As an Australian Government agency, the ACCC and AER are held to account for their activities by a variety of external bodies, including:
- agencies with administrative oversight, including the Commonwealth Ombudsman.
These bodies have the power to review our decisions and work, investigate them and either uphold the decision of the ACCC or AER or order or recommend that the ACCC or AER make changes if necessary. Each year the agency reports on its interaction with these bodies to ensure transparency on external scrutiny.
Two significant merger matters were before the Federal Court during the year.
TPG and Vodafone
In September and October 2019 the Federal Court considered the merger between TPG and Vodafone (VHA). The ACCC had earlier decided to oppose the merger because it considered that, n the absence of the merger, TPG was likely to continue to roll out its own mobile network and become an innovative and disruptive competitor in Australia’s concentrated mobile telecommunications market. Following this, VHA instituted proceedings in the Federal Court.
In February 2020 the Federal Court declared that the proposed merger would not substantially lessen competition. The Court held that there was no real chance that TPG would roll out a retail mobile network or become an effectively competitive fourth mobile network operator in Australia in the next five years. The ACCC decided not to appeal the decision.
Pacific National and Aurizon
The Full Court of the Federal Court heard the ACCC’s appeal in February 2020 concerning Pacific National’s acquisition of the Acacia Ridge Terminal from Aurizon. In 2018 the ACCC brought proceedings alleging that the acquisition would substantially lessen competition by raising the barriers to entry for potential new rail operators. While the Federal Court judgment at trial indicated that it would have found that the acquisition was likely to substantially lessen competition if an undertaking had not been offered by Pacific National, it concluded that the behavioural undertaking offered by Pacific National resolved the competition issues. The ACCC subsequently appealed this decision, and Pacific National and Aurizon lodged cross-appeals.
In May 2020 the Full Court allowed the cross-appeals by Aurizon and Pacific National, dismissed the ACCC’s appeal and released Pacific National from the undertaking. While the ACCC was successful on a number of legal issues, the Full Court held that the acquisition was not likely to substantially lessen competition, even in the absence of the behavioural undertaking from Pacific National. While the majority of the Full Court agreed with the ACCC’s position on the meaning of ‘likely’, the case hinged on the ACCC establishing the likelihood of another player seeking to enter the market in the next five to 10 years, and the Full Court considered the prospect of entry no more than speculative. On 26 June 2020 the ACCC applied for special leave to appeal the matter to the High Court.
Judicial review decisions
There were no judicial review decisions in respect of decisions made by the ACCC or AER in 2019–20.
Administrative Appeals Tribunal
There were no decisions by the Administrative Appeals Tribunal in respect of decisions made by the ACCC or AER in 2019–20.
Australian Competition Tribunal
In October 2019 the Australian Competition Tribunal delivered its decision on the applications by both Port of Newcastle Operations Pty Ltd (PNO) and Glencore Coal Assets Australia Pty Ltd (Glencore) for merits review of the ACCC’s arbitral determination of an access dispute between PNO and Glencore. The access dispute concerned access charges and other conditions of access to the ‘declared’ shipping channel service at the Port of Newcastle. The declaration has since been revoked, but the arbitration determination remains in place. The ACCC has made a judicial review application, which will be heard by the Full Federal Court in July 2020. Glencore has also appealed the Australian Competition Tribunal’s decision.
In December 2019 Flexigroup Limited (Flexigroup) filed an application with the Australian Competition Tribunal asking it to consider afresh an application for authorisation by energy organisations seeking to develop a New Energy Tech Consumer Code. The code would set minimum standards that suppliers of ‘new energy tech’ products must comply with when interacting with customers. The ACCC had conditionally authorised the conduct. Some of the conditions imposed by the ACCC related to the provision of ‘buy now, pay later’ finance. Flexigroup is a supplier of such finance. The ACCC’s application has been heard by the Tribunal and its decision is pending. The ACCC determination has not come into force. More information about this application, is available from the ACCC’s public register.
The Australian Competition Tribunal did not consider any applications for review of merger authorisations in 2019–20. There were no AER matters before the Australian Competition Tribunal during 2019–20.
In 2019 the House of Representatives Standing Committee on Economics examined the ACCC’s performance and operation as part of its review of the ACCC and AER annual report 2017–18. The ACCC attended a public hearing before the committee on 18 September 2019. Topics covered included competition in the financial services sector, open banking, recommendations of the new car retailing market study, airports, online travel agents, electricity generation, digital platforms and petrol prices. We responded to the committee’s questions on notice on petrol prices, energy market divestiture and retail electricity prices. On 25 November 2019 the committee tabled its report Review of the Australian Competition and Consumer Commission annual report 2018.
The ACCC appeared before the Senate Economics Committee on 24 October 2019 for a Supplementary Budget Estimates hearing and on 4 March 2020 for an Additional Estimates hearing. Topics covered included the Northern Australia Insurance Inquiry, the Murray–Darling Basin Water Markets Inquiry, the Dairy Industry Code of Conduct, the ACCC’s product safety priorities, competition law, the Consumer Data Right, open banking and banking more generally. We responded to the committee’s questions on notice from the October 2019 hearings, including on the Northern Australia Insurance Inquiry, gas prices, dairy issues and the waste exports ban. We also responded to the committee’s questions on notice from the March 2020 hearings on the water market and scam complaints, and to written questions on notice relating to corporate issues.
The ACCC’s testimony at the 4 March 2020 hearing was subsequently referred to in the committee’s report Economics Legislation Committee: additional estimates 2019–20, which was tabled on 8 April 2020.
The AER also appeared before the Senate Economics Committee at Supplementary Budget Estimates and Additional Estimates hearings on 24 October 2019 and 4 March 2020. During the October 2019 session, key topics of interest were stakeholder engagement, the ‘big stick’ legislation, gas prices, compliance, and the South Australia–New South Wales interconnector. The AER did not receive any questions during the March session.
Australian National Audit Office
In March 2019 the Australian National Audit Office (ANAO) commenced a performance audit of how effectively the AER undertakes its regulatory activities. Broadly, the performance audit assesses how the AER has communicated regulatory requirements to market participants and information to consumers; its compliance strategies and activities; its performance of other regulatory activities; and its governance and performance management arrangements. The final audit report is expected to be tabled in parliament in September 2020, at which time the report will be published on the ANAO website.
Office of the Merit Protection Commissioner
No application for review of an ACCC or AER decision was made to the Office of the Merit Protection Commissioner in 2019–20.
Office of the Australian Information Commissioner
In 2019–20 the Office of the Australian Information Commissioner considered one decision made by the ACCC, and no decisions made by the AER, under the Freedom of Information Act 1982 (Cth) (FOI Act).
The Privacy Commissioner did not investigate any complaints about the ACCC or AER in 2019–20.
The Commonwealth Ombudsman (CO) conducted inspections of the ACCC’s recordkeeping under the Telecommunications (Interception and Access) Act 1979 (Cth) in relation to stored communications warrant records and telecommunications data requests to assess compliance with that legislation. The CO did not identify any significant non-compliance issues, and the ACCC has taken steps to rectify all issues raised by the CO.
Freedom of information
Agencies operating under the FOI Act must publish information for the public as part of the Information Publication Scheme. This requirement has replaced the former requirement to publish a statement in the annual report. Each agency’s website must include a plan that shows the information it publishes in accordance with the scheme’s requirements. The ACCC and AER’s Information Publication Scheme statement pursuant to Part II of the FOI Act can be found on the ACCC’s website under Freedom of information.