7 July 2011: The House of Representatives has today passed the Government's proposed Competition and Consumer Amendment Bill (No. 1) 2011 (Bill), to amend the Competition and Consumer Act 2010 with some significant amendments to the proposed per se prohibition on private disclosures between competitors in s 44ZZW (Private Disclosure Prohibition), as follows:
- Disclosures in the ordinary course of business: The Private Disclosure Prohibition will be limited to conduct that is not in the ordinary course of business. That is, no offence is committed unless the ACCC (or other plaintiff) prosecution establishes that the alleged conduct is not in the ordinary course of business, in addition to the other elements that must be established. This is consistent with the Government's statements that the proposed law is not intended to prohibit legitimate business activities.
- Additional exceptions for a range of legitimate banking activities: Further exceptions to the Private Disclosure Prohibition have also been added, including in relation to corporate workouts, syndicated and other multiparty lending, as well as communications between banks and brokers or financial planners.
- Prescribed goods and services: The proposed legislation will only apply to prescribed goods and services. The original version of the Bill did not provide for any process or criteria by which goods or services could be prescribed. The amendment will mean that before deciding to extend the application of the law beyond the goods and services to which it initially will be applied (intended to be in the banking sector), the Government will now be required to prescribe and follow a process for making those decisions.
In its amended form, the Bill is supported by both the Government and the Coalition. Before the Bill can receive Royal Assent and become law it must be passed by the Senate.
For your convenience, the amendments as agreed can be viewed here and here. Two Supplementary Explanatory Memorandums have also been issued. Please click here and here to access them. Additionally, the amended text of the Bill is available here.