ADIA is the peak business organisation representing manufacturers and suppliers of dental products. Our vision is for an industry that empowers oral health professionals to advance the health and wellbeing of all Australians...................... — ADIA Strategic Plan

Member Consultation —
Draft framework for concerted practices guidelines

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To provide businesses across the dental industry with the opportunity to contribute to changes that affect the commercial, technical and regulatory environment the Australian Dental Industry Association (ADIA) seeks member advice and guidance when making representations to government.

The following details pertain to an invitation that ADIA has received from the Australian Government to tender comment on behalf of the dental industry and appropriate representations will be / have been made.
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Subject:

Draft framework for concerted practices guidelines

Status:

CLOSED

Comment Due Date:

Monday, 26 September 2016

Department / Agency:

Australian Competition and Consumer Commission (ACCC)

Background:

The ACCC is seeking comment from the dental industry on an exposure draft of a Bill to amend the Competition and Consumer Act (Cth) 2010 to implement, in part, reforms identified by the Competition Policy Review relating to introduce a prohibition against concerted practices that substantially lessen competition.

Purpose:

The Australian Government has released an exposure Bill to implement reforms identified by the Harper Competition Policy Review. One area of reform included in the exposure Bill is to introduce a prohibition against concerted practices that substantially lessen competition.

The proposed amendment would insert a new sub-paragraph (c) into section 45 of the aforementioned legislation that states that a corporation must not engage with one or more persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.

Concerted practices will only be prohibited if they have the purpose, effect or likely effect of substantially lessening competition. The substantially lessening of competition test is well understood within Australia’s competition laws and acts as a significant filter as to which concerted practices will amount to prohibited conduct.

The ACCC has noted that that that industry associations and professional bodies may seek authorisation to engage in conduct on behalf of their members that may be seen to be inconsistent with the legislation. Authorisation provides protection against legal action for conduct or arrangements that might breach the competition provisions of the Competition and Consumer Act (Cth) 2010. Parties apply for authorisation where they believe that there is some risk that the conduct they propose to engage in would or may breach the competition provisions of the Act and they require the certainty provided by an authorisation to undertake the activity. Authorisation is a formal and public process. In general, the ACCC may grant authorisation if it is satisfied that the likely public benefits flowing from the proposed conduct for which authorisation is sought outweigh the likely public detriments flowing from that conduct. Where there is a risk of breaching the Act, industry associations have sought authorisation, for example to collectively negotiate on behalf of current and future members, to create a levy and provide a nationally co-ordinated approach to the collection and disposal of waste, and creating a database of de-identified strategic and pricing information for use of members or to prohibit certain activities under a mandatory code of practice. The proposed legislative amendments do not change such arrangements. That said, with the changes to Section 45, authorisation is now available under a revised authorisation test whereby the ACCC may grant authorisation if it is satisfied either that the proposed conduct is unlikely to substantially lessen competition (SLC limb) or is likely to result in a net public benefit (net public benefit limb).

Documents: Consultation Draft - Framework for concerted practice guidelines [PDF]
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Member Engagement:

ADIA-BAC Business Affairs Committee

Comments To:

ADIA Policy team via email at canberra@adia.org.au

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ADIA member businesses with an interest in this issue are invited to comment by forwarding your thoughts via email to canberra@adia.org.au by the due date. Although comments of a technical / legal nature are welcome, a simple plain-English statement as to the extent this reform proposal will / will not affect your business is all that's required as such advice greatly assists ADIA in advocating on behalf of the dental industry, particularly in the context of our support for small business.

In pursuing policy reforms the work of the Association is set out in the ADIA Advocacy Agenda that seeks to create an environment in which businesses in the dental industry can grow, create jobs and operate sustainably.

Be sure to keep up to date on this issue by following ADIA on Facebook at www.facebook.com.au/dental.industry and by subscribing to the Twitter feed @AusDental. Members requiring further information can send an email to policy@adia.org.au or telephone 1300 943 094.


This information is available for your use under a Creative Commons Attribution 3.0 Australia licence, with the exception of the ADIA logo, other images and where otherwise stated.

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