Broadly, the ACCC may ‘authorise’ businesses to engage in anti-competitive arrangements or conduct when it is satisfied that the public benefit from the arrangements or conduct outweighs any public detriment. Authorisation provides protection from legal action under the Competition and Consumer Act.
The authorisation process begins once a valid application is received and the appropriate lodgement fee is paid (unless the lodgement fee is waived).
The ACCC conducts a comprehensive public consultation process before making a decision to grant or deny authorisation.
Before issuing its final decision the ACCC must issue a draft determination stating whether it proposes to grant or deny authorisation and setting out the reasons for its proposed decision.
The applicant for authorisation and interested parties are invited to respond to the draft determination, either by providing written submissions within a specified timeframe or by calling a pre-decision conference. A pre-decision conference gives the applicant or interested parties an opportunity to discuss the draft decision and to put their views directly to an ACCC commissioner.
The ACCC then issues a final determination, which may grant authorisation, grant authorisation subject to conditions or deny authorisation.
A six-month statutory time limit applies to the ACCC’s consideration of applications for non-merger authorisation lodged after 1 January 2007. The six-month period begins once a valid application for authorisation is lodged with the ACCC.
The six-month statutory time limit only applies to new applications for authorisation. It does not apply to applications for revocation, revocation and substitution or minor variation.
The time limit on the ACCC’s consideration of authorisation applications imposes a discipline on all those involved in the authorisation process.
Once the six-month time period has begun, the ACCC will accept only minor amendments to an application.
Consultation with interested parties will take place according to strict deadlines for the submission of information.
The six-month period can be extended by up to a further six months if:
the ACCC has issued a draft determination and the applicant agrees to the extension.
Streamlined authorisation process for collective bargaining applications
In January 2006 the ACCC introduced a streamlined authorisation process for small businesses proposing collective bargaining arrangements.
Collective bargaining refers to an arrangement under which two or more competitors in an industry come together to negotiate terms and conditions with a supplier or a customer. Collective bargaining arrangements will ordinarily raise concerns under the competition provisions of the Competition and Consumer Act as they involve agreements between competitors, often in relation to pricing.
Under the streamlined authorisation process the ACCC undertakes to respond to requests for interim authorisation and issue a draft determination within 28 days of receiving an application and will finalise its consideration within three months.
