ACCC & AER annual report 2016-17

Summary of performance for enforcement actions to promote competitive markets

Role and functions

Competitive markets lead to lower prices, better quality products and services, greater efficiency and more choice, all of which benefit consumers.

As Australia’s only national competition regulator, the ACCC works to enhance the welfare of Australians by:

  • maintaining and promoting competition
  • addressing market failures.

We do this by enforcing Part IV of the Competition and Consumer Act 2010 (the Act), which prohibits:

  • cartels and anti-competitive agreements
  • misuse of market power
  • exclusive dealing and resale price maintenance
  • mergers that substantially lessen competition.

Our reporting on this strategy is in three sections:

  • our competition enforcement and advocacy function
  • our merger and authorisation review function
  • the other work we do to promote competition.

This section deals with our competition enforcement and advocacy functions. For reporting on our merger and authorisation review functions, see ‘Summary of performance for merger and authorisation review’.

Our deliverable for the competition enforcement function under Strategy 1 is:

Deliverable 1.1

Deliver outcomes to address harm to consumers and businesses resulting from anti-competitive conduct.

Priorities

With the resources and litigation funding available to us, we prioritise our actions to address conduct that does the greatest harm to competition.

Our annually revised Compliance and Enforcement Policy sets out priorities for the year and the factors we take into account when deciding whether to pursue particular matters.

We revised and released our Compliance and Enforcement Policy in February 2016 and again in February 2017. Our 2016 and 2017 policies prioritise:

  • cartel activity in government procurement
  • anti-competitive agreements and practices between competitors
  • misuse of market power
  • competition issues in the agricultural, health and medical, and commercial construction sectors.

We focus on these areas because of their potential for significant harm to consumer welfare and competition.

Powers

We have the power to take court action, accept court enforceable undertakings, resolve matters administratively and prevent breaches though education and advice. A description of these powers and our approach to using them is in appendix 6.

Performance indicators

Deliverable 1.1: Deliver outcomes to address harm to consumers and businesses resulting from anti-competitive conduct

This deliverable is about the court or other actions we take that deliver outcomes that help to maintain or promote competition.

Table 3.2: Deliverable 1.1 performance indicators

Performance indicator

Annual target

Result

Number of in-depth competition investigations completed

40

43

Percentage of initial competition investigations completed within 3 months

60%

75%

Percentage of in-depth competition investigations completed within 12 months

60%

65.1%

Number of competition enforcement interventions or market studies
(court proceedings commenced, s. 87B undertakings accepted, publication of studies relating to competition in markets)

8

12

Percentage of competition enforcement interventions in the priority areas outlined in the Compliance and Enforcement Policy

80%

100%

Percentage of competition enforcement interventions in the priority areas, or demonstrating the priority factors, outlined in the Compliance and Enforcement Policy

100%

100%

Factors affecting performance

The ACCC exceeded all of the annual targets set for competition enforcement investigations in 2016–17.

The ACCC achieved 12 new competition enforcement interventions in 2016–17 (target of 8), which improves on last year’s result of 11. This result includes criminal cartel and complex anti-competitive conduct investigations such as the Nippon Yusen Kabushiki Kaisha (NYK) and Kawasaki Kisen Kaisha (K-Line) shipping company investigation. Subsequent charges were laid by the Commonwealth Director of Public Prosecutions (CDPP) in these matters. The CDPP is responsible for prosecuting criminal cartel offences. On 3 August 2017 the Federal Court imposed a fine of $25 million on NYK. The K-Line matter is still before the court.

The ACCC completed 43 in-depth investigations in the period and completed initial investigations and in-depth investigations well within the target timeframes of three months and 12 months respectively.

All of the competition enforcement interventions were within the priority areas or demonstrated the priority factors as outlined in the Compliance and Enforcement Policy.