Price disclosure laws - coming to an industry near you...

Articles Written by Sar Katdare (Partner), Sunita Kenny

On 24 March 2011, the Federal Government introduced the much-debated anti-competitive price disclosure Bill into Parliament. While the law is intended to apply to the banking sector only, there are hints it will be extended to other sectors.

The Treasurer has indicated that the new law will only "initially" apply to the banks - the suggestion being that it will, in due course, be extended to other sectors such as petrol retailing, grocery, airlines and potentially the economy at large. The ACCC's position is more explicit - it wants price disclosure laws to apply to everyone.

Key provisions

The current Bill prohibits the following disclosures:

  1. private disclosures of information relating to pricing of goods or services supplied or acquired in a market, to a competitor in that market, regardless of whether the information is otherwise available (and regardless of the effect on competition).
  2. disclosures that have the substantial purpose of substantially lessen competition in a market - these disclosures relate to information on price (including discounts, allowances, rebates and credits), capacity, or any aspect of commercial strategy relating to goods or services supplied or acquired.

The offences apply to disclosing rather than receiving information. Recipients of such information will not commit an offence or be knowingly concerned in a disclosure, if they "merely" receive the information.

For companies, the maximum penalty for the new offences will be the greater of $10 million, three times the value of benefits derived from the contravention or 10% of annual group turnover in the 12 months before the contravention. For individuals, the maximum penalty will be $500,000 and potential disqualification from managing corporations.

Exceptions

Exceptions to the private disclosure offence include disclosures between joint venture participants, disclosures in a supply-customer relationship (other than those made purely to avoid the price disclosure provisions) and disclosures relating to a share or asset sale arrangement.

Private disclosures are not actionable if the discloser did not know that the recipient was a competitor.

Exceptions to both disclosure offences include disclosures between related bodies corporate, disclosures made for the purpose of complying with continuous disclosure obligations and certain disclosures made in the context of collective bargaining or authorised by law (within 10 years of the Bill receiving royal assent).

Immunity

You can seek immunity from the private disclosure offence by lodging a notice with the ACCC on the basis that the public benefits of disclosure outweigh any anti-competitive detriments. Immunity takes effect within 14 days unless the ACCC otherwise determines. You can also seek ACCC authorisation for a disclosure on the basis that it would be likely to result in public benefits would outweigh anticompetitive detriments.

What you should do now?

The new laws are several months away from commencing operation and it is uncertain whether they will be enacted in their present broad form. Despite this, the proposed introduction of this law into Australia is a good reminder that you should ensure that any current communications with competitors about price, capacity or strategy are made for commercially legitimate reasons and such reasons are appropriately reflected in any internal documentation.

The ACCC remains extremely vigilant about price exchanges between competitors under the existing law.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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