Questions for Submitters
Please give reasons in response to the questions and support those reasons with examples, where possible. We also welcome comments on such matters as:
- Whether the issues have been accurately identified;
- Whether there may be alternative approaches including non-legislative solutions; and
- Whether there are any implications for the co-ordination of Australian and New Zealand competition laws.
Merger issues
Q1. What should the default number of working days for Commission consideration of merger clearance applications be?
Q2. Is there a need to amend the Act in relation to the publication of written merger clearance decisions?
Q3. Should the Act provide for the enforcement of undertakings to dispose of assets or shares?
Q4. Should the original applicant be able to ask the Commission to make minor variations to undertakings to divest assets or shares?
Q5. Should the Commission be able to accept behavioural undertakings?
Q6. Should the Commission consider introducing an informal pre-merger letter of comfort system?
Restrictive trade practices issues
Q7. Should a clearance system be introduced for trade practices?
Q8. Assuming a clearance system is introduced, should it apply to price fixing and resale price maintenance?
Q9. Assuming a clearance system is introduced, what features should it have in relation to such matters as timeframes, undertakings, ability to vary, revoke or replace a clearance and appeal rights?
Q10. Are SMEs inhibited from engaging in efficient collective bargaining schemes? If so, please provide real examples.
Q11. Should a collective bargaining notification system be introduced? Would your answer be different if a trade practices clearance system were to be introduced?
Q12. Assuming that a collective bargaining notification system were introduced, what comments do you have on the design features discussed in Table Five? In particular, what criterion or criteria should be used to define conduct or firms that will be eligible for the system?
Q13. Assuming there will continue to be no clearance system for trade practices, should the "lessening of competition" jurisdiction test for restrictive trade practice authorisations be retained or removed?
Q14. If there is to be a clearance system for trade practices, what implications are there for the "lessening of competition" jurisdiction test for the restrictive trade practice authorisation system?
Q15. Should the Commission's power to vary, replace or revoke an authorisation if there has been a material change of circumstances (i.e. section 65(1)(b)) be (i) retained, (ii) repealed or (iii) replaced by a provision that only allows the original applicant to ask the Commission to vary, replace or revoke an authorisation?
Q16. Should the mandatory requirement to halt the conduct while the Commission is considering an application for authorisation (i.e. section 59A(2)) be retained or removed?
Q17. If the mandatory requirement to halt the conduct is to be removed, do you consider that it would be better to repeal section 59A(2) or replace it with a provision that provides the Commission with the discretion to require that the conduct be halted?
Q18. Should the applicant and/or any third parties have the power to require the Commission to hold a conference or should the decision be the Commission's alone?
Q19. Assuming the applicants and/or third parties were no longer able to require the Commission to call a conference, should the Act specify that they may request the Commission to hold a conference or does it go without saying?
Q20. Should the statutory time limits in section 62 relating to restrictive trade practice authorisation applications be retained or removed?
Joint legal process issues
Q21. Should appeal rights for persons who participate in Commission conferences be retained or replaced?
Q22. Assuming that the High Court will be given the discretion to decide whether a third party may appeal, what criterion or criteria should appear in the Act?
Q23. Do you consider that a specialist competition tribunal should be established? Does your answer depend on whether there are to be appeals on the merit against regulatory control decisions by the Commerce Commission?
Q24. Should the High Court (or a replacement tribunal) have the discretion to appoint lay members in any proceeding where it is required to consider the merits of a report by the Commission?
Q25. Are there other circumstances in which there should be wider discretion for judges to appoint lay members?
The legal framework for assessing costs and benefits
Q26. To what extent does the Commission's analytical framework adequately take account of what would happen if a proposed merger or arrangement did not go ahead (the counterfactual)?
Q27. Is the public benefit test sufficiently broad to take international competitiveness claims into consideration and give them sufficient weighting?
Q28. Does quantification restrict the consideration of dynamic or other difficult to measure economic effects?
Q29. Are the timeframes over which costs and benefits assessed appropriate?
Q30. Is the approach used to define markets appropriate?
General
Q31. Do you have any other comments?
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