Enhancements to the Unfair Contract Terms Provisions

 The Government's report on amendments to the UCT laws for small business came out late last week. Good to see the Government has proposed a number of significant changes, which are in line with the arguments made by the SME Committee of the Law Council in its submissions to the review. The arguments made by our SME Committee in its submission were also cited with approval numerous times in the report.

The main proposed changes are to:
* make UCT's unlawful and introduce civil penalties for breaches
* increase the small business threshold to less than 100 employees or $10 million tunover; and
* remove the contract value thresholds entirely.

https://treasury.gov.au/publication/p2020-125938

Tackling market power in the COVID-19 era

Interesting speech by Sims at the National Press Club. Not only did he seem to write off the new s46 as being useless, calling for a new unfair practices prohibition but he also called for changes to merger laws because the ACCC "hasn't won outright in a contested merger case since the current substantial lessening of competition test was introduced in 1992".

I think he may be writing off the new s46 provision a bit too soon, as it is not impossible to establish a substantial lessening competition (SLC) case. For example my team at the ACCC was able to establish SLC cases against spirited opposition from both Liquorland and Woolworths in the liquor cases back in 2006.

Also in relation to merger cases, the reality is that the merger parties generally abandon clearly anti-competitive mergers in the face of ACCC opposition with only marginal cases going to court. The ACCC should expect to lose a high number of the marginal cases. The more significant issues are whether the ACCC (1) are opposing the right mergers (eg Vodaphone / TPG and PN Aurizon which were very weak cases) and (2) are running their merger litigation effectively (eg Metcash which was poorly run).

https://www.accc.gov.au/speech/tackling-market-power-in-the-covid-19-era

Woolworths 2, ACCC 0 (or should that be Woolworths 2, ACCC 12)

 I think this article overlooks the ACCC's previous 12 wins against Woolworths:

Big W re Dyson appliances (2019) - undertaking
Laundry detergent case (2016) - $9 million fine
Unsafe products case (2016) - $3 million fine
Informed Sources price fix (2015) - undertaking
Breach undertaking fuel shopper docket (2014) - declaration
Big W children's nightwear (2010) - $400,000 donation
Anticompetitive liquor deals (2006) - $7 million fine
Unsafe swimming vests (2006) - undertaking
Safeway price fix (2006) - $8.9 million
NT Price fixing (2004) - undertaking + $150,000 donation
Misleading beef ads (2002) - declarations, injunctions
Flammable Children's Nightwear (1996) - injunctions

https://www.afr.com/rear-window/woolworths-2-accc-0-20200930-p560r3

13th Annual Performance Report of the National Pro Bono Target

 Some interesting reading in this Report.

For example, "The average hours per lawyer of small law firms (with fewer than 50 lawyers) increased significantly to 35.7 hours in FY2020, up from 32.9 hours in FY2019. Thirty-two small law firms met or exceeded the Target, up from 26 small law firms in FY2019."

On the other hand, "Unfortunately not all firms are capturing these benefits, as there are still some signatories with very low average hours per lawyer. For example there are six large firms with average per lawyer hours in single figures."

Australian Business Law Review, Vol 48, Part 4

 ABLR Vol 48, Part 4 has just come out. This time five excellent articles on a wide range of legal issues - the duties of superannuation trustees, tax reform, goodwill restraints of trade, copyright site-blocking and national security and foreign investment regulation. I really enjoyed putting this edition together.

* Might Superannuation Trustees Owe a Duty to Merge? – Scott Donald

* The Challenges of Industrial Revolutions: Luddism and Tax Reform – Kerrie Sadiq and Bronwyn McCredie

* The Frontiers of Restraint of Trade Litigation Protecting Goodwill: Policy, Principles and Practice – Michael Tamvakologos

* From Little Things Big Things Grow: Australia’s Evolving Copyright Site-Blocking Regime – Cheryl Foong and Joanne (Jo) Gray

* The Australian and United States Approaches to National Security and Foreign Investment Regulation – Nicholas Felstead

I am also pleased to announce a new ABLR Section to be entitled “Taxation Law and Practice” to be headed up by Prashanth Kainthaje, Tax Partner with John Winter & Slattery. I look forward to working with Prashanth in making the new Taxation Law and Practice Section a success.

Australian Business Law Review, Vol 48, Part 3

 Part 3 has just come out. Again, lots of excellent articles and Section Notes. The legal areas covered in this edition include the proposed mandatory repair scheme, franchising law, fair work bargaining, corporations law, and competition law.

* The Mandatory Repair Scheme for Motor Vehicles 2019: Australia’s First Response to the International Right to Repair Movement? – Leanne Wiseman, Kanchana Kariyawasam and Lucas Davey

* Working for the Brand: The Regulation of Employment in Franchise Systems in Australia – Tess Hardy

* Fair Work Bargaining for Police: A Proposal for Reform – Giuseppe Carabetta

* Are the “Efficiently, Honestly and Fairly” and Unconscionable Conduct Civil Penalty Provisions Equally as Effective in Combating Unfair Practices By Licensees? – Jessica Zarkovic

* Natural Meaning Equals Natural Monopoly: New Declaration Criteria for Access to Services under the Competition and Consumer Act – Michael Gvozdenovic

* ASIC v King – The High Court Clarifies Who Is an “Officer” of a Corporation Jennifer Chambers, Michael Legg and Lindsay Stankovic

Thanks to all the authors and referees for their hard work in getting this edition together pretty much on time.

Marketing fund statements: three things to get right

I was bit frustrated to get this email from the ACCC about the importance of franchisors making sure that they send out their marketing statements to franchisees on time, given my recent experiences with the ACCC.

I wrote to the ACCC on behalf of a whilstleblower in late 2018 to advise that a well known national franchisor had failed to send out any marketing statements to any franchisees for approximately 10 years. I provided the ACCC with some fairly compelling internal company documents to support the allegations.

After a 18 month investigation, the ACCC advised us that it had decided not to take any action against the franchisor in relation to approximately 10 years of contraventions because the franchisor had decided to start complying with the law from 2017.

I have to say that there is an appalling lack of consistency in some of the ACCC's enforcement decision making.

https://mailchi.mp/accc.gov.au/marketing-fund-statements-three-things-to-get-right?e=6c0b55cb44