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Name changes and fiddling: the TPA and the CCA

Name changes and fiddling: the TPA and the CCA

Michael Bradley, managing partner at Marque Lawyers, gives the low-down on price fixing, TPA fiddling, and the ACCC.

Who wouldn’t want to be a trade practices, sorry competition and consumer, lawyer?  We’ve got the second most frequently amended Commonwealth Act (after the Tax Act), and the second most amusing regulator (after ASIC), and it seems that nobody can leave it well enough alone.

The latest is a bemusing proposed amendment to the much-abused Part IV, seeking to create a whole new offence called “price signalling”.  This occurs when the CEO of Westpac gives a press conference and says “We might increase our interest rate”.   

Apparently, absent of subliminal messaging, it might never occur to the other banks to put their rates up too. So, not only will it be illegal (and evil) for competitors to fix prices by agreement or understanding, they won’t even be able to signal to each other their possible future intentions about what they might do to their prices, lest that influence their competitors to do the same thing.

Of course, it’s also possible that signalling your price change ahead of time might actually influence your competitors to engage in competitive behaviour - like for example dropping their prices to get in ahead of you or make you look stupid.  How about we just make all price increases in all markets subject to ACCC overview, that’d be awesome.

That one probably won’t pass, because it’s just on the wrong side of the Really Dumb Ideas line and the banks will lobby it out of the park.  But it’s no more pointless than quite a lot of the fiddling the TPA has seen over the past few years.

Most excitingly of course, it’s about to get a whole new name! Trade Practices will be no more, apparently it failed focus group testing in the Western Sydney marginals, so now it’ll be called the Competition & Consumer Act, or the CCA (much to the annoyance of the Court of Criminal Appeal and Coca Cola Amatil, actually did you know that “CCA” brings up 24.6 million hits on Google compared to only 5.98 million for “TPA”, so I think we’re heading for a world of acronymic pain).

But why stop with a name change, they’re also repealing the whole of Parts IVA, V, VA and VC and dumping them into a schedule to the Act as the “Australian Consumer Law”.  So forget about using section 52 as shorthand for “the cause of action you plead when you don’t have a cause of action”, it’s now going to be section 18 of Schedule 1 (or section 18 of the ACL – 11.5 million Google hits).  How can they do this so blithely, after 36 years of glorious s52 history?  Pity the poor researcher now.

You didn’t know there was a Part VC?  No, I’m pretty sure the ACCC doesn’t either.  Or if they do, they like to pretend it isn’t there.  It was chucked in a few years back, basically a complete replica of Part V (except for s52) but making everything a criminal offence as well as just a civil infringement.  It never gets used, and for good reason. It’s otiose.

There’s way more.  “Cartel conduct” was invented not long ago and chucked into Part IV with such attractive section numbers as 44ZZRF, as the latest attempt to find a way for the ACCC to win a price fixing case without having to coerce a guilty plea.  We now have the prison sentences for which everyone spent so long begging, but nobody’s in prison.  

Meanwhile, the fiddling with the predatory pricing provisions has continued, adding new sections which the ACCC didn’t want and which, predictably, made no difference.  Still no successful contested prosecutions, ever.  Maybe when the onus of proof finally gets reversed and you have to prove that you didn’t intend to destroy the competition when you lowered your prices below cost.  (Trust me, that one will turn up eventually, it has irresistible charm).

My favourite amendment remains the one where they carved “financial products and services” out of Part V and copied all the same sections into the ASIC Act, taking the corresponding powers away from the ACCC.  I’m pretty sure that ASIC didn’t know they had these new powers for the first few years.  So now we have identical provisions (meaning they both have to be amended each time there’s a new bright idea) being regulated by two different agencies (good thing they’re close friends), depending on what kind of product or service we’re talking about.  And why?  No good reason at all.  That one, in my view, takes the cake.

God love the legislators.  The freshly amended TPA/CCA will be out again soon, and I’m predicting two volumes. Now that’s progress.

Michael Bradley is the managing partner of Marque Lawyers.

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