Julie Clarke, Jan 15, 2013
“Trying to predict the future is like trying to drive down a country road at night with no lights while looking out the back window.” Predicting the path of Australian competition law in 2013 may be more difficult still. It is an election year in Australia and, if history is any guide, this will generate some populist political promises, frequently at odds with sound competition policy. Political debate is likely to focus on the need, or otherwise, for a major review of Australia’s competition laws and see philippics over who’s policies are most likely to support small business, or curtail the market power allegedly enjoyed by big supermarkets, banks, and petrol companies.
Also, the Australian Competition and Consumer Commission (“ACCC”) is likely to have an active schedule in 2013, having repeatedly touted an increase in competition law litigation, particularly where it might be useful to resolve ambiguity in the law. It is also possible we will witness our first criminal cartel prosecution this year, although the effect of the election on the ACCC’s appetite for litigation remains to be seen. On the merger front, following a significant defeat in the courts late in 2011, the ACCC’s merger processes were under close scrutiny in 2012 and this will continue into 2013 with the possibility of an update to the merger process guidelines to reflect new ACCC practice.
It is also likely that throughout the year attention will focus on Australia’s essential facilities access regime, currently undergoing a major review by the Productivity Commission.
In brief, we can expect an active-if somewhat unpredictable-year for competition law and policy in Australia.