The Harper Review is the most comprehensive review of Australia’s competition  policy in over 20 years. The Review was announced in late 2013 and is expected  to deliver its final report in early 2015. Given that we are at the logical half way  point, the Review has provided something of a half time report by revealing the key  concerns of stakeholders who had made submissions to the Review.

Briefly stated, the terms of reference require the Review to:

  • identify regulations and other impediments that restrict competition and reduce productivity
  • examine the competition provisions of the Competition and Consumer Act 2010 (CCA)
  • examine the competition provisions and the special protections for small business in the CCA
  • consider whether the structure and powers of the competition institutions remain appropriate
  • review government involvement in markets.

The Review has met with 60 stakeholder groups and there have also been consultation forums.

283 non-confidential submissions have been made in response to the Review’s Issue Paper, released in April 2014 – they are available online at – www. competitionpolicyreview.gov.au.

In light of its receipt of comprehensive submissions from a broad range of businesses, governments and individuals, the Review has summarised the key concerns raised in the submissions. The Review has revealed that the top 5 concerns identified by respondents so far have related to:

  • Competition Law – whether the law is still fit for purpose, particularly in relation to globalisation and digital economy.
  • Small business – with a focus on grocery and energy markets.
  • Competitive neutrality – where businesses  compete  with  government (especially local Government), whether there is a level playing field.
  • ACCC – investigative powers, merger reviews, access to justice.
  • Supermarkets – concern over the power of Woolworths and Coles, the arrival of competition in the form of Aldi and CostCo, trading hours and inconsistent liquor licensing laws across the states. Surprisingly the Review noted there were few submissions on pricing.

The key themes of the submissions made by the ACCC were in relation to:

  • Reinvigorating Australia’s Competition Policy
  • Microeconomic Reform
  • Competition and Consumer Law
  • Institutions and Implementation.

The ACCC’s submissions contain a number of recommendations that would broaden the scope of its powers, including in relation to the circumstances in which it can issue section 155 Notices that compel the production of documents, and in relation to the approval of proposed mergers. The ACCC also recommends changes to the misuse of market power provisions of the CCA to an effects test rather than a purpose test in relation to the substantial lessening of competition.

A draft report of the Review is due at the end of September 2014. The final report is due to be delivered to the Federal Government in early 2015.