Introduction

Over the last 18 months, there has been a noticeable shift in the Australian Competition and Consumer Commission’s (ACCC) approach in relation to the content of their media releases when commencing legal proceedings. Prior to that time and for as long as most practitioners in the competition and consumer law area can remember, the ACCC had a policy of limiting the content of their media releases to the bare facts when commencing legal proceedings. The ACCC was also very careful not to include any quotes or commentary about the case in their media releases.

This earlier practice appears to have changed over the last 18 months. Most ACCC media releases now include extensive and quite unnecessary commentary on various issues, for example the major issues likely to arise in the case, the merits of the ACCC case and the impacts of the respondent’s “illegal” conduct on consumers and competitors. The ACCC’s new approach to the content of its media releases is compounded by the practice of some senior ACCC representatives of giving further interviews about their cases to various media organisations.

While the ACCC’s actions may be unlikely to prevent the respondent from getting a fair trial in the traditional sense (given that ACCC cases are not currently heard by a jury) this does not mean that the ACCC’s actions are not interfering with the administration of justice and unfairly prejudicing respondents. It is quite clear that ACCC’s comments are resulting in the media and the community prejudging issues which are properly the domain of the court. Both the media and consumers are assuming, based on the ACCC’s sub judice comments, that respondents are guilty of illegal conduct, long before any such finding has been made by the Court. It is essential that the ACCC stop engaging in this practice so that the integrity of the legal system and the rights of respondents can be protected.

Sub Judice rule

Sub judice contempt has been defined by the Victorian Government Solicitors Office in their guide entitled “Managing the Risk of Sub Judice Contempt” as follows:[1]

Sub judice contempt is the common law offence of publishing material which has a tendency to interfere with the administration of justice while proceedings are sub judice; that is, ‘under a judge’. The rationale for the offence is to avoid a ‘trial by media’ by prohibiting the publication of material which might prejudge issues at stake in particular proceedings, or which might influence or place pressure on persons involved in the proceedings, including jurors, witnesses or potential witnesses, and parties to the proceedings. In deciding whether material is prejudicial, the court will attempt to balance the public interest in free speech with the public interest in ensuring a fair trial.

As is apparent, sub judice contempt may occur when a relevant party's comments prejudge the issues in a case.

The three elements of sub judice contempt are:

• the material is published; 

• publication occurs while proceedings are sub judice; and 

• the publication has the requisite tendency to interfere with the administration of justice in those proceedings. 

It is also well established that information provided by a public official to a journalist, reporter or media agency in a media interview or media release would be regarded as having been published. Publication will occur at the moment the information is provided to the media.[2]

Sub judice contempt can also arise in relation to civil proceedings, not solely in relation to criminal proceedings. The sub judice period in civil proceedings begins when the statement of claim or other initiating process is issued.

In their guide, the VGSO makes particular mention of the possibility of sub judice contempt being engaged in by public officials:[3]

Comments made by prominent figures such as Ministers, senior public officials and members of the police force will be seen to have more impact. This was the case in Director of Public Prosecutions v Wran (1987) 86 FLR 92, where the former Premier of NSW, Mr Wran, publicly stated that his friend Justice Murphy was innocent of the charges laid against him while standing outside the court where a retrial had just been ordered. This comment was later published in The Daily Telegraph. Both Mr Wran and the publisher were found guilty of contempt and fined on the basis that the comments could influence potential future jurors to acquit Justice Murphy in his retrial.

Statements by senior ACCC officials about ACCC cases before the courts are also likely to have a greater impact on community perceptions about the case than comments made by other parties, including comments made by the respondents in these cases.

Examples

In the following, I will identify a number of examples where it is arguable that the ACCC may have breached the sub judice rule.

Luv-A-Duck

On 15 March 2013, the ACCC commenced legal proceedings against Luv-a-Duck Pty Ltd alleging false, misleading and deceptive conduct in relation to the promotion and supply of its duck meat products. The ACCC’s media release commenced with an explanation of the allegations raised by the ACCC in its case.

The ACCC then added the following commentary:[4]

Consumers must be able to trust that what is on the label is true and accurate. Businesses need to make sure they are not misleading consumers into paying a premium for products that don’t match the claims made on the label.

In this example, the ACCC has commented on the case in a way which suggested that the respondent had in fact engaged in illegal conduct – ie “businesses need to make sure they are not misleading consumers…” The ACCC then suggested that Luv a Duck had engaged in conduct which resulted in consumers paying more than they should have for the products.

Both of these statements are sub judice comments which had the potential to cause third parties to prejudge relevant issues.

Coles Freshly Baked

On 12 June 2013, the ACCC commenced legal proceedings against Coles for alleged false, misleading and deceptive conduct in the supply of bread that was partially baked and frozen off site, transported to Coles stores and ‘finished’ in-store.

In the ACCC’s media release, it outlined its case as follows:[5]

The ACCC alleges that labels on these par baked products stating ‘Baked Today, Sold Today’ and in some cases ‘Freshly Baked In-Store’, and nearby prominent signs stating ‘Freshly Baked’ or ‘Baked Fresh’, were likely to mislead consumers into thinking that the bread was prepared from scratch in Coles’ in-house bakeries on the day it was offered for sale and that it was entirely baked on the day it was offered for sale.

The ACCC’s comments in relation to this case up to this stage were entirely appropriate. However, the ACCC then decided to include the following additional commentary about the case:

There are two important issues at stake. First, consumers must be able to make informed purchasing decisions. Bread is an important grocery basket staple and customers need to be confident in claims made about food they buy.

We believe consumers are likely to have been misled by Coles that the entire baking process, including preparation, occurred in-store, when in fact the bakery products were prepared and partially baked off site, frozen, transported and then ‘finished’ in store. Indeed, the Cuisine Royale products were partially baked overseas.

Second and just as important, is the detrimental impact on the businesses of competitors. Misleading credence claims can undermine the level playing field and disadvantage other suppliers. In this case those suppliers are the smaller, often franchised bakeries that compete with Coles.

As is apparent from the above, the ACCC went far beyond simply reporting the bare facts of the case. Rather, the ACCC decided to provide a detailed commentary on:

• what it saw were the main issues at stake in the case;
• its view that consumers had been misled by Coles’ representations; and
• finally that Coles’ competitors had been detrimentally impacted by Coles misleading conduct.

Indeed, the ACCC paints a vivid picture of Coles apparently seeking to use these misrepresentations to tilt the playing field in its favour and to cause financial detriment to its smaller competitors. In many respects, the ACCC media release appeared more like a preview of the ACCC’s submissions on penalty than a fair, balanced and factual summary of the allegations made in their case.

Titan Marketing

On 17 June 2013, the ACCC commenced legal proceedings against Titan Marketing Pty Ltd (Titan) and its sole director, Paul Giovanni Okumu.

In its media release, the ACCC alleged that Titan representatives engaged in misleading and unconscionable conduct when conducting door-to-door sales of first aid kits and water filters in Indigenous communities and other locations in Queensland, New South Wales and the Northern Territory.

The ACCC also added the following commentary about the case in its media release:[6]

The allegations against Titan include alleged conduct which took place in Indigenous communities, where some consumers were particularly vulnerable and did not understand the contract documents. The ACCC will continue to take action to protect consumers in their homes from misleading and unconscionable conduct, particularly where the conduct affects disadvantaged or vulnerable consumers.

As is apparent from the above, the ACCC did not restrict its comments to an outline of the relevant allegations. Rather, it decided to comment on the characteristics of the consumers which were the targets of Titan’s alleged conduct – namely that these consumers were vulnerable and did not understand the contract documents. Importantly, the question of whether these consumers were vulnerable and could understand their contracts were issues of fact which the judge in the case was required to decide based on the admissible evidence.

The ACCC also added a further comment in its media release that it would continue to take action “to protect consumers from misleading and unconscionable conduct”. It seems that Titan and Mr Okuma’s conduct was no longer “alleged” conduct but rather had become a clear example of “misleading and unconscionable conduct” which adversely affected “disadvantaged or vulnerable consumers”.

Alleged egg cartel

On 28 May 2014, the ACCC instituted proceedings in against the Australian Egg Corporation Limited, two egg producing companies and a number of individuals. In this case, the ACCC alleged that the various respondents had attempted to enter into a price fixing arrangement.

Here, the ACCC decided to add the following commentary:[7]

Detecting, stopping and deterring cartels operating in Australian markets remain an enduring priority for the ACCC, because of the ultimate impact of such anti-competitive conduct on Australian consumers who will pay more than they should for goods.

Industry associations need to be conscious of competition compliance issues when they bring competing firms together. Today’s action sends a clear message that attempts by industry associations to coordinate anti-competitive behaviour by competitors will not be tolerated.

This statement suggests that the alleged attempted cartel was in fact an actual cartel which had a demonstrable anti-competitive effect.

Interestingly, the ACCC also decided to state that the case sends a clear warning to other industry associations which may attempt to coordinate anticompetitive behaviour amongst their members. In reality, the case could only sound as a warning to industry associations once the case had been successfully litigated by the ACCC, which has not yet occurred.

Coles alleged unconscionable conduct case

On 5 May 2015, the ACCC commenced legal proceedings against Coles in relation to alleged unconscionable conduct. The following extensive additional commentary was included in the ACCC’s media release:[8]

The conduct of Coles alleged by the ACCC in these proceedings was capable of causing significant detriment to small suppliers’ businesses. This could have resulted in these businesses becoming less able to plan and less able to innovate in the market, with resulting reduced economic efficiency and consumer detriment.

The ACCC alleges that Coles used undue pressure and unfair tactics in negotiating with suppliers, provided misleading information and took advantage of its superior bargaining position, so that its overall conduct was in all the circumstances unconscionable. If this conduct is established in court, the ACCC expects that the community will share the ACCC’s view that business should not be conducted in this way in Australia.

In this example, the ACCC speculates about the detriment which Coles’ alleged conduct could have caused to small suppliers. This speculation seems somewhat premature given that the ACCC was (and is) still to prove that Coles’ conduct was in fact unconscionable.

The ACCC then speculates that Coles’ conduct could have resulted in less innovation, reduced economic efficiency and consumer detriment. This is yet another example of the ACCC jumping the gun by some considerable margin, given these types of arguments are only relevant to the imposition of penalties at the end of the case.

Finally, the ACCC claims that the community would be equally unimpressed with Coles’ conduct, subject to one important qualification – namely that the ACCC is actually able to establish its case to the satisfaction of the court.

The prejudicial nature of the comments made by the ACCC in its media release were further compounded by statements made by senior ACCC officials about the case in number of subsequent of media interviews.

Coverall Manufacturing

On 21 July 2014, the ACCC commenced legal proceedings against Coverall Cleaning Concepts South East Melbourne Pty Ltd and two individuals involved in the management of the company.

The ACCC included in its media release the following statement:[9]

The ACCC will not hesitate to take court action to enforce compliance with laws that are specifically designed to protect small business from unfair practices.

Micro-sized firms, franchisees and self-employed individuals should not be treated in a manner which goes beyond the bounds of commercially-acceptable practice, or which is more than just hard bargaining.

It appears from the above, that Coverall’s actions were no longer “alleged” unfair practices but rather clear examples of actual “unfair practices”.

Furthermore, the ACCC decided to include the gratuitous suggestion into its media release that Coverall had in fact engaged in conduct which went “beyond the bounds of commercially-acceptable practice”, and was “more than just hard bargaining”.

Omni Blend

On 14 August 2014, the ACCC commenced legal proceedings against OmniBlend Australia Pty Ltd (OmniBlend) and its sole director, Mr Neal Bowhay, for an alleged attempt to enter into in a price fixing agreement with a competitor.

After outlining its allegations, the ACCC included the following commentary about the case in its media release:[10]

Price fixing and resale price maintenance affect consumers by increasing prices, reducing consumer choice and distorting the competitive process.

The ACCC views these types of anticompetitive conduct very seriously and will not hesitate to investigate and where appropriate take enforcement action against businesses who engage in this behaviour.

In one fell swoop, the ACCC transformed OmniBlend’s alleged attempt to enter into a price fixing arrangement into an actual price fixing arrangement which apparently had the effect of “reducing consumer choice and distorting the competitive process”. Not only is this is a clearly sub judice statement but it is also a wildly inaccurate statement. As is apparent, an attempted price fix can have neither of the two claimed effects of reducing consumer choice or distorting the competitive process.

Finally, any lingering doubt that OmniBlend’s conduct was an allegation which still had to be proved by the ACCC is dispelled in the ACCC’s second paragraph where is states that it views OmniBlend’s “anticompetitive” conduct “very seriously”.

Informed Sources

On 20 August 2014, the ACCC commenced legal proceedings against Informed Sources and five separate petrol retailers for alleged anticompetitive conduct. After outlining the various allegations in its media release, the ACCC included the following background about the case:[11]

A key priority for the ACCC is anti-competitive conduct in the fuel sector. The ACCC is concerned about any possible impact on competition in the fuel market because of the potential impact on consumers of even a small increase in price.

It is difficult to quantify the likely effect on petrol prices of the Informed Sources arrangements with petrol retailers or of shopper docket discounts above 4 cents. The ACCC has not quantified any effect but notes that even a small increase in petrol pricing can have a significant impact on consumers overall. For example, if net petrol prices increase by 1c per litre over a year, the loss to Australian consumers would be around $190 million for the year.

First, it is notable that the ACCC omitted the word “alleged” when referring to “anticompetitive” conduct. This omission has the risk of leading readers to conclude that the respondent’s conduct has already been proven to be anti-competitive, when this is not the case.

Second, the ACCC sought to quantify the detriment which Australian consumers may have suffered as a result of the respondent’s alleged illegal conduct - namely, $190 million a year in the form of lower petrol prices. This wild speculation by the ACCC about potential losses arising from the alleged illegal conduct was highly irresponsible, given that the statement was made at the commencement of the legal proceedings.

It is also clear that this statement has caused and will continue to cause the respondents considerable detriment throughout the course of the litigation, as it suggests that the respondents have illegally deprived Australian consumers of annual savings of at least $190 million in the form of lower petrol prices.

Conclusions

As the above examples show, the ACCC is now regularly providing much more comment in its media releases about matters which it has before the courts. The ACCC’s comments are clearly going far beyond a bare statement of the facts. Rather the ACCC is commenting on a wide range of factual issues which should be the sole responsibility of the judge hearing the case to determine.

The ACCC must rethink its current approach of making gratuitous sub judice comments about its cases. Unless the ACCC changes this practice, the organisation and its senior officials are at risk of being pursued for sub judice contempt.

If the ACCC fails to change its approach to commenting on cases which are sub judice or “under a judge” there may be a need for third party intervention. Given the ACCC is a Commonwealth Government agency, its seems that such third party intervention could be initiated by the Commonwealth Attorney General, as Australia’s first law officer. Indeed, there is a strong argument that it is well within the responsibilities of the Commonwealth Attorney General to intervene in relation to this matter to direct the ACCC to cease engaging in conduct which may constitute sub judice contempt. Such an intervention would be consistent with the Commonwealth Attorney General’s responsibilities to safeguard both the integrity of the legal system and the rights of respondents.

---

[1] Managing the Risk of Sub Judice Contempt, Victorian Government Solicitors Office at http://vgso.vic.gov.au/content/managing-risk-sub-judice-contempt

[2]  Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 378-379.

[3] VGSO, above n 1.

[4] ACCC institutes proceedings against Luv-a-Duck for false, misleading and deceptive conduct, ACCC media release, dated 15 March 2013 – at http://www.accc.gov.au/media-release/accc-institutes-proceedings-against-luv-a-duck-for-false-misleading-and-deceptive

[5] ACCC institutes proceedings against Coles for alleged false, misleading and deceptive bakery claims, ACCC media release, dated 12 June 2013 at https://www.accc.gov.au/media-release/accc-institutes-proceedings-against-coles-for-alleged-false-misleading-and-deceptive

[6] ACCC alleges misleading and unconscionable door-to-door sales conduct, ACCC media release, dated 17 June 2013 at http://www.accc.gov.au/media-release/accc-alleges-misleading-and-unconscionable-door-to-door-sales-conduct

[7] ACCC takes action following alleged egg cartel attempt, ACCC media release, dated 28 May 2014 at https://www.accc.gov.au/media-release/accc-takes-action-following-alleged-egg-cartel-attempt

[8] ACCC takes action against Coles for alleged unconscionable conduct towards its suppliers, ACCC media release, dated 5 May 2014 at http://www.accc.gov.au/media-release/accc-takes-action-against-coles-for-alleged-unconscionable-conduct-towards-its-suppliers

[9] ACCC takes action against cleaning franchisor alleging unconscionable conduct, ACCC media release, dated 21 July 2014 at https://www.accc.gov.au/media-release/accc-takes-action-against-cleaning-franchisor-alleging-unconscionable-conduct

[10] ACCC institutes proceedings against OmniBlend Australia, ACCC media release, 14 August 2014 at https://www.accc.gov.au/media-release/accc-institutes-proceedings-against-omniblend-australia

[11] ACCC takes action against Informed Sources and petrol retailers for price information sharing, ACCC media release, dated 20 August 2014 at http://accc.gov.au/media-release/accc-takes-action-against-informed-sources-and-petrol-retailers-for-price-information-sharing

Submission to the Competition Policy Review from Terceiro Legal Consulting Pty Ltd dated 24 June 2014

Introduction

Terceiro Legal Consulting Pty Ltd (TLC) is a small law firm, which specialises in competition and consumer law (trade practices law). TLC has been operating since 2008 and has represented numerous large and small companies and businesses in Australian Competition and Consumer Commission (ACCC) matters.

TLC’s principal, Michael Terceiro, has represented clients in relation to ACCC investigations, litigation, authorizations and merger clearances. He is also a regular commentator on ACCC issues through his writing for various CCH publications, as well as in the NSW Law Society Journal and the Keeping Good Companies publications.

Michael maintains a blog which aims to engage in more in-depth discussions about ACCC issues:

http://competitionandconsumerprotectionlaw.blogspot.com.au.

Prior to establishing TLC, Michael Terceiro worked at the ACCC for 15 years in a variety of positions, including as:

• Director of Enforcement and Compliance in the New South Wales Regional Office 
• Director (in charge) of the Sydney Mergers and Asset Sales Branch 
• National GST Enforcement Coordinator and 
• Director (in charge) of the ACCC's Waterfront Team during the Waterfront Dispute. 

During Michael's 15 years at the ACCC, he ran and managed more than 600 separate investigations, including more than 100 merger clearances, and ran 30 court cases

Submissions

Rather than seeking to address each issue raised in the terms of reference or in your Issues Paper, I have chosen to focus on a limited number of specific areas, which I hope will be of assistance to the Review. I have identified the relevant paragraph from the terms of reference in brackets next to each main heading.

(1) What is the truth about Section 46? (3.3)

The ACCC has been more successful in winning s 46 cases than is generally thought. The popular view is that the ACCC rarely wins such cases. This view has been given considerable credence by comments made by the ACCC, for example the following statements made by former ACCC Chairman Graeme Samuel in 2010:

The tests involved in proving allegations of abuse of market power have been inconsistently interpreted in the courts over recent years. As a consequence, it has become unrealistically difficult to overcome the hurdles necessary to prove contraventions of the law – resulting in few successful cases.

This sentiment has also been echoed by the current Chairman of the ACCC, Rod Sims: 

Further, over the years only a handful of cases under section 46 have succeeded in court. Indeed, section 46 cases are always hard fought, as major companies are necessarily involved, and they are usually defending what they may see as a key part of their business strategy.

The guidance to be derived from case law – at least in successful cases – is relatively modest.

So, the ACCC finds itself in the middle, with high public expectations on one side and high legal standards and few successful cases on the other.

However, in reality the ACCC has won almost 70% of the s 46 cases which it litigated to a conclusion:

Table 1: ACCC and TPC Section 46 cases – 1974 to 2014

The above table shows that since the introduction of s 46 in 1974, the ACCC, and its predecessor the TPC, instituted 19 cases alleging a contravention of s 46. Of these 19 cases, the ACCC:

• achieved successful outcomes in 11;
• lost five,
• dropped the market power allegation in one case,
• effectively had a draw in one case and
• is currently preparing the last case against Visa for hearing.

In other words, the ACCC has won 11 of the 16 section 46 cases which have gone to a final decision, a success rate of 68%. Further, the ACCC has resolved 8 of its 11 successful cases by consent, which would suggest that the ACCC is very good at “picking winners”.

The real issue in relation to s 46 is not that the ACCC regularly loses such cases (which is not borne out by the numbers), but rather that it simply does not take enough s 46 cases. In the 41 years since s 46 was enacted, the ACCC (and the TPC before it) only commenced 19 cases which alleged a contravention of s 46, or only one s 46 case every two years. The ACCC should be much more active in investigating and litigating s 46 allegations - only by taking such cases will the law in relation to s 46 be clarified.

The ACCC must also make sure that when it does come across a promising s 46 case that it does not sell the case short by settling the case for an inadequate penalty. Parliament’s decision to amend s 76 of CCA to introduce vastly increased penalties from 1 January 2007 for anti-competitive conduct should have made it abundantly clear to both the ACCC and the Federal Court that Parliament expects such conduct to be punished much more severely than it has been in the past.

For example, the size of the penalty in the Ticketek case is quite out of step with Parliament’s intent – namely, to get serious about punishing anti-competitive conduct. Ticketek settled their section 46 with the ACCC for a total fine of $2.5 million. While Ticketek’s annual turnover was not made public during the hearing, as Ticketek claimed that such information was confidential, its annual revenues were disclosed in 2007 when the organisation was still part of Publishing and Broadcasting Limited.

In 2007, Ticketek’s annual revenue was reported to be $105 million. Based on this figure, the total civil pecuniary penalty of $2.5 million does not represent anywhere near 10% of Ticketek’s then current annual revenues. Rather the penalty was likely to represent less than 2.5% of Ticketek’s current annual revenue, even assuming it had experienced no revenue growth since 2007.

(2) Do we need an effects test? (3.3)

Another significant issue in terms of section 46 is whether to introduce an effects test. There has been a great deal of criticism of the requirement in section 46 that the ACCC must establish that a firm with a substantial degree of market power had a prohibited purpose. Critics claim that a competition statute should focus on the effects of conduct and not the purpose of the firm in engaging in that conduct. The ACCC is also critical of the purpose test because it claims it is difficult to establish.

It is not correct to state that the ACCC has had difficulty establishing the purpose element in the section 46 cases. In fact, the ACCC has never failed to establish the purpose element in any section 46 case which it has run. Rather the ACCC (in the relatively few section 46 cases it has lost) has failed to establish either the taking advantage element or that the relevant firm possessed a substantial degree of market power.

There are strong arguments to change section 46 to introduce an effects test. Effects tests are clearly the dominant legal test in most other leading jurisdictions, such as the US and European Community, in their monopolisation statutes. In addition, it makes more sense to try to prohibit conduct which has had a demonstrable effect on competition, rather than to punish conduct which, while aimed at lessening competition, may prove to be ultimately unsuccessful in achieving that outcome.

I think the Review Panel should recommend the introduction of an effects test to section 46. I believe section 46 should be amended to add an effects test to the existing purpose test, which will make section 46 consistent with sections 45 and 47 which both have a purpose and/or effect tests.

(3) Do we need divestiture powers? (3.4.2)

One significant issue is whether courts should be given the power to order that a firm, which has been found to have breached competition laws, be required to divest particular assets to reduce their market power.

In the United States, divestiture has long been recognised as one of the remedies which can be ordered in relation to monopolisation cases under antitrust laws. The power of US courts to order divestiture in monopolization cases does not arise from a specific statutory provision, but rather from the court’s equitable jurisdiction.

Whilst this remedy has only been sought on rare occasions in the US, there are two notable examples.

The first divestiture in US antitrust history in relation to a monopolisation case occurred in 1911 when the US Supreme Court ordered the dissolution of the Standard Oil Trust into 34 separate companies after the company had gained almost monopoly power in the US fuel industry.

The other significant divestiture case occurred in 1982 when AT&T consented to being broken up into seven regional service companies or “Baby bells” after becoming a virtual monopoly in the provision of telephony services.

These cases show that a divestiture remedy is both feasible and appropriate in situations where a company has amassed a substantial degree of market power and has used that market power to damage competition.

I think the Review Panel should consider recommending the introduction of a divestiture remedy in relation to proven breaches of section 46 of the CCA.

(4) Does the ACCC need to improve its efficiency? (3.2)

The ACCC’s financial management has been under considerable scrutiny over the last twelve months. The ACCC’s initial response to these claims was that it had been given a broad range of additional functions, which had lead it to significantly overspending its budget. After further soul searching the ACCC appears to have accepted that it had to introduce substantive improvements to its operational efficiency.

The total amount by which the ACCC overspent its budget over the last three financial years is quite remarkable. As outlined in its most recent Annual Report for the 2012 – 2013 financial year, the ACCC generated the following losses over the last three years:

• 2012-2013 $25.9 million

• 2011-2012 $26 million

• 2010-2011 $9.3 million

These losses should be seen in the context of the ACCC's total funding, as follows:

• 2012-2013 $150 million

• 2011-2012 $151 million

• 2010-2011 $141 million

Therefore, the amount by which the ACCC overspent its budget over the last three financial years has increased from 6.5% of its total budget in 2010-2011 to approximately 17% of its total budget in the following two financial years.

In other words, over the last two years the ACCC has spent almost 20% more than the amount that it received from the Commonwealth Government to run its operations.

Justifications

The ACCC provided the following explanation to the Economics Legislation Committee as to why it had overspent its budget by such large amounts over the last three years:

(The overspend was) largely a function of the fact that we have been asked to do more. The economy is growing, so we get more mergers and we get more activity on all our fronts. We are the competition regulator, the consumer regulator, the safety regulator, we do a lot of compliance work, we deal with mergers, authorizations…

One of the problems for us has been that we are about 60 per cent staffing and about 15 per cent legal funding. All the various across-the-board cuts that have occurred through the public sector, particularly in the efficiency dividends, have really eroded our funding base quite a lot. There is very little room to move. When you are 60 per cent staffing and then you have legal expenses and property expenses, there are very few expenses you can actually do something with.

In other words, the ACCC’s main justification for the funding shortfall was that it has been given more functions than it had previously. The efficiency dividend required by the former Labor government also had a claimed negative impact on the ACCC’s funding position.

The ACCC reiterated this view when responding to comments by the Business Council of Australia (BCA) about the ACCC’s staffing levels. In the BCA report entitled “Improving Australia's Regulatory System”, it stated that the ACCC’s staffing levels had increased from 540 staff in the 2001-2002 financial year to 876 in the 2011-2012 year. The BCA commented that the ACCC’s staffing levels had “outstripped the rate of employment growth across the broader economy during the same period.”

The ACCC’s response to the BCA was swift. The ACCC immediately issued a media release to defend its position:

The Business Council of Australia has today issued a report showing that the Australian Competition and Consumer Commission’s staffing has increased from 540 in 2001-2 to 876 in 2011–12, or 4.95% per annum (the current number of working full time equivalent staff is actually just over 800). It seeks to make a point about the growth in regulatory spending and staff numbers.

The ACCC’s growth over this period is associated with completely new functions and responsibilities, most assumed from state regulators and other bodies. Without these additional functions, the ACCC’s base line growth since 2001-2 has been 1.8% per annum.
…

While the underlying staff growth of 1.8% per annum is below real GDP growth, this staffing increase has had to accommodate increased roles in our core areas, such as the regulation of the NBN, the introduction of the Australian Consumer Law, the criminalisation of cartel conduct and carbon price claims, to name a few.

Indeed, in the ACCC’s core responsibilities, such as in enforcing competition law, the ACCC’s staffing has likely not increased at all since 2001-2 despite the greater size and complexity of the Australian economy.

While vigorous in its defence, the ACCC’s news release was entirely disingenuous. The ACCC’s response claims that it had acquired a wide range of additional functions since 2001, whilst making no mention of the significant functions which it had lost since the 2001-2002 financial year, most notably its education, monitoring and enforcement role in relation to the introduction of the GST.

The introduction of the GST in 2000 resulted in the ACCC gaining an extensive economy-wide role in providing information to businesses and consumers about the operation of the new tax, as well as a role in conducting extensive price monitoring and enforcement activities. Indeed the ACCC’s role in relation to the introduction of the GST was in many respects the largest and most challenging function which the ACCC has ever been required to undertake in its history.

Therefore, it was quite inaccurate for the ACCC to claim, as it did, that the range of new functions which it has gained since 2001-2002 had lead to the steep rise in staff numbers by 62% during that period. Indeed, it is arguable that the loss of the GST function means that the ACCC now has a much less demanding role than it did in 2001.

Staffing levels

ACCC staffing levels have fluctuated over the last few years. In the 2009-2010 financial year, the ACCC had 756 budgeted staff positions but only 732 actual staff numbers. In other words, the ACCC had 24 less staff on its books than the amount for which it was receiving funding.

This situation changed quite dramatically in the next financial year when the number of budgeted positions rose from 756 to 778. Unfortunately, the actual number of staff employed at the ACCC also rose over the course of that year from 732 to 790. In other words, the ACCC hired 18 more staff than to could afford to pay, based on its budgeted numbers.

In the 2011-2012, the ACCC received funding for a record 813 staff members. This level of staff funding was only slightly above its actual staff numbers of 807 staff.

A significant reduction in budgeted staff positions occurred in the 2012-2013 financial year, when the ACCC only received funding for 745 staff, a reduction of 68 staff positions from the previous year. It also seems that the ACCC was unable to reduce its actual staff numbers significantly in response to this reduction in its staffing budget. Despite receiving funding for 68 less staff members in 2012-2013, the ACCC was only able to reduce its actual staff numbers by nine positions. In other words, the ACCC operated throughout the 2012-2013 financial year with 53 unfunded staff members.

Interestingly, the suggestion that the ACCC had not been properly funded by the former Labor Government seems questionable given the level of staff funding provided to the ACCC in the current financial year. In the 2013-2014 financial year, the ACCC received funding for 802 staff positions which is an increase of 56 positions from the previous year, and four more positions than the ACCC’s actual staff numbers in the previous year.

Management structure

One concerning aspect about the ACCC’s management structure is that it appears to be remarkably top heavy. In other words, there appear to be a disproportionately large number of senior managers being paid large salaries, including significant performance pay.

For example, up until fairly recently the ACCC operated with one Chief Executive Officer and two Deputy Chief Executive Officers. It seemed somewhat strange for an organization with only 800 employees to effectively need three CEO’s to manage the organization. Indeed, there would be very few private companies with significantly larger workforces that would need to employ three CEO’s.

This situation has been remedied to some extent with the recent departure of the former CEO, Brian Cassidy.

Highly paid staff

Another concern relates to the number of highly paid staff within the ACCC. In the ACCC’s most recent annual report, the ACCC listed a total of 54 staff who are classified as highly paid staff. Of these 54 staff, 49 staff were being paid in excess of $180,000 per year. In other words, over 5% of all ACCC staff were being paid more than $180,000 a year.

The annual report also showed that 14 staff were receiving salaries of between $210,000 to $23,000 per year, whilst a further 11 staff were receiving salaries of between $240,000 to $269,000 per year.

It is also apparent that the ACCC’s senior executives are much more expensive than the above salary figures would suggest. In the ACCC’s annual report, it records the total remuneration paid to the ACCC senior executives in the form of salary, annual leave accrued, performance pay, other allowances, superannuation and long service leave. This table shows that the ACCC’s 54 senior executives cost the ACCC a total of $17,768,883 in 2013 which equates to $329,053 per employee.

This level of remuneration for the ACCC’s senior executives appears to be quite excessive, particularly given that the ACCC is a public sector organization.

Performance pay

The ACCC annual report also records the total amount of performance it paid to its staff. In 2013, total performance pay of $1,185,026 was paid to 86 staff members. This equates to an average performance pay of approximately $13,800 per staff member.

While this is less than the amount of performance paid to staff in 2011-2012 financial year, which was approximately $1.3 million, one has to question whether a public sector organisation should be paying almost $1 million performance pay to its employees each year, particularly when it is generating a $25.9 million loss.

Consultancies

Another area which has experienced significant growth over the last three years are consultancy agreements. The ACCC disclosed in its annual report that in the 2012-2013 financial year it entered into 62 new external consultancy contracts worth a total of $4.4 million. This is in addition to 17 ongoing consultancy contracts which accounted for a further $4 million.

Therefore, in the 2012-2013 financial year, the ACCC spent a total of $8.8 million, or approximately 6% of its total budget, on external consultancies.

The amount spent by the ACCC on consultancies in the 2012-2013 financial year was 22% higher than the amount it spent on external consultancies in the previous financial year (ie $7.2 million) and 30% more than it spent in the 2010-2011 financial year (ie $6.9 million).

One has to question why the ACCC has to enter into so many external consultancies and why it is paying so much for these consultancies. Another important question is why have external consultancies increased by 30% in dollar terms over the last three years.

This trend is even more concerning in the light of the fact that the ACCC has access to a large and highly paid, and one would assume highly skilled, Senior Executive Service. The question is why the ACCC cannot apparently meet its needs for specialist technical advice from amongst the ranks of its existing Senior Executive Service.

How can the ACCC improve its bottom line?

During the ACCC’s evidence at the Economics Legislation Committee hearing last year, the ACCC claimed to have implemented a range of strategies to reduce its costs, including by:

• offering voluntary redundancies;

• reducing travel costs;

• cutting back on newspaper subscriptions; and

• reviewing its accommodation needs.

However, with the exception of the voluntary redundancies, these measures only offered piecemeal solutions to the ACCC’s financial crisis.

As suggested above, a significant cost is the ACCC's senior executives. Not only does the ACCC’s senior management appear to be disproportionately large, comprising 54 staff members, but this select group of employees is very costly, costing the ACCC approximately $329,000 per employee per year.

The ACCC must conduct an urgent and in-depth review into the size and cost of its senior executives to determine whether it needs such a large Senior Executive Service and whether some of these employees are being paid too much.

The ACCC should also conduct an urgent review of its performance pay scheme. Such a review is particularly important when one analyses the ACCC’s performance in relation to major litigation over the last three years. Whilst there have been a number of notable successes, including the airline cartel cases and the Apple iPad case, there have been a number of quite spectacular and high profile court losses.

One has to question whether the ACCC’s performance in major litigation can justify the organisation continuing to pay such generous performance pay.

It would also be sensible for the ACCC to review its practices in terms of entering into external consultancies. The ACCC is relying too heavily on external consultants to provide the types of advice which the ACCC should be able to obtain from its own Senior Executive Service.

Other sources of inefficiency

As a practitioner who has regular interactions with the ACCC, as well as a former ACCC employee for 15 years, it is quite easy to identify areas where the ACCC is not operating efficiently.

For example, one area of inefficiency relates to the way in which the ACCC runs its litigation. The ACCC has a tendency to overstaff its litigation in relation to small and medium sized cases. While it is invariably the case that larger corporate respondents will retain large legal teams consisting of lawyers from the top tier legal firms to fight the ACCC, the same is not true of small and medium business respondents. It is relation to these smaller respondents that the ACCC ends up incurring too much legal expense.

The ACCC will often retain two or even three senior lawyers from a top tier legal firm or the Australian Government Solicitor to work on even relatively small cases. For example, in a recent case, the ACCC had a legal team consisting of three senior lawyers from a top tier legal firm and a senior barrister. This was despite the fact that the respondents were only represented by a small firm solicitor and a junior barrister.

The ACCC also appears to have developed a practice of overspending on barristers when running smaller cases. Often the ACCC will retain a senior barrister, or even a senior and a junior barrister when running relatively small and simple cases against unsophisticated opposition.

When I worked at the ACCC, we would often used one junior barrister in smaller cases to save money, as well as to skill-up these junior barristers. For example, we decided to use a junior barrister in the high profile Ian Turpie impotency trial (namely Robert Bromwich, now the Commonwealth Director of Public Prosecutions). On another occasion, we decided to use a junior barrister to run a five-day trial in the Original Mama’s case. Both barristers rose to the challenge and did exceptionally well in each case.

The ACCC also have a habit to throwing enormous amounts of legal resources at large scale litigation in a haphazard way. This was particularly evident in a case in which I was acting for a client who had agreed to give evidence for the ACCC as part of its case. It was apparent from my interactions with the ACCC in that case that whilst it had assembled a very large legal team of experienced lawyers and barristers to run the case, there was a total lack of organization and planning. Indeed, it seemed to me sometimes that the ACCC's legal team lacked any clear case theory. Needless to say, the ACCC lost the case.

Companies in liquidation

Another area of concern relates to the ACCC’s tendency to continue pursuing litigation against companies which have gone into liquidation. I fail to see how a judgment or penalty against a company which no longer exists is a sensible use of the ACCC’s limited resources.

The ACCC will still have to spend a significant amount of money to secure a penalty and costs order against the company in liquidation. The only difference with these cases is that the ACCC knows beforehand that it will not recover any of the penalties or costs which may be ordered by the court.

For example each of the following cases, involved a company which had gone into liquidation:

• Elite Publishing
• E-Direct
• Energy Watch
• Yellow Page Marketing BV/Yellow Publishing Limited
• Global One Mobile Entertainment Ltd / 6G Pty Ltd
• Marksun Australia Pty Ltd
• SMS Global

As far as I am aware, the ACCC never saw a cent of the penalties and costs awarded in these cases.

Case selection

While the ACCC’s case selection practices have improved significantly over the last few years, there are still some notable anomalies.

For example, earlier this year the ACCC accepted an undertaking from Toyota Australia relation to representations that the upholstery in certain vehicle interiors was ‘leather’, when in fact the upholstery was only partially leather.

I find it hard to understand why the ACCC pursued this matter, given that it seeks to prioritise matters based on the level of consumer detriment. If the ACCC believed that Toyota’s conduct had created a significant degree of consumer detriment, one would have expected to see the ACCC demanding consumer remedies as part of the settlement.

However, the only remedies sought by the ACCC in relation to this matter were that Toyota:

• publish corrective notices; 
• implement a supplementary trade practices compliance program; 
• provide training for Toyota Australia sales and marketing staff and dealers; and 
• implement a procedure for the review of product information materials. 

In other words, there were absolutely no consumer remedies sought by the ACCC in this case.

Another odd use of resources relates to the Samsung Electronics case. In this matter, Samsung provided an undertaking to the ACCC concerning alleged misrepresentations about the energy savings of its Bubble Wash washing machines compared to conventional washing machines. Despite the ACCC’s view that the company had misled its customers about these products, it did not require that Samsung offer any of its customers a refund of their purchase price. Rather, the only consumer remedy obtained by the ACCC was that Samsung extend its manufacturer's warranty for the affected customers by three years.

I also represented a small Australian business in an ACCC investigation in relation to country of origin representations. The ACCC focused its investigation on the representations being made by my client in relation to products which it was exporting to places such as China, Korea and Europe. Apart from the very real question of whether the ACCC even had jurisdiction in relation to this conduct, I could not see how the pursuit of this investigation was a justifiable use of the ACCC’s resources. After all, no Australian consumers were being affected by my client’s conduct. The ACCC ultimately decided to close its investigation after a few months when it realized that my client was not breaching the Australian Consumer Law in relation to products it was selling to non-Australian consumers in overseas markets.

(5) What are the real problems with the new cartel laws? (3.4)

Anyone who has looked at the new criminal cartel laws will agree that they are very complicated. I believe that this complexity has caused the ACCC many problems in the investigation and enforcement of these provisions.

Quite apart from the complexity of the legislation, I believe that the ACCC is having major difficulties in investigating cartel offences.

The first problem is the level of investigatory training which ACCC investigators receive. In my view, ACCC investigators still do not receive a sufficient level of proper investigatory training.

It is absolutely essential for ACCC investigators to get better investigatory training in order to properly investigate criminal cartels, particularly in such crucial areas as conducting formal interviews and executing search warrants. The investigatory skills required to obtain evidence to prove a criminal cartel are much more sophisticated than those required to prove a civil contravention.

In a criminal cartel investigation, ACCC investigators will have to have the skills to:

• properly execute search warrants; 
• caution potential defendants prior to interviewing them; 
• conduct formal interviews with potential defendants rather than using section 155 powers; 
• maintain a proper chain of evidence; and 
• properly analyse recordings of telephone intercepts. 

ACCC officers lack experience conducting formal interviews (aka as Records of Interview (ROI)). Historically, the ACCC has not used its investigators to conduct section 155 oral examinations. Rather it is standard ACCC practice to retain external counsel to conduct such examinations. This is a great deal different to the practice in other Commonwealth Government investigatory bodies such as ASIC and the ATO. As a result of this practice, many ACCC investigators have not developed the skills required to conduct formal interviews.

Furthermore, it is standard practice of the Commonwealth Director of Public Prosecutions to require the relevant investigatory agency to offer each prospective defendant an opportunity to participate in a ROI prior to any charges being laid. Accordingly, in relation to criminal charges against individual respondents, the ACCC will not be able to avoid conducting ROI’s.

Another concern is that the ACCC does not appear to have a great deal of experience in the execution of search warrants which are an essential tool in investigating criminal cartels. Indeed, one could be forgiven for being unaware that the ACCC has had the power since 2006 to use search warrants in relation to alleged breaches of the CCA. That is because in the period from 2006 to 2014, the ACCC has only executing ten search warrants.

Two issues which appear to have been overlooked when introducing US style criminal cartel laws to Australia has been the role of the Federal Bureau of Investigation (FBI) and the grand jury in conducting criminal cartel investigations in the US.

Federal Bureau of Investigation (FBI)

In Australia, criminal cartel investigations are conducted primarily by the ACCC. The Australian Federal Police (AFP) have a limited role in assisting the ACCC in the execution of search warrants and the logistics of setting up telephone intercepts and installing listening devices. However, apart from this limited assistance it is entirely the responsibility of the ACCC to investigate criminal cartels.

On the other hand, in the US antitrust investigations are conducted jointly between the US Department of Justice (DOJ) and the FBI. In reality, the FBI conducts the entire investigation. The FBI is involved in all stages of the investigation – for example they will be involved in interviewing potential defendants, interviewing leniency applicants, obtaining information from third parties, chasing up investigatory leads, managing the chain of evidence, obtaining and analysing relevant documents and giving expert evidence in court or before the grand jury. The FBI will also execute the search warrants.

The main concern about the Australian approach is that, as stated above, many ACCC investigators do not have the high-level investigatory skills needed to investigate a cartel, particularly where there is no immunity applicant. Clearly while ACCC investigators are good at what they do in terms of civil proceedings, the level of investigatory training they currently receive does not compare favourably with the level of training that FBI agents receive.

A FBI agent receives 20 weeks of intensive basic training at the FBI Academy before becoming an agent. This training focuses on four core skill areas, two of which are interviewing and interrogation. FBI agents must then complete further training on a regular basis. By contrast, the ACCC investigatory is likely to get one week of basic investigatory training. All the rest of their expertise has to be gained from on the job training.

Grand jury

Another major difference in terms of US antitrust enforcement is the role of the grand jury. The function of the grand jury is to investigate possible criminal violations and return indictments against culpable corporations and individuals.

The grand jury has been described in Blair v. United States, 250 U.S. 273 (1919) as:

...a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.

As is apparent from the above, the grand jury has very broad powers of investigation. The grand jury has extensive powers to compel witnesses to attend the grand jury to give evidence, to issue subpoenas and to pursue other investigatory leads. The prosecutor presents a range of proposed investigatory steps to the grand jury. The grand jury then decides whether these investigatory steps should be taken. However, the grand jury can also decide to pursue other investigatory steps.

The grand jury is not limited to considering admissible testimony. Witnesses have no rights to object to the scope or propriety of the grand jury proceedings. Witnesses are not permitted to have Counsel present with them in the grand jury room (although the Antitrust Division will allow the witness to leave the room to consult with their Counsel).

The grand jury’s deliberations are conducted in secrecy. A person is not permitted to make public comment about the existence or nature of a grand jury investigation.

It has been held in the US that the US Courts generally “cannot unduly interfere with the essential activities of the grand jury nor encroach on the grand jury's or the prosecutor's prerogatives” - United States v. United States District Court, 238 F.2d 713 (4th Cir.), cert. denied, 352 U.S. 981 (1957).

The existence and operation of the grand jury system in US antitrust matters makes a significant difference to the way the DOJ and FBI are able conduct criminal cartel investigations. The DOJ, through the grand jury, has access to very broad investigatory powers which are largely unfettered. The grand jury does not need to have a strong basis for pursuing a particular investigatory lead. The fact that much of the grand jury work can be done in complete secrecy also permits the DOJ to maintain the covert status of its investigation for a long period of time.

While there is very little that can be done in terms of introducing a grand jury type process in Australia, the area where the ACCC can do something is in relation to staff training. The ACCC has to start providing its staff with proper investigatory training, particularly in relation to the conduct of criminal cartel investigations.

(6) How does the ACCC treat small business? (3.4.2)

In the following, I will provide a series of short case studies showing a number of real-life small business interactions with the ACCC over the last few years. I think these case studies speak for themselves in demonstrating the types of problems small businesses experience when dealing with the ACCC.

Case Study 1

I was retained by a micro-business to provide him with Compliance Training pursuant to a court order following ACCC legal action. From having worked at the ACCC, I understood that the ACCC almost always requires a person or company which has engaged in the illegal conduct to undertake three years of compliance training in relation to the relevant provisions of the TPA/CCA.

I was quite surprised to discover that this particular micro business had been required to undertake six years of Compliance Training – twice as much as is usually required. When I queried my client about why he had been required to undertake six years of compliance training, he was entirely unaware that six years was twice the usual requirement.

I wrote to the ACCC on a number of occasions to ask whether this client could be relieved from attending further compliance training in relation to the Franchise Code on the basis that he had already attended compliance training each year for three years and he was no longer involved in franchising in any way. The ACCC refused, stating that my client had to take legal action against the ACCC to have the relevant orders changed. The ACCC were unable to provide me with any reason why they had required six years of compliance training to be undertaken by a micro-business who had never been the subject of ACCC action in the past.

The client did ultimately take his own legal action against the ACCC to have the orders amended. The court ordered that he be relieved from having to complete the final two years of compliance training. Interestingly, the ACCC consented to the orders being sought by my client.

Case Study 2

The ACCC investigated one of my clients for the country of origin claims he was making on goods he was exporting to China. I drew the ACCC’s attention to the relevant provisions of the Explanatory Memorandum when the country of origin amendments were introduced into the TPA in 1998 which stated:

Item 2 ensures that this extra-territorial element of the Act is not applied to the new Division, as to do so may subject Australian manufacturers to both the Trade Practices Act 1974 requirements and the labelling requirements of the country in which they are selling their goods. By explicitly excluding any extra-territorial reach, the new provision is limited to goods sold or made available for retail sale in Australia (at 17).

I submitted to the ACCC that it was clear from the above extract that Parliament intended that Australian exporters should not be subject to Australian country of origin laws but only to the laws which apply in the country where they are exporting their products and where those products will be sold.

I explained to the ACCC that the problem with the relevant provisions of the ACL arose from the way in which the Parliamentary drafters sought to give effect to the clear Parliamentary intention. I argued that the actual amendment to the CCA/ACL which was supposed to exempt Australian exporters from Australian country of origin laws appeared to have been drafted incorrectly. Rather than exempting Australian exporters from these laws, the amendment actually “removed” the defences contained in Part 5-3 of the ACL for Australian exporters. Accordingly, Australian exporters were now in the remarkable situation, based on the ACCC’s interpretation, of having no statutory defences to an ACCC country of origin case.

Even thought I had pointed out to the ACCC the clear contradiction between the intent of Parliament, as expressed in the relevant Explanatory Memorandum, and the terms of section 5(1)(c) of the CCA to the ACCC, the ACCC was unmoved. They claimed that that because the words of section 5(1)(c) are clear there is no need to look at the intent of Parliament as expressed in the Explanatory Memorandum.

As a result, the ACCC conducted a detailed investigation into my small business client in relation to country of origin claims which he was making about export products which he was selling to customers in China. While the ACCC ultimately closed its investigation without taking any enforcement action, the investigation caused my client considerable expense and inconvenience.

Case Study 3

I assisted a small business client in an unconscionable conduct case against a very large multinational corporation. Prior to my involvement, the client’s then lawyer had written to the ACCC to seek their assistance in his matter. Given my client was a very small business and the company alleged to have engaged in the unconscionable conduct was a large multinational company with annual revenues of $35 billion, it seemed sensible to try to get the ACCC to help.

In their response letter to the small business, the ACCC said they could not assist him because:

• many of the relevant issues appear to be issues of contract between the client and the large multinational corporation. The ACCC claimed that these issues fell outside the TPA and that accordingly, the ACCC did not have jurisdiction to intervene; and 
• there was insufficient evidence to suggest that the alleged conduct by the large multinational corporation constituted unconscionable conduct within the meaning of sections 51AA or 51AB of the TPA. 

In reality, the alleged conduct was a straightforward section 52 case – hardly an issue which fell outside the TPA.

Unfortunately, the client’s then lawyer had made a slight error in their letter to the ACCC. He had referring to sections 51AA and 51AB instead of section 51AC. Section 51AC would have been the appropriate provision as the conduct involved commercial unconscionability rather than consumer unconscionability. Strangely, the ACCC did not even consider the relevance of section 51AC when assessing this small business complaint, even though it was clearly applicable on the facts.

My client ended up pursuing their own private legal action against the large multinational company in the NSW Supreme Court. The client was successful in their case under section 52 of the TPA and was awarded over $1.1 million in damages.

Case Study 4

I was retained by a client to assist them in complying with a number of court orders. The client had been taken to court by the ACCC because he was not complying with the Franchising Code of Conduct.

After speaking to the client, it became apparent that he had previously retained a lawyer to draft his agreements on the specific condition that the lawyer draft agreements which were not franchise agreements. The client had wanted to offer prospective customers licence agreements so that he would not have to comply with the Franchising Code of Conduct. Unfortunately, the lawyer had not drafted the agreements properly and they were in fact clearly franchise agreements.

I asked the client whether the ACCC had been aware of these facts prior to the ACCC commencing legal action against him. He said that he had explained to the ACCC that he had asked a lawyer to draft up licence agreements and that he had relied on his lawyer’s advice in this regard. Unfortunately, these highly relevant facts made no difference to the ACCC’s decision to take legal action against this small business.

I subsequently assisted this client in taking legal action against his former lawyer for negligence for failing to draft the licence agreement properly in the first place. The respondent solicitor called in LawCover almost immediately and LawCover settled the negligence claim soon afterwards.

Case Study 5

I was retained by a small business in the aftermath of it having been the subject of two ACCC search warrants. I was advised that during the course of the search, ACCC staff had removed two hard disks from the premises and returned them within 72 hours as required by section 154GA.

Unfortunately, the ACCC did not appear to comply with the requirements of section 154GA(2) of the TPA/CCA which require the ACCC to:

• advise the recipient of the search warrant when they were proposing to examine or process the information on the hard disks; and 
• allow that person to attend when the hard disks were being examined or processed by the ACCC, either in person or through a legal representative. 

When I queried the ACCC about this apparent failure to comply with the section 154GA(2) of the TPA/CCA, they responded that they had not moved the hard disks pursuant to section 154GA but rather had seized them pursuant to section 154H.

There is important technical distinction between these two provisions. Section 154GA permits the ACCC to move anything found at the premises to another place for examination or processing to determine whether it may be seized. This section may be used by the ACCC to remove hard disks if it is unsure whether they contain evidential material.

Section 154H on the other hand states that if the executing officer believes on reasonable grounds that data accessed by operating electronic equipment at the premises might constitute evidential material, they may do only one of three things:

• seize the equipment and any disk, tape or other device 
• operate equipment at the premises to put the data into documentary form and remove the documents or 
• operate the equipment to transfer the data to a disk, tape or other storage device. 

The ACCC’s conduct in this case raises concerns about the utility of s 154GA. It seems that the ACCC can avoid the safeguards in s 154GA by simply claiming, in every case, that it has decided to seize electronic equipment under s 154H. It is quite clear from s 154H that seizure of such things as hard disks is an exceptional step. Under s 154H, the ACCC can keep the hard disks in its exclusive control for up to 120 days. This contrasts with s 154GA where the ACCC has supervised access to hard disks for 72 hours.

In addition to this particular issue, I identified a number of other errors which I believe the ACCC made in executing these two search warrants.

Case Study 6

A client received a letter from the ACCC on 15 December 2010 asking it for detailed information about its operations. The due date for a response was 5 January 2011.

While I believed that it was appropriate for the client to ask the ACCC for an extension of time to provide a response, the client preferred to get the response submitted to the ACCC by the due date. Accordingly, we worked over the Christmas and New Year to finalise the letter. The ACCC’s investigation related to a quite complex area of law – namely, exclusion clauses in relation to recreational services.

On 25 May 2011, or 140 days after the client had submitted their response, the client received a response from the ACCC. The ACCC advised my client that it had considered my client’s response and required further information. After taking 140 days to consider the client’s response, the ACCC required a response from the client in nine days. The client again wanted to comply by the due date, so we did.

Case Study 7

I acted for a client who had been the subject of legal action by the ACCC. I looked into the case as part of my task of preparing compliance training. While the client had decided to settle the ACCC’s litigation by consent, prior to settlement the ACCC had filed a draft witness list.

The ACCC was proposing to call six non-ACCC witnesses. I was surprised to see that five of the proposed witnesses were employed by current competitors of my client. Furthermore, of these five witnesses, two had been former employees of my client who had been dismissed by the client for performance issues. One of these two witnesses had been the subject of an AVO taken out by the Managing Director of my client for allegedly making death threats against him and his family.

This was not a cartel case where the five competitor witnesses were giving evidence pursuant to an immunity agreement. Rather this was a run of the mill misleading and deceptive conduct case.

Summary of the problems

In my view, the above 7 case examples give some flavour of the types of problems which small businesses experience when dealing with the ACCC – namely that the ACCC often:

• takes harsh and aggressive enforcement action against small businesses; 

• takes excessively long times to respond to letters from small businesses while at the same time demanding responses from these same small businesses in very short time frames; 

• is too accepting and trusting of the evidence from complainants who are competitors or even former employees of the small businesses under investigation; 

• does not give appropriate weight to valid excuses or explanations from small businesses about their conduct; and 

• in some cases, pressures small businesses into settlements which are unfair and disproportionate. 

In addition, I have found that the ACCC often acts in the following ways when dealing with small businesses in investigations: 

• simply ignoring inconvenient questions - I am aware of many instances where I have written to the ACCC on behalf of a small business and asked them a valid but difficult question. In most cases, the ACCC has chosen to simply ignore the difficult question and not provide a response 

• providing disingenuous answers to difficult questions – where the ACCC does in fact try to respond to a difficult question, it often provides a disingenuous responses 

• being highly defensive when responding to criticism – the ACCC does not welcome criticism despite its statements to the contrary 

• being dismissive of worthwhile complaints – the ACCC often dismisses worthwhile complaints because it rushes its assessments and has poor complaints assessment processes. 

What are the causes of the problems?

A major cause of the problems which are besetting ACCC enforcement is the absence of any proper investigatory training for staff, as has already been discussed above in the context of criminal cartel enforcement.

When I started at the ACCC, I attended a one-week orientation / investigation training course. That was the extent of my investigatory training. I acquired the rest of my investigatory skills through on the job training. Fortunately, I was able to work with some excellent investigators from whom I gained invaluable skills and experience.

It is my understanding that not much has changed at the ACCC in relation to investigation training – ie staff still receive minimal and rudimentary investigatory training.
How can the ACCC fix the problems?

The ACCC should review its case selection processes. The processes which are currently applied are too ad-hoc. They rely significantly on the personal preferences and workloads of individual officers and Regional Directors. Regional Directors should be meeting regularly to discuss their case loads to make sure they are focusing on the correct areas as identified in the ACCC priority statement.

The ACCC needs to introduce regular internal reviews to make sure that the cases it is pursuing are appropriate and being conducted properly.

The ACCC lacks transparency in responding to complaints from business about the ACCC’s own shortcomings. Currently, businesses can complaint to a senior manager or the CEO about alleged inappropriate conduct. However, the complaint will invariably be referred back to the primary case officer for a response. The response is usually highly defensive and unfortunately, in some cases, quite evasive.

The tendency of the ACCC to sweep complaints about its own conduct under the carpet is quite ironic given that the ACCC is a strong advocate of the importance of businesses implementing comprehensive and responsive complaints handling systems. One would have hoped that the ACCC would practice what it preaches, and implement a proper system for receiving, assessing and responding to complaints from businesses about its own performance.

There should be a senior person, somewhat akin to an Internal Ombudsman, within the ACCC to whom businesses can complain directly if they believe that some aspect of the investigation or litigation against them is not being carried out appropriately.

The ACCC must ensure that it does not take advantage of businesses who do not understand the law because they are without legal representation or lack adequate representation. I have been retained by many small businesses after they have entered into an s87B undertaking with the ACCC. Most had absolutely no understanding of what they had just agreed to. It is not adequate for the ACCC to say that such businesses should have obtained their own legal advice. Rather I believe it is incumbent on the ACCC to explain fully to these businesses what they are signing and what they are agreeing to do.

The ACCC enforcement area has to start using a great deal more common sense in the way it approaches its work. Unfortunately, I have found that ACCC enforcement staff often show a lack of commonsense in the way they approach investigations and litigation. Often ACCC enforcement staff have either pursued relatively unimportant enforcement matters much too vigorously and aggressively or alternatively have been much too dismissive and offhand in their approach to potentially significant matters.

Other aspects of the ACCC’s operations and processes lack transparency. For example, it is all but impossible for complainants to find out whether their complaint is actually being investigated by the ACCC. This is because it now appears to be the ACCC’s standard practice not to provide any substantive written responses to any complaints.

Furthermore, the ACCC shows a general reluctance to provide even the companies it has under investigation with basic information about the course of its investigation or how it has interpreted the relevant law.

I believe that the Review Panel should reconsider two of the recommendations made by the Dawson Committee in relation to ACCC accountability, namely:

• to establish a Joint Parliamentary Committee to oversee the ACCC’s administration of the TPA (CCA) (Recommendation 11.1); 

• to appoint an Associate Commissioner to the ACCC to receive and respond to individual complaints about the administration of the Act and to report each year in the ACCC's annual report (Recommendation 11.3).

I think both of these steps would have positive impacts on the ACCC’s administration of the Act. A specific Joint Parliamentary Committee to oversee the ACCC’s administration of the Act would introduce some proper accountability, particularly in relation to the ACCC’s financial management.

The appointment of an Associate Commissioner to receive and respond to individual complaints about the administration of the Act and to report each year in the ACCC's annual report, would give businesses with concerns about their treatment at the hands of the ACCC some place to turn.

If you have any questions about this submission, please contact me on (02) 8086 2005.

Yours sincerely





Michael Terceiro

Competition and Consumer Lawyer

Terceiro Legal Consulting