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Journal of Law and Financial Management - Volume 1, November 2002

Volume 1, 2002

Why a Charter of Competition Regulation is Better than the Australian Competition and Consumer Commission's Service Charter and Public Shaming of Corporations

By Len Gainsford


The Dawson Committee's review of the competition provisions of the Trade Practices Act 1974 (Cth) (TPA) and its administration provides a rare opportunity to examine the working of Australian competition legislation and intervention by the competition regulator, the Australian Competition and Consumer Commission (ACCC). There has been some careful thinking on less direct government intervention, by business leaders in organisations such as the Business Council of Australia (BCA).

This has given rise to the BCA's proposed Charter of Competition Regulation, which compares favourably with the ACCC's Services Charter.Principles such as accountability or openness, transparency and consistency are seen as a basis for the operation of regulatory Charters.

The ACCC has been criticised for its perceived lack of accountability.Criticisms also arise through what business leaders and politicians see as the ACCC's inappropriate use of the media. This extends to the issuing by the ACCC of so called 'shame notices'.Such use by the regulator is seen to be inconsistent with accountability and good governance practice. The ACCC has responded to this criticism.

Content analysis techniques are used to compare the BCA's proposed Charter of Competition Regulation with the ACCC's Service Charter.Results from sentence comparisons show that the BCA Charter has a greater emphasis on the main themes of transparency, certainty and goal targeting. This is in addition to a sentence main theme emphasis on accountability or openness.The ACCC Charter, while dwelling to no lesser degree on accountability, has a greater emphasis on service delivery, informed Australian markets, informing consumers and complaints.

Developments in Trade Practices Law in Australia 1999-2001: An Analysis of Part IV of the Trade Practices Act 1974

By Wayne Guild


This paper examines developments in Trade Practices Act law during the period 1999-2001 with specific references to Part IV of that Act which deals with Restrictive Trade Practices. The analysis focuses attention upon whether a finality of amendments to the Act has been attained and a consideration is made and whether the case law principles yield certainty and predictability when applied to given factual situations. Attention is also given to whether the decisions have involved a proper utilisation of time.

Competition Analysis of Bank Mergers in Australia

By Garry K Goddard and Greg Walker


This paper reviews the competition analysis of bank mergers in Australia, a regulatory task that is undertaken by the Australian Competition and Consumer Commission (ACCC) under the Trade Practices Act 1974 (Cth), s 50. As a preliminary step, some background is provided on ACCC merger assessment procedure. This is followed by a discussion of the three most significant bank merger investigations undertaken by the ACCC, including the ACCC's most recent and comprehensive investigation into the Commonwealth Bank of Australia's acquisition of Colonial Limited.

Five major themes running through these investigations are then identified and discussed. The five themes include: the use of market share thresholds and analysis of coordinated conduct by the ACCC; market definitions, especially the impact of electronic banking and convergence on definitions; contestability and entry barriers in retail banking; the importance of regional banks in promoting competition; and the nature of competition remedies accepted by the ACCC. Some brief observations on the implications of all of this for future bank mergers are then presented by way of conclusion.

Irreconcilable Legal and Accounting Views of ' A True and Fair View': An Emerging Alternative from Australian Reforms

By Ram Karan


Despite the dispute over the meaning of 'a true and fair view' ever since it was formally introduced by the Companies Act 1948 (UK), the concept has not only continued to be integral to financial reporting regimes of many countries, but its application has expanded in recent times. In Australia, however, its status has been subordinated by accounting standards. By examining the interpretations of this concept of anti-formalist law by two royal commissions against the notion of value, this paper attempts to explicate a pragmatic meaning of this concept. Its replacement paved by Australian reforms, however, with an accounting concept of 'not misleading' enunciated by two royal commissions should bypass the dispute over the meaning of the true and fair view concept and restore the diminishing credibility of mandatory financial statements and their audits. It also has the potential to transcend the discordant interpretations and national idiosyncrasies of the true and fair view concept and provide a meaningful direction for international harmonisation of financial reporting.