Low hurdles to extend price signalling laws to other sectors

Articles Written by Sar Katdare (Partner)

On 6 June 2012, the new anti-competitive price signalling laws will come into effect. While the Government at this stage only intends to apply these laws to the banking sector, recently proposed regulations demonstrate that the process pursuant to which the new laws may be applied to other industries is uncertain and entirely discretionary.

Broad discretion to extend price signalling to other sectors

There is no fixed consultation process or timelines in determining whether the new price signalling laws should be extended to other industries. While it is unlikely that the Minister would extend the new laws to specific sectors without giving businesses in those sectors the opportunity for comment, no recognised committees have been established and there is no guidance on how long consultations may take.

The proposed regulations provide examples of processes that "could" be implemented as part of a consultation process but there is no requirement for the Minister to follow such processes. Rather, the Minister need only be satisfied that to the extent that "any consultation that is considered by the Minister to be appropriate and that is reasonably practicable to undertake, has been undertaken." This language leaves it open for the Minister to determine whether any consultation is necessary and if so, what process is appropriate. Once undertaken, it would be very unlikely that the Minister would not be satisfied by a process that the Minister considered was appropriate to take in the first place.

Coming to your industry soon...

The ACCC strongly supports the application of the new price signalling laws to all sectors. The Opposition Minister for Competition, Bruce Billson, agrees.

Given the low threshold for extending the new laws to other sectors, it will only be a matter of time before the Government's intention to restrict the laws to the banking sector changes. Indeed, the origins of the new price signalling laws lay in concerns about the conduct of petrol companies rather than banks. In light of this, petrol may be next. Grocery and airlines are likely to follow. After that, it will be everyone's game.

For a summary of the new price signalling laws, please see our article on price disclosure laws from April 2011.

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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