The Australian Competition and Consumer Commission has issued updated Authorisation Guidelines 2013 to reflect its current approach to assessing applications for authorisation under the Competition and Consumer Act 2010.
“Authorisation provides protection from court action for conduct that might otherwise breach the competition provisions of the Act,” ACCC Chairman Rod Sims said.
“Businesses can apply for authorisation when conduct they propose to engage in is at risk of breaching the competition provisions of the Act. The ACCC can grant authorisation when it finds there is an offsetting public benefit from the conduct that outweighs the detriment, including from any lessening of competition.”
“The ACCC is committed to assessing applications for authorisation promptly, consistently and transparently. The new guidelines are a reliable, clear and comprehensive guide to assist applicants, interested parties, their advisers, and the public more broadly to understand and participate in the authorisation process.”
While the authorisation provisions and legislative processes in the Act remain the same, the new guidelines provide updated guidance on the ACCC’s approach based on its recent experience and relevant determinations by the Australian Competition Tribunal.
The last substantial revision of the guidelines was in 2007, with minor updates in 2010 and an Addendum in 2011. Prior to finalising the new guidelines the ACCC consulted widely on a draft version, including with its own Small Business Consultative Committee and the Law Council of Australia.
Key changes in the new guidelines include:
- an explanation of the current practice of the ACCC in adopting a market failure framework for assessing public benefits and detriments
- clarification of the ACCC’s approach to identifying the ‘future with and without’ which assists in assessing the conduct
- recognition that the ACCC’s power to grant authorisation is discretionary and
- clarification of the ACCC’s power to impose conditions when it grants authorisation.