Competition lawyers blast anti-signalling draft
Competition law experts Brent Fisse and associate professor Caron Beaton-Wells have torn into the exposure draft of the federal government's proposed law against price signalling.In their submission to Treasury on the exposure draft, the two experts say neither of the draft's two key clauses should become law. They also say the proposed law's ban on private disclosure of pricing information to competitors "lacks a cogent rationale and would result in unjustified overreach."The draft "requires extensive reconsideration", they conclude, and neither of its two key clauses should be enacted.The federal government, like the federal Opposition before it, has proposed anti-signalling laws largely to prevent what they say is "price signalling" by bank executives. By signalling their intent to raise prices, banking industry critics claim, executives can now effectively co-ordinate price rises without any form of (illegal) agreement.Fisse, a former law professor, has been one of the strongest critics of the proposed anti-signalling laws.Fisse and Beaton-Wells acknowledge what they say are the legitimate concern over information disclosure or exchange between competitors that facilitates anti-competitive and unjustifiable coordination between competitors in a market. But they say neither of the two key clauses will address this concern.If the proposed law is to become law, they say, it should apply in a more restricted form.Their submission includes a number of examples suggesting the proposed law unintentionally catches innocent or even pro-competitive conduct.For instance, they suggest: "Bazza, the CEO of Fifth Column, a new Australian bank, phones Gale, the CEO of one of the big four banks, and says: 'Have you seen our new 6% home loan rate? Beat that, you bastard!' "Bazza's competitive excess is not merely an offence against etiquette. It is a contravention of s 44ZZW. It is irrelevant that Fifth Column's 6 per cent rate is information readily available to competitors in the market: see s 44ZZV(3)".