On 6 May 2013 the ACCC issued Draft Authorisation Guidelines 2013 for public comment.

Competition Law is a complex area of law. Sometimes it can be difficult for businesses (and even the most skilled lawyers) to understand whether particular business conduct infringes aspects of the Competition and Consumer Act (Act).

As such, the Act has incorporated an “authorisation process”. That is, a business can seek authorisation for conduct or arrangements that may risk breaching provisions of the Act so long as there is an overriding public benefit to the conduct.

There are numerous and quite varied instances where authorisations have been granted. Some recent examples include:

  • doctors and/or dentists who have a shared practice and who wish to set prices
  • airlines which wish to coordinate passenger or freight operations
  • coal producers which wish to collectively negotiate usage of rail and ports.

Recently the ACCC issued Draft Authorisation Guidelines 2013 for public comment. The last substantive review occurred in 2007.

The ACCC reviews the guidelines for a number of reasons – it seeks to work with businesses and lawyers to ensure that the guidelines are practical, clear and explain the processes and analytical framework applied by the ACCC in assessing authorisation applications. This includes what may constitute public benefit and public detriment. Reviews of the guidelines also remind businesses and raise awareness of the approval processes available to businesses.

The Draft Authorisation Guidelines 2013 provide a comprehensive update, based on the recent experiences of the ACCC and decisions of the Australian Competition Tribunal.

  • Key changes to the Draft Authorisation Guidelines 2013 include:
  • clarification of the ACCC’s approach in identifying the ‘future with and without’ which assists in assessing the likely public benefit and public detriment from conduct for which authorisation is sought following a relevant Tribunal decision
  • 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 following a relevant Tribunal decision
  • clarification of the ACCC’s power to impose conditions when it grants authorisation.

The ACCC has invited submissions on the Draft Authorisation Guidelines 2013. Please click here.

If you would like to discuss with us issues in relation to authorisation for particular conduct under the Act, or alternatively the Draft Authorisation Guidelines 2013, please do not hesitate to contact us.

The closing date for submissions is Friday 31 May 2013. Written submissions should be forwarded to adjudication@accc.gov.au