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ACCC Is Not Hibernating

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By Alicia Hill, Principal

After the outbreak of the novel coronavirus, the ACCC moved quickly to reprioritise its work and direct resources towards delivering on issues arising from the extraordinary economic disruption caused by the pandemic.

Since 20 March, the ACCC has granted more than 20 such interim authorisations, and it has other applications pending.

The ACCC has been working with applicants from a range of different sectors of the economy to provide feedback on their applications before they lodge, then making formal decisions on them generally within a short timeframe. This work is being prioritised, and additional ACCC staff have been allocated to working on these applications.

So far the interim authorisations have generally granted permission for competitors to hold discussions, share resources and information and develop collaborative actions to better deal with the impact of the pandemic in specific sectors. Final decisions on these applications are yet to be made, and the ACCC will seek feedback before deciding on final authorisations.

The authorisation process in the CCA recognises that, in certain circumstances, particular conduct may not harm competition or may give rise to likely public benefits that outweigh the likely public detriment. Where interim authorisation is granted, competitors have been able to co-operate as they need to, almost immediately. They have comfort as they are free from the risk of legal action as long as they operate within the terms of the interim authorisation.

The sectors for which interim authorisations have so far been granted have included most major industries and services affected by the pandemic such as:

  • supermarkets and convenience stores
  • shopping centres and retailers
  • banks and insurers
  • medical suppliers and hospitals
  • businesses in mining and energy, oil and telecommunications.

Most of these interim authorisations have been conditional, enabling the ACCC to guard against long term anti-competitive consequences. The permitted measures are temporary, and the ACCC will ensure that the authorisations only continue for as long as appropriate and in the public interest.

When the economy starts to recover after the COVID-19 crisis, competition has a critical role to play. Therefore, the ACCC considers it is important that the necessary short term measures do not give rise to long term structural damage to competition or market concentration. The ACCC wants vigorous competition to drive the recovery when it comes, and says it will vigorously enforce the law.

Some of these interim authorisations include:

  • Interim authorisation: Retailers granted authorisation to collectively negotiate with landlords
  • Interim authorisation: Expanded co-operation for energy sector during pandemic
  • Interim authorisation: 7-Eleven and franchisees authorised to co-operate on store opening times
  • Petrol retailers should reduce their prices in line with falls in international petrol prices
  • Interim authorisation: Mining companies allowed to co-operate during COVID-19 pandemic
  • Interim authorisation: Temporary exemptions under Consumer Data Right
  • Interim authorisation: Electricity and gas companies to co-operate on relief package

There are still a number of applications for interim authorisation to be considered by the Commission, which has recently been meeting to make statutory decisions a number of times each week to deal with the surge. The ACCC is to be commended on its willingness to address the issues arising from COVID-19 and re-position its resources to provide positive outcomes for participants in the respective markets.

If you have any queries please contact Alicia Hill or +613 8540 0292.