Report
ACCCount
A report of the Australian Competition and
Consumer Commission’s and Australian
Energy Regulator’s activities
1 April to 30 June 2013
Australian Competition and Consumer Commission
23 Marcus Clarke Street, Canberra, Australian Capital Territory 2601
© Commonwealth of Australia 2013
ISBN 978-1-921973-73-4
This work is copyright. Apart from any use permitted by the Copyright Act 1968, no part may be reproduced without
prior written permission from the Commonwealth, available through the Australian Competition and Consumer
Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Director
Publishing, Australian Competition and Consumer Commission, GPO Box 3131, Canberra ACT 2601 or by email to
publishing.unit@accc.gov.au.
www.accc.gov.au
CONTENTS
Contents ............................................................................................................................ 3
Overview........................................................................................................................... 4
1. Maintaining competition ........................................................................................... 6
Enforcing the Act for businesses and consumers
6
Maintaining competition in concentrated sectors
7
Mergers ........................................................................................................... 7
Remedy market failure
11
Authorisations and notifications..................................................................... 11
2. Protecting consumers and promoting fair trading .............................................. 16
Consumer protection outcomes
16
Action to protect consumers .......................................................................... 16
Other significant activities .............................................................................. 21
Product safety ............................................................................................... 26
3. Effective Regulation ................................................................................................ 30
Energy
30
Telecommunications
34
Airports
36
Fuel price monitoring
37
Rail access
40
Bulk wheat export – access to port terminal services
40
PART IIIA
41
Water
42
4. Increasing engagement .......................................................................................... 43
Consumer engagement
45
Business engagement
47
Major speeches
48
5. Appendices .............................................................................................................. 50
Complaints and inquiries
50
Enforcement outcomes & matters in court
53
Litigation commenced ................................................................................... 53
Litigation ongoing .......................................................................................... 55
Litigation concluded ....................................................................................... 58
Undertakings accepted, Infringement Notices Paid, Audit Notices Issued ... 59
OVERVIEW
1.
The Australian Competition and Consumer Commission and the AER play a fundamental role in
our market economy. We are about making markets work as intended. The ACCC ended the
2012/13 year on a high note securing robust enforcement outcomes in the Federal Court
including:

A penalty of $1.35 million against Japanese cable supplier Viscas Corporation in
respect of bid rigging and price fixing conduct following admissions by Viscas that it
had reached an anti-competitive agreement with other Japanese and European
suppliers of land cables in relation to an invitation to tender issued by Snowy Hydro
Ltd.

A penalty of $1.55m against AGL Sales Pty Ltd for illegal door-to-door sales practices.
AGL was found to have breached the Competition and Consumer Act when its sales
representatives made false, misleading and deceptive claims during uninvited calls on
consumers. The marketing company used by AGL, CPM Australia Pty Ltd, was also
fined $200,000 for its role in the conduct.
2.
The ACCC also instituted proceedings in the Federal Court against Coles Supermarkets
Australia Pty Ltd for allegedly false, misleading and deceptive conduct after complaints to the
ACCC and subsequent investigations found that some bakery products marketed as ‘freshly
baked in store’ were in fact partially baked off site, frozen, and transported to Coles stores to be
finished off in store. Other major proceedings commenced included an additional nine
proceedings against Harvey Norman franchisees for alleged misrepresentation of consumer
rights.
3.
During the June 2013 quarter, the ACCC:

received payments totalling $203,400 for Infringement Notices.

removed nearly 693,000 unsafe consumer goods from sale in 118 recalls.

received 52 292 complaints and inquiries from business and consumers. This
represents an increase of nearly 30 per cent on the same period last year and 6 per
cent on the March 2013 quarter.
4.
Since the introduction of the carbon price mechanism on 1 July 2012, the ACCC has received
over 3000 complaints and inquiries. The energy sector accounts for the majority of contacts,
accounting for 40% of the total number of enquiries, followed by the refrigerant gases and landfill
sectors. Carbon-related complaints continued to decline, with 50 complaints and enquiries
received in the June quarter.
5.
The tragic death of a New South Wales teenager cast the spotlight on the issue of synthetic
drugs and on 18 June 2013 the Assistant Treasurer imposed an interim national ban on the
supply of certain consumer goods containing synthetic drug substances. The ACCC conducted
surveillance activities in support of the ban.
6.
During the June 2013 quarter the ACCC was involved in one of the largest electrical recalls in
Australia involving Samsung’s top-loading washing machines which were linked to 15 reported
fires. Working together, the ACCC and Samsung, along with state and territory electrical
authorities, moved quickly to mitigate any further risk, providing recall information to customers of
the affected units.
7.
The report into the review of the Franchising Code of Conduct was handed down in April 2013.
The report picks up a number of recommendations made by the ACCC in its submissions. The
Government issued its response to the review of the Franchising Code on 24 July 2013,
indicating that it will move to introduce into the code an obligation to act in good faith, and to
include civil pecuniary penalties for breaches of the code.
ACCCount 1 April to 30 June 2013
4
8.
The ACCC’s draft decision about NBN Co’s proposed terms and conditions for access to its
National Broadband Network Special Access Undertaking was made in April. The draft decision
proposed a set of changes to those terms and conditions. If NBN Co accepts the ACCC’s
proposed changes to the undertaking, the ACCC is confident that it can reach a final decision in
quarter 1 of 2013/14.
9.
The ACCC released the 2011-12 Airport Monitoring Report into aeronautical services and car
parking congestion at five of Australia’s major airports. The ACCC was directed by the Australian
Government to monitor the supply of aeronautical and car parking services following consumer
concerns. The ACCC found that aeronautical services continued to be congested, despite
investment, which could be effecting on-time performance and further investment would be
required to address this issue in the longer term. The report also found that car parking services
had increased at all airports except Melbourne.
ACCCount 1 April to 30 June 2013
5
1. MAINTAINING COMPETITION
Maintain and promote competition and
remedy market failure
ENFORCING THE ACT FOR BUSINESSES AND
CONSUMERS
Competition enforcement
1.1
In the June 2013 quarter the ACCC was involved in 9 proceedings relating to competition
enforcement.
1.2
These proceedings relate to competition matters in industries including travel, construction and
financial services. A complete list is included in the Appendix.
1.3
Of the 9 competition enforcement proceedings:
Cartels

all 9 cases were carried over from the previous quarter;

no new cases were commenced in the quarter;

no cases were concluded in the quarter, however in the case of Prysmian Cavi e
Sistemi, a settlement was reached with one party to the proceedings, as outlined
below; and

these cases remain ongoing at the end of the quarter.
VISCAS CORPORATION
The Federal Court ordered a penalty of $1.35 million against Japanese cable
supplier Viscas Corporation in respect of bid rigging and price fixing conduct.
The penalty followed Viscas admitting that, in September 2003, it reached an
anti-competitive agreement with other Japanese and European suppliers of land
cables in relation to an invitation to tender issued by Snowy Hydro Ltd. The
Court also made orders restraining Viscas from engaging in similar conduct for
a period of 3 years and contribution to ACCC’s costs. The proceedings against
Prysmian Cavi e Sistemi Energia S.R.L. and Nexans SA continue.
1.4
These enforcement actions demonstrate the ACCC’s continued focus on maintaining and
promoting competition and remedying market failures.
Continuing investigations
Information sharing – Fuel Companies
1.5
On 3 May 2012 the ACCC announced it had commenced an investigation into price information
sharing arrangements in relation to the retail petrol sector because of concerns that such
arrangements may be in breach of the Act.
ACCCount 1 April to 30 June 2013
6
1.6
The petrol price sharing arrangements allow for the private and very frequent exchange of
comprehensive retail price information between the major petrol companies. The ACCC is
concerned that this allows petrol retailers to signal price movements, monitor competitors’
responses, and react to them. The ACCC is concerned that these arrangements may lessen
price competition in petrol retailing to the detriment of consumers.
Shopper dockets
1.7
The ACCC is considering the competition implications of the trend of larger and longer fuel
shopper docket discount offers.
Supermarkets
1.8
In early 2012 following concerns voiced publicly about the conduct of major supermarket chains,
the ACCC sought information from supermarket suppliers regarding the way in which they were
treated by supermarkets. A range of concerns were voiced and the ACCC sought information
from the supermarkets regarding some of that conduct. Broadly speaking, a number of suppliers
have complained that they are being treated unconscionably by major supermarket chains as
well as making allegations that the supermarkets are misusing their market power. The ACCC
will examine these allegations and expects that considerable work will be required before
deciding whether any action is required.
Online Competition and Consumer Protection
1.9
The ACCC is continuing to investigate online trading activities that affect competitive behaviour
and raise consumer protection concerns. Activities by online traders that may be considered as
anti-competitive include the misuse of market power, exclusive dealing distribution arrangements
and controlling prices through resale price maintenance.
1.10
The ACCC is also monitoring international competition matters that relate to online issues that
are relevant to Australian markets, including the e-books anti-trust litigation involving alleged
price fixing, and the commitments given by Google to the European Commission to address
concerns about their misuse of market power.
MAINTAINING COMPETITION IN CONCENTRATED
SECTORS
Mergers
1.11
The impact on competition of proposed and completed mergers and acquisitions is assessed by
the ACCC under section 50 of the Act, which prohibits transactions which would have the effect,
or likely effect, of substantially lessening competition.
1.12
The ACCC does this by providing the merger parties with its view on whether a particular
proposal is likely to breach section 50 of the Act. This process is generally known as the ‘informal
clearance’ process. Businesses may also apply to the ACCC for formal clearance of mergers.
1.13
The ACCC monitors media daily for news of proposed or actual mergers to identify any
transactions that may potentially raise competition issues. Where proposals are identified in the
media that have not yet been notified to the ACCC, the ACCC may investigate further.
1.14
The ACCC deals with matters through pre-assessment when it determines that they do not
require review because the low risk that competition concerns will be raised.
1.15
This pre-assessment process enables the ACCC to respond quickly when there are no
significant concerns.
ACCCount 1 April to 30 June 2013
7
Table 1: Matters assessed and reviews undertaken – 1 April to 30 June 2013
Confidential Public Total
Pre-assessed 1 April – 30 June 2013
Total reviews undertaken 1 April – 30 June
2013
87
0
87
5
17
22
Total reviews can be broken down into the following categories:
Not opposed
2
13
15
Finished—no decision (including withdrawn)
0
0
0
Opposed outright
0
2
2
Confidential review—ACCC concerns expressed
3
0
3
Resolved through undertakings
0
0
0
Variation to undertaking accepted
0
2
1
Variation to undertaking rejected
0
0
0
Total matters assessed and reviews
undertaken
Note: Only public matters can be resolved with undertakings
Table 1.2: Matters assessed and reviews undertaken, financial year comparisons
2009-10
2010-11
2011-12
2012-13
Total matters assessed and reviews
undertaken
321
377
340
289
Matters assessed - no review required
153
236
250
213
Reviews undertaken
168
141
90
76
Total reviews can be broken down into the following categories:
Not opposed
131
110
60
55
Finished – no decision (incl. withdrawn)
16
14
17
4
Publicly Opposed outright
8
3
1
6
Confidential review – Opposed or ACCC concerns
expressed
6
4
6
5
Resolved through undertakings
4
7
3
2
Variation to undertaking accepted
2
3
3
4
Variation to undertaking rejected
1
0
0
0
*The year end table includes statistical corrections arising from year end reconciliation processes.
ACCCount 1 April to 30 June 2013
8
Significant merger decisions this quarter
Merger
CASE STUDY - VIRGIN AUSTRALIA’S PROPOSED ACQUISITION OF 60%
OF TIGER AIRWAYS AUSTRALIA
On 23 April 2013, the ACCC announced it would not oppose an
acquisition by Virgin Australia Holdings Limited (together with its
subsidiaries Virgin Australia) of 60 per cent of Tiger Airways Australia
(Tiger Australia).
Virgin Australia is Australia’s second largest domestic airline operator,
behind the Qantas Group. Tiger Australia is a domestic airline that
commenced operations in November 2007. At the time of the ACCC’s
decision, Tiger Australia serviced 16 domestic routes with 11 aircraft.
Tiger Australia operated under a low cost carrier model which primarily
focuses on price sensitive leisure travellers.
Beginning in November 2012, the ACCC reviewed the impact of the
acquisition on competition in the Australian market for domestic air
passenger transport services.
The ACCC held concerns that the proposed acquisition may increase the
likelihood of airlines coordinating their pricing, capacity or related
commercial decisions by:
 reducing the number of airline groups within Australia from three
to two (excluding regional airlines), and making those groups
more similar (in that each would be comprised of a full service
and a low cost domestic carrier)
 removing Tiger Australia as an independent low cost carrier and,
instead, aligning its incentives with those of Virgin Australia
 reducing the threat of entry by a new airline.
The ACCC was also concerned about eliminating direct competition
between Tiger Australia and Virgin Australia. When controlled by Virgin
Australia, Tiger Australia would take into account the effect of its
decisions on Virgin Australia’s profitability. This could impact Virgin
Australia’s and Tiger Australia’s decisions as to fares, service quality,
capacity and network.
However, it was put to the ACCC that if the acquisition was not allowed,
Tiger Australia would exit the Australian market.
The ACCC tested the issue thoroughly and extensively. It ultimately
accepted that Tiger Australia was highly unlikely to remain in the
Australian market (under either current or potential new ownership) if the
acquisition was opposed. Tiger Australia’s assets, comprising 11 aircraft,
would very likely have been redeployed into the Asian operations of its
parent company (the Singapore-based Tiger Airways Holdings Limited).
The ACCC had particular regard to Tiger Australia’s history of poor
financial and operational performance despite substantial investment and
numerous changes of management and strategy over the years.
On the basis that Tiger Australia would have been highly likely to exit the
relevant market if the proposed acquisition did not proceed, the ACCC
formed the view that the proposed acquisition of Tiger Australia by Virgin
Australia would not be likely to result in a substantial lessening of
competition in the market for Australian domestic air passenger transport
services in contravention of section 50 of the Act. The ACCC therefore
did not oppose the proposed acquisition.
ACCCount 1 April to 30 June 2013
9

Woolworths Limited - proposed acquisition of supermarket site at Glenmore Ridge
Village Centre

On 6 June 2013 the ACCC announced that it would oppose Woolworths’ proposed
acquisition of a supermarket site at Glenmore Ridge in the suburb of Glenmore Park,
New South Wales, after concluding that the proposed acquisition would be likely to
result in a substantial lessening of local supermarket competition.

The main factors informing the ACCC’s decision were that:


-
Woolworths already operates the only supermarket in the suburb of Glenmore
Park.
-
Woolworths also has the next closest supermarket located in the nearby suburb
of South Penrith.
-
The Glenmore Ridge site represents the only opportunity for a competing
supermarket to enter Glenmore Park in the foreseeable future, other than an
ALDI that is due to open in 2014.
-
Supermarkets located further away from Glenmore Park (such as supermarkets
in Penrith, which are a 15 minute drive to the north of the Glenmore Ridge site)
are not close substitutes for supermarkets located within Glenmore Park.
-
An alternative supermarket at the Glenmore Ridge site would stimulate local
competition and provide greater choice to residents of the area. Woolworths
buying the site would prevent that from occurring.
The ACCC considered that the loss of local supermarket choice associated with
Woolworths’ proposed acquisition would have been significantly detrimental to local
consumers.
H J Heinz Company Australia Limited - proposed acquisition of Rafferty’s Garden Pty
Ltd

The ACCC opposed the proposed acquisition after concluding that it would result in
the removal of Rafferty’s Garden as one of Heinz’s closest and most vigorous and
effective competitors in the supply of wet infant food, infant snacks and infant cereals.
Heinz and Rafferty’s Garden are the two largest suppliers of wet and dry infant food in
Australia. A merged Heinz/Rafferty’s Garden would have accounted for around 80 per
cent of the share of sales in the wet infant food market and around 70 per cent in
infant cereals and infant snacks.

The ACCC concluded that the proposed acquisition would result in a substantial
increase in concentration in already concentrated markets, where barriers to entry
and expansion are high, particularly because of brand recognition and consumer
preference. The ACCC formed the view that the proposed acquisition would be likely
to reduce the frequency and depth of promotional activity, increase prices and reduce
innovation in the wet and dry infant food markets. The ACCC carefully considered the
dependence of both Heinz and Rafferty’s Garden on the major supermarket chains for
stocking their products and was not satisfied that the power possessed by the major
supermarket chains would necessarily constrain prices for consumers or drive
innovation.
Statement of Issues
1.16
If the ACCC has come to a preliminary view that a proposed merger raises competition concerns
that require further investigation it will publicly release a Statement of Issues. A Statement of
Issues published by the ACCC is not a final decision about a proposed acquisition, but provides
the ACCC’s preliminary views, drawing attention to particular issues of varying degrees of
competition concern, as well as identifying the lines of further inquiry that the ACCC wishes to
undertake. A Statement of Issues provides an opportunity for all interested parties (including
customers, competitors, shareholders and other stakeholders) to ascertain and consider the
primary issues identified by the ACCC. It is also intended to provide the merger parties and other
interested parties with the basis for making further submissions should they consider it
necessary.
1.17
The ACCC did not publicly release any Statement of Issues in the July quarter.
ACCCount 1 April to 30 June 2013
10
REMEDY MARKET FAILURE
Authorisations and notifications
1.18
In circumstances where competitive markets do not work to deliver the most efficient outcomes it
may be in the public interest to allow certain restrictions on competition. This is particularly the
case where there are features in a market that may lead to market failure; where the market left
to itself does not achieve the most optimal outcomes. In many ways, the authorisation and
notification provisions of the Act allow the ACCC to consider the benefits from allowing conduct
that addresses a market failure but which nonetheless restricts competition.
Authorisations
1.19
Broadly, the ACCC may ‘authorise’ businesses to engage in conduct that might otherwise
amount to a breach of the Act where it is satisfied that the public benefit outweighs any public
detriment, including from a lessening of competition.
1.20
In assessing the likely public benefits and detriments of an authorisation application, the ACCC
undertakes a transparent public consultation process, placing submissions on a public register,
subject to any claims of confidentiality. After considering submissions, the ACCC will issue a
draft decision and provide an opportunity for interested parties to request a conference to
discuss the draft decision. The ACCC will then reconsider the application in light of any further
submissions and release its final decision.
Table 2: Authorisations received and decisions issued–April to June 2013
Total authorisations received 1 April – 30 June 2013
New
2 (3)
Revocation and substitution
3 (11)
Minor variations
0 (0)
Decisions issued 1 April – 30 June 2013
Draft determinations
7 (11)
Final determinations
6 (11)
Interim decisions
3 (3)
* no. proposals (no. applications)
ACCCount 1 April to 30 June 2013
11
Significant authorisations
1.21
Significant authorisations decided during the June 2013 quarter included:
NARTA INTERNATIONAL PTY LTD – AUTHORISATION – A91335
On 11 April 2013 the ACCC issued a determination denying authorisation for
Narta International Pty Ltd (Narta) to set a minimum advertising price (MAP) on a
range of consumer electrical goods.
Narta is a buying group that represents over 30 electrical goods retailers
including Betta Electrical, Bing Lee, David Jones, JB Hi-Fi, Myer and Radio
Rentals. Buying groups can enable retailers to access more products at a lower
rate and a number of Australian retailers purchase their products this way. While
most buying groups represent retailers trading under the same banner group (for
example, Harvey Norman), Narta represents individual retailers who are
otherwise in competition with each other.
Because arrangements between rivals to agree on prices risk breaching the
Competition and Consumer Act, on 17 September 2012, Narta applied for
authorisation for a proposed minimum advertising price.
Authorisation would have allowed Narta to impose a minimum advertising price
(MAP) on several exclusive model or BEKO branded products that are
collectively acquired by Narta members, including televisions, cameras, white
goods and kitchen appliances. The level of the MAP would have been set by
Narta senior management and notified to members. Narta would not have
imposed limitations or restrictions on a member's actual selling prices.
The ACCC denied authorisation because Narta’s proposed conduct would be
likely to result in significant public detriment by reducing competition between
retailers and raising both the advertised and selling prices of electrical products.
Allowing Narta to set a minimum advertising price on a broad range of electrical
goods may have provided increased choice for consumers on some products but
the ACCC considers this benefit is likely to be outweighed by the reduction in
competition between retailers from setting minimum advertised prices.


Australian Tyre Industry Council - Authorisation - A91336 & A91337

The Australian Tyre Industry Council sought authorisation for a national voluntary
Tyre Stewardship Scheme to promote greater recycling of tyres.

Among other things, the scheme requires its members to deal only with other
members of the scheme (where possible) and imposes a levy on the sale of tyres in
Australia (proposed to be $0.25 per passenger car tyre equivalent) or an equivalent
membership fee, to fund the operation of the scheme.

On 11 April 2013 the ACCC granted authorisation for 5 years subject to annual
monitoring and reporting.
Royal Automobile Club of Queensland - Authorisations - A91358 & A91359

On 20 February 2013 the RACQ sought authorisation to enter into an agreement with
RACQ Approved Repairers that will fix and maintain the labour charge that each
RACQ Approved Repairer will charge other RACQ Approved Repairers for repair
work done to honour a warranty given by the original RACQ Approved Repairer to an
RACQ Member.

The RACQ intended to enhance its RACQ Approved Repairers Network by including
a requirement that all RACQ Approved Repairers offer a standard express warranty
for repair services to RACQ members. Where further repairs are required that are
covered by that express warranty, the RACQ member may require another RACQ
Approved Repairer to undertake those repairs. Where that occurs, the RACQ
member will not be charged for the repair, instead the Approved Repairer undertaking
the warranty repair will charge the RACQ Approved Repairer who did the original
repair and gave the express warranty, at a fixed labour cost.

RACQ also sought authorisation on behalf of RACQ Approved Repairers to refuse to
provide:
ACCCount 1 April to 30 June 2013
12

-
to non-RACQ members the express warranty involving reciprocal repairs
-
warranty repair services at no charge to the customer to non-RACQ members,
and
-
warranty repair services at no charge to RACQ members whose original repairs
were not performed by another RACQ Approved Repairer.
On 29 May 2013 the ACCC issued a determination granting authorisation until
29 May 2018.
Draft determinations
1.22
In the June quarter 2013 significant draft determinations included:


Australian Society of Ophthalmologists Incorporated - Authorisation - A91360

On 26 February 2013 the Australian Society of Ophthalmologists Incorporated (ASO)
applied for authorisation on behalf of its current and future members to make and give
effect to contracts, arrangements, or understandings between two or more registered
ophthalmologists who are ASO members operating in a shared practice to agree on
fees to be charged for ophthalmology services.

The ACCC issued a draft determination proposing to deny authorisation on
26 June 2013.
Homeworker Code Committee Incorporated - Revocation & Substitution - A91354 A91357

On 21 February 2013 the Homeworker Code Committee (HWCC) applied for
revocation and substitution of authorisations A91252-55, which relate to the
Homeworker Code of Practice (the Code). The Code is a mechanism within the
textile, clothing and footwear industry designed to assist businesses to ensure that
they and their supply chains comply with relevant Awards and workplace laws. An
objective of the relevant Awards and workplace laws is to protect vulnerable workers,
in particular, homeworkers.

The ACCC considered that the Code is likely to lead to public benefits by providing
businesses with a means to efficiently ensure their supply chains are compliant with
relevant Awards and workplace laws, and a means to efficiently signal this
compliance. The ACCC also considered that public benefits are likely to arise from
reduced incidence of unlawful treatment of workers. The ACCC also accepted that
some public detriment is likely to arise from increased business costs. However, the
ACCC considered that these detriments were likely to be limited by a range of factors.
On balance, the ACCC considered that the likely public benefits would outweigh the
likely public detriments and on 21 June 2013 issued a draft determination proposing
to grant authorisation for five years to permit the operation of the Code.

The ACCC will consider submissions responding to the draft determination from the
applicant and interested parties. A public pre-decision conference was requested on
25 June 2013 and is to be held on Thursday 1 August 2013. The ACCC will issue a
final determination after consideration of submissions and the pre-decision
conference.
Notifications
1.23
Notification is an alternate process to authorisation as a means for businesses to obtain
protection from legal action for certain conduct including exclusive dealing and collective
bargaining.
Exclusive dealing notifications
1.24
Exclusive dealing (where a business trading with another imposes restrictions on the other
businesses freedom to choose with whom, in what or where it deals) is prohibited under the Act
in certain circumstances. Third line forcing is a type of exclusive dealing conduct which involves
the supply of goods or services subject to a condition that the buyer must also acquire certain
goods or services from a third party. Third line forcing conduct is prohibited outright while other
forms of exclusive dealing are only a breach of the Act if they substantially lessen competition.
ACCCount 1 April to 30 June 2013
13
1.25
The exclusive dealing notification process provides protection from legal action for potential
breaches of the exclusive dealing provisions of the Act where the ACCC assesses there is
sufficient public benefit. Lodging a notification with the ACCC provides protection from legal
action automatically from the lodgement date (or soon after in the case of third line forcing
conduct), which remains in force unless revoked by the ACCC. Notifications can be reviewed by
the ACCC at any time.
1.26
The ACCC may revoke the protection provided by a notification for third line forcing conduct if it
is satisfied that the likely public benefit from the conduct will not outweigh the likely detriment. To
revoke a notification for other exclusive dealing conduct the ACCC must be satisfied that the
conduct is likely to result in a substantial lessening of competition and the likely benefit to the
public will not outweigh the detriment.
Table 3: Exclusive dealing notification projects
Exclusive Dealing Notifications
Matters lodged in the quarter
Matters requiring a draft notice
Matters allowed to stand
1.27
April to June 2013
no. proposals (no. notifications)
108 (147)
0 (0)
102 (167)
Matters revoked
0 (0)
Matters withdrawn
0 (0)
Significant notifications that have required consultation in the period (including both new
notifications as well as notifications allowed to stand during the period) were:


Jasmin Solar Pty Ltd - Notification - N96232 and Jasmin Solar Pty Ltd - Notification N96653

Jasmin Solar proposes to offer to supply domestic solar systems to low income
households and seniors and pensioners in South East Queensland for $1 on condition
that customers use Diamond Energy as their energy retailer. (N96232)

Jasmin Solar also proposes to offer to supply domestic solar systems to south-east
Queensland households approved for the Queensland government's 44c/kwh rebate
scheme for $999 on condition that customers use Diamond Energy as their energy
retailer. (N96653)

Contracts between Jasmin Solar and the customer have a term of up to 16 years
which means that the customer may be required to acquire energy from Diamond
Energy (with no alternative suppliers available) for that entire period.

Where the customer does not undertake required repairs to the system, or where the
customer wishes to sell the property and the incoming purchaser does not agree to
enter into similar arrangements with Jasmin Solar, Jasmin Solar has the right to
retrieve the solar panels. If the customer does not allow Jasmin Solar to do so, early
termination fees of up to $7000 are payable.

Jasmin Solar has advised the ACCC that it intends to enforce the termination fee only
as an action of last resort.

The ACCC sought submissions on the notification from Jasmin Solar and interested
parties. The ACCC is currently assessing the notified conduct.
Port Hedland Port Authority - Notification - N96171

The Port Hedland Port Authority proposes that all vessels entering and leaving the
port (other than very small and manoeuvrable craft) must engage the harbour towage
services of BHP Billiton Minerals Pty Ltd.

The ACCC commenced public consultation on this notification on 5 October 2012.
ACCCount 1 April to 30 June 2013
14

The ACCC is currently considering the submissions it has received and will provide
further information when a decision has been made.
Collective bargaining notifications
1.28
Groups of small businesses can lodge a collective bargaining notification, to obtain protection
from legal action for the collective bargaining activity. The protection provided by a collective
bargaining notification comes into force automatically 14 days after the notification is validly
lodged unless the ACCC objects to the notification, and continues for three years. Notifications
can be reviewed at any time.
1.29
Businesses seeking to lodge a valid collective bargaining notification must satisfy a number of
requirements—for example each member of the collective bargaining group must reasonably
expect that they will make at least one contract with the target and that the value of each
member’s transactions with the target will not exceed $3 million per year (this figure differs for
certain industries). These requirements do not apply to the authorisation process.
Table 4: Collective bargaining notification projects
Collective Bargaining Notifications
April to June 2013
no. proposals (no. notifications)
Matters lodged in the quarter
1 (1)
(# of notifications)
Matters allowed to stand
2 (3)
(# of notifications)
1.30
Matters withdrawn/later deemed invalid (# of
notifications)
0 (0)
Matters revoked (# of notifications)
0 (0)
Matters under consideration at end of quarter
0 (0)
Significant collective bargaining notifications lodged during the period were:

Manning Valley dairy farmers

A group of seven dairy farmers in the Manning Valley area in NSW lodged
notifications proposing to collectively negotiate the terms and conditions of raw milk
supply agreements to be entered into between each of the participants and
Woolworths and an agreement which deals with the obligations of the parties to work
cooperatively to meet Woolworth's requirements.

On 18 April 2013 the ACCC decided to allow seven dairy farmers from Manning
Valley in New South Wales to collectively bargain with Woolworths and Milk2Market
for 3 years.

The ACCC noted that any impact on competition will be limited as participation in the
arrangement is voluntary for the dairy farmers, Woolworths and Milk2Market.
Additionally, the volume of milk to be supplied is relatively small compared to the total
volume produced in the surrounding mid-coast region of New South Wales.
ACCCount 1 April to 30 June 2013
15
2. PROTECTING CONSUMERS
AND PROMOTING FAIR
TRADING
Protect the interests and safety of
consumers and support fair trading in
markets
CONSUMER PROTECTION OUTCOMES
Action to protect consumers
2.1
2.2
The ACCC has indicated that in 2013 consumer protection priorities will be:

online consumer issues

the telecommunications and energy sectors

consumer guarantees

consumer issues impacting on Indigenous communities

credence claims, particularly in the food sector

unfair contract terms

product safety
In the June 2013 quarter the ACCC was involved in 36 proceedings relating to consumer
protection.

22 cases were carried over from the previous quarter

14 first instance cases were commenced in the quarter

3 cases were concluded in the quarter
2.3
Thirty-three cases remain ongoing at the end of the quarter. In this period, the ACCC continued
to undertake significant work relating to carbon price representations, consumer protection
issues in indigenous communities, consumer guarantees, unsolicited selling, scams, and food
labelling.
2.4
These actions and outcomes demonstrate the ACCC’s continuing efforts to protect the interests
and safety of consumers and its support for fair trading in markets.
2.5
Since the introduction of new remedies and powers in the Trade Practices Act 1974 in April 2010
and the introduction of the Australian Consumer Law on 1 January 2011, the total penalties
awarded under the ACL pecuniary penalty regime by the Federal Courts is $24.4 million in
37 consumer protection and fair trading proceedings, resolved as at 30 June 2013.
ACCCount 1 April to 30 June 2013
16
Proceedings Commenced
2.6
The following first instance proceedings were commenced in the June 2013 quarter:
Credence claims
COLES SUPERMARKETS AUSTRALIA PTY LTD
Proceedings were instituted in the Federal Court Melbourne against Coles
Supermarkets Australia Pty Ltd alleging false, misleading and deceptive conduct
in the supply of bread that was partially baked and frozen off site, transported to
Coles stores and ‘finished’ in-store. These products were then promoted as
‘Baked Today, Sold Today’ and/or ‘Freshly Baked In-Store’ at Coles stores with
in-house bakeries. The ACCC alleges that labels on these par baked products
stating ‘Baked Today, Sold Today’ and in some cases ‘Freshly Baked In-Store’,
and nearby prominent signs stating ‘Freshly Baked’ or ‘Baked Fresh’, were likely
to mislead consumers into thinking that the bread was prepared from scratch in
Coles’ in-house bakeries on the day it was offered for sale and that it was entirely
baked on the day it was offered for sale. The ACCC is seeking declarations;
injunctions; pecuniary penalties; orders that Coles review its compliance
program; orders that Coles publish corrective notices on its website and in Coles’
supermarkets that have in-store bakeries; and costs.
P & N PTY LTD & ORS
Proceedings were instituted in the Federal Court Adelaide against P & N Pty Ltd,
P & N NSW Pty Ltd (Euro Solar), and Worldwide Energy and Manufacturing Pty
Ltd (Australian Solar Panel) alleging false or misleading claims about the country
of origin of the solar panels they supply. The ACCC has also taken action against
Mr Nikunjkumar Patel, a director of P & N and Australian Solar Panel, for being
knowingly concerned in, or a party to, the alleged conduct. The ACCC alleges
that since November 2012, Euro Solar and Australian Solar Panel have made
misrepresentations online, in newspapers and on television that they
manufacture or supply solar panels that are made in Australia, when those solar
panels are in fact manufactured in China. The ACCC is seeking declarations,
injunctions, publication orders, pecuniary penalties and costs.
Vulnerable and
disadvantaged
consumers
Unfair contract
terms
TITAN MARKETING PTY LTD & ANOR
Proceedings were instituted in the Federal Court Brisbane against Titan
Marketing Pty Ltd and its sole Director, alleging that Titan representatives
engaged in misleading and unconscionable conduct when conducting door-todoor sales of first aid kits and water filters in Indigenous communities and other
locations in Queensland, New South Wales and the Northern Territory. The
ACCC also alleges that Titan contravened the unsolicited consumer agreement
provisions; made false or misleading representations in relation to Titan’s
affiliation with a charity group, consumers’ refund rights and the value of goods
supplied; and entered into contracts with consumers which contained unfair
contract terms. The ACCC is seeking declarations, injunctions, pecuniary
penalties, a community service order and costs.
BYTECARD PTY LIMITED
Proceedings were instituted in the Federal Court Melbourne against ByteCard
Pty Limited, trading as Netspeed Internet Communications, alleging that a
number of clauses in the ByteCard standard form consumer contracts are unfair
contract terms and should be declared void. The ACCC alleges that the clauses
in ByteCard’s standard terms and conditions are unfair and contravene the unfair
contract terms provisions of the ACL and also considers that these clauses are
not reasonably necessary to protect ByteCard’s legitimate business interests.
The ACCC is seeking declarations that these clauses are unfair and void.
This is the first time the ACCC has commenced legal proceedings based solely
upon the new unfair contract terms provisions of the Australian Consumer Law.
ACCCount 1 April to 30 June 2013
17
Misleading claims
TAXSMART GROUP PTY LTD & ORS
Proceedings were instituted in the Federal Court Melbourne against Taxsmart
Group Pty Ltd alleging false, misleading or deceptive conduct in relation to job
advertisements for graduate accountant positions to attain a tax agent licence
and subsequently operate a Taxsmart franchise. The ACCC alleges that
Taxsmart made false representations and/or that Taxsmart did not have
reasonable grounds for making these representations. The ACCC is seeking
declarations, injunctions, compensation orders and non-party redress orders,
pecuniary penalties, a disqualification order for the sole director, orders for
corrective letters to be sent, findings of fact and costs.
Consumer
guarantees
HARVEY NORMAN FRANCHISEES
On 22 November 2012, the ACCC issued proceedings in the Federal Court
Sydney against 11 Harvey Norman franchisees located in different states
alleging that they had each misrepresented consumer rights. The Court
determined that each matter was unrelated and should be heard separately and
only the proceedings against Harvey Norman Gordon Superstore Pty Ltd could
continue in the initial proceedings.
As a result, the ACCC instituted new separate proceedings against each of the
nine franchisees that were removed from the initial proceedings alleging
misrepresentations about consumer rights. Proceedings against Ipavit Pty Ltd
were not reinstituted as it has since been deregistered. The nine Harvey
Norman franchisees are:

Avitalb Pty Ltd, Federal Court Perth

Bunavit Pty Ltd, Federal Court Brisbane

Carnavit Pty Ltd, Federal Court Sydney

HP Superstore Pty Ltd, Federal Court Melbourne

Launceston Superstore Pty Ltd, Federal Court Melbourne

Mandurvit Pty Ltd, Federal Court Perth

Moonah Superstore Pty Ltd, Federal Court Melbourne

Oxteha Pty Ltd, Federal Court Brisbane

Salecomp Pty Ltd, Federal Court Melbourne
The ACCC is seeking orders including penalties, declarations, injunctions and
costs against each of the nine franchisees.
ACCCount 1 April to 30 June 2013
18
Proceedings Concluded
AGL SALES PTY LTD & ORS
Door-to-door
selling
The Federal Court ordered by consent that AGL Sales Pty Ltd and AGL South
Australia Pty Ltd pay combined penalties of $1.555 million for illegal door-todoor selling practices. CPM Australia Pty Ltd, the marketing company used by
the AGL companies, was also ordered to pay $200,000 for its role in the
conduct. The Court declared that a salesperson engaged by CPM to sell
electricity and gas on behalf of AGL Sales in Victoria, made false
representations and engaged in misleading and deceptive conduct during
uninvited calls on consumers. The Court also declared that the salespeople
breached the ACL because they did not clearly advise consumers that the
salesperson’s purpose in calling on the consumer was to seek the consumer’s
agreement for the supply of electricity and gas or that they would be obliged to
leave immediately upon request. The Court also ordered the companies to
contribute to the ACCC’s costs and granted other remedies, including corrective
advertising and compliance programs. Judgment has been reserved in relation
to the sole contested aspect of this matter: whether the salesperson in South
Australia broke the law by starting to negotiate despite the presence of a ‘Do
Not Knock’ sign on the consumer’s front door. The ACCC submits that a ‘Do Not
Knock’ sign is a request to leave immediately, as set out in the ACL.
NONCHALANT PTY LTD
Misleading
advertising
The Federal Court ordered Nonchalant Pty Ltd, a past operator of Abel Rent a
Car in Brisbane to pay penalties of $30 000 for misleading advertising for fees in
relation to motor vehicle rentals. The Court noted that the disclosure of
additional fees and charges on subsequent web pages during a booking were
not sufficient to negate the effect of misleading representations on the home
page of a website.
Court-enforceable undertakings
2.7
2.8
In addition to court-based outcomes, the ACCC often resolves contraventions of the Act by
accepting court-enforceable, non-court based undertakings under s. 87B of the Act. In these
undertakings, which are on the public record, companies or individuals generally agree to:

remedy the mischief

accept responsibility for their actions

establish or review and improve their trade practices compliance programs and
culture.
In the June 2013 quarter, the ACCC

secured three s.87B undertakings for alleged breaches of the Australian Consumer
Law.
ACCCount 1 April to 30 June 2013
19
HAPPINESS ROAD INVESTMENT GROUP PTY LTD
Credence claims
On 26 June 2013 the ACCC accepted a court-enforceable undertaking from
Happiness Road Investment Group Pty Ltd in relation to claims that its ugg
boots were made in Australia and the use of the Australian Made logo without
authorisation. Happiness Road has undertaken to refrain from engaging in the
same or similar conduct in the future; offer and pay refunds to consumers who
were misled by its conduct; and publish an Adword advertisement on Google
which directs visitors to publications on the ACCC’s website regarding
misleading claims and advertising. The undertaking also requires that
Happiness Road’s sole director, Mr Jason Rey, undertakes trade practices
compliance training.
FOXTEL CABLE TELEVISION PTY LTD
Misleading
advertising
On 15 May 2013 the ACCC accepted a court-enforceable undertaking from
Foxtel Cable Television Pty Ltd in relation to representations that customers
who subscribed to a 12 month plan between 12 February 2012 and
5 April 2012 would receive a free 22 inch neoiQ television within 10 days of
installation of their Foxtel service. However, the free televisions were not
dispatched within 10 days of installation to a significant number of customers
who signed up to the offer. Foxtel undertook to refrain from engaging in similar
conduct in the future, provide a credit of one month’s subscription fees to
current customers affected by the alleged conduct and instruct a qualified
compliance professional to conduct a Competition and Consumer Act risk
assessment.
Telecommunications
UTEL NETWORKS PTY LTD
On 7 June 2013 the ACCC accepted a court-enforceable undertaking from Utel
Networks Pty Ltd and payment of three infringement notices totalling $19 800
for misrepresentations made by the company’s telemarketers. Utel Networks
made representations through its telemarketers to consumers that Utel was
affiliated or associated with the consumer’s existing telecommunications
provider, and the quality of the consumer’s telecommunications service would
not change upon being transferred to Utel from a rival provider, when this was
not the case. Utel undertook to refrain from engaging in similar conduct in the
future and implement a compliance program.
Infringement Notices
2.9
Infringement Notices - In the June 2013 quarter, the ACCC

issued 12 infringement notices to 4 traders

received payment from four traders:
2.10
This takes the total infringement penalties paid up to June 2013 to over $850 000 under the
Australian Consumer Law.
2.11
The payment of infringement notice penalties is not an admission of a contravention of the Act.
The ACCC can issue an infringement notice where it has reasonable grounds to believe a
person has contravened certain consumer protection laws.
ACCCount 1 April to 30 June 2013
20
MOI INTERNATIONAL PTY LTD
Credence claims
MOI International Pty Ltd paid two infringement notices totalling $20 400 for
misleading claims on the label of its olive oil products. MOI’s ‘Mediterranean
Blend’ oil product was prominently labelled as ‘Extra Virgin Olive Oil’ and
‘100% Olive Oil’. The ACCC considered that by using these descriptions MOI
represented that the oil was completely or predominately composed of extra
virgin olive oil, when this was not the case.
COLES SUPERMARKETS AUSTRALIA PTY LTD
Coles Supermarkets Australia Pty Ltd paid six infringement notices totalling
$61 200 for alleged misleading representations about the country of origin of
fresh produce made in five of its stores between March 2013 and May 2013.
The stores were located across Queensland, New South Wales, Western
Australia and the Australian Capital Territory.
Telecommunications
UTEL NETWORKS PTY LTD
Utel Networks Pty Ltd paid three infringement notices totalling $19 800 for
misrepresentations made by the company’s telemarketers. Utel also provided
the ACCC with a court enforceable undertaking.
Telecommunications
IINET PTY LTD
iiNet Pty Ltd paid one infringement notice totalling $102 000 in relation to an
advertisement for its Naked DSL service. The ACCC had reasonable grounds
to believe that the advertisement failed to prominently state the total minimum
price payable for the service. The advertisement, which was displayed on the
rear of a bus in metropolitan Sydney between at least 20 February 2013 and
11 March 2013, displayed the monthly price of iiNet’s Naked DSL service of
$59.95. The advertisement also displayed the total minimum price of the
services; however the ACCC considered that the total minimum price was not
displayed in a prominent way.
Other significant activities
Carbon price representations
2.12
The ACCC continues to give priority to carbon pricing issues as directed by the Treasurer
pursuant to section 29(1) of the Act. This includes:

giving priority to the investigation of businesses who engage in practices concerning
the effect of a carbon price

encouraging compliance with the Act by informing and educating businesses about
their responsibilities under the ACL concerning any statements about the effect of a
carbon price upon the supply of goods and services in trade and commerce

raising awareness amongst consumers about their rights under the ACL and
informing them that businesses are prohibited from engaging in misleading and
deceptive conduct or making false or misleading representations about the effect of a
carbon price on the supply of goods and services in trade or commerce.
2.13
In the June 2013 quarter the ACCC received over 50 identifiable carbon pricing complaints and
inquiries. This forms part of over 3 000 complaints and inquiries received since the
implementation of the carbon price mechanism on 1 July 2012. Complaint numbers continue to
decline since the implementation of the carbon price mechanism.
2.14
Energy is the largest complaint category, constituting 40% of all contacts received since
1 July 2012. A significant number of contacts have also been received about the refrigerant gas
and landfill sectors.
2.15
The ACCC continues to actively assess carbon pricing complaints as they arise for evidence of
conduct that may raise concerns under the Act and a number of in-depth and initial investigations
ACCCount 1 April to 30 June 2013
21
remain ongoing. Enforcement outcomes for the period include five administrative resolutions
which include two formal warning letters.
2.16
On the stakeholder front, the ACCC continues to engage with businesses on carbon pricing
issues as required, including through sending two educative letters and one informal warning
letter to traders in the period.
Consumer guarantees
2.17
The ‘ACCC Shopper’ free iPhone and Android mobile device app for consumers has been
downloaded more than 33 000 times since its release in early December 2012. The app includes
consumer information on warranties, refunds and lay-bys, and allows users to set reminders for
their gift vouchers and warranties, and stores photos of receipts. It also includes information
about country of origin food labelling and olive oil claims.
Extended warranties
2.18
The ACCC continues to be involved in a national compliance and education project on extended
warranties. The project commenced in October 2012 and includes a nationally coordinated
approach among the ACCC and state and territory consumer protection agencies to reviewing
extended warranties on goods and services offered by businesses.
2.19
Concerns surrounding the content of extended warranties and the way that they are marketed to
consumers intensified following the introduction of the consumer guarantees regime. The project
focusses on the way in which suppliers promote extended warranty products, particularly
whether businesses may be misrepresenting the rights available to consumers under the ACL
when selling extended warranties. The project also focuses on further opportunities to raise
awareness among businesses about their consumer guarantee obligations.
Food labelling
2.20
The ACCC together with the other ACL regulators continued to consider a range of consumer
protection concerns regarding food labelling and credence claims in the food industry. This
includes concerns about country of origin labelling of food and the labelling of olive oils in
Australia.
2.21
In June 2013, MOI International (Australia) Pty Ltd paid two infringement notices totalling
$20 400 for misleading claims made on the label of its olive oil products.
2.22
In June 2013 Coles Supermarkets Australia Pty Ltd (Coles) paid six infringement notices totalling
$61 200 for allegedly misleading representations about the country of origin of fresh produce
made in five of its stores between March 2013 and May 2013. The ACCC took action following a
complaint that Coles had displayed some imported navel oranges and kiwi fruit underneath price
boards reading ‘Helping Australia Grow’ with the triangular ‘Australian Grown’ symbol. The
ACCC alleges that this signage gave the overall impression that the imported produce was
Australian grown, when it was not. The overseas country of origin was correctly identified either
by stickers on the produce itself, on the packaging, or under the display bin. However, the ACCC
considered that the relatively small sized stickers or statements were not sufficient to correct the
overwhelming impression of the ‘Helping Australia Grow’ campaign imagery that was associated
with the sale of the product.
2.23
In June 2013 the ACCC commenced proceedings in the Federal Court against Coles
Supermarkets Australia Pty Ltd (Coles). The ACCC is alleging false, misleading and deceptive
conduct in the supply of bread that was partially baked and frozen off site, transported to Coles
stores and ‘finished’ in-store. The products were then promoted as ‘Baked Today, Sold Today’
and/or ‘Freshly Baked In-Store’ at Coles stores with in-house bakeries.
Fuel price boards
2.24
On 7 December 2012 ministers responsible for consumer affairs released a public consultation
paper on a proposed national petrol information standard. The consultation period closed on
15 February 2013. This follows an agreement reached on 6 July 2012 to work towards a
consistent national framework on fuel price board signage.
ACCCount 1 April to 30 June 2013
22
2.25
2.26
The aim of the consultation paper is to stimulate discussion on fuel price transparency with a
view to increasing competition and enabling consumers to accurately compare fuel prices at
different retailers. The public consultation paper proposes three options:
1.
No new regulation. Generic consumer protections against false, misleading
and deceptive conduct, bait advertising and multiple pricing.
2.
Basic national standard. Only undiscounted fuel prices on signs permitted,
although fuel discount schemes may be included.
3.
Detailed national standard. All fuel retailers must maintain a fuel price board,
displaying in equal prominence the undiscounted prices of a specified
minimum number of fuels.
In February 2013 the ACCC participated in a series of working group of Commonwealth, state
and territory officials which met with key stakeholders, including industry groups, motoring
associations and consumer groups. Outcomes of the consultation will be used to develop a final
proposal to be decided by consumer affairs ministers.
Indigenous consumer protection
2.27
The ACCC has conducted remote community visits and targeted grass roots consultation in
identified communities across the country. Traditional forms of communication have been
supplemented by the use of Facebook and YouTube, as our consultations indicated that these
were popular forms of communication amongst many Indigenous Australians. To this end, the
ACCC recently released short films on YouTube covering topics such as consumer guarantees,
telemarketing, door to door sales and product safety:

Mobile Phone Contracts: http://www.youtube.com/watch?v=kpemyGBXABI

Consumer guarantees 6 Simple Rules:
http://www.youtube.com/watch?v=fbydiPiAQDU

Door to Door Sales: http://www.youtube.com/watch?v=sD-Me93vjnY

Product Safety: http://www.youtube.com/watch?v=--2-LwMlU6o
2.28
Indigenous consumer protection is also an enforcement priority for the ACCC. In June 2013, the
ACCC instituted legal proceedings against Titan Marketing Pty Ltd for alleged misleading and
unconscionable conduct when conducting door-to-door sales of first aid kits and water filters in
Indigenous communities and other locations in Queensland, New South Wales and the Northern
Territory. The ACCC obtained interlocutory injunctions by consent which prevents the trader from
entering any Indigenous community that requires visitors to obtain permission from an
appropriate authority in order to enter that community.
2.29
The ACCC is working closely with Northern Territory Consumer Affairs, the consumer affairs
agencies of other states and the Australian Capital Territory, and organisations such as the
Indigenous Consumer Assistance Network to ensure that the rights of Indigenous consumers are
protected.
Online Consumer Protection
2.30
The ACCC is examining the use of fake online reviews and testimonials by businesses which
mislead or deceive consumers or provide a business with a competitive advantage. Reviews and
testimonials have become an important tool that assists consumers in selecting appropriate
goods and services. However, misleading conduct, such as posting fake reviews or deleting
honest reviews, manipulates the review process and can have the overall consequence of
creating a false impression amongst consumers about certain goods or services. The ACCC will
develop enforcement and compliance strategies to deal with businesses that take advantage of
consumer trust in this way, with an aim to facilitate broader compliance in online markets.
Reviews of online businesses following the International Consumer
Protection Enforcement Network (ICPEN) Sweep
2.31
The ACCC undertook reviews of several online shopping websites further to some concerns
identified in the September 2012 ICPEN internet sweep about the use of fine print by some of
these businesses.
ACCCount 1 April to 30 June 2013
23
2.32
The ACCC participated in the ICPEN internet sweep along with 40 global counterpart consumer
protection agencies. The sweep targeted traders using confusing or misleading fine print to avoid
their obligation to consumers.
2.33
The ACCC’s sweep activities focussed on how consumer guarantees rights are represented to
consumers online. The consumer guarantees provide statutory rights to consumers, including the
right to have a faulty product repaired, replaced, or refunded.
2.34
The ACCC targeted twelve online businesses whose websites raised concerns under the ACL.
These businesses were asked to make changes to their business practices including the terms
and conditions set out on their websites.
2.35
Nine of these businesses subsequently made prompt changes to improve their website’s
compliance with the ACL. Several of these businesses engaged readily with the ACCC to ensure
they were not misrepresenting consumers’ rights to a repair, replacement or refund.
Review of the Franchising Code of Conduct
2.36
The ACCC participated in the review of the Franchising Code of Conduct, which commenced in
January 2013 and was conducted by Mr Alan Wein. The ACCC’s February 2013 submission to
the review and supplementary information provided to the review in March 2013 made a number
of recommendations including that:

Civil pecuniary penalties and infringement notices be made available for breaches of
the Code

The scope of the industry code audit power to be extended to allow the ACCC to
more accurately assess a franchisor’s level of compliance with the Code

Franchisors be required to provide prospective franchisees with a short summary
document or risk statement that accompanies (or forms part of) the disclosure
document.
2.37
The review report was presented to the Australian Government on 30 April 2013. The report
largely supported the ACCC recommendations outlined above.
2.38
On 17 June 2013, the Australian Government released a consultation paper to inform its
response to the recommendations made in the report. The ACCC will be involved in this
consultation process.
Supermarket Code
2.39
A supermarket and grocery industry working party is developing an industry code with a view to
the code being prescribed by the Government as a voluntary industry code under the
Competition and Consumer Act.
2.40
The ACCC has been engaging with the supermarket and grocery industry working party (which
has included industry groups representing farmers, merchants, food manufacturers and major
retailers) and other government agencies on managing supply chain issues in the food and
grocery industry through a prescribed voluntary code.
Scams
2.41
During the quarter, the ACCC continued to work with other agencies and implemented
educational initiatives to protect Australians against scam activity.
2.42
The Australasian Consumer Fraud Taskforce’s (ACFT) 2013 National Consumer Fraud Week
campaign ran from 17 to 23 June. This year’s campaign, ‘Outsmart the scammers!’ focused on
helping Australians identify online shopping scams so they can shop safely online without being
duped. Campaign highlights included:

Release of the ACCC’s 2012 Targeting scams annual report

‘Outsmart the scammers!’ one-day conference on 18 June 2013

Online auctions and shopping scams industry workshop on 18 June 2013

The launch of Consumer Affairs Victoria’s ‘Stevie’s Scams School’ video
ACCCount 1 April to 30 June 2013
24

The release of the ACFT 2012 Consumer survey results (launched by the Australian
Institute of Criminology)

Small business scams forum hosted by the ACCC and the WA Small Business
Development Corporation.
2.43
The ACFT comprises of 23 government agencies in Australia and New Zealand working to
disrupt scam activity. ACCC Deputy Chair Delia Rickard is the current Chair of the ACFT. This
year’s campaign was supported by over 140 public, private and community sector partners.
2.44
Fraud Week arrangements and a range of other matters, including identity crime identification
and a Western Australia Police fraud prevention initiative, were discussed at an ACFT meeting
held on 22 April 2013.
2.45
The ACCC’s SCAMwatch website is the Australian Government’s website for information on
scams. SCAMwatch includes a free subscription service to alert the public to new scams. Three
SCAMwatch radars were issued in the quarter:

Watch out when booking your winter getaway – In May 2013, the ACCC warned
consumers to be wary when making plans for a holiday escape this winter

Pause to avoid a puppy scam – In April 2013, the ACCC urged consumers to watch
out for scammers using cute and cuddly canines to pull on people’s heart strings and
get them to part with their money

Beware of scammers taking advantage of the Boston marathon tragedy – In April
2013, the ACCC warned consumers to be alert to scammers looking to take
advantage of the Boston marathon explosions with malware or donation scams.
Telecommunications
2.46
The ACCC has been reviewing consumer complaints about mobile network performance,
including issues regarding coverage and congestion. The ACCC is aware that network
performance-related complaints have been a growing area of consumer complaints to the
Telecommunications Industry Ombudsman. Consumers have also made complaints to the
ACCC about issues such as poor coverage, call drop outs and slow data speed. The ACCC’s
analysis of complaints identified that the key issues for consumers include coverage
representations, network performance issues such as unreliable or poor quality of service, and
the ability to obtain appropriate remedies when they are experiencing problems with their
services. The ACCC will be engaging with industry on issues that may raise ACL concerns. The
ACCC will also be participating in the Australian Communications and Media Authority’s (ACMA)
network performance summit, scheduled for late 2013, that will be considering how to effectively
inform and educate consumers about the performance of mobile telecommunications services.
2.47
The ACCC continues to regularly engage with the government agencies and a number of
organisations in relation to their telecommunications consumer protection activities and initiatives
including the Australian Communications and Media Authority, the Telecommunications Industry
Ombudsman, the Australian Communications Consumer Action Network and the industry body,
the Communications Alliance.
2.48
The ACCC takes a multi-tiered approach to ensuring compliance in the telecommunications
industry, including by monitoring industry advertisements and taking enforcement action where
appropriate. The ACCC also participates in reviews of the telecommunications consumer
protection framework to improve its effectiveness.
2.49
In May 2013 the ACCC made a submission to ACMA’s Review of the Telecommunications
Service Provider (Premium Services) Determination 2004 No.1.
Unsolicited selling
2.50
In June 2013 the ACCC commenced proceedings against Titan Marketing Pty Ltd for alleged
contraventions of the unsolicited consumer agreement provisions of the ACL and other alleged
contraventions of the ACL including misleading and unconscionable conduct when conducting
door-to-door sales of first aid kits and water filters in Indigenous communities and other locations
in Queensland, New South Wales and the Northern Territory.
2.51
The ACCC continued its ‘Knock! Knock! Who’s There?’ national campaign to raise consumer
awareness about their rights when buying at their door. In April 2013 the ACCC sent an
information package to 140 stakeholders to gain their support in raising community awareness
ACCCount 1 April to 30 June 2013
25
about these issues. The ACCC continued to distribute its suite of door-to-door educational
material to the public via stakeholders and its Infocentre. To date approximately 100 000 ‘Do Not
Knock’ stickers and nearly 25 000 brochures have been distributed.
2.52
In June 2013, the ACCC published a three-part “Thanks, but no thanks” video series on door-todoor sales looking at high pressure sales tactics, inducements and how to say ‘no’. The “Thanks,
but no thanks” video series is available on the ACCC’s website and Youtube.
Product safety
Recalls
2.53
In the June 2013 quarter the ACCC received notifications for 75 product safety recalls of general
consumer goods, 35 motor vehicle recalls (4 or which were negotiated by the ACCC at the
request of the Department of Infrastructure and Transport) and 8 food recalls, all of which were
published on the Recalls Australia website.
2.54
Of those 75 recalls for general consumer goods, 24 recalls were independently initiated by
suppliers without intervention by regulators.
2.55
Of the 118 recalls in total, over 692,940 unsafe goods were involved.
Table 5: Recalls Negotiated – 1 April to 25 June 2013
Recalls Negotiated by the ACCC & other ACL Regulators
55
Recalls of general consumer goods negotiated by the ACCC
22
Automotive product safety recalls negotiated by the ACCC
4
Recalls negotiated by State and Territory regulators
29
Note: ACCC-negotiated recalls are prompted by consumer complaints, supplier intelligence, marketplace surveillance, overseas recalls and other federal and state/territory regulator referrals.
Emerging hazards and product safety recalls
2.56
On 18 June 2013 the Assistant Treasurer David Bradbury, imposed an interim national ban on
the supply of certain consumer goods containing synthetic drug substances. The interim ban
complements similar interim bans naming 19 consumer goods and their equivalents which NSW
believe to contain synthetic drugs made in NSW and South Australia.

The interim national ban is in force for 60 days and it provides a period for the NT and
NSW to put in place controls for the substances recently included in Schedule 9 of the
Poisons Standard.

The interim nation ban was issued without delay under s132J of the Competition and
Consumer Act as it appeared to the Minister that ‘”…‘the goods created an imminent
risk of death, serious illness or serious injury...”

On 9 June 2013 the NSW Minister for Fair Trading imposed an interim ban on 19
named consumer goods and their equivalents, believed to contain synthetic drugs.
The interim ban was made under the Australian Consumer Law (NSW) and it
prohibited the supply of these consumer goods in trade or commerce in New South
Wales. On 13 June 2013, the South Australian Minister for Business Services and
Consumers followed suit and imposed an identical interim ban in that state.

The legislative framework for the control of drugs is generally through drug misuse or
poisons and therapeutic goods legislation in the states and territories.

A number of new psychoactive substances of concern were included in an
amendment to Schedule 9 of the Poisons Standard through Amendment No. 1 of
2012, which came into effect on 1 May 2012. The Poisons Standard is administered
ACCCount 1 April to 30 June 2013
26
within the framework of the Therapeutic Goods Act 1989 by the Commonwealth
Department of Health and Ageing.
2.57
2.58
2.59

Most states and territories had adopted Schedule 9 of the Poisons Standard into their
laws however NSW has not yet adopted this schedule into their state legislation. The
Northern Territory is also still in the process of adopting the most recent amendments
to Schedule 9 of the Poisons Standard into their drugs misuse laws and intends to do
so by the end of July 2013.

In his media release of 16 June 2013, the Assistant Treasurer stated that the supply,
sale and possession of unlawful drugs is the domain of the law enforcement and
health agencies responsible for illicit drugs and that he considered the action under
the ACL to only be an interim measure to close the gap while states and territory drug
laws were updated.

Following the introduction of the ban the ACCC conducted surveillance in the NT and
did not detect any of the banned goods being offered for sale.
During the June 2013 quarter the ACCC was involved in one of the largest electrical recalls in
Australia involving Samsung.

The company contacted the ACCC to discuss concerns with their top-loading washing
machines (15 reports of fire-related incidents). At that time the company had not
identified the defect.

As the product posed an imminent risk the ACCC advised Samsung that it would be in
the best interest of its consumers that the company act quickly so as to mitigate this
risk. Recalls information was provided and contact with state and territory electrical
authorities facilitated.

The recall attracted significant media interest with the 1800 number provided by
Samsung, unable to cope with the volume of telephone enquiries. Many consumers
were simply unable make contact. In response to this Samsung spent $200,000 to
outsource an additional call centre to cope with the volume of enquiries. In
comparison to other major electrical appliance recalls, the use by Samsung of a public
relations firm clearly showed the effectiveness of such a recall strategy.
The ACCC was also involved in the recall of the Nanny Nap infant recliner, which in the United
States had been implicated in 5 infant deaths and 70 incident reports of children nearly falling out
of the product.

The product was first recalled in the US in 2010, prompted by the death of a 4-monthold girl who died in a Nap Nanny that was being used in a cot

At the time of the 2010 US recall, the ACCC contacted the manufacturer, Baby
Matters LLC, who indicated the product was not sold in Australia

On 5 December 2012 the United States Consumer Product Safety Commission filed
an administrative complaint against the supplier seeking an order requiring that the
firm notify the public of the defect and offer consumers a full refund

Prompted by this action, the ACCC discovered that these products were in fact being
sold on Fishpond and immediately sought a recall of the goods. Fishpond indicated
that they had alerted consumers to the recall and offered a free repair kit.
During the June 2013 quarter the ACCC:

Reviewed 483 mandatory reports (a report of a product-related injury under the
Australian Consumer Law) of which, 212 were referred to other regulators. The
remaining reports were assessed or are currently under assessment. Of these, two
reports were assessed as posing a very high risk; 5 posing a significant risk; and
5 posing a moderate risk.

Received 678 reports related to the safety of unregulated products and 36 reports
related to the safety of regulated products. These reports have been assessed, or are
currently under assessment.
-
The reports that have been assessed include one that has been assessed as
posing an extremely high risk, four that have been assessed as posing a very
high risk and seven that have been assessed as posing a high risk
-
Those reports assessed as having an extremely high risk rating involved a death
associated with the use of a quad bike (the ACCC is currently working with other
ACCCount 1 April to 30 June 2013
27
Australian and international regulators, Australian work safe authorities,
academics, industry, unions and consumer representatives to address stability
concerns with quad bikes).
2.60
-
The reports assessed as having a very high risk rating involved the potential risk
of suffocation with the use of slings and pouches for infants including the
reported death on an infant (the ACCC is working with international agencies to
address these risks), the potential of a serious motor vehicle accident involving
aluminium wheel rims (since recalled) and a risk of fire from a washing machine
(see Samsung above).
-
The reports assessed as having high risk rating involved a risk of burning from
hot water leaking from a hot water bottle (product regulated and investigation
ongoing), a choking hazard from the lack of a ring or handle on a dummy
(product regulated and investigation ongoing); the neck of the television stand
potentially breaking unexpectedly with the television dislodging from the stand
poses a crush hazard (stability of furniture investigation ongoing); the risk of a
fall or collapse of non-compliant ladders investigation ongoing); the risk of a fall
or collapse of non-compliant ladders with incorrect weight labelling (8 ladders
recalled to date); a burn or even death associated with the use of a hot wheat
bag/pack (see below); bowel perforation from the ingestion of a high powered
magnet (product regulated, investigation ongoing).
The ACCC and the Therapeutic Goods Administration (TGA) jointly developed consumer safety
alerts on the therapeutic and non-therapeutic uses of the wheat bags. These alerts are available
on the ACCC’s Product Safety Australia and TGA web sites.

CHOICE Magazine also recently posted information regarding the potential dangers
associated with the use of wheat bags

The ACCC continues its assessment of the safety of these products with a view to
possible further work with wheat bag suppliers.
New standards and bans
2.61
Work continues to progress on the development and review of safety standards for hot water
bottles, bunk beds, pedal bicycles, motorcycle helmets, household cots, disposable cigarette
lighters, child restraints, bath aids, household cots, corded internal window coverings installation,
bean bags and trampolines.
2.62
The Assistant Treasurer announced his intention to amend the Competition and Consumer
(Tobacco) Information Standard 2011 (Tobacco Standard). This would remove the burden on
retailers to rotate the health warnings on tobacco products, thereby restricting the responsibility
for rotation of health warnings to manufacturers and importers. Retailers would however, still be
responsible for other requirements of the Tobacco Standard.
Hazards associated with chemicals in consumer goods
2.63
Significant projects progressed by the ACCC during the June 2013 quarter include:

As part of a ‘microbiological hazards in cosmetics’ project, a survey on a
representative range of aqueous based cosmetic products was conducted. The
samples collected are currently with a testing laboratory for testing. Results are
pending.

On 9 May 2013 judgement was handed down regarding the appeal instigated by
Proteeth Whitening Australia. Judge Jarrett dismissed the appeal, thereby upholding
the compulsory recall of Proteeth Whitening products. ProTeeth has appealed the
judgement. The date for the hearing has not been set.

The ACCC is working with Accord Australasia Limited, the national industry
association for the Australasian hygiene, cosmetic and specialty products industry, to
finalise voluntary industry safety guidelines for laundry liquid capsules safety. These
guidelines are aimed at promoting safe packaging and labelling practices.
Compliance campaigns
2.64
During the June 2013 quarter several surveillance programs were conducted that included:
ACCCount 1 April to 30 June 2013
28
2.65
2.66

Tobacco labelling – this surveillance program was aimed at identifying noncompliance in the marketplace

Button batteries – the surveillance program aimed to identify manufacturer take-up of
voluntary warning labelling as recommended by the ACCC.
As a result of online surveillance on small high powered magnets, the ACCC identified these
products for sale by suppliers in Australia and the United States of America. The ACCC
successfully negotiating the recall of the following banned products:

Mad About Science—Magnetic Stones recall notice
http://www.recalls.gov.au/content/index.phtml/itemId/1048365

Gadget Box—Neoatoms High Strength Magnets recall notice
http://www.recalls.gov.au/content/index.phtml/itemId/1048336
The ACCC is currently investigating the supply of potentially non-compliant corded internal
window coverings, children’s nightwear, tobacco and vehicle recovery straps.
ACCCount 1 April to 30 June 2013
29
3. EFFECTIVE REGULATION
Promote the economically efficient
operation of, use of and investment in
monopoly infrastructure
ENERGY
3.1
The Australian Energy Regulator (AER) is Australia’s national energy market regulator and an
independent statutory authority. The AER is funded by the Commonwealth, with staff, resources
and facilities, provided by the ACCC. This section of the report details the AER’s achievements
in the March 2013 quarter.
Better Regulation Program
Increased Communication
3.2
During the quarter the AER published three Better Regulation Program newsletters. The April
newsletter focussed on the Consumer Challenge Panel and invited stakeholders to complete a
survey on their experiences with the consultation process so far. The May newsletter focussed
on the recent policy note (discussed in the next point). The June newsletter focussed on the
consumer engagement guideline. The newsletters also provided highlights on previous and
upcoming events.
3.3
On 13 May 2013 the AER published a policy note: Better Regulation: an integrated package. The
policy note provides an overview of the Better Regulation Program and highlights the interactions
between different workstreams. As the Better Regulation Program encompasses several
workstreams this forms an integrated package of changes to the way we approach network
regulation under the new regulatory framework. There will be several draft guidelines released by
9 August 2013 and these draft guidelines will apply when making revenue determinations for
regulated energy network businesses.
Expenditure incentives guideline issues paper
3.4
On 29 April 2013 the AER held a joint stakeholder forum to discuss the Expenditure incentives
guideline, as well as the interaction between its expenditure incentives and expenditure
assessments guidelines. The deadline for expenditure incentives issues paper submissions was
extended to 10 May 2013 to allow more time for stakeholders to incorporate material from the
forum.
Shared asset guideline issues paper
3.5
On 2 April 2013 the AER released and called for submissions on an issues paper on shared
assets as part of its Better Regulation Program. The AER held a stakeholder forum on
7 May 2013 and received 16 submissions.
ACCCount 1 April to 30 June 2013
30
Rate of return guideline consultation paper
3.6
On 10 May 2013 the AER released the consultation paper as part of the Better Regulation reform
program 2013. The guideline will set how we intend to apply the new rules framework to set rates
of return for network business that meet the long term interests of consumers. Submissions were
invited by 14 June 2013 and subsequently extended to 21 June 2013.
Consumer Reference Group
3.7
During the quarter, the AER’s Consumer Reference Group (CRG) met to discuss the
development of Better Regulation guidelines. The purpose of the CRG is to make it easier for
consumer groups to provide input into the ‘Better regulation’ consultative process without
necessarily writing formal submissions. The CRG provides a mechanism for coordinated and
informed input from a cross-section of consumer groups. It also provides guidance on where
consumer representative groups can invest their limited resources to most effectively contribute
to future regulatory processes. CRG members also made strong and relevant contributions in
workshops conducted as part of the development of draft guidelines for: expenditure assessment
and incentives; confidentiality and rate of return and the Power of Choice workstream.
Decisions and determinations
Gas networks regulation matters
Non-Victorian gas tariff variations and cost pass through proposals – 2013-14
3.8
On 28 May 2013 the AER approved the 2013-14 proposed annual tariff variations and cost pass
throughs for the non-Victorian gas distribution and transmission pipelines. In April and May 2013
the AER received notifications to vary tariffs from the non-Victorian gas distribution and
transmission businesses which will apply from 1 July 2013.
3.9
The AER approved the 2013-14 proposed annual tariff variations for the following non-Victorian
gas distribution and transmission pipelines: ActewAGL, Jemena Gas Networks (NSW), APT
Allgas, Central Ranges Pipeline, Envestra Wagga Wagga, Envestra (Qld), Envestra (SA),
Amadeus Gas pipeline, Roma to Brisbane pipeline, Central Ranges pipeline and Dawson Valley
Pipeline.
3.10
The current five-year access arrangements for ActewAGL and Jemena Gas Networks (NSW)
contain cost pass thorugh mechanisms allowing approved approved reference tariffs for each
network service provider to be adjusted in certain circumstances. ActewAGL and Jemena Gas
Networks are entitled to submit applications to the AER for assessment if an unexpected cost
arises or if actual costs are different to the allowances included in the original access
arrangement.
3.11
The AER approved the 2013-14 cost pass throughs for the following service providers:
ActewAGL and Jemena Gas Networks (NSW).
Merits review of access arrangement decision for the Victorian gas distribution and
transmission networks
3.12
On 29 May 2013 the AER advised that the access arrangement decisions made by the AER in
March 2013 for the Victorian gas transmission network owned by APA GasNet and Victorian gas
distribution network owned by Multinet, were the subject of applications for review by the
Australian Competition Tribunal.
Electricity network regulation matters
Final decision on ElectraNet’s revenue proposal
3.13
On 30 April 2013 the AER released its final decision on ElectraNet’s revenue proposal for the
five year regulatory period, 1 July 2013 to 30 June 2018. The AER’s final decision cuts nine per
cent from the revenue requirement proposed by ElectraNet in its original proposal. The AER
determined a total revenue cap of $1578 million ($ nominal), rejecting 12 and 23 per cent of
ElectraNet’s original proposed opex and capex forecast expenditure, respectively.
ACCCount 1 April to 30 June 2013
31
ElectraNet–Heywood interconnector upgrade
3.14
The AER received an application from ElectraNet for a determination with respect to the
proposed South Australia-Victoria (Heywood) Interconnector upgrade, that the preferred option
satisfies the regulatory investment test for transmission. The AER invited interested parties to
comment on ElectraNet’s application and received comments from four parties.
Final decision on Murraylink determination
3.15
On 30 April 2013 the AER issued its final decision on Murraylink’s proposed revenue proposal.
Revenues will stay largely the same over the coming five-year period, from1 July 2013 to
30 June 2018. The AER set revenues of $68 million, similar to the amount Murraylink sought in
its revenue proposal.
Regulatory investment test for distribution
3.16
On 5 June 2013 the AER released a draft Regulatory Investment Test – Distribution (RIT-D) and
accompanying application guidelines. The RIT-D requires distribution network service providers
to consider and assess all credible options before they choose the best investment option to
meet their network’s needs. The application guidelines set out guidance on how to assess these
options and the circumstances in which businesses are required to consider and quantify market
benefits when undertaking a RIT-D. The application guidelines aim to ensure that the level of
complexity required in the RIT-D process is commensurate with the value and impact of
distribution projects. Interested parties are invited to make written submissions by close of
business 18 July 2013.
SP Ausnet’s insurance pass through framework decision
3.17
On 19 April 2013 the AER released its decision regarding SP AusNet’s ‘insurance pass through
event’ framework. Under the regulatory framework, network businesses, in limited
circumstances, are able to recover costs that were not accounted for when prices were
approved. They can apply to the regulator to ‘pass through’ these additional costs. Costs in
excess of those covered by insurance are an example of the type of costs that may be permitted.
3.18
When the AER first decided SP AusNet’s charges for 2011-15, it allowed for the costs of
insurance and included a pass through provision for costs in excess of those covered by
insurance. However, the decision did not cover pre-2011 insurance policies. SP AusNet sought a
review by the Australian Competition Tribunal. On 4 April 2012, the Tribunal directed the AER to
reconsider the matter.
3.19
In reconsidering, the AER has decided that the definition of an insurance event will be expanded
to include the costs which exceed the insurance limits covered by pre-2011 insurance policies.
The decision acknowledges SP AusNet’s previous rights to apply for recovery of costs from
customers. The AER has received no applications, nor has it made any determination allowing
any additional costs related to SP AusNet’s bushfire-related insurance claims.
SP Ausnet’s regulatory proposal 2014-17
3.20
The AER is required under Chapter 6A of the National Electricity Rules to make a transmission
determination for SP AusNet in relation to its electricity transmission network. The AER’s
transmission determination must set out the Negotiated Transmission Service Criteria (NTSC).
The NTSC sets out the high level principles for negotiations between SP AusNet and persons
wishing to receive negotiated transmission service.
3.21
On 28 February 2013, SP AusNet submitted its regulatory proposal, proposed negotiating
framework and proposed pricing methodology for the period 2014-17. On 4 April 2013, the AER
invited submissions on the revenue proposal and the AER’s proposed NTSC by close of
business 17 May 2013. The AER conducted a public forum on the proposal on 24 April 2013.
On 1 May 2013, the AER published an issues paper to help stakeholders prepare their
submissions. The paper highlighted the key issues of the proposal at this stage. Two
submissions were received.
Aurora Energy’s amendment to accounting ring-fencing guidelines
3.22
On 24 April 2013, the AER published its draft decision to waive the obligation for Aurora Energy
to prepare regulatory accounts in accordance with the Office of the Tasmanian Economic
Regulator’s accounting ring-fencing guidelines. Instead, Aurora Energy will be required to comply
with the AER’s annual reporting requirements. The AER sought written comments from
stakeholders, with submissions closing 7 June 2013. No submissions were received.
ACCCount 1 April to 30 June 2013
32
Approval of 2011-12 Demand management incentive allowance expenditure for non-Victorian
DNSPs
3.23
Under the Demand Management Incentive Scheme, at the end of each regulatory year,
distribution network service providers (DNSPs) are required to submit a report on their Demand
Management Innovation Allowance (DMIA) expenditure. The AER conducts an assessment of
the expenditure incurred by the DNSP to ensure compliance with the DMIA criteria and
entitlement to recover.
3.24
On 19 April 2013 the AER published a final decision following its review of claimed DMIA
expenditure in 2011-12 by ActewAGL, Ausgrid, Endeavour Energy, Essential Energy and Ergon
Energy. The DNSPs sought approval of total expenditures of around $2.2 million relating to 22
demand management projects. The AER reviewed and approved the claimed expenditure.
Energex and SA Power Networks did not seek approval of any DMIA expenditures. Upon receipt
of the Victorian DNSP’s 2012 DMIA reports, the AER intends to update its 2011-12 report to
include the assessment of the claimed Victorian expenditures.
Distribution Network Service Providers 2013-14 pricing proposals
3.25
On 2 May 2013 the AER received electricity distribution pricing proposals for 2013-14 from
Ausgrid, Endeavour Energy, Essential Energy, ActewAGL, Ergon Energy, Aurora Energy and SA
Power Networks. These proposals seek to set distribution network prices from 1 July 2013 to
30 June 2014.
3.26
On 31 May 2013 the AER approved the pricing proposals for ActewAGL, Essential Energy,
Energex, Endeavour Energy and Aurora Energy.
3.27
On 7 June 2013 the AER approved the pricing proposal for Ausgrid, SA Power Networks and
Ergon Energy.
Victorian F-factor amount determinations for 2012
3.28
On 20 June 2013 the AER released a draft determination for comment on the proposed
rewards/penalties for Victorian distribution businesses under the ‘f-factor scheme’. This scheme
was established by the Victorian Government in June 2010. The scheme provides incentives for
DNSPs to reduce the risk of fire starts due to electricity infrastructure, and to reduce the risk of
loss or damage caused by fire starts. Under the draft determination each of the DNSPs will
receive a reward under the scheme as their actual number of fire starts for the 2012 year was
below that of their respective fire start targets. This will mean a small increase in network tariffs
for between $0.03 to $3.16 for the 2014 calendar year, depending on a customer’s distribution
area. The f-factor is an incentive scheme. DNSPs can only receive a reward for sustained and
continuous improvement. The benchmark fire-start targets will be tightened in future years.
Interested parties are invited to make written submissions on the draft f-factor amount
determinations and explanatory statement by 2 August 2013.
Framework and approach for Queensland and South Australia electricity distribution businesses
3.29
On 27 June 2013 the AER released a notice inviting submissions on whether it is necessary or
desirable to amend or replace the current framework and approach papers for Energex and
Ergon Energy in QLD and SA Power Networks for the next regulatory control period from
1 July 2015 to 30 June 2020. The AER has also released an Information sheet on the purpose of
the framework and approach to assist interested parties. This includes a high level explanation of
the matters the AER may amend or replace in its framework and approach paper under the
National Electricity Rules.
Energy wholesale markets
Quarterly compliance report
3.30
On 22 April 2013 the AER released its quarterly compliance report for the quarter ending
31 March 2013. The report summarises the AER’s compliance monitoring and enforcement
activities in the wholesale gas and electricity markets.
3.31
The AER also launched a range of electricity compliance initiatives designed to investigate and
address issues in the wholesale market. The new strategic compliance initiatives will assess the
accuracy of information provided by generators on their future availability; trends in the
performance of network businesses and generators in responding to supply
incidents/disruptions; the quality of metering data provided by energy businesses to the market
ACCCount 1 April to 30 June 2013
33
operator; and whether businesses that are paid to maintain the balance between supply and
demand through the ancillary services market are actually delivering these services.
Energy retail markets
WINenergy Pty Ltd granted electricity retailer authorisation
3.32
On 23 June 2013 the AER approved an application from WINenergy Pty Ltd for electricity retailer
authorisation under the National Energy Retail Law. WINenergy operates as an agent for
organisations selling electricity within embedded networks. WINenergy proposes to retail
electricity to large customers, including buildings in which WINenergy operates an embedded
network. WINenergy is authorised to retail electricity as and when the National Energy Retail
Law is adopted in each participating jurisdiction.
TELECOMMUNICATIONS
Decisions and determinations
Draft decision on the National Broadband Network Special Access
Undertaking
3.33
On 4 April 2013, the ACCC made a draft decision about the NBN Co’s proposed terms and
conditions for access to its National Broadband Network, and proposed a set of changes to those
terms and conditions. The latest Special Access Undertaking (SAU) was lodged with the ACCC
on the 18 December 2012. If NBN Co accepts the ACCC’s proposed changes to the undertaking,
the ACCC should be in a position to accept the undertaking relatively expeditiously. If accepted,
the SAU will form part of the regulatory framework for access to the National Broadband
Network.
Draft decision on varying the Facilities Access Code
3.34
On 1 May 2013 the ACCC published a draft decision to vary the Facilties Access Code (the
Code). The ACCC is currently conducting an inquiry into the appropriateness of the current
Code, which was initially made in 1999. The inquiry is intended to consider whether the Code
remains an effective tool in assisting negotiations for access to the eligible facilities in the
contemporary communications market. A consultation paper on the Code was published in
July 2012 and eight submissions were received.
3.35
The draft decision to vary the Code includes proposals to remove obsolete references, reflect
legislative changes and align the Code with Telstra’s Structural Separation Undertaking to
ensure that there is no inconsistency over how eligible facilities are regulated. By 31 May 2013,
the ACCC had received four submissions on the draft revised Code which were all broadly
supportive of the proposed amendments to the Code. A revised Code is expected to be
published in third quarter of 2013.
Final access determination for the wholesale ADSL service
3.36
On 30 May 2013 the ACCC finalised the regulated terms and conditions for access to the
wholesale ADSL service supplied by Telstra by making a final access determination (FAD).
Retail telecommunications service providers can use wholesale ADSL to provide broadband
services over Telstra’s copper network.
3.37
The FAD set out the price and non-price terms to apply until 30 June 2014. Under the terms of
the FAD, the regulated prices are estimated to be around 15 per cent below the commercial
prices that were charged, on average, prior to the regulation of the wholesale ADSL service in
February 2012.
3.38
The FAD sets a monthly per-user charge of $24.44 for Zone 1 (predominantly CBD and metro
areas) and $29.66 for Zone 2/3 (predominantly regional and rural areas). The FAD also sets a
network capacity charge of $32.31 per Megabit per second (Mbps) for the Aggregating Virtual
Circuit.
ACCCount 1 April to 30 June 2013
34
3.39
The ACCC will commence a new FAD inquiry in mid-2013 as part of the Fixed Services Review
to review terms for a number of telecommunications services to set prices for the period beyond
2014. This inquiry will also review the wholesale ADSL FAD so that access to Telstra’s network
and prices are applied consistently over the coming years.
Other significant events
Variations to Telstra’s Structural Separation Undertaking and Migration
Plan
3.40
On 19 June 2013 the ACCC approved two minor variations to Telstra’s Structural Separation
Undertaking (SSU). The SSU is intended to address competition concerns arising from Telstra’s
ability and incentive to favour its retail business over other service providers accessing its
network. The variations approved by the ACCC require Telstra to:

publish reference prices for any services that become regulated in the future (just as it
is required to publish reference prices for existing regulated services)

include a new metric in its quarterly operational equivalence reporting that compares
Telstra’s performance in fulfilling orders for particular wholesale and retail services.
3.41
In April and May 2013, the ACCC also approved three requests from Telstra to vary its Migration
Plan, which governs how Telstra must disconnect services from its copper and hybrid fibre
coaxial (HFC) networks and migrate those services onto the NBN fibre network. On 24 April
2013, the ACCC approved Telstra’s request to delay the introduction of restrictions on Telstra’s
supply of copper services in NBN fibre areas where NBN services are already available. Telstra
requested these restrictions be deferred until it could complete implementation of an IT system
that is designed to ensure the restrictions are applied to wholesale customers and its retail
business in the same way.
3.42
On 15 May 2013 the ACCC approved Telstra’s requests to create a new exception to the
restrictions on its supply of copper services and extend the definition of ‘Initial Release Rollout
Region’ in the Migration Plan. Telstra sought the new exception to facilitate a smoother migration
to the NBN of a class of end-users who might otherwise have experienced difficulties in retaining
their existing telephone numbers. Telstra sought the change to the definition of ‘Initial Release
Rollout Region’ to reflect NBN Co’s intention to offer NBN services before the ‘ready for service’
date in an additional 82 regions.
3.43
On 14 June 2013 Telstra requested a further change to its Migration Plan which relates to the
circumstances in which restrictions on Telstra’s supply of copper service in NBN fibre areas that
are ‘ready for service’ will apply. On 25 June 2013 the ACCC published a discussion paper
inviting submissions on Telstra’s request by 22 July 2013.
Reports Released
Telstra’s current cost accounting report
3.44
In April 2013, the ACCC published Telstra’s current cost accounting report relating to the
accounting separation of Telstra for the first half of 2012-2013. This report provides information
concerning Telstra’s financial statements for the first half of 2012-13 in respect of Telstra’s core
regulated services.
3.45
These core services include the following regulated wholesale services provided on Telstra’s
public switched telephone network (PSTN):
3.46

the unconditioned local loop service

PSTN originating and terminating access services and

the local carriage service.
The next report is due to be assessed and published in November 2013.
ACCC report on Telstra’s compliance with its SSU
3.47
Under the Telecommunications Act 1997, the ACCC is required to monitor and report each
financial year on breaches by Telstra of its SSU. On 20 June 2013, the Minister for Broadband,
ACCCount 1 April to 30 June 2013
35
Communications and the Digital Economy tabled the ACCC’s inaugural report, which identifies a
number of breaches of the SSU during the period from its acceptance in March 2012 until
30 June 2012.
3.48
The majority of the reported breaches concern Telstra’s obligations to safeguard protected
information—confidential or commercially sensitive wholesale customer information provided to
Telstra in its capacity as access provider of regulated services—from disclosure to Telstra’s retail
businesses that compete with wholesale customers. The ACCC is further investigating Telstra’s
failure to comply with its information security obligations. A decision as to what further steps,
including any consequential action that the ACCC considers appropriate, will be made following
the conclusion of this investigation.
AIRPORTS
Airport Monitoring Report 2011-12
3.49
In April 2013 the ACCC released the 2011-12 Airport Monitoring Report. The Australian
Government directed the ACCC to monitor the supply of aeronautical and car parking services at
Adelaide, Brisbane, Melbourne (Tullamarine), Perth and Sydney (Kingsford Smith) airports due
to concerns that airports could use their position to earn monopoly profits (to the detriment of
consumers).
3.50
This year’s report presented the monitoring results of the supply of aeronautical and car parking
services and issues of congestion across the monitored airports. The aim of monitoring
Australian airports is to increase transparency of the airports’ performance to discourage airport
operators from increasing prices excessively and lowering standards of services and facilities.
Aeronautical services and facilities
3.51
The 2011-12 report stated that despite investment in aeronautical services and facilities since
2001-02, there appears to be evidence of system wide congestion across monitored airports.
This congestion may be one of the factors contributing to the decline in on-time performance at
the monitored airports. The report notes that additional investment will be needed to cope with
the expected increases in airport throughput in the medium to long term to meet the needs of
passengers and avoid even more congestion in the future.
3.52
Growth in passenger numbers at major airports except Adelaide continued to drive demand for
aeronautical services and facilities during 2011-12, increasing by a combined 2.5 per cent for all
airports. From 2001-02 to 2011-12, total passenger numbers across the five monitored airports
have increased from 62.1 million to 106.3 million, an increase of 71.1 per cent. This is the tenth
consecutive year of growth in airport patronage. Apart from Brisbane and Perth airports, all other
monitored airports experienced drops in domestic passenger numbers. In Sydney and
Melbourne airports, this domestic decrease was offset by solid growth in international travel.
3.53
Overall average ratings for quality of service indicators, which include the views of airlines,
passengers, border agencies, as well as quantitative measures of the size and availability of
facilities, fell slightly at all monitored airports during 2011-12. For the first time since 2007-08, no
airport achieved an overall rating of at least good. Rather, all airports were rated as satisfactory.
Car parking and landside services and facilities
3.54
The 2011-2012 Report found that the total number of car parking spaces at all monitored airports
increased by 7.3 per cent during 2011-12. All airports increased the number of car park spaces
apart from Melbourne which decreased by 2.2 per cent. The largest increase occurred at
Brisbane Airport, up 31.7 per cent since 2010-11.
3.55
Total combined airport car parking revenue for all monitored airports increased in 2011-12. All
airports other than Adelaide Airport recorded higher revenues from their car parking businesses.
Melbourne Airport recorded the highest car parking revenue as well as the highest proportion of
car parking revenue to total airport revenue.
3.56
Brisbane, Perth and Sydney airports increased a small number of landside access charges.
Melbourne and Adelaide airports left charges unchanged in 2011-12. Airports generally earned
higher revenues from taxi and private car operations in 2011-12, particularly Melbourne, Perth
and Sydney airports. Melbourne and Brisbane also earned higher revenues from private bus and
off-airport car parking services.
ACCCount 1 April to 30 June 2013
36
Review of Airport Quality of Service Monitoring
3.57
The ACCC’s approach to quality of service monitoring for the 2011-12 Airport Monitoring Report
was set out in the ACCC’s Airport quality of service monitoring guideline, published in
October 2008. In 2012, the Government asked the ACCC to review and update the objective
criteria used in the quality of service monitoring program. Accordingly, the ACCC has undertaken
a review of its airport quality of service monitoring program and accompanying guideline, which
will apply to Brisbane, Melbourne (Tullamarine), Perth and Sydney (Kingsford Smith) airports.
The ACCC's review was a consultative process and examined the extent to which the
information collected through its quality of service monitoring program supported the objectives
of the program.
3.58
The revised guideline was released on 26 June 2013 and will take effect for data collected and
reported on for the 2013-14 monitoring program and onwards. The review resulted in the
following changes to the guideline and includes consultation with landside operators and
changes to a number of objective indicators such as check-in services and facilities, baggage
systems and baggage handling, public amenities, aerobridges, runways, taxiways and aprons,
and airport access facilities.
FUEL PRICE MONITORING
3.59
The ACCC closely follows developments in the petroleum industry and monitors the retail prices
of petrol, diesel and automotive liquefied petroleum gas (LPG) in all capital cities and around
180 regional locations.
Price movements in the June 2013 quarter
Petrol
3.60
The ACCC monitors movements in domestic retail petrol prices against movements in
international benchmark prices. In the case of regular unleaded petrol (RULP), movements in
seven-day rolling average retail RULP prices in the five largest cities (Sydney, Melbourne,
Brisbane, Adelaide and Perth) are compared with movements in seven-day rolling average
prices for Singapore Mogas 95 Unleaded lagged by 10 days (Mogas 95) in Australian cents per
litre (cpl).
3.61
Chart 1 shows movements in these prices over the period 1 April to 30 June 2013. Retail RULP
prices are shown on the left hand side of the chart and Mogas 95 prices are shown on the right
hand side.
3.62
A comparison of movements in these two prices is indicative rather than an exact science and
factors other than international benchmark prices can influence retail petrol prices in the short
run. This caveat also applies to the comparisons of movements between retail diesel and
automotive LPG prices and their respective international benchmarks.
ACCCount 1 April to 30 June 2013
37
Chart 1 Movements in retail RULP prices and international benchmark prices—1 April to
30 June 2013
160
100
150
90
140
80
130
70
120
60
Singapore Mogas 95 Unleaded
(7-day rolling average price, lagged by 10 days), RHS
110
50
01-Apr-13 15-Apr-13 29-Apr-13 13-May-13 27-May-13 10-Jun-13 24-Jun-13
Note: the cyclical movements in the seven-day rolling average retail price series arise because petrol
price cycles in 2013 have been longer than seven days. Traditionally the ACCC has used a sevenday rolling average to smooth out the effects of the petrol price cycle.
3.63
As illustrated in the chart, both retail RULP prices and Mogas 95 prices increased in the June
2013 quarter. Seven-day rolling average retail RULP prices in the five largest cities increased
from 139.7 cpl at the beginning of April 2013 to 147.4 cpl at the end of June 2013—an overall
increase of 7.7 cpl during the quarter. RULP and Mogas 95 prices decreased in April, before
increasing through to the end of June.
3.64
Mogas 95 prices decreased in April due to rising global economic concerns, and low gasoline
demand and high crude oil stocks, particularly in the US. Subsequently, Mogas 95 prices
increased steadily in May and June due to the ongoing geopolitical unrest in Syria, and easing
economic concerns in the US and Europe.
DIESEL
3.65
The ACCC monitors the movement of retail diesel prices against the price of Singapore Gasoil
with 10 parts per million sulphur content, lagged by 11 days (Gasoil 10ppm). Chart 2 shows daily
average retail diesel prices on the left hand side of the chart and Gasoil 10 ppm prices on the
right hand side.
3.66
Daily average retail diesel prices in the five largest cities decreased from the beginning of April
through to mid-May, before increasing through to the end of June. Despite these movements,
retail prices ended the June 2013 quarter as they began it—at 148.6 cpl. Gasoil 10 ppm prices
increased by 4.3 cpl over the quarter.
ACCCount 1 April to 30 June 2013
38
Australian cents per litre
Australian cents per litre
Five largest cities (7-day rolling average retail price), LHS
Chart 2 Movements in retail diesel prices and internationalbenchmark prices—
1 April to 30 June 2013
160
100
150
90
140
80
130
70
Australian cents per litre
Australian cents per litre
Five largest cities
(daily average retail price), LHS
Singapore Gas Oil 10ppm
(7-day rolling average price, lagged by 11 days), RHS
120
01-Apr-13
60
15-Apr-13
29-Apr-13 13-May-13 27-May-13 10-Jun-13
24-Jun-13
Automotive LPG
3.67
The ACCC monitors the movement of retail automotive LPG prices against the average of Saudi
Aramco contract prices for propane and butane (Saudi CP), which are issued on the first day of
the month (see Chart 3).
3.68
Average retail automotive LPG prices in the five largest cities (on a seven-day rolling average
basis) decreased by 4.7 cpl over the June 2013 quarter—from 70.4 cpl to 65.7 cpl. The Saudi CP
decreased slightly between April and June.
Chart 3 Movements in retail automotive LPG prices and international
benchmark prices—1 April to 30 June 2013
Five largest cities
(7-day rolling average retail price), LHS
60
70
55
65
50
60
45
55
40
Saudi CP benchmark prices, RHS
50
35
45
30
01-Apr-13 15-Apr-13 29-Apr-13 13-May-13 27-May-13 10-Jun-13 24-Jun-13
ACCCount 1 April to 30 June 2013
39
Australian cents per litre
Australian cents per litre
75
AIRSERVICES AUSTRALIA
Decision
Airservices Australia
3.69
On 30 May 2013 Airservices Australia submitted the second of its subsequent annual price
notifications to the ACCC. The price notification proposed prices for terminal navigation (TN), en
route and Aviation Rescue and Fire Fighting (ARFF) services from 1 July 2013 to 30 June 2014
that were the same as those outlined in Airservices’ Long Term Pricing Agreement (LTPA). The
LTPA outlined a path of prices for TN, en route and ARFF services for a five-year period from
2011 to 2016 and was accepted by the ACCC in 2011 after detailed assessment and public
consultation. Airservices’ 2013-14 price notification also included a new ARFF Category 6
service at Port Hedland and fees for TN and ARFF services provided out of ordinary hours.
3.70
On 12 June 2013, after undertaking an assessment and consultation with stakeholders, the
ACCC decided to not object to Airservices’ 2013-14 proposed price increases for TN, en route
and ARFF services.
RAIL ACCESS
Decisions and determinations
Hunter Valley Access Undertaking
3.71
The Hunter Valley Access Undertaking requires the Australian Rail Track Corporation (ARTC) to
submit documentation for the purposes of an annual compliance assessment to be conducted by
the ACCC.
3.72
On 24 May 2013 ARTC submitted its compliance documentation for the 2012 calendar year. On
12 June 2013 the ACCC issued a consultation paper calling for submissions from interested
parties. Submissions are due on 10 July 2013.
3.73
On 28 June 2013 ARTC submitted a variation application to include rail segments between Gap
and Turrawan into the Hunter Valley Access Undertaking. These segments service the
Gunnedah Basin coal mines Gunnedah, Boggabri and Narrabri, and may also service proposed
developments at Watermark and Maules Creek. The variation seeks to incorporate the segments
between Gap and Turrawan in the Network effective on and from 1 January 2014. The ACCC is
required to make a decision on whether to consent to the variation application within 180 days
(plus any clock stoppers). The ACCC intends to conduct a public consultation process calling for
the views of interested parties as part of its assessment.
Interstate Rail Network Access Undertaking
3.74
On 10 April 2013 the ACCC made a decision to accept a variation application submitted by
ARTC on 4 September 2012 to include the Southern Sydney Freight Line (SSFL) and associated
access charge into the existing Interstate Access Undertaking. The SSFL runs between Sefton
and Macarthur in southern Sydney and was constructed by ARTC to assist in alleviating the
major bottleneck in the rail freight network in Sydney that is caused by freight trains sharing the
existing rails lines with the Sydney metropolitan passenger services.
BULK WHEAT EXPORT – ACCESS TO PORT
TERMINAL SERVICES
Access Undertakings
3.75
During 2011 the ACCC accepted undertakings under Part IIIA of the Act regulating access to
services for the export of bulk wheat at port terminals operated by GrainCorp at seven port
ACCCount 1 April to 30 June 2013
40
terminals on the East Coast, Australian Bulk Alliance (ABA) at the Port of Melbourne, Viterra at
six ports in South Australia and Cooperative Bulk Handling (CBH) at four ports in Western
Australia.
3.76
The ACCC has a role in access arrangements for wheat exporters as part of the ongoing
deregulation of the wheat industry. The Wheat Export Marketing Act 2008 (WEMA) requires that
in order to export bulk wheat, port operators with their own vertically integrated trading arm must
pass an ‘access test’. As part of the access test, vertically integrated port operators are required
to provide the ACCC with a Part IIIA access undertaking. The undertakings allow for third party
exporters to access the port terminals operated by vertically integrated port terminal operators,
ensuring competition in this significant export market.
3.77
Since accepting the undertakings, the ACCC has been ensuring each of the port operators
comply with their respective undertakings. This includes examining the access arrangements
between port terminal operators and wheat exporters and monitoring various reporting outputs of
each of the port terminal operators.
3.78
On 22 March 2013CBH applied to the ACCC to vary its 2011 undertaking, primarily to make
certain changes to its auction capacity allocation system and to introduce a process for CBH to
buy back allocated capacity in certain circumstances. The ACCC released an Issues Paper
seeking stakeholder comments on the proposed variations on 30 April 2013.
3.79
On 26 March 2013Emerald submitted a proposed undertaking to apply from 1 October 2013,
when its current undertaking expires, to 30 September 2014, when the WEMA access test
requirements are expected to be repealed. The undertaking largely reflects ABA’s 2011
undertaking, but seeks to make some ‘operational’ changes, primarily to the Standard Terms and
Port Loading Protocols. On 30 April 2013, the ACCC released an Issues Paper seeking
stakeholder comments on the proposed undertaking.
Legislative amendments
3.80
The WEMA requires port terminal operators to comply with Continuous Disclosure Rules (CDRs),
which means they must publish details as to the allocation of capacity and forward shipping
program of individual ports. Amendments to the WEMA which came into effect in December
2012 made the existing CDR obligations a compulsory element of the access undertakings
required to pass the access test. On 10 December 2012 the ACCC took on the role of monitoring
the port terminal operators’ compliance with the CDRs. The ACCC has continued to work with
port terminal operators to develop an effective and efficient way of carrying out this monitoring
task.
3.81
The legislative amendments also now provide for the WEMA to be repealed on 1 October 2014,
if the Minister for Agriculture, Fisheries and Forestry approves an industry code of conduct
governing port access and that code is declared as a mandatory code under the Act. A Code
Development Advisory Committee (CDAC), including representatives from port terminal
operators, exporters and growers, was formed to provide industry views on the development of
the code to the government. The ACCC has observer status on the CDAC. On 6 March 2013,
the CDAC reached a consensus agreement on a draft set of key principles and detailed
provisions for elements of the Code for consideration by the Minister.
3.82
The Department of Agriculture, Fisheries and Forestry, the ACCC and The Treasury all have a
role in the development of the Code. The government and CDAC are currently working to finalise
the set of key principles, before developing a draft Code.
PART IIIA
3.83
The Productivity Commission (PC) is currently undertaking an inquiry into the National Access
Regime. The PC released its draft report in May 2013. The ACCC continues to engage with the
PC to assist with the review, including participating in public hearings.
ACCCount 1 April to 30 June 2013
41
WATER
ACCC submission on the potential regulation of water market
intermediaries
3.84
On 4 June 2013 the ACCC made a public submission to the Council of Australian Government
(COAG) draft regulatory impact statement (consultation RIS) for the potential regulation of water
market intermediaries (WMI’s - water brokers and exchanges). The submission notes the
Competition and Consumer Act 2010 (CCA) requirements that already apply to WMIs and the
involvement the ACCC can have in the development of a voluntary industry code of conduct. The
ACCC also recommends that if a voluntary accreditation scheme or a mandatory licencing
regime is chosen that any requirements for mandatory trust accounts and professional indemnity
insurance are separate elements to a code of conduct. The submission also provides information
on the authorisations provisions of the CCA which may be relevant depending on the form of
regulation ultimately adopted. The ACCC’s submission is available at:
http://www.environment.gov.au/water/australia/coag/pubs/ris-accc-submission.pdf
ACCCount 1 April to 30 June 2013
42
4. INCREASING ENGAGEMENT
Increase our engagement with the broad
range of groups affected by what we do
OUTCOMES FROM INTERNATIONAL FORUMS AND
CONFERENCES
International partnerships and collaboration
4.1
The ACCC continued to engage closely with competition and consumer protection counterparts
around the world. The need for international cooperation has grown as trading across
jurisdictional borders has become more frequent and consumers have become exposed to more
complex transactions occurring across multiple jurisdictions.
4.2
The ACCC regularly engages and exchanges information with other regulators internationally in
respect of investigations and merger assessments. This quarter, the ACCC:

received and responded to 21 requests for information from agencies in Canada,
Denmark, European Community, India, Japan, Malaysia, New Zealand, Papua New
Guinea, Philippines, the United Kingdom, and United States of America.

made 10 requests for information to agencies in the European Community, Hong
Kong, New Zealand, Singapore, the United Kingdom and the United States of
America.
4.3
In April 2013 the ACCC attended the 2013 International Competition Network (ICN) Annual
Meeting in Warsaw, Poland and its associated events. The ICN is the key agency-to-agency
network for competition regulators working to promote best practice in agency effectiveness,
advocacy, cartel, merger and unilateral conduct investigations. The ICN Annual Meeting is the
key annual heads of agencies event where the ICN reports on the outcomes of the year past and
concludes its project planning for the upcoming year. It is also the primary global networking
event for heads of agencies and those involved in promoting international cooperation in
competition regulation. During the meeting the ACCC met with heads of competition agencies
across the world,
4.4
Chairman Sims presented at the World Bank pre ICN forum on ‘Making Markets Work for
development : a reform agenda for competition’ and at the ICN on academic and private sector
contributions to competition law development, ACCC staff presented at the International Bar
Association’s conference, ICN in Poland: New Challenges and Enforcement Tools in Competition
Law, on ‘Sanctions should be effective and just – achieving the right balance between fines for
companies and criminal sanctions for individuals’. ACCC staff also presented at the ICN meeting
on knowledge management and international cooperation in cartel investigations.
4.5
In April 2013, the ACCC also attended the International Consumer Protection and Enforcement
Network (ICPEN) Annual Conference and Annual ICPEN Consumer Protection Best Practice
Workshops in Antwerp, Belgium. The conference was held in conjunction with the London Action
Plan (International Cybersecurity Enforcement Network) and the EU Cross-border Enforcement
and Cooperation – EU 2013 Internet Enforcement Common Activity project.
4.6
In April 2013 the ACCC’s Deputy Chair, Delia Rickard, presented at the first Consultative
Meeting of the Working Group on Cross Border Consumer Redress on Development of
Complaint and Redress Mechanism Models in ASEAN, held in Bangkok Thailand.
ACCCount 1 April to 30 June 2013
43
4.7
In June 2013, the Chairman met with the Indian Minister of State, Ministry of Corporate Affairs
and the Chairman of the Competition Commission of India (CCI), Minister Sachin Pilot, to hold
high level discussions between the ACCC and CCI and sign a Memorandum of Understanding
(MoU) between the two agencies. Aligning with the whole of government initiative to increase
engagement with the Asia-Pacific region, the MoU is designed to facilitate coordinated and
effective responses to cross border conduct affecting Australian markets and consumers. A copy
of this arrangement is available on the ACCC’s website.
4.8
In June 2013 the ACCC participated in the OECD Competition Committee meetings. The
OECD's Competition Committee and its working parties aim to promote market-oriented reform
by actively encouraging and assisting decision-makers in government tackle anti-competitive
practices and regulations. The ACCC submitted five papers on the topics of International
cooperation; definition of ‘transaction’ for the purpose of merger review; Competition issues in
road fuel; assessment of quality and other non-price factors in competition issues; and
competition issues in rail.
4.9
The ACCC is the current chair of the Organisation for Economic Co-operation and Development
Product Safety Working Party, which is progressing a range of initiatives aimed at improving
information sharing. Enhancements are being made to a global recall database that was
launched in October 2012 and the second phase, which includes the introduction of languages
other than English, is under development. Participants are also working to maximise use of a
password protected extranet where members are able to share information and developments;
generate funds to progress a proposed global injury database; and develop a second workshop
and documentation on risk assessment.
4.10
The ACCC also participates in the International Consumer Product Health and Safety
Organisation forum for the exchange of ideas and information on health and safety issues related
to consumer products manufactured and marketed in the global marketplace.
4.11
In May 2013 the ACCC attended the ISO COPOLCO Plenary (annual meeting) in Malta. This
annual meeting included a meeting of the product safety working group. Progress was made in
relation to the governance arrangements for ISO COPOLCO and its working parties.
4.12
The ACCC attended the ISO COPOLCO Product Safety Workshop Group meeting.
4.13
The ACCC attended the Energy Intermarket Surveillance Group Meeting and Workshop.
4.14
The ACCC presented at Massey University's ‘Conflict and Resolution In The Franchise Sector:
Evidence From New Zealand and Australia’ symposium, and met with the board of the Franchise
Association of New Zealand.
4.15
Recognising the value of effective competition and consumer protection regulation and regional
cooperation, the ACCC continues to commit efforts to relationship and capacity building in the
Asia-Pacific region, and beyond. During the June quarter this support included:

Partnering with the ASEAN, the US Fair Trade Commission (USFTC), the Vietnam
Competition Authority, and USAID, in co-sponsoring and delivering a workshop on
enhancing cross-border enforcement and redress in the ASEAN region, in Nha Trang,
Vietnam. This was the second workshop delivered to ASEAN Member States where
the ACCC had been invited to partner with the USFTC. The ACCC’s support of this
workshop is consistent with the ACCC’s priority to increase our engagement and
partnership with competition authorities in the Asia-pacific region.

Partnering with New Zealand to present Australia’s and New Zealand’s approaches to
cooperation in competition policy and enforcement at the 3rd Closer Economic
Relationship Integrated Partnership Forum for ASEAN in Cairns in June 2013.

Meeting with ASEAN experts on competition law in Cairns in June 2013 and
supporting the Australian and New Zealand Governments’ proposals to form a
Competition Committee to support the implementation of the competition goals in the
ASEAN, Australia and New Zealand Free Trade Area.

Attending and presenting at the Pacific ICT Regulatory Resource Centre’s 2nd Annual
General Meeting and Training Workshop in Fiji.

Commencing a one year secondment to the Competition Commission of Singapore.

Hosting an official from the Taiwan Fair Trade Commission on a three month
secondment.
ACCCount 1 April to 30 June 2013
44

Conducting a fact finding mission in the Philippines as part of an United Nations
Conference on Trade and Development peer review of competition policy in the
Philippines.

Hosting study visits from Bangladesh and Papua New Guinea.
4.16
On 24 April 2013 AER participated in the 27th meeting of the Energy Intermarket Surveillance
Group (EISG), hosted by the Market Surveillance Administrator in Calgary, Atlanta. The EISG is
the peak and only international group that provides for co-ordination between energy market
surveillance and enforcement bodies, such as the AER. EISG is a not-for-profit organisation that
co-ordinates sharing of information and skills between its members. The AER manages the
non-public EISG website on the group’s behalf so participants can exchange ideas between
meetings. The AER will host the next meeting of the EISG in Adelaide in October 2013.
4.17
On 25 April 2013 the ACCC participated in the G20 Energy Regulator’s Roundtable in Paris
entitled ‘Making energy markets work better for consumers: The Australian regulatory
experience’. The ACCC noted the impacts of the transformation of the energy sector in Australia
including the establishment of a stable wholesale market and a more nationally focused grid
network and highlighted the need for continual fine-tuning to ensure the market delivers in the
long-term interests of consumers.
4.18
In April 2013 ACCC Deputy CEO Mark Pearson attended a meeting of the OECD Regulatory
Policy Committee. The objective of this Committee is to assist member and non-member
economies in building and strengthening their regulatory reform efforts.
4.19
The meeting included a continuation of the Roundtable on Regulatory Reform for Inclusive
Growth to examine how countries identify, prioritise and combine regulatory reforms to unlock
some of the structural bottlenecks and support their growth and welfare agendas.
4.20
While at the OECD, Mr Pearson also attended a second meeting to explore the possibility of
establishing an OECD Network of Economic Regulators from multiple sectors and jurisdictions.
During this meeting he participated in a panel that discussed common issues faced by economic
regulators in evaluating their performance.
CONSUMER ENGAGEMENT
AER Customer Consultative Group
4.21
On 18 April 2013 the AER’s Customer Consultative Group met for the first time this year. The
meeting discussed the commencement of the National Energy Customer Framework, the 2013
compliance and enforcement priorities and the Better Regulation program. The meeting also
covered a broad range of topics relevant to energy customers. These included a discussion on
the AER’s approach to the development of a service provider consumer engagement guideline,
the AER’s development of a stakeholder engagement framework, an overview of the billing
provisions in the Retail Law and a discussion of current issues relating to billing, and an update
by the Energy and Water Ombudsman South Australia.
Stakeholder events
4.22
AER staff engagement activities during the quarter included attending and participated in a
number of conferences. Among these was Financial Counselling Australia’s 2013 National
Congress on 21-22 May, in Sydney. With their important role in advising consumers experiencing
financial problems and hardship, Financial Counsellors have an influential role in promoting
energy literacy, including key AER messages about consumer rights, energy efficiency and
access to retailer hardship programs. Our staff made a presentation about the Energy Made
Easy website and the Retail Law. The AER joined the ACCC stall at the event where around
1000 fact sheets and brochures were distributed.
4.23
Other events we attended included:

Consumer Action Law Centre’s energy forum A Policy Trilemma – Creating an
affordable, secure and sustainable energy market (Melbourne, 27 June). ACCC
Deputy Chair Delia Rickard spoke on the subjects of energy affordability,
sustainability and security.
ACCCount 1 April to 30 June 2013
45

The National Energy Affordability Roundtable (Energy and Water Ombudsman NSW,
Australian Council of Social Service and Energy Retailers Association of Australia
(Canberra, 15 April).
Consumer Consultative Committee
4.24
The Consumer Consultative Committee provides a forum through which consumer protection
issues can be addressed collaboratively between the ACCC and consumer representatives.
Members of the Consumer Consultative Committee include representatives from CHOICE,
Financial Counselling Australia, the Indigenous Consumer Assistance Network; the Council on
the Ageing; the Consumer Law Action Centre. The ACCC recently appointed three new
members to the Consumer Consultative Committee: the Australian Council of Social Services,
Youth Action and Policy Association and Australian Multicultural Education Services.
4.25
On 30 April 2013the ACCC held a Consumer Consultative Committee teleconference where
members discussed the key take outs from the 2013 National Consumer Congress and
Consumer Consultative Committee –Consumer Advisory Panel elder issues workshop, as well
as current consumer protection concerns impacting on members.
Financial Counselling Australia Conference
4.26
In May 2013, the ACCC and AER attended the Financial Counselling Australia Conference in
Sydney. The event enabled members of the financial counselling industry to develop networks
with key stakeholders and to discuss a range of issues impacting their clients. The ACCC
facilitated a session about debt collection. The ACCC distributed consumer publications including
the consumer guarantees and door-to-door materials, in both English and translated versions.
National Law Week
4.27
National Law Week is an annual event aimed at increasing public awareness about the law, the
legal system and the legal profession, as well as educating the community about the legal
services available in Australia.
4.28
As part of this national event, on 13 May 2013 the ACCC shared a stand with New South Wales
Office of Fair Trading in Sydney, and distributed ACCC consumer publications and spoke to
attendees about consumers’ rights.
4.29
On 18 May 2013 the ACCC disseminated consumer publications at a Queensland Office of Fair
Trading stand as part of the Queensland Department of Justice’s Open Day.
Other consumer education and engagement activities
4.30
During this quarter, the ACCC’s education and engagement activities focussed on promoting
awareness about the consumer guarantees rights, consumer door-to-door sales rights and how
consumers can protect themselves from scams.
4.31
The ACCC liaised with and made presentations to a variety of consumer organisations, including
the state consumer protection agencies, Multicultural Disability Advocacy Association (NSW),
Australian Charities and Not For Profit Commission, St. Vincent de Paul (NSW), Local
Community Services Association (NSW), Department of Family and Community Services (NSW),
Association of Independent Retirees (WA), National Seniors Australia, Smith Family (NSW),
Older People Speak Out (QLD), Older Women's Network (QLD), a Neighbourhood Watch group
(QLD) and a number of other seniors groups across the country.
4.32
The ACCC also attended four consumer-related events and expos, including the People with a
Disability Expo and the Financial Counselling Association conference, distributed approximately
4 500 consumer publications, and sent a door-to-door consumer article to four relevant
stakeholder groups for potential publishing.
ACCCount 1 April to 30 June 2013
46
BUSINESS ENGAGEMENT
Online education program for small business
4.33
On 10 April 2013 the ACCC launched a new online education program for small businesses. Part
of the launch events included a presentation by ACCC Deputy Chair Michael Schaper at the
Business Enterprise Centre (BEC) Australia’s Small Business Futures Forum event which was
streamed live over the internet. The program is available for free at
www.ccaeducationprograms.org and aims to help small businesses better understand their rights
and responsibilities under the Competition and Consumer Act 2010 when dealing with their
customers, suppliers and other businesses. Since the launch, the program has attracted almost
5 000 unique visitors to the site.
Online education program for tertiary students
4.34
An online education program for tertiary students is currently being developed. The aim of this
program is to help inform students about the practices they are likely to encounter in their future
business careers that raise competition or consumer law issues. The program will be added to
the www.ccaeducationprograms.org website in late 2013.
Franchising pre-entry education program
4.35
The franchising pre-entry education program, administered by Griffith University, is a free, online
program designed to provide potential franchisees with the information they need to make an
informed decision about whether to enter into a franchise agreement. Since its release in
July 2010, the program has been accessed by over 4400 users.
Infrastructure Consultative Committee
4.36
The Infrastructure Consultative Committee (ICC) meets twice a year to discuss the broad issues
of infrastructure regulation. Its members are representative of a variety of infrastructure sectors
including energy, telecommunications, water, rail, port and airports.
4.37
The ICC met in May 2013 in Melbourne to discuss recent critical issues for the ACCC/AER and
other members. Results of a review of the ICC and its future activities were also presented.
Franchising Consultative Committee
4.38
On 10 May 2013, the ACCC held a meeting of its Franchising Consultative Committee (FCC).
The FCC comprises franchisors, franchisees, legal practitioners and academics. This meeting
was also attended by staff from the Department of Industry, Innovation, Climate Change,
Science, Research and Tertiary Education (DIICCSRTE). The FCC members and DIICCSRTE
staff discussed the progress of the 2013 review of the Franchising Code, including the
consultation process that will inform the Government’s response to the recommendations made
in the report.
Fuel Consultative Committee
4.39
In May 2013 the ACCC hosted a half-yearly meeting of the Fuel Consultative Committee
(FuelCC). The FuelCC was established in 2010 to provide an opportunity for meaningful dialogue
between the ACCC, the fuel industry and motoring organisations. The information shared
increases our understanding of fuel industry issues, and assist us in undertaking our role on
issues related to competition and consumer protection in the fuel industry.
WA small business scams forum
4.40
On 21 June 2013, the ACCC and the Western Australia Small Business Development
Corporation (SBDC) hosted a ‘Small Business Outsmarting the Scammers’ event in Perth. The
event was held as part of National Consumer Fraud Week and attended by representatives of
ACCCount 1 April to 30 June 2013
47
chambers of commerce and business associations and SBDC Small Business Centres. ACCC
Deputy Chair Dr Michael Schaper chaired the event.
4.41
The event featured scam survival stories and tips from a small business proprietor, BankWest
and the WA Department of Commerce.
Small Business Consultative Committee
4.42
On 24 May 2013, the ACCC held a meeting of its Small Business Consultative Committee
(SBCC). The SBCC is attended by representatives of industry and small business organisations,
as well as government. This meeting featured a presentation by SBCC member Dr Paull Weber,
of Curtin University, on research he has undertaken on small business scams. The report aims to
help identify risk factors, possible strategies and responses for small businesses targeted by
scammers.
Other small business education and engagement activities
4.43
During this quarter, the ACCC’s education and engagement small business activities focussed
on the promotion of the online education program for small business and the business
obligations of online traders.
4.44
The ACCC delivered about 25 presentations to business audiences, attended 12 businessrelated events and expos, distributed almost 13 000 small business-related publications, and
sent articles about online trading and the online education program for small business to more
than 100 industry stakeholder groups and/or industry media for potential publishing.
4.45
Highlights included the ACCC’s presentation at BEC Australia’s Small Business Futures Forum
Webinar (10 April); attending BEC Australia’s HomeBiz Connect Expos in Melbourne, Perth,
Brisbane and Darwin; presentations for CPA Australia in Perth, Brisbane, Melbourne and
Sydney, the PeSA Internet Conference for online retailers in Brisbane, and the Sydney
Franchising Expo.
MAJOR SPEECHES
4.46
During the April quarter the ACCC delivered addresses including:
Energy Users Association of Australia
Making the energy market work better for consumers
Andrew Reeves
23 May 2013
Committee for the Economic Development of Australia
Greater consumer engagement essential for energy market improvement
Andrew Reeves
24 April 2013
Victorian Farmers Federation
Competition watchdog’s investigation into major supermarkets
Marcus Bezzi
28 June 2013
Consumer Action Law Centre Energy Workshop
Creating an affordable, secure and sustainable energy market
ACCCount 1 April to 30 June 2013
48
Delia Rickard
27 June 2013
World Bank Group and INDECOPI peer-to-peer event
Making markets work for increased productivity and growth: the Australian experience
Rod Sims (via video conference)
19 June 2013
National Consumer Fraud Week
Outsmarting the scammers: Opening Address
Rod Sims
18 June 2013
Competition Law Conference
Mergers: a 20 year retrospective
Jill Walker and Tim Grimwade
4 May 2013
World Bank Forum
Australia’s experience driving economic growth through competition policy reforms
Rod Sims
23 April 2013
Gilbert + Tobin Lawyers
Competition Policy Workshop – Infrastructure Access
Rod Sims
18 April 2013
Australia-Israel Chamber of Commerce
Dealing with our continuing communications industry revolution
Rod Sims
11 April 2013
ACCCount 1 April to 30 June 2013
49
5. APPENDICES
COMPLAINTS AND INQUIRIES
5.1
During the June 2013 quarter the ACCC received 52 292 complaints and inquiries from
businesses and consumers (email 28 142, telephone 23 783 and letter correspondence 367).
5.2
Of these, 292 matters were escalated for enforcement assessment.
Table 6: ACCC complaints, investigations and litigation progression
June 2013
quarter
Category
Contacts received (phone, email and letters)
52 292
Under assessments commenced
292
Initial investigations commenced
104
In-depth investigations commenced
32
First instance litigation commenced
14
Table 7: Geographic location of inquirers and complainants recorded in the national
database
State
ACL
Scams
(ACL &
Scams)
Anticompetitive
Practices
Industry
Codes
Other
Total
VIC
3327
5173
8500
151
16
1232
9899
NSW
3275
6900
10175
203
39
1276
11693
LD
2669
5361
8030
125
26
873
9054
WA
1197
2143
3340
61
15
418
3834
SA
1061
1841
2902
45
8
492
3447
ACT
774
1226
2000
30
0
347
2377
TAS
266
616
882
11
0
84
977
NT
108
187
295
6
2
49
352
Overseas
113
464
577
5
1
85
668
Not
Supplied
294
52
346
18
4
75
443
Note: single contacts may involve multiple issues. Contacts recorded differ from contacts received as
not all contacts received are entered into the ACCC database and some may be entered at a later
date.
ACCCount 1 April to 30 June 2013
50
Table 8: Complaints and inquiries – top ten by industry
Industry
Non-store retailing (predominantly online sales)
Contacts
1024
On selling electricity and electricity market operation
791
Motor vehicle manufacturing
466
Other store-based retailing
442
Wired telecommunications network operation
440
Supermarket and grocery stores
346
Department stores
337
Electrical, electronic and gas appliance retailing
325
Other electrical and electronic goods retailing
323
Car retailing
309
Note: single contacts may involve multiple industries
Table 9: Top 10 scam categories reported to the ACCC
Scam category
Contacts
Advanced fee /up-front payment
7774
Phishing & identity theft (incl. banking & online account)
3817
Computer hacking (incl. malware and viruses)
2988
Lottery and sweepstakes
2259
Online auction and shopping
2114
Unexpected prizes
981
False billing
792
Dating and romance (incl. adult services)
740
Job and employment
716
Mobile phone (ringtones, competitions and missed calls)
423
ACCCount 1 April to 30 June 2013
51
Table 10: Top possible contraventions of the Competition and Consumer Act (2010)
(excluding scams and other miscellaneous categories)
Fair trading and consumer protection including Australian
Consumer Law
Contacts
Guarantee as to acceptable quality
2951
Guarantee as to fitness for any disclosed purpose etc
235
Guarantee relating to the supply of goods by description, sample or
demonstration
262
Guarantee as to due care and skill
552
Guarantees as to fitness for a particular purpose etc
248
Consumer Guarantees total
4248
Misleading or deceptive conduct
3181
Wrongly accepting payment
737
False representations goods - standard, quality, value, grade,
composition, style etc
222
False representation price
293
False representations total
515
Safety Standards
231
Effective competition and informed markets Parts IV and IVB
Contacts
Contravention of industry codes
111
Exclusive dealing
106
Misuse of market power
104
ACCCount 1 April to 30 June 2013
52
ENFORCEMENT OUTCOMES & MATTERS IN COURT
Litigation commenced
Consumer Protection
Consumer guarantees
Avitalb Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Perth
Consumer guarantees
Bunavit Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Brisbane
Unfair contract terms
ByteCard Pty Limited (Netspeed Internet Communications)
commenced
|
22 April 2013
jurisdiction
|
Federal Court Perth
Consumer guarantees
Carnavit Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Sydney
Credence claims
Coles Supermarkets Australia Pty Ltd
commenced
|
12 June 2013
jurisdiction
|
Federal Court Melbourne
Consumer guarantees
HP Superstore Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Melbourne
Consumer guarantees
Launceston Superstore Pty Ltd (trading as Harvey
Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Melbourne
Consumer guarantees
Mandurvit Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Perth
Consumer guarantees
Moonah Superstore Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Melbourne
Consumer guarantees
Oxteha Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Brisbane
Credence claims
P & N Pty Ltd & Ors
commenced
|
jurisdiction
|
Consumer guarantees
Salecomp Pty Ltd (trading as Harvey Norman)
commenced
|
12 June 2013
jurisdiction
|
Federal Court Melbourne
ACCCount 1 April to 30 June 2013
3 May 2013
Federal Court Adelaide
53
Misleading advertising
Taxsmart Group Pty Ltd & Ors
commenced
|
20 June 2013
jurisdiction
|
Federal Court Melbourne
Vulnerable and
disadvantaged person
Titan Marketing Pty Ltd & Anor
commenced
|
14 June 2013
jurisdiction
|
Federal Court Brisbane
ACCCount 1 April to 30 June 2013
54
Litigation ongoing
Competition
Cartels
Air New Zealand Ltd
commenced
|
jurisdiction
|
12 May 2010
Federal Court Sydney
Price fixing
ANZ Banking Corporation Ltd
commenced
|
25 July 2007
jurisdiction
|
Federal Court Brisbane
Misuse of market power
Cement Australia
commenced
|
jurisdiction
|
12 September 2008
Federal Court Brisbane
Price fixing
Flight Centre Ltd
commenced
|
jurisdiction
|
9 March 2012
Federal Court Brisbane
Cartels
P. T. Garuda Indonesia Ltd
commenced
|
2 September 2009
jurisdiction
|
Federal Court Sydney
Cartels
Prysmian Cavi e Sistemi
commenced
|
23 September 2009
jurisdiction
|
Federal Court Adelaide
continues following settlement with some of the parties
Cartels
Yazaki Corporation & Australian Arrow Pty Ltd
commenced
|
13 December 2012
jurisdiction
|
Federal Court Melbourne
Cartels
Renegade Gas Pty Ltd, Speed-E-Gas Ltd & Ors
commenced
|
23 August 2012
jurisdiction
|
Federal Court Sydney
Consumer Protection
Unfair contract terms
Advanced Medical Institute Pty Ltd & Ors
commenced
|
21 December 2010
jurisdiction
|
Federal Court Melbourne
Small business scam
Artorios Ink Pty Ltd
commenced
|
jurisdiction
|
Consumer protection
BAJV Pty Ltd t/as Europcar
commenced
|
10 November 2011
jurisdiction
|
Federal Court Hobart
ACCCount 1 April to 30 June 2013
10 September 2012
Federal Court Melbourne
55
Consumer protection
Breast Check Pty Ltd
commenced
|
jurisdiction
|
awaiting judgment
Product safety
Dateline Imports Pty Ltd
commenced
|
25 June 2012
jurisdiction
|
Federal Court Brisbane
Credence claims
DuluxGroup (Australia) Pty Ltd
commenced
|
5 December 2012
jurisdiction
|
Federal Court Perth
Door to door selling
Energy Australia Pty Ltd (formerly TRUenergy Pty Ltd)
commenced
|
7 March 2013
jurisdiction
|
Federal Court Melbourne
Vulnerable and
disadvantaged person
Excite Mobile Pty Ltd
commenced
|
jurisdiction
|
21 December 2011
Federal Court Perth
7 December 2011
Federal Court Adelaide
Awaiting judgment on penalty
Consumer guarantees
Harvey Norman Gordon Superstore Pty Ltd
commenced
|
20 November 2012
jurisdiction
|
Federal Court Sydney
Consumer guarantees
Hewlett-Packard Australia Pty Ltd
commenced
jurisdiction
|
|
16 October 2012
Federal Court Sydney
Consumer protection
Homeopathy Plus! Australia Pty Ltd & Ors
commenced
|
19 February 2013
jurisdiction
|
Federal Court Sydney
Credence claims
Luv-a-Duck Pty Ltd
commenced
|
jurisdiction
|
Vulnerable and
disadvantaged person
Lux Distributors Pty Ltd (appeal)
commenced
|
1 March 2013
jurisdiction
|
Federal Court Melbourne
Consumer protection
Safe Breast Imaging Pty Ltd & Anor
commenced
|
21 December 2011
jurisdiction
|
Federal Court Perth
Small business scam
Safety Compliance Pty Ltd & Ors
commenced
|
16 April 2012
jurisdiction
|
Federal Court Sydney
Scam
Sensaslim Australia
commenced
|
jurisdiction
|
15 March 2013
Federal Court Melbourne
15 July 2011
Federal Court Sydney
Awaiting judgment
ACCCount 1 April to 30 June 2013
56
Misleading conduct
The Jewellery Group (trading as Zamels) (appeal)
commenced
|
29 January 2013
jurisdiction
|
Federal Court Adelaide
Credence claims
Turi Foods Pty Ltd & Ors
commenced
|
5 September 2011
jurisdiction
|
Federal Court Melbourne
Continues following settlement with some of the parties.
Awaiting judgment
Alleged contempt
Peter Forster
commenced
jurisdiction
|
|
11 November 2011
Federal Court Brisbane
Awaiting judgment
ACCCount 1 April to 30 June 2013
57
Litigation concluded
COMPETITION
Cartel
Viscas Corporation
commenced
|
concluded
|
jurisdiction
|
outcome
|
23 September 2009
5 April 2013
Federal Court Adelaide
penalty of $1.35 million, injunction
and contribution to costs in respect
of Viscas’ conduct in bid rigging and
price fixing conduct. Proceedings
continue against Prysmian Cavi e
Sistemi & Anor.
consumer protection
Door-to-door sales
AGL Sales Pty Ltd & Ors
commenced
|
concluded
|
jurisdiction
|
outcome
|
Misleading advertising
Nonchalant Pty Ltd trading as Abel Rent-a-Car
commenced
|
14 January 2013
concluded
|
18 June 2013
jurisdiction
|
Federal Court Brisbane
outcome
|
$30,000 penalty and declarations in
relation to misleading advertising
for fees in relation to motor vehicle
rentals.
Telecommunications
TPG Internet Pty Ltd (appeal)
commenced
|
4 July 2012
concluded
|
4 April 2013
jurisdiction
|
Federal Court Melbourne
outcome
|
$50,000 penalty in relation to
misleading television
advertisements and failure to
prominently display in initial
advertisements the single price for
the advertised services. The ACCC
has appealed to the High Court.
ACCCount 1 April to 30 June 2013
26 March 2012
19 May 2013
Federal Court Melbourne
penalties totalling $1.755M,
declarations, corrective advertising,
implementation of compliance
program and contribution to ACCC
costs in relation to illegal door to
door selling practices.
58
Undertakings accepted, Infringement Notices Paid, Audit Notices
Issued
87B Undertakings
Australian Consumer Law
“To encourage fair trading, protection of consumers and product safety”
Credence claims
Happiness Road Investment Group Pty Ltd
S87B undertaking
dated 26 June 2013
On 26 June 2013 the ACCC accepted a court-enforceable
undertaking from Happiness Road Investment Group Pty Ltd in
relation to claims that its ugg boots were made in Australia and
the use of the Australian Made logo without authorisation.
From at least 5 October 2012 to 14 October 2012 Happiness
Road promoted its ugg boots as being Australian Made when,
in fact, its ugg boots were made in China. Happiness Road
also represented on its website that its ugg boots were
approved to use the Australia Made logo or had the benefits of
such approval, when it did not have approval to use the
Australian Made logo.
Misleading advertising
Foxtel Cable Television Pty Ltd
S87B undertaking
dated 15 May 2013
The ACCC accepted an undertaking from Foxtel in relation to
representations that customers who subscribed to a 12 month
plan between 12 February 2012 and 5 April 2012 would
receive a free 11 inch neoniQ television within 10 days of
installation of their Foxtel service. However, free televisions
were not dispatched within 10 days of installation to a
significant number of customers that had signed up to the offer.
Telecommunications
Utel Networks Pty Ltd
S87B undertaking
dated 7 June 2013
The ACCC accepted an undertaking from Utel Networks in
relation to misrepresentations made by the company’s
telemarketers. These misrepresentations included that it was
affiliated or associated with the consumer’s existing
telecommunications provider and the quality of the consumer’s
telecommunication service would not change upon being
transferred to Utel from a rival provider, when this was not the
case.
ACCCount 1 April to 30 June 2013
59
Infringement Notices
Trader
Date paid and amount
MOI International Pty Ltd
30 May 2013
Two notices totaling $20 400
Utel Networks Pty Ltd
7 June 2013
Three notices totaling $19 800
iiNet Limited
17 June 2013
One notice totaling $102 000
Coles Supermarkets Australia
Pty Ltd
27 June 2013
Six notices totaling $61 200
Audit Notices
4.47
During the quarter, the ACCC served 15 audit notices on traders operating under the Franchising
Code. The ACCC has now served 60 audit notices (49 franchisors and 11 horticulture traders)
since the audit power was introduced on 1 January 2011. While most traders have been found to
be compliant with the relevant codes, the audits have revealed potential breaches of the
Franchising Code by a small number of franchisors. These matters have been investigated and
resolved administratively.
4.48
An audit has also revealed potential breaches of the Horticulture Code by a horticulture trader, V.
& A. Liangos Pty Ltd. The ACCC accepted a section 87B undertaking from V. & A. Liangos Pty
Ltd in relation to the alleged conduct.
ACCCount 1 April to 30 June 2013
60