Wednesday, 3 March 2021

What if they threw a party ...

... and nobody came?

Which, in the competition space, is where we've got to, with our attempt to make it easier for companies to collaborate to deal with problems like Covid disruption to supply chains. We set things up to make it easier and faster for the Commerce Commission to authorise collaboration - but nobody's used the new dispensation.

Here's the background. The COVID-19 Response (Further Management Measures) Legislation Act 2020 went live mid May of last year. Its heart was in the right place. During an 'epidemic period', a new s65AD of the Commerce Act allows the Commission to issue a provisional authorisation. ss65AD(2) and (3) are the key bits:

(2) The Commission may make a determination in writing granting a provisional authorisation ... if the Commission considers it is appropriate to do so—

(a) for the purpose of enabling due consideration to be given to the application; or

(b) for any other reason.

(3) The Commission is not required to comply with section 61(5) to (6A) before granting a provisional authorisation

(3) means that the Commission doesn't have to hang about and be "satisfied" - the test in normal times, under s61(6) - that the collaboration would provide "a benefit to the public which would outweigh the lessening in competition that would result". It can just say, get on with it for now and we'll do a fuller analysis later. Right on.

As fellow aficionados of New Zealand's mania for micromanagement will appreciate, you don't see the wide discretion of "for any other reason" written into the Kiwi statute books too often. In fact it's a straight crib from the Aussie equivalent (for wonks, s91(2)c of their Competition and Consumer Act). The ACCC has been able to do "interim" authorisations all along, Covid or no Covid, and you'd think that's a sensible plan.

Oddly, our own Commission used to have the power to issue provisional authorisations under the then s63 of the Commerce Act, but that got repealed by s22 of the Commerce Amendment Act 1990. Go figure.

Never mind, here we are today, back to the original status quo, even if it only applies in epidemic periods. Given that in normal times getting an authorisation strongly resembles wading through hip-high tar for months carrying a complete bound set of Econometrica, something cheap, cheerful and, above all, fast, was just what was needed to enable urgent collaboration in the public interest.

But nobody's used the new process. There have been no applications for authorisation under the new provisions.

Which is odd, because over in Oz, the ACCC has been issuing interim authorisations all over the place: public and private hospitals, medical wholesalers, grocery retailers, banks, regional airlines, and fuel importers and distributors. It's been commendably quick - overnight, on one occasion - in turning the applications around, and it's been putting pro-competitive safeguards such as time limits into them without nobbling the public welfare point of it all. 

What sort of stuff is being authorised? For the supermarkets, as an example, it was things like jointly addressing panic buying: "co-ordinating store hours, including allocating dedicated shopping hours for  elderly and disadvantaged members of the public during periods of high demand for Retail Products", "implementing uniform or similar purchase limits and related public messaging", and "measures to ensure continuity of supply to consumers in remote or regional areas, including securing special allocations of stock and joint requests to suppliers", as you can read in this draft determination.

Sure, Australia and New Zealand each have their own funny little ways, and there's no reason why we should do everything the same way. But I'm still bemused why helpful interim authorisations are flying off the ACCC shelves, while nobody's come into the Commerce Commission looking for one. Anyone got ideas?

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