Australia’s Proposed Information Disclosure Legislation: International Worst Practice

Caron Beaton-Wells, Brent Fisse, Aug 30, 2011

Regulating information disclosure and exchange by competitors is widely seen as one of the most challenging aspects of competition law. The economic theory is complex and, as highlighted by a recent OECD Policy Roundtable, legislators continue to search for satisfactory legal approaches. The Australian government has proposed amendments to the Competition and Consumer Act 2010 (Cth) (“CCA”) that aim to regulate information disclosure. The amendments have passed the House of Representatives and are likely to pass the Senate soon. If enacted, the proposal could be said to represent international worst practice. The genesis of the proposal is outlined below. Each of the major flaws in the proposal is then canvassed. They are: the piecemeal sector-specific coverage of the new scheme; the ill conceived and overreaching nature of the prohibitions; and the inadequacy and unworkability of the exceptions.