In this issue: In touch: Competition law update is a regular publication by the Allens Competition group to keep you informed of the latest news and developments in this area. For more information or for legal advice, please contact one of the Partners listed below. We look forward to hearing from you.
'Root & branch' review news
On 23 September 2014, the Review Panel for the 'root & branch' review of competition law and policy released its draft report, along with a series of infographics outlining the components of the draft report, and videos from members of the Panel commenting on the draft report. Read the Allens Client Update Competition Policy 'root and branch' review draft report released and listen to the AllensVideo Update on the major proposals and potential implications for business.
Submissions on the draft report are due by 17 November 2014. We will continue to keep you updated on the review's progress. If you would like to discuss what the review will mean for you, please let us know. Read the speech and the ACCC media release.
Recently, ACCC Chairman Rod Sims has commented on the draft report, raising questions in relation to the Review Panel's proposal to form a separate access and pricing regulator to undertake roles currently performed by the ACCC and the Australian Electricity Regulator, and the proposed changes to the ACCC's decision-making structure. Read the ACCC media release.
ACCC publishes updated immunity policy to uncover cartel conduct
In previous editions of In touch, we reported that the ACCC had released a discussion paper asking for submissions in relation to a number of key issues that had arisen from its review of the existing Immunity Policy for Cartel Conduct. In April 2014, the ACCC released a draft of its new Immunity and Cooperation Policy for Cartel Conduct (the Policy) and a supplementary Frequently Asked Questions document for public comment (read In touch). The last substantive review of the Policy occurred in 2009 and coincided with the introduction of criminal sanctions for cartel conduct.
The ACCC has now published the final version of the Policy, incorporating the following key changes:
- a two-step process for the Commonwealth Director of Public Prosecutions (CDPP) to grant criminal immunity for cartel conduct. Under this process, the CDPP will ordinarily issue a letter of comfort first and subsequently provide an undertaking under the Director of Public Prosecutions Act 1983 (Cth);
- the removal of 'clear leader' as a disqualification for immunity; and
- the consolidation of various publications into one policy document and a set of FAQs.
Under the Policy, cartel participants may seek both civil and criminal immunity for cartel conduct. The ACCC is responsible for granting civil immunity, while the CDPP is responsible for granting criminal immunity. The CDPP's approach to granting criminal immunity is set out in Annexure B to the Prosecution Policy of the Commonwealth which was updated in September 2014. Read the ACCC media release. If you would like to discuss what these changes may mean for your business, please contact us.
For those doing business in New Zealand
The New Zealand Commerce Commission (NZCC) has released draft guidelines on the new unfair contract terms (UCT) provisions of the Fair Trading Act 1986 (NZ). The UCT provisions apply to all standard form contracts entered into after 17 March 2015 (and to those contracts that are renewed or varied after that date), and represent a significant change to the existing consumer protection provisions in the Fair Trading Act.
The UCT provisions will apply to standard form consumer contracts, and provide that a term will be unfair if it:
- would cause a 'significant imbalance' in the parties' rights and obligations;
- is not reasonably necessary to protect the legitimate interests of the party advantaged by it; and
- would cause detriment (financial or otherwise) to a party if relied on.
The draft guidelines shed light on how the NZCC intends to interpret and enforce the new provisions. The NZCC is seeking feedback from businesses and consumers, with final guidelines due to be released in November 2014. Read the NZCC Draft Unfair Contract Terms Guidelines.
ACCC to focus on sale of Queensland electricity assets – 13 Oct 2014
In a speech to the Energy Users’ Association of Australia, ACCC Chairman Rod Sims said the Queensland generation sector is one of the most highly concentrated in Australia, and that, accordingly, Queensland electricity generation assets will be the ACCC’s focus when the privatisation of Queensland electricity assets is triggered. Mr Sims called on energy industry participants to put forward their views during merger review processes.
He also provided an update on how electricity, natural gas and synthetic greenhouse gas businesses have responded to their carbon tax repeal obligations, noting that compliance with the substantiation requirements has been high. Read the speech and the ACCC media release.
ACCC exempts Graincorp’s Newcastle port terminal under new wheat code – 2 Oct 2014
The ACCC has granted an exemption for GrainCorp’s Carrington terminal at the Port of Newcastle under the new mandatory Code on bulk wheat terminal access. The Code commenced on 30 September 2014, replacing the previous regime of access undertakings, and regulates monopoly bulk wheat port terminal operators to ensure that exporters have fair and transparent access to terminal facilities. The exemption is in line with the ACCC’s decision in June 2014 to approve a variation to GrainCorp’s previous 2011 access undertaking to reduce regulation for the Carrington terminal. The ACCC considers that granting the exemption is appropriate because there is competition at the port and across the supply chain in upstream and downstream markets to limit GrainCorp’s market power. The exemption commenced on 1 October 2014 and means that GrainCorp’s Carrington facility will continue to be subject to a minimal level of regulation under the Code. Read the ACCC media release.
ACCC begins criminal prosecution for failure to comply with s155 notice – 2 Oct 2014
The ACCC has commenced criminal proceedings against Mr Robert Paul Davies, the sole director of Natural Food Vending Pty Ltd (NFV), for allegedly aiding and abetting the failure by NFV to comply with a compulsory notice issued by the ACCC in 2010 under s155 of the Trade Practices Act 1974 (Cth) requiring NFV to provide certain information and documents.
The notice was issued as part of the ACCC’s investigation into allegations that NFV made false or misleading representations in the promotion and sale of vending machine business opportunities. NFV appointed a liquidator on the morning of the day that the response to the s155 notice was due, and failed to comply with the notice.
The ACCC alleges that Mr Davies aided, abetted, counselled or procured NFV’s failure to comply, including by failing to inform the liquidator of the existence of the notice or of the ACCC’s investigation. A directions hearing is set for 7 November 2014. Read the ACCC media release.
ACCC will not oppose Reckitt Benckiser’s proposed brand acquisition – 2 Oct 2014
The ACCC will not oppose Reckitt Benckiser Brands Limited's (Reckitt) proposed acquisition of the K-Y brand from Johnson & Johnson.
Reckitt and K-Y overlap in the supply of personal lubricant products. Reckitt owns the Durex brand, including its personal lubricant products, and K-Y is a well-recognised personal lubricant brand. The ACCC’s public review focused on whether, as a result of the acquisition, Reckitt would be able to increase the price of Durex and K-Y-branded personal lubricant products. The ACCC determined that the presence of alternative suppliers is likely to constrain Reckitt’s ability to increase prices following the acquisition. The ACCC also determined that the acquisition was unlikely to raise competition concerns in any other markets in which Reckitt is active. Read theACCC media release.
ACCC will not oppose Tabcorp’s proposed acquisition of ACTTAB – 2 Oct 2014
The ACCC will not oppose Tabcorp Group’s proposed acquisition of the ACTTAB business.
The ACCC’s public review focused on whether, as a result of the proposed acquisition, Tabcorp would be able to offer punters less favourable odds, increase its commission fees or otherwise degrade the quality of its wagering products. The ACCC also considered whether there would be any impact on the supply of ‘pooling services’.
The ACCC considered that ACTTAB has not been a vigorous competitor in wagering markets and the proposed acquisition would only result in a marginal increase in market concentration. While Tabcorp and ACTTAB both offer pari-mutuel and fixed odds wagering products to punters nationally via the telephone and internet, there is limited direct competitive overlap in their local retail outlets. They each have exclusive licences to supply off-course wagering services in their respective ‘home’ states – ACTTAB in the ACT, and Tabcorp in Victoria and NSW. The ACCC concluded that Tabcorp would continue to be competitively constrained by the corporate bookmakers and other state-based operators. In addition, the ACCC considers the proposed acquisition will not have a material impact on the national supply of pooling services in Australia. Read the ACCC media release.
ACCC will not oppose Expedia’s proposed acquisition of Wotif – 2 Oct 2014
The ACCC will not oppose the proposed acquisition by Expedia, Inc. of Wotif.com Holdings Ltd.
In September 2014, the ACCC released a Statement of Issues seeking feedback in relation to the proposed acquisition – read theACCC media release.
The ACCC noted concerns raised by market participants that Wotif was an important source of bookings for some accommodation providers and that its removal from the Australian market may result in them paying higher commission rates to online travel agents (OTAs). The ACCC found that there has been considerable change in the competitive dynamics of the online accommodation distribution market recently, including new entry by competitors and business models such as Booking.com, which has quickly become the largest OTA in Australia. The ACCC also noted the increasing importance of metasearch sites such as TripAdvisor and Google Hotels Finder, which aggregate the offers of hotels and numerous OTAs in one place for consumers to choose from, and which facilitate hotels’ ability to promote themselves alongside OTAs and transact directly with consumers. The ACCC considered that the acquisition was unlikely to diminish the dynamic nature of the industry, and that disruptive developments from smaller OTAs and from companies in related online sectors can be expected to constrain Expedia in the future.
The ACCC concluded that the proposed acquisition was not likely to result in a substantial lessening of competition, and will publish a Public Competition Assessment outlining its reasons in more detail. Read the ACCC media release.
ACCC Chairman Rod Sims speaks about proposed grocery code – 1 Oct 2014
In his speech to the Australian Food and Grocery Council's Industry Leaders Forum ACCC Chairman Rod Sims addressed the following issues:
- the proposed grocery code being developed by industry participants to address unfair practices in the grocery sector;
- the Harper root & branch review; and
- the carbon tax repeal, product safety and competition cases.
ACCC will not oppose Wilmar and First Pacific's proposed acquisition of Goodman Fielder – 25 Sep 2014
The ACCC will not oppose Wilmar and First Pacific’s acquisition of Goodman Fielder Limited. Wilmar and Goodman overlap in the supply of packaged edible oils to Australian retailers, in particular, the supply of vegetable oils. Goodman is the largest supplier of branded packaged edible oils to retailers. Wilmar supplies imported packaged oils that supermarkets sell under their private labels. The ACCC’s public review focused on whether, as a result of the proposed acquisition, Wilmar and/or Goodman would be able to raise the prices of packaged vegetable oils. The ACCC determined that the proposed acquisition was unlikely to raise competition concerns in any other markets in which Goodman or Wilmar are active. Read the ACCC media release.
ACCC will not oppose the proposed acquisition of three Supa IGA stores in WA by Coles – 18 Sep 2014
The ACCC will not oppose the acquisition of three Progressive Supa IGA supermarkets located in Bunbury, Halls Head, and Dianella in Western Australia by Coles/Wesfarmers. Metcash Limited has a 45 per cent interest in the Progressive supermarkets.
The ACCC analysed the competitive dynamic that would likely exist if the acquisition by Coles does not proceed, noting the decline in sales at the Progressive stores and the potential for the stores to be closed without the acquisition. The ACCC also noted Metcash’s willingness to sell the stores, despite the fact that Metcash will lose grocery sales at the wholesale level. The ACCC concluded that the proposed acquisition of these three stores is not likely to result in a substantial lessening of competition in the relevant local markets for supermarket retailing. Read the ACCC media release.
ACCC takes action against Woolworths for unsafe products – 17 Sep 2014
The ACCC has commenced proceedings in the Federal Court against Woolworths Ltd alleging that Woolworths made false or misleading representations about the safety of certain Woolworths products and that Woolworths failed to file certain mandatory product safety reports as required by the ACL. These products have all subsequently been recalled by Woolworths.
The ACCC is seeking pecuniary penalties, declarations, injunctions, findings of fact, publicity orders, an order that Woolworths implement a product safety compliance program, an order that Woolworths publish information to raise consumer awareness about product safety and how to report safety incidents, and costs. The matter has been set down for a directions hearing on 4 November 2014. Read the ACCC media release.
ACCC begins criminal prosecution against Michael Anthony Boyle for allegedly providing false or misleading evidence – 16 Sep 2014
The ACCC has commenced criminal proceedings in the Federal Court against Mr Michael Boyle for allegedly providing false or misleading evidence in the course of an investigation into Sensaslim Australia Pty Ltd.
In 2011, the ACCC issued a notice under s155 of the Competition and Consumer Act 2010 (Cth) requiring Mr Boyle to appear and give evidence, as part of the ACCC's investigation into the allegedly misleading and deceptive conduct and false representations about the identity of Sensaslim officers, the Sensaslim product and the business opportunity offered by Sensaslim. The investigation resulted in civil proceedings against Sensaslim and several individuals, including Mr Boyle, commenced by the ACCC in July 2011.
In these proceedings, the ACCC alleges that, during the s155 examination, Mr Boyle knowingly gave false or misleading evidence about his knowledge of Mr Peter Foster’s involvement with Sensaslim. A directions hearing has been set down for 3 November 2014. Read the ACCC media release.
Our economy needs more competition on its merits – 12 Sep 2014
In his address to the Law Council of Australia's Competition and Consumer Committee’s Annual General Meeting, ACCC Chairman Rod Sims highlighted gaps in current competition law that may potentially damage economic efficiency and called for a strong competition policy in Australia to drive economic efficiency and performance. The ACCC has proposed three options for changes to s46 of the CCA and has acknowledged there may be other ways to fix these widely-recognised problems. Read the speech and ACCC media release.
ACCC not to take action to block TPG's Fibre to the Basement network rollout – 11 Sep 2014
The ACCC has completed its investigation into a complaint that TPG Limited’s plans to connect large apartment buildings in metropolitan areas to its existing fibre networks, and to use fibre-to-the-basement technology to supply high-speed broadband services to residents of those buildings, would be in breach of the NBN 'level playing field' provisions (NBN provisions) in theTelecommunications Act 1997 (Cth).
The NBN provisions prohibit the use of networks other than the NBN to supply high-speed broadband services to small business or residential customers, unless the network operator supplies on a wholesale basis only and is subject to open access obligations. However, networks that were capable of being used to supply high-speed broadband services to small business or residential customers as at 1 January 2011 are not caught by the NBN provisions, provided they are not extended more than a kilometre from the network footprint as it was at 1 January 2011. The ACCC does not intend to take any action to prevent TPG from implementing its plans. Read the ACCC media release.
ACCC will not oppose acquisition of All Homes by Fairfax – 4 Sep 2014
The ACCC will not oppose the acquisition of All Homes Pty Limited by Fairfax Media Limited. Fairfax and All Homes both operate online residential listings businesses in Australia through their websites domain.com.au and allhomes.com.au respectively. Fairfax also owns the only daily newspaper in the ACT, the Canberra Times. The ACCC noted that, in comparison to its presence in other states, Domain was a weak competitor in the ACT and its market position was unlikely to change in the foreseeable future. It was also significant that All Homes’ presence was limited in other Australian states. After analysing confidential agreements between All Homes and real estate agents, the ACCC determined that following the acquisition, there would be no restrictions to prevent real estate agents from listing on a range of competing websites, including realestate.com.au. Read the ACCC media release.
* The summaries provided are a condensed version of the relevant ACCC media release linked at the conclusion of each news item.
Federal Court continues its crackdown on misleading health check promotion
ACCC v Breast Check Pty Ltd (No 2)  FCA 1068 (Justice Barker, 3 October 2014)
- The court will consider the range of the distribution of contravening material as a factor when assessing the amount of a pecuniary penalty.
Breast Check was a clinic that provided a service to capture images of customer's breasts using certain technology. Breast Check published three pamphlets that were distributed in the clinic waiting room and posted to customers who expressed an interest in the breast imaging services over the phone.
In March 2014, Justice Barker found that the pamphlets were false and misleading and contained misrepresentations in relation to the services provided at the Breast Check clinic, and that the former director, Dr Alexandra Boyd, was knowingly concerned in the conduct of Breast Check.
In this proceeding Justice Barker made orders in relation to the findings. The ACCC sought declarations, injunctions, penalties and a publication order in relation to the conduct. Breast Check disputed the injunction, penalty and corrective orders sought by the ACCC.
Justice Barker accepted that injunctive relief was appropriate in the public interest, even where Breast Check is no longer engaged in the business that led to the contraventions in question.
(b) Pecuniary penalty
The ACCC sought penalties of $250,000 for Breast Check and $50,000 against Dr Boyd. Justice Barker noted the following as relevant considerations:
- the publication of the pamphlets occurred in relatively circumscribed circumstances to persons who sought it out at the clinic or by phone and for a period of seven months; and
- the current financial position of Breast Check and Dr Boyd.
Justice Barker ordered Breast Check to pay a penalty of $75,000 and Dr Boyd to pay a penalty of $25,000 for being knowingly concerned or involved in Breast Check’s contraventions.
(c) Other corrective orders
Justice Barker did not make the publication order or the order for sealed reasons for judgment sought by the ACCC.
Read the ACCC media release.
Deliberate and reckless contraventions of the ACL will be regarded seriously in assessing penalties and other orders
ACCC v Zen Telecom Pty Ltd  FCA 1049 (Justice Barker, 30 September 2014)
- The court will carefully consider the appropriateness of pecuniary penalties and other orders, even where the parties have agreed on those proposals, to ensure that they are the appropriate sanctions for the contraventions and to send a message to the community that such contraventions will be heavily penalised.
Zen Telecom is a supplier of telephone, broadband, mobile and mobile broadband services across Australia. Zen Telecom’s methodology was to cold-call consumers to promote the sale of fixed line telecommunications services. During the first part of a number of calls, representations were made that the call was from a business or company associated with Telstra. This part of the calls was not recorded by Zen Telecom, although the second part of the calls, which involved negotiating an agreement, was recorded.
The ACCC commenced proceedings against Zen Telecom in February 2014, alleging that in the course of promoting and selling its telecommunications services in calls made between September 2012 and August 2013 Zen Telecom made false or misleading representations regarding its association with Telstra and contravened the unsolicited consumer agreement provisions of the ACL. The ACCC sought orders for declaratory relief, injunctions, pecuniary penalties, non-punitive orders and costs. The ACCC and Zen Telecom made joint submissions and filed a statement of agreed facts and admissions.
Justice Barker declared that Zen Telecom had engaged in misleading conduct and made false and misleading representations by representing that it was acting on behalf of Telstra or a business or company associated with Telstra, when it did not have any affiliation or connection to Telstra. The court also found that Zen Telecom had breached the unsolicited consumer agreement provisions of the ACL, including by failing to provide consumers with a copy of their contract within five business days, failing to provide consumers with an agreement that clearly stated Zen Telecom’s address and informed consumers of their cooling-off rights and supplying services to consumers during the 10-day cooling-off period.
Justice Barker made the declarations and injunctive orders sought by the parties, and ordered Zen Telecom to pay pecuniary penalties of $225,000. Justice Barker also ordered Zen Telecom to publish corrective notices on its websites and in daily papers across Australia, and to pay $25,000 towards the ACCC’s costs. Read the ACCC media release.
Use of misleading wording can be penalised even when it complies with industry guidance
ACCC v Pirovic Enterprises Pty Ltd (No 2)  FCA 1028 (Justice Flick, 23 September 2014)
- The court will penalise misleading drafting even where the wording complies with the relevant industry guidance.
Pirovic Enterprises Pty Ltd is a producer and supplier of eggs to retailers. From January 2012 to January 2014, Pirovic advertised its eggs in cartons which displayed the words 'free range' and images of hens on open grassy pastures. On its website, Pirovic promoted its eggs as 'free range', claiming that its hens 'roam freely on green pastures during the day and return to the safety of large barns at night'. It also stated that free range eggs were laid 'from hens that live in large barns and have the opportunity to go outside and roam and forage within a ranging area'. The total number of eggs Pirovic labelled as 'free range' was approximately 1.6 million dozen each year.
In proceedings brought by the ACCC, the Federal Court found these representations were misleading as the eggs supplied by Pirovic were produced by hens, most of which did not move about on an open range. The court reached this conclusion after considering stocking densities inside the barns where the hens were housed, the flock sizes inside those barns, as well as the number and size of the physical openings to the open range.
The court did note, however, that the conduct of Pirovic was not engaged in or pursued with indifference. In marketing its eggs as 'free range', Pirovic had regard to the fact that its farming conditions were consistent with the practices of most other competitors that promoted their eggs as 'free range' and that its labelling practices had been deemed to comply with the Australian Egg Corporation's labelling guide.
The ACCC and Pirovic agreed on joint submissions and proposed orders to be put to the court for consideration. The court declared, by consent, that Pirovic had engaged in misleading conduct and made misleading representations in labelling and promoting its eggs as ‘free range’. The court also ordered Pirovic to implement a compliance program and to pay an agreed penalty of $300,000. Read theACCC media release.
Different representations can form one extended course of conduct for the purpose of assessing penalties
ACCC v Safe Breast Imaging Pty Ltd (No 2)  FCA 998 (Justice Barker, 16 September 2014)
- The court can treat different representations as forming part of one extended course of conduct for the purpose of assessing the appropriate penalty.
- False representations regarding the accuracy of medical services will attract a higher pecuniary penalty due to the serious health and safety risks posed to consumers.
Earlier this year, the Federal Court found that Safe Breast Imaging (SBI) had falsely represented that breast imaging performed with a thermography device alone, or in conjunction with a MEM device, could provide an adequate scientific basis for:
- assessing whether a customer was at risk from breast cancer and the level of that risk; and
- assuring a customer that they did not have breast cancer.
The court also found that SBI had represented that medical practitioners were involved in the interpretation of the images and preparation of a medical report, when this was in fact untrue.
The ACCC sought orders that SBI pay a pecuniary penalty of $550,000 and that its sole director, Ms Joanne Firth, pay a pecuniary penalty of $110,000. The ACCC also submitted that SBI's representations in relation to:
- the scientific basis of the MEM device; and
- the involvement of qualified medical practitioners,
were of a distinct character and should be treated as two separate courses of conduct in assessing the appropriate penalty.
Justice Barker did not consider accept the ACCC's separation of the two types of representations, holding that SBI had engaged in one extended course of conduct which involved it marketing to the public, in various ways, the breast imaging service it offered, and both types of representations were integral to this conduct.
Although there was no evidence of actual injury, illness or harm to any particular person to whom the representations were made, Justice Barker noted that this was a case involving the risk of serious harm to the health and safety of consumers. The conduct of SBI had the potential to pose a grave risk to consumers, who were, or were likely to be, misled into believing the MEM device could be used for the purposes represented. Further, the representation that registered doctors were involved in the evaluation of the images or the writing of the reports, when they were not, and any comfort that consumers drew from that, would have been entirely misplaced. While Justice Barker noted that the penalties could be perceived as harsh, he emphasised the importance for women interested in breast imaging services to be able to make informed medical decisions, based on accurate claims made by medical service suppliers.
Justice Barker ordered SBI to pay a penalty of $200,000 for making false representations in breach of the ACL. Justice Barker ordered Ms Firth to pay $50,000 for her involvement in SBI's contraventions and disqualified her from managing corporations for four years. Justice Barker also ordered SBI and Ms Firth to post notices on their Facebook pages outlining the court’s findings. Read the ACCC media release.
Court considers impact of misrepresentations by large market player on small market player
Seafolly Pty Ltd v Madden (No 4)  FCA 980 (Justice Tracey, 12 September 2014)
- The court will penalise companies that go beyond what it considers necessary to defend their commercial reputation when making representations about other businesses.
This case is the latest in the dispute between Seafolly and Ms Leah Madden, designer and owner of White Sands swimwear. InMadden v Seafolly Pty Ltd  FCAFC 30 (read In Touch), the Full Federal Court found that Seafolly had contravened s52 of the Trade Practices Act by issuing two press releases which claimed, among other things, that Ms Madden had sought to maliciously injure Seafolly by initiating a claim alleging that Seafolly had copied several of her swimwear designs. Extracts from these press releases were quoted in a number of online fashion publications and read by hundreds or thousands of viewers. The Full Court concluded that Seafolly's claim, in relation to Ms Madden's 'malicious' intentions, was false as Ms Madden had believed in the truth of the 'copying' allegations.
The case was sent back to the trial judge to assess Ms Madden's damages. Ms Madden argued that damages should not be less than $70,000. She referred to the effects of the adverse publicity on her business, as well as her concerns that business and personal acquaintances would perceive her to be 'dishonest' and a 'liar'. Seafolly argued that Ms Madden was not entitled to damages, or alternatively, that any award should be nominal.
Justice Tracey considered that an award of $40,000 was appropriate and proportionate having regard to the damage sustained by Ms Madden. The allegations made by Seafolly were serious misrepresentations and went beyond what was necessary in order to defend the company against Ms Madden's allegations. Readers of the publication would have given greater credence to Seafolly's claim, given its size and standing in the fashion industry.
Justice Tracey also accepted that Ms Madden was entitled to compensation for the hurt and offence suffered as a result of Seafolly's misrepresentations. However, it was relevant to the assessment of damages that Ms Madden had not provided specific evidence of any individuals acting differently toward her as a result of the press releases. Justice Tracey also rejected the suggestion that a decline in orders for White Sands swimwear was attributable to the press releases.
The Harper Review is a significant review of Australia's competition laws and policy. Its draft report just released contains many recommendations that could have significant ramifications on competition law enforcement in Australia.