On 6 May 2013 the ACCC released revised Draft Authorisation Guidelines for public comment.
The Competition and Consumer Act 2010 permits the ACCC to authorise certain conduct which may otherwise contravene the competition provisions of the Act (other than the misuse of market power and some merger provisions), if the ACCC is satisfied that the public benefit outweighs any public detriment. Authorisation provides statutory protection from court action for that conduct.
The ACCC first released an Authorisation Guide in 2007 and it has been amended and updated a number of times since then. The purpose of this regulatory guidance is to help applicants better understand the authorisation process.
In a media release announcing the release of the revised Guidelines, Commissioner Dr Jill Walker states “the revised authorisation guidelines are designed to be a reliable, clear and comprehensive guide to explain the authorisation process in the Act and the analytical framework applied by the ACCC in assessing applications, including public benefit and detriment.”
While the law has not changed, the ACCC’s approach to authorisations is being updated to reflect its experiences and determinations of the Australian Competition Tribunal. Key changes in the revised Draft Authorisation Guidelines include:
- clarification of the ACCC’s approach to identifying the ‘future with and without’ test which assists in assessing the likely public benefit and public detriment from conduct for which authorisation is sought following the decision of the Australian Competition Tribunal in Re Medicines;
- explanation of the current practice of the ACCC in adopting a market failure framework for assessing public benefits and detriments;
- recognition that the ACCC’s power to grant authorisation is discretionary again following the Re Medicines decision; and
- clarification of the ACCC’s power to impose conditions when it grants authorisation.
Submissions on the Draft Authorisation Guidelines are due Friday 31 May 2013.