Australia

Jedličková, Barbora; Clarke, Julie

doi:10.1007/978-3-319-71419-6_2

Barbora Jedličková⁵ &
Julie Clarke⁶

Part of the book series: LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition ((LIDC))

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Abstract

Competition law issues arising with regard to online sales platforms centre around computer software, services provided online by online sales platforms, contractual relationships between the online platforms and sellers or buyers, information exchange, power and integration. Specifically, they may include algorithms that can coordinate and monitor prices and other business practices among competitors; collecting, exchanging and blocking information and targeting specific customers (consumers or businesses); and creating innovation-driven new monopolistic markets or markets where one online platform possesses significant market power.

This book chapter reflects the Australian law as understood on 1 July 2017.

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Notes

1.
See, e.g., A. Ezrachi and M. E. Stucke, Virtual Competition – The Promise and Perils of the Algorithm Driven Economy , Harvard University Press 2016; M. Taylor, Competition Law in High Technology Industries: Insights for Australia, Competition Law Conference, Sydney, 30 May 2015.
2.
For example, in May 2016, the European Commission released its study on online platforms: A. Gawer, Study on Online Platforms – Contrasting perceptions of European stakeholders: A qualitative analysis of the European Commission’s Public Consultation on the Regulatory Environment for Platforms, (European Commission, DG Communications Networks, Content & technology, 25 May 2016, available at https://ec.europa.eu/digital-single-market/en/reports-and-studies/76009 (‘EU Study’).
3.
EU Study, pp. 14–15.
4.
Deloitte Access Economics, The sharing economy and the Competition and Consumer Act 2015, ACCC, available at https://www.accc.gov.au/system/files/Sharing%20Economy%20-%20Deloitte%20Report%20-%202015.pdf.
5.
Deloitte Study, p iii.
6.
I. Harper, P. Anderson, S. McCluskey and M. O’Bryan QC, Competition Policy Review: Final Report, March 2015, available at http://competitionpolicyreview.gov.au/final-report/, p 26.
7.
Deloitte Study, pp. 9–11.
8.
Australian Government Productivity Commission, ‘Digital Disruption: What do government need to do?’ Research Paper, June 2016, p. 61, available at http://www.pc.gov.au/research/completed/digital-disruption. We refer to all these reports and their relevant sections in the text below.
9.
The Act was previously named the Trade Practices Act 1974 (Cth). The Australian Constitution, the Commonwealth of Australia Constitution Act (1900), limits the extent to which the federal government can legislate. For that reason, states and territories enacted a ‘schedule’ version of the Part IV of the CCA, which contains core provisions on competition law. The CCA and the enacted schedule ensure a nationally consistent competition law.
10.
Formerly ‘Competition and Consumer Amendment (Misuse of Market Power) Bill 2016’, the Bill 2016 was introduced into the Parliament in December 2016 and passed the Senate in August 2017. Despite its passing, the amendments in the Bill 2016 will not become law until other amendments in the Bill 2017 (the other Harper-Review bill) are enacted and commence.
11.
Harper Report, p. 407.
12.
In theory, s 45 also covers vertical agreements which do not contravene s 47 (‘exclusive dealing’) and/or s 48 (‘resale price maintenance’). See below.
13.
ACCC, Framework for misuse of market power guidelines (September 2016) (‘MMP Framework’) (https://consultation.accc.gov.au/compliance-enforcement/consultation-on-draft-framework-for-misuse-of-mark/) (‘MMP Framework’), para 4.4. See also Rural Press Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 para 41, Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38 para 114, Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193 par 242 and Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2013] FCA 909 para 329.
14.
MMP Framework, para 4.4.
15.
MMP Framework, para 4.4. See also Harper Report, p. 341.
16.
MMP Framework, para 4.4.
17.
It is also not required for s 46. Currently, the prohibition on misuse of market power requires demonstration of, in part, a prohibited ‘purpose’, rather than relying on proof of anti-competitive effect.
18.
Part IV, Division 1 of the Competition and Consumer Act 2010 (Cth). This incorporates price-fixing, output restrictions, allocation of customers, suppliers or territories and bid rigging. This conduct is both a criminal offence and subject to civil penalties. Certain joint venture activity is excluded from the scope of the per se prohibition, but remains subject to the general prohibition against anti-competitive agreements in s 45.
19.
In Australia, these are referred to as ‘exclusionary provisions’ and are per se prohibited where they involve an agreement between competitors having the purpose of preventing, restricting or limiting supply or acquisition to defined persons or classes of persons: ss 45 and 4D of the CCA. Joint ventures benefit from a limited competition defence: s 76C of the CCA.
20.
Unlike other forms of exclusive dealing, it is per se prohibited, but it is possible for the conduct to be ‘notified’ and receive immunity on public benefit grounds. This occurs when supply is made on the condition that goods or services are purchased from an unrelated third party (or there is a refusal to supply because of failure to agree to such a condition).
21.
It is not possible for conduct to be retrospectively authorised; approval must be provided in advance of the conduct occurring or it will contravene the Act notwithstanding any demonstrated public benefits.
22.
Fees vary depending on the conduct. For collective bargaining notification the fee is currently AUD 1,000. For exclusive dealing conduct other than third line forcing the fee is AUD 2,500. For third line forcing the fee is AUD 100.
23.
The notification process is also available to price signalling contained in Division 1A of Part IV. However, price signalling provisions apply only to the banking sector and Bill 2017 proposes their repeal.
24.
For instance, the list of potential public benefits contained in Re ACI Operations Pty Ltd (1991) ATPR (Com) ¶50-108 does not include the protection of brand names.
25.
ACCC v Jurlique International Pty Ltd [2007] FCA 79.
26.
Section 51(b) and (c) provide
1. (b)
  the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955, or the giving effect to such a provision; or
2. (c)
  the inclusion in a contract, arrangement or understanding between:
  
  (i)
  the registered proprietor of a trade mark other than a certification trade mark; and
  
  (ii)
  a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his or her becoming registered as such a registered user;
  
  of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied, or the giving effect to the provision to that extent.
27.
Re Queensland Co−operative Milling Association Ltd., Defiance Holdings Ltd. (Proposed Mergers with Barnes Milling Ltd.), (1976) ATPR ¶40−012.
28.
Re Queensland Co−operative Milling Association Ltd., Defiance Holdings Ltd. (Proposed Mergers with Barnes Milling Ltd.), (1976) ATPR ¶40−012, at 17,242 (emphasis added).
29.
Re 7-Eleven (1994), ATPR 41-357 at [42,777].
30.
For instance, the High Court of Australia quoted from the Australian Competition Tribunal decision in Re Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2 (2001) 162 FLR 1, stating that ‘…On the basis of many studies and long experience, economists have concluded that the main virtue of competition is that it provides a very powerful means of securing important gains in allocative and especially dynamic efficiency’. The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36.
31.
ACCC, Authorisation Guidelines (June 2013), available at https://www.accc.gov.au/system/files/Authorisation%20guidelines.pdf.
32.
Authorisation Guidelines (2013), p. 57.
33.
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 at [20].
34.
S.G. Corones, Competition Law in Australia (6^th ed., Thomson Reuters Australia, 2014), pp. 494 – 496.
35.
The boycott will not be prohibited anymore and will be governed by the general provision of s 45 if Bill 2017 will amend the CCA.
36.
Section 45(2)(a)(ii) CCA.
37.
Section 45(2)(b)(ii) CCA.
38.
For further information, see ACCC, ‘Expedia and Booking.com agree to reinvigorate price competition by amending contracts with Australian hotels’ (Media Release, 2 September 2016), (available at https://www.accc.gov.au/media-release/expedia-and-bookingcom-agree-to-reinvigorate-price-competition-by-amending-contracts-with-australian-hotels.
39.
Section 4E CCA.
40.
Section 50(6) CCA.
41.
Harper Report, p. 314.
42.
Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481.
43.
Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481, 518.
44.
ACCC, Merger Guidelines (November 2008) (‘Merger Guidelines’), para 4.10: This is done on a case by case basis, with market definition recognised as ‘purposive’ (para 4.9).
45.
Although the approach is set out in the Merger Guidelines, the ACCC has indicated that this approach to market definition would apply consistently in relation to other competition provisions. For example, in the MMP Framework, the ACCC indicated that the ACCC’s approach to market definition would not change for s 46 and the approach is set out in the Merger Guidelines.
46.
Merger Guidelines, para 4.8.
47.
Merger Guidelines, para 4.10: This is done on a case by case basis, with market definition recognised as ‘purposive’ (para 4.9).
48.
Merger Guidelines, para 4.10.
49.
Merger Guidelines, para 4.19.
50.
ACCC v Cement Australia [2013] FCA 909.
51.
See further Rhonda Smith, ‘Market definition and substitution options’ (2014) 22 Competition & Consumer Law Journal 105 at 117 (although Smith notes that not all cellophane fallacy concerns were recognised in that case (p 118)).
52.
Section 44ZZRD of the CCA, which defines cartel conduct, requires only that parties be ‘in competition with each other’, without further reference to being in competition in a market in Australia. See also Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (in particular para 228).
53.
The High Court: PT Garuda Indonesia Ltd v. Australian Competition and Consumer Commission [2017] HCA 21 (14 June 2017).
54.
Idem, para 14.
55.
Ibidem.
56.
Idem, para 15.
57.
Idem, para 33.
58.
Harper Report, p. 315. Notably, these comments were made before the recent High Court decision in Air New Zealand Ltd v ACCC; Pt Garuda Indonesia Ltd v ACCC [2017] HCA 21, which adopted a broad and pragmatic approach to the concept of ‘market in Australia’.
59.
Harper Report, p. 316.
60.
Section 4 of the CCA currently provides that competition ‘includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia’. The Harper Report stated that ‘geographic boundaries of many markets extend beyond Australia’ and in those circumstances ‘a corporation that competes for the supply of goods or services in Australia does so in the broader geographic market’ and any competition assessment ‘must take account of those market realities’ and has ‘been recognised’ in decisions of the courts: page 316.
61.
Harper Report, p. 317; recommendation 25.
62.
Bill 2017, Schedule 1, section 1, proposes that s 4 be amended to read: competition includes: (a) competition from goods that are, or are capable of being, imported into Australia; and (b) competition from services that are rendered, or are capable of being rendered, in Australia by persons not resident or not carrying on business in Australia’.
63.
Expedia Inc – proposed acquisition of Wotif.com Holdings Limited (ACCC Public Register, reference 55142,http://registers.accc.gov.au/content/index.phtml/itemId/1182044/fromItemId/751046 (‘Expedia/Wotif’) (accessed 6 June 2017).
64.
ACCC, ‘Expedia Inc – proposed acquisition of Wotif.com Holdings Limited’, Public Competition Assessment, 13 January 2017, para 43 (‘Expedia/Wotif PCA’).
65.
OECD, ‘Two-Sided Markets’, Policy Roundtables, DAF/COMP(2009)20, 17 December 2009, p. 80.
66.
OECD, ‘Two-Sided Markets’, Policy Roundtables, DAF/COMP(2009)20, 17 December 2009, p. 79.
67.
The change was brought about following a recommendation to ‘lower’ the threshold. See The Trade Practices Act: Proposals for Change (Commonwealth of Australia, Green Paper, 1984) para 29. Section 46(3C) of the Act also makes clear that it is possible for a firm to have substantial market power even though it ‘does not substantially control the market’ or enjoy ‘absolute freedom from constraint’ by competitors, potential competitors or persons to whom it suppliers or acquires goods or services.
68.
Section 46(3D) CCA.
69.
See, eg, Rhonda Smith, Market definition and substitution options, (2014) 22 Competition & Consumer Law Journal 105 at 121.
70.
Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 [15] per Mason CJ and Wilson J.
71.
See, eg, Rhonda Smith, Market definition and substitution options, (2014) 22 Competition & Consumer Law Journal 105 at 121.
72.
Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177.
73.
Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 at 200 (footnotes omitted).
74.
Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481, 515[40]; (1976) ATPR 40–012, 17,24.
75.
See ss 46(3)–(3D) CCA.
76.
Harper Report, p. 317 referencing the Business Council of Australia’s (BCA) draft report submission.
77.
As noted in Sect. 2.2.1, above, this test will change to a competition based test if Bill 2016 is passed.
78.
Harper Report, p. 307.
79.
The ACCC released Platform Operators in the Sharing Economy: A guide for complying with the competition and consumer law in Australia in 2016, available at https://www.accc.gov.au/publications/platform-operators-in-the-sharing-economy, ‘Platform Operators in the Sharing Economy’. However, this is a general guide covering competition and consumer issues and does not address the issue of misuse of market power directly.
80.
Subsection 46(1) CCA.
81.
See generally Katharine Kemp, ‘Taking Advantage’ of Substantial Market Power, and Other Profit-Focused Tests for Unilateral Anticompetitive Conduct, (2015) 41(3) Monash University Law Review 655.
82.
Existing separate predatory pricing provision, based on market share and potentially problematic for two-sided platforms, is likely to be repealed.
83.
There was previously a separate price discrimination provision but it was repealed in 1195. Periodically there are calls to revive it but these have been repeatedly rejected, most recently by the Harper Panel (Harper Report, recommendation 31). Consequently, price discrimination is only unlawful if it satisfies the general conditions for misuse of market power.
84.
It did this by constructively refusing to supply the ‘Y-Bar’ steel product to downstream competitors of its wholly owned subsidiary, AWI, which prevented them making and supplying ‘star picket fences’ in competition with QWI’s subsidiary.
85.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489.
86.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489, para 70.
87.
Ticketek homepage (http://premier.ticketek.com.au/. Accessed 8 June 2017).
88.
Para 18. Lasttix’s business was described in the Statement of Agreed Facts (para 24) as ‘the business of supplying, or offering to supply, Ticketing Related Services in Australia to promote the sale of tickets. Lasttix’s primary means of promoting the sale of tickets was through the provision of services to Promoters in relation to discount ticket offers for events through either the Lasttix or MyTickets businesses.’ Those who chose tickets promoted by Lasttix would be re-directed to actually purchase the ticket elsewhere, such as Ticketek (para 26).
89.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489 (paras 1 and 2).
90.
Harper Report, p. 347.
91.
Harper Report, recommendation 30.
92.
Treasury, Consultation on Competition Policy Review Final Report, 31 march 2015 and Treasury, Options to Strengthen the Misuse of Market Power Laws: Discussion Paper, 11 December 2015.
93.
MMP Framework (para 4.4).
94.
MMP Framework (para 4.7). None of these examples refer specifically to online platforms.
95.
The ACCC does not provide any guidance in its draft Framework, but indicates that guidance ‘on the implementation of the revised authorisation test will be provided in the final s 46 guidelines’ (para 5.1).
96.
Harper Report, recommendation 39.
97.
Deloitte Study, p. 22.
98.
Expedia/Wotif PCA, para 31 and Merger Guidelines, para 3.16.
99.
Trade Practices Legislation Amendment Bill 1992, explanatory memorandum, para 12, as cited in Merger Guidelines, para 3.5.
100.
Merger Guidelines, para 3.5.
101.
Wotif promotes the fact that it was ‘founded in a Brisbane garage’ and has ‘heaps of local knowledge’ (Wofit homepage, www.wotif.com, accessed 6 June 2017).
102.
It also supplied booking services for flights and other travel products.
103.
See, eg, Jamie Freed, Why the ACCC approved the Expedia purchase of Wofif, Australian Financial Review, 15 January 2015, http://www.afr.com/it-pro/why-the-accc-approved-the-expedia-purchase-of-wotif-20150114-12qneo (accessed 6 June 2017).
104.
Expedia/Wotif PCA, paras 64 and 65.
105.
Expedia/Wotif PCA, para 60.
106.
Expedia/Wotif PCA, para 28.
107.
Expedia/Wotif PCA, para 29.
108.
Ibid.
109.
The acquisition, worth AU$703, subsequently took place (http://www.wotif.com/vc/media/corporate-news-and-innovation/expedia-inc-completes-acquisition-wotif-group-266 (accessed 8 June 2017)).
110.
Expedia/Wotif PCA, para 43.
111.
Expedia/Wotif PCA, para 49.
112.
Expedia/Wotif PCA, para 49.
113.
Expedia/Wotif PCA, para 54.
114.
Even where they do not ‘currently provide a booking function in their own right’, but rather ‘connect consumers to an OTA or other site’ (Expedia/Wotif PCA, para 56).
115.
Expedia/Wotif PCA, para 56.
116.
Expedia/Wotif PCA, para 58.
117.
Expedia/Wotif PCA, para 61.
118.
Expedia/Wotif PCA, para 62.
119.
Expedia/Wotif PCA, para 83: meta-search websites help consumers bypass OTAs that increase ‘the ability of accommodation providers to reduce their reliance on the major OTAs’ and obtain a ‘greater proportion of bookings directly’ (para 81).
120.
Expedia/Wotif PCA, para 76.
121.
Expedia/Wotif PCA, para 77.
122.
Ibid.
123.
The ACCC concluded that ‘a new OTA would be able to access a sufficient volume of hotel inventory to enter the market as accommodation providers generally have an incentive to distribute their inventory across a wide range of platforms to access as many potential consumers as possible’ and this is ‘facilitated by channel managers’ – but, acknowledges that ‘a new OTA would face significant costs in engaging a sufficient number of staff to approach, enter contracts and maintain relationships with these accommodation providers’ (para 88) – there would be significant sunk costs through advertising (Expedia/Wotif PCA, para 89) and this may present a barrier to an OTA ‘achieving a sufficient scale to constrain the incumbents’ (Expedia/Wotif PCA, para 89). In current form ACCC accepted there may be significant barriers to entry or expansion to compete with Wotif, Expedia or Booking.com.
124.
Expedia/Wotif PCA, 41 PCA.
125.
Expedia/Wotif PCA, 92 PCA.
126.
Expedia/Wotif PCA, 81 PCA.
127.
See, e.g., A Ezrachi and M. E. Stucke, Virtual Competition – The Promise and Perils of the Algorithm Driven Economy, Harvard University Press 2016; Martyn Taylor, Competition Law in High Technology Industries: Insights for Australia’, Competition Law Conference, Sydney, 30 May 2015.
128.
For instance, Google search engine; Facebook, Amazon.
129.
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; Queensland Wire Industries v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177.
130.
The industry-specific access regimes include a telecommunications access regime, contained in Pt XIC of the CCA and the Telecommunications Act 1997 (Cth).
131.
Indeed, the generic access regime was drafted in the mid-1990s, well before the rapid development of the digital world and it has never been used in connection with the digital economy, in particular, online sales platforms.
132.
Section 44B(c) CCA.
133.
Section 44B(d) CCA.
134.
Section 44B(e) CCA.
135.
Section 44B(f) CCA.
136.
Section 44H(4) CCA.
137.
Precisely what measure of ‘uneconomical’ is used for this purpose has been the subject of extensive litigation and several reviews. This criterion has been interpreted in different ways by the courts. The current interpretation is based on a ‘private profitability test’ where the word ‘uneconomical’ means ‘unprofitable’ and the criterion would be satisfied if it is not profitable for anyone including the owner of the existing facility to duplicate it: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58; Re Fortescue Metals Group Limited [2010] ACompT 2; Re Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2; Re Sydney International Airport (2000) ATPR ¶ 41-754 at 40, 793. The Harper Review and Productivity Commission Review (Productive Commission 2013, National Access Regime, Inquiry Report No 66 (Canberra), p. 160) recommended that the test be refused to one of ‘natural monopoly’, which is reflected in the Bill 2017. If passed, the criterion will assess the facility ‘used ‘to provide the service could meet the total foreseeable demand in the market’ over the declaration period ‘at the least cost compared to any 2 or more facilities’ (proposed s 44CA, Bill 2017).
138.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 21 FCR 385, appealed (1991) 27 FCR 492; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 26, (1990) 27 FCR 460 at 486.
139.
Australian Government Productivity Commission, Digital Disruption: What do government need to do?, Research Paper, June 2016, pp. 60–61, available at http://www.pc.gov.au/research/completed/digital-disruption (‘Digital Disruption’). The Productivity Commission provides independent research and advice to the Australian Government.
140.
Digital Disruption, p. 61.
141.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1991) 27 FCR 492 at 486.
142.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 21 FCR 385 at 412.
143.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 27 FCR 460, at 462.
144.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 27 FCR 460 (para 6).
145.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 21 FCR 385 at 409.
146.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 486.
147.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1991) 27 FCR 492 at 502.
148.
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 2) (1990) 21 FCR 385 at 418.
149.
ACCC v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339.
150.
Ibid, at [297].
151.
Ibid, at [300].
152.
Ibid, at [314]–[315], [323].
153.
Section 46(1)(c).
154.
See ibid, at [335]–[346].
155.
Part VII, Division 2, Subdivision B of division 2 CCA.
156.
Part VII, Division 1 CCA.
157.
The Harper Report notes that ‘the provisions are not being used as frequently as they might’, at p. 86.
158.
For example, in 2016 a group of dairy farmers notified the ACCC that it intended to collectively bargain in relation to terms and conditions of raw milk supply arrangements with Woolworths (a major supermarket) and Milk2Market Pty Ltd. The notification was allowed to stand, with the ACCC indicating that it considered the likely public benefit associated with the arrangement would outweigh any anti-competitive detriment. Manning Valley Dairy Farmers – Collective Bargaining Notifications – CB00326 and CB00327 (ACCC collective bargaining notifications register, http://registers.accc.gov.au/content/index.phtml/itemId/1194750/fromItemId/815577).
159.
Available at http://registers.accc.gov.au/content/index.phtml/itemId/1197444/fromItemId/401858.
160.
ACCC, ACCC denies authorisation for banks to collectively bargain with Apple and boycott Apple Pay’(media release, 31/3/2017), available at https://www.accc.gov.au/media-release/accc-denies-authorisation-for-banks-to-collectively-bargain-with-apple-and-boycott-apple-pay.
161.
The Australian Consumer Law is contained in Schedule 2 of the CCA. For constitutional reasons it operates federally and within Australian territories via the CCA and within Australian states via state enabling legislation.
162.
Commonwealth of Australia, Australian Consumer Law Review: Final Report, Consumer Affairs Australia and New Zealand (CAANZ), 19 April 2017) (recommending that the maximum penalties be aligned with breaches of the competition provisions (p 87)); Productivity Commission, Consumer Law Enforcement and Administration, Research Report, March 2017, available at http://www.pc.gov.au/inquiries/completed/consumer-law/report/consumer-law.pdf (agreeing with the CAANZ review that ‘there is a strong case for increasing maximum financial penalties for breaches of the ACL’ (p 11) and finding that ‘[m]aximum financial penalties available under the ACL are small relative to the benefits that a business can accrue by breaching the ACL’ (finding 4.5, p 143)).
163.
Platform Operators in the Sharing Economy.
164.
See, eg, A. Merrett, ACCC signals strategic change in battle with supermarkets, The Conversation, 6 May 2014, https://theconversation.com/accc-signals-strategic-change-in-battle-with-supermarkets-26288, suggesting that the ‘facts upon which the case is based could have been framed as a misuse of market power’.
165.
Section 21 ACL. Where section 21 does not apply the ACL also prohibits a person engaging in unconscionable conduct ‘within the meaning of the unwritten law’ (section 20). This is typically more difficult to demonstrate and is less relevant in the context of online sales platforms.
166.
Section 22 ACL. The same considerations apply if the party accused of unconscionable conduct is an acquirer of goods or services rather than a supplier: section 22(2).
167.
Section 18 ACL.
168.
Section 29 ACL.
169.
It is clearly the most litigated provision in the CCA: see, eg, S. Seah, Unfulfilled Promissory Contractual Terms and Section 52 of the Australian Trade Practices Act [2000] MurUEJL 33 (the Act was renamed the Competition and Consumer Act and the development of the Australian Consumer Law resulted in section 52 being repealed and replaced by s 12 of the Australian Consumer Law; the prohibition remains substantively the same and its reputation as most litigated has not changed).
170.
See ACCC, Managing online reviews, https://www.accc.gov.au/business/advertising-promoting-your-business/managing-online-reviews. Accessed 8 June 2017) observing that it considers ‘encouraging family and friends’ to write favourable reviews without disclosing their personal connection, writing poor reviews on other websites which ‘do not reflect a genuinely held opinion’ and soliciting others to write reviews about your business, or another business, when they have not experienced the good or service, to constitute misleading conduct. Failure to remove reviews known to be fake may also be misleading. See also R. Walker and R. Healy, Triple A Rated? Regulating Online Information Disclosures (2017) 25 AJCCL 4 (pp 10–11).
171.
See ACCC, ‘Court finds that Jetstar and Virgin Australia engaged in misleading ‘drip pricing’ practices’ (Media Release, 17 November 2015, https://www.accc.gov.au/media-release/court-finds-that-jetstar-and-virgin-australia-engaged-in-misleading-drip-pricing-practices). See also J. Clarke and P. Clarke, Jetstar and Virgin caught out for overlooking mobile commerce, The Conversation, 20 November 2015, https://theconversation.com/jetstar-and-virgin-caught-out-for-overlooking-mobile-commerce-50907) and R. Walker and R. Healy, Triple A Rated? Regulating Online Information Disclosures (2017) 25 AJCCL 4 (pp 8–9).
172.
Section 48 ACL.
173.
Ibid.
174.
Since 12 November 2016. To be a small business contract, at the time it was entered into at least one party must employ fewer than 20 people and either (a) the upfront price must not exceed $300,000 or (b) if the contract operates for more than 12 months, the upfront price payable does not exceed $1,000,000 (Australian Consumer Law, section 23).
175.
Australian Consumer Law section 23. Section 27 provides that a contract is presumed to be a standard form contract unless demonstrated otherwise.
176.
Section 24 ACL.
177.
Supplier is defined as the person who supplied the goods.
178.
Section 54 ACL.
179.
Section 55 ACL.
180.
Section 54 ACL.
181.
Section 61 ACL.
182.
For the purposes of this chapter, an online sales platform.
183.
Deloitte Study, p. iii.
184.
Deloitte Study, p. iv.
185.
Except for one form of exclusive dealing, third line forcing, which is prohibited per se under the current s 47 of the CCA; however, the Bill 2017, in its Schedule 7, proposes to change the per se rule in relation to third line forcing to the rule of substantial lessening of competition.
186.
ACCC v Flight Centre Travel [2016] HCA 49.
187.
Section 4, which defines terms used in the CCA, only refers to Part VIII.
188.
See ss 97, 99 and 96(3)(b).
189.
TPC v Prestige Motors Pty Ltd (1994) ATPR 41-359.
190.
TPC v Commodore Business Machines Pty Ltd (1990) 92 ALR 563.
191.
Subsection 96(3)(e); see also, s 96(3)(d)(ii).
192.
See, for example, Australian Competition and Consumer Commission v OmniBlend Australia Pty Ltd [2015] FCA 871.
193.
Section 98(2) of the CCA. See also, TPC v Orlane Australia Pty Ltd (1984) 1 FCR 157.
194.
On 5 December 2014, the ACCC granted authorisation no. A91433 to Tooltechnic to set minimum retail prices on Festool products. The authorisation was granted until the end of 2018. The ACCC has been monitoring the situation. The principal argument for granting the authorisation was the prevention of free riding. The recent Bill 2017 proposes the notification system for RPM.
195.
Harper Report, p. 378.
196.
Harper Report, pp. 378–380.
197.
Australia does not have comparable cases to the EU cases on vertical geographical territorial restrictions (such as C-260/09 Activision Blizzard Germany GmbH v European Commission [2011] ECR 419; T-450/05 Automobiles Peugeot SA, Peugeot Nederland NV v Commission [2009] OJ C205/32) and thus it does not differentiate between active and passive sales.
198.
Subsections 47(6)–(7).
199.
The prohibited third line forcing always includes two contracts of purchase or sale. It does not apply if there is only one contract and the product or service is considered a ‘bundle’. Consequently, in e.g., Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd [1986] HCA 72, the court held that ‘packaged beer’ was a single bundled product, and not two separate products, for purposes of the third line forcing provisions.
200.
²⁰⁰ Despite the per-se prohibition, third line forcing can be and frequently is notified.
201.
ACCC v Visa Inc [2015] FCA 1020 (‘Visa’).
202.
This could apply to online sales platforms too.
203.
Visa, [6]–[46].
204.
Visa, [49].
205.
Visa, [49]–[50].
206.
Visa, [50].
207.
ACCC, ACCC proposes to revoke immunity for eBay’s PayPal only policy, (media relies, 12 June 2008), available at https://www.accc.gov.au/media-release/accc-proposes-to-revoke-immunity-for-ebays-paypal-only-policy.
208.
See ACCC, ACCC proposes to revoke immunity for eBay’s PayPal only policy (media relies, 12 June 2008), available at https://www.accc.gov.au/media-release/accc-proposes-to-revoke-immunity-for-ebays-paypal-only-policy.
209.
The term ‘supply’ is defined widely in s 4 of the CCA and includes not only sale but also ‘exchange, lease, hire or hire-purchase; and …in relation to services—provide, grant or confer’.
210.
Subsection 47(3).
211.
Subsections 47(4)–(5).
212.
The connotation ‘on the condition’ has a very wide meaning. The condition can be direct or indirect. It can be deduced from specific conduct or other relevant circumstances. (See Visy Paper v ACCC [2003] HCA 59; 2003) 216 CLR 1, at [8].)
213.
It is unilateral conduct which is prohibited. For further information, see above.
214.
Subsections 47(10).
215.
Trade Practices Legislation Amendment Bill 1992, Explanatory Memorandum, p 4.
216.
Trade Practices Legislation Amendment Bill 1992, Explanatory Memorandum, p 4.
217.
Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) ¶ATPR40-327, at 43, 987.
218.
See Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ¶ATPR 40-809, [1987] FCA 282.
219.
TPC v CSR Ltd (1991) ATPR ¶41-076.
220.
TPC v CSR Ltd (1991) ATPR ¶41-076, at 52,148.
221.
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1998) FCA 1379, appealed (1999) FCA 664, appealed (2001) 205 CLR, at 21. However, the proposed provision 46 under Bill 2016 requiring proving substantial lessening of competition could cover such conduct.
222.
Ibid, at [19].
223.
By majority; in a strong dissent, Justice Kirby held that there was misuse of market power. His Honour considered that the conclusion that the refusal to supply was unrelated to the market power was ‘unrealistic’ (para 75) and observed that in Sydney, where Melway did not enjoy the same sort of market dominance (holding closer to 10% of that market), there was an ‘understandable willingness to embrace a different distribution’ (para 85), suggesting that in enforcing its closed distribution system in Melbourne, Melway was ‘not pursuing some universal philosophy of efficient market distribution’ but was taking advantage of its market power (para 85).
224.
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR, at [31].
225.
Harper Report, p. 351; The House of Representative Standing Committee on Infrastructure and Communications, ‘Inquiry into IT Pricing’ in July 2013, available at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ic/itpricing/report.htm.
226.
Harper Report, p. 351, referring to CHOICE, submission, pp. 13–15.
227.
For instance, Foxtel submitted that ‘any attempt to assist Australians to circumvent geo-blocks will have a real impact on the Australian businesses that invest in Australian content, create Australian jobs and pay tax in Australia’. Harper Report, p. 353, (quoting Foxtel, DR sub, pages 11–12).
228.
Harper Report, p. 352.
229.
Harper Report, p. 354.
230.
Harper Report, p. 166 (quoting submission by ACCC, sub 1, page 60).
231.
Harper Report, Recommendation 13, p. 178.
232.
This is separate to ‘authorisation’ which the ACCC can grant on public benefit grounds ahead of the conduct occurring.
233.
It remains for the court to determine whether the jointly submitted penalties are appropriate. However, as long as they are within an acceptable range courts typically approve the agreed penalty. Recent doubt about the legality of joint civil penalty submissions was resolved by the High Court (Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate (CFMEU) [2015] HCA 46) which confirmed that joint submissions on penalty were acceptable.
234.
ACCC, ACCC cooperation policy for enforcement matters (31 July 2002) (https://www.accc.gov.au/publications/accc-cooperation-policy-for-enforcement-matters).
235.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489. See Sect. 2.4.2.
236.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489 para 30.
237.
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489 para 31.
238.
Section 87B CCA. The ACCC maintains an undertakings register: http://registers.accc.gov.au/content/index.phtml/itemId/6029.
239.
See http://registers.accc.gov.au/content/index.phtml/itemId/875264.
240.
Coles: http://registers.accc.gov.au/content/index.phtml/itemId/1128691; Woolworths: http://registers.accc.gov.au/content/index.phtml/itemId/1128693.
241.
ACCC concerned about escalating shopper docket discounts ACCC Media Release, 29 July 2013.
242.
The ACCC does not have judicial powers to find a contravention of the competition laws; only the courts have this power and they must provide reasons for their decision.
243.
Expedia and Booking.com agree to reinvigorate price competition by amending contracts with Australian hotels, ACCC Media Release 158/16, 2 September 2016.
244.
An exception to the availability of injunctions relates to mergers; although the ACCC may seek an injunction to prevent a merger, a private litigant does not have this option: s 80(1A). However, a private party may complain to the ACCC who may, if appropriate, seek an injunction and may, if the merger proceeds, seek damages for contravention of the Act.
245.
Section 82.
246.
Section 87.
247.
Section 82.
248.
See B. Dellavedova and R. Gilsenan, Challenges in Cartel Class Actions, (2009) 32 UNSWLR 1001.
249.
Federal Court of Australia Act 1976 (Cth).
250.
The parties may agree, for purposes of the proceedings, agree that certain conduct has taken place and that there have been contraventions of the Act. They may jointly submit facts and propose orders (consent orders) which they court may adopt.
251.
Section 83 allows findings of fact to constitute prima facie evidence of that fact in subsequent proceedings.
252.
Recommendation 41 provided that the CCA should be amended so that admissions of fact could be considered prima facie evidence of those facts in subsequent proceedings.
253.
Bill 2017, Schedule 10. See also C. Beaton-Wells, Private enforcement of competition law in Australia – inching forwards?, (2016) 39 Melbourne University Law Review 681.
254.
Contract claims are ubiquitous; there are no litigated claims of which the authors are aware. There may have been settlements reached as a result of the potential for an illegality claim to be made.
255.
Section 76 CCA.
256.
The CCA refers to a ‘contract, arrangement or understanding’.
257.
In which a supplier contracts directly with the consumer, albeit facilitated by the agent.
258.
Sections 44ZZRR (relating to resale price maintenance) and section 44ZZRS (relating to exclusive dealing). See, eg, Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235.
259.
The conduct involved preceded the current cartel laws and were therefore considered pursuant to the price fixing prohibitions which operated at the time; the principles relating to competition and price fixing remain the same under the current cartel laws and they also include attempts to collude.
260.
ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206.
261.
ACCC v Flight Centre Travel [2016] HCA 49. Then Chief Justice, Robert French, dissented.
262.
For more detail see Julie Clarke, ‘Flight Centre: Australian High Court finds agent competed with principal and breached cartel laws’ (Competition Policy Blog, 9 January 2017), Justin Oliver and Paul Schoff, ‘Agency and Competition Law in Australia Following ACCC v Flight Centre Travel Group (2017) 8 Journal of European Competition Law & Practice 321, Brent Fisse, ‘The High Court Decision in ACCC v Flight Centre – Crash Landings Ahead?’ (2017) 45 ABLR 61 and Brent FIsse, ‘Facilitating practices, vertical restraints and most favoured customers: Australian competition law is ill-equipped to meet the challenge’ (2016) 44 ABLR 325.
263.
ACCC v Flight Centre Travel [2016] HCA 49, para 26.
264.
ACCC v Flight Centre Travel [2016] HCA 49, para 80.
265.
ACCC v Flight Centre Travel [2016] HCA 49, para 82.
266.
ACCC v Flight Centre Travel [2016] HCA 49, para 175.
267.
ACCC v Flight Centre Travel [2016] HCA 49, paras 152–253.
268.
ACCC v Flight Centre Travel [2016] HCA 49, para 21.
269.
Recommendation 27. See discussion on pages 364–365 of the Harper Report.
270.
Harper Report page 365.
271.
See, eg, Brent Fisse, ‘The High Court Decision in ACCC v Flight Centre – Crash Landings Ahead?’ (2017) 45 ABLR 61, 66.
272.
See Expedia and Booking.com agree to reinvigorate price competition by amending contracts with Australian hotels, ACCC Media Release 158/16, 2 September 2016. See also B. Fisse, The High Court Decision in ACCC v Flight Centre – Crash Landings Ahead? (2017) 45 ABLR 61, 66–67.
273.
See, e.g., ACCC, ACCC submission to the Productivity Commission Inquiry into Intellectual Property Arrangements in Australia, November 2015, p. 14. https://www.accc.gov.au/system/files/ACCC%20Submission%20-%20PC%20inquiry%20into%20IP%20arrangements%20in%20Australia%20-%2030%20November.pdf. Accessed 11 May 2016; Australian Law Reform Commission also recommended repealed of s 51(3) in its report on ‘Copyright and the Digital Economy’ (November 2013), pp. 71–74; also see Harper Report, p. 108.
274.
Harper Report, p. 109.
275.
See, eg, Harper Report, p. 110.

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TC Beirne School of Law, The University of Queensland, St Lucia, QLD, Australia
Barbora Jedličková
Melbourne Law School, The University of Melbourne, Parkville, VIC, Australia
Julie Clarke

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Jedličková, B., Clarke, J. (2018). Australia. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Antitrust Analysis of Online Sales Platforms & Copyright Limitations and Exceptions. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-71419-6_2

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