In conversation with Jacqueline Downes and Robert Walker on the key trends and developments in competition and consumer law

Monday August 21, 2017

Jacqueline Downes and Robert Walker of Allens Competition Law Group joined Christopher Sanchez of Legalwise Seminars to discuss issues about competition and consumer law.

Jacqueline Downes, partner of the Allens Competition Law Group, is ranked as a leading competition and antitrust expert in Chambers, Best Lawyers, The Asia-Pacific Legal 500 and Global Competition Review. Recent commentary in Chambers Asia-Pacific singles Jacqueline out for her 'knowledge of how the authorities work especially in the merger control space' and describes her as an 'exceptional practitioner' whose 'responsiveness, sharp intelligence and ability to deliver set her apart'.

Robert Walker, partner of the Allens Competition Law Group, is a competition and consumer law specialist. He advises clients in relation to ACCC merger clearances, ACCC competition and consumer law investigations and litigation and competition and consumer law risk and compliance. Robert has particular experience securing merger clearances for cross-border transactions and acting for clients in global competition law investigations.

You can hear more from Jacqueline at the Competition and Consumer Law: New Legislation seminar, being held on Friday 15 September at Primus Hotel Sydney and from Robert at the Competition and Consumer Law: New Legislation seminar, being held on Tuesday 12 September at Intercontinental Melbourne.

You can find the full Q&A below.

What are some of the key trends and developments in competition and consumer law having an impact right now? 

Key trends and developments include the first criminal cartel prosecutions, continued use of the Tribunal as an alternative route for merger clearance, more market studies and a push from the ACCC for higher penalties for both competition and consumer law breaches. Of course, the Harper Reforms are still pending.

What will be some of the ramifications of the concerted practices amendments?

The scope of 'concerted practices' is uncertain. In the EU it has been given a very broad definition and has been used by the European Commission to prosecute a wide range of conduct, including quite novel cases such as public disclosures of pricing information. The proposed amendments only prohibit concerted practices which have the purpose, effect or likely effect of substantially lessening competition. While this hurdle will mean the prohibition is unlikely to have as broad a remit as it does in the EU, Australian businesses will need to exercise caution particularly in relation to disclosing information to competitors.  

How might the relationship between market power and conduct change after the reforms?

The reforms have two consequences: they remove the 'take advantage' of market power limb and introduce an 'effects test'. The immediate impact will be that businesses with market power will need to assess the potential effect on competition of their strategic decisions. The amendments will make it easier for the ACCC to prosecute alleged misuses of market power and we could see more novel cases being brought in Australia like the European Commission's recent investigations into Google.

What practical implications might the competition and consumer law reforms have on merger reviews and authorisations?

Parties will have two choices: informal merger review or a new process which combines the current unused ACCC formal merger clearance process with the Australian Competition Tribunal authorisation process for mergers.  Most merger parties are likely to continue to use the flexible informal clearance route. The reforms remove direct access to the Tribunal which has recently been used successfully by merger parties such as in the Tabcorp / Tatts merger authorisation.

What should practitioners keep in mind related to cartel conduct and the joint venture exception?

Following the Flight Centre decision, practitioners are increasingly having to grapple with the possibility of distribution arrangements being caught by the cartel conduct rules. This is quite novel, as most jurisdictions consider vertical restraints on a rule of reason basis.

Although the JV exception will apply to a broader range of JVs, it may be harder to rely on the exception under the proposed reforms. If the reforms are passed, the cartel provision will not only need to be for the purpose of the JV, it will also need to be reasonably necessary. This second limb is intended to narrow the exception but it is unclear how this will be applied.


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