Research and Publications
My research interest is primarily in the area of competition law and policy, particularly merger law. I have also researched and written in the area of contract and consumer law. Consistent with this research focus she I have developed and maintain the following two websites:
Julie Clarke, 'International Merger Policy: Applying Domestic Law to International Markets', Edward Elgar Publishing (April 2014)
International Merger Policy: Applying Domestic Law to International Markets offers a compelling comparative assessment of domestic and regional merger laws and procedures. Identifying important areas of convergence and emerging best practice, it considers existing levels of international cooperation and identifies the key costs associated with transnational merger review before evaluating possible mechanisms by which they might be reduced.
Philip Clarke and Julie Clarke, Contract Law: Commentaries, Cases and Perspectives, 3rd edition, Oxford University Press, South Melbourne, 2016
Contract Law introduces students to the fundamental principles, theories and arguments in Australian contract law. It provides a carefully selected collection of cases, statutes and materials with insightful commentary designed to give students a thorough understanding of the subject. A detailed introduction is presented in each chapter to clearly set the scene for subsequent materials and commentary and key extracts from leading cases help make contract law engaging and accessible to all readers. Also featured are international perspectives throughout, including comparisons with Indian and Chinese contact law.
Earlier editions: Philip Clarke and Julie Clarke, Contract Law: Commentaries, Cases and Perspectives, Oxford University Press, 2012 (2nd edition); Philip Clarke, Julie Clarke and Ming Zhou, Contract Law: Commentaries, Cases and Perspectives, Oxford University Press, 2008
Philip Clarke, Stephen Corones and Julie Clarke, Competition Law and Policy, 3rd edition, Oxford University Press, 2011
Competition Law and Policy: Cases and Materials outlines and evaluates Australian competition law and its policy rationale. This fully revised third edition draws together a comprehensive collection of material, providing an excellent and up-to-date guide to Australian competition law and current proposals for change. The book begins with an overview of Australia’s competition policies and goals and of the evolution of its common law. The text then systematically discusses the principle forms of anti-competitive conduct engaged in by firms. Finally, it looks at the uniquely Australian concepts of authorisation and access and the sanctions imposed for breaches of competition law.
Mirko Bagaric and Julie Clarke, Torture: When the Unthinkable is Morally Permissible, State University of New York Press, May 2007
'The “war on terror” has brought the subject of torture to the forefront of public attention. In contrast to other discussions that focus narrowly on the practice of torture, and condemn it under any and all circumstances, Mirko Bagaric and Julie Clarke argue that to take this position is to live in a moral vacuum. The subject of torture causes our emotions to conflict with our reason. When we have a choice between saving the life of an innocent person, and not harming a terrorist or other wrongdoer, it is indecent to absolutely prefer the interests of the wrongdoer. In contrast, they propose a moral standard where each individual’s interest counts equally. Within this standard, the ostensibly brutal act of torture may be permissible if it has the potential to achieve compassionate outcomes in the form of saving innocent lives.' "Bagaric and Clarke offer a forthright defense of a practice whose proponents often resort to euphemism." - New York Times Book Review
Julie Clarke, Mirko Bagaric, James McConvill and Richard Edney, International Commercial Law: Principles and Practice, Pearson, 2006 (314 pages)
International Commercial Law: Principles and practices considers the multifaceted nature of international commercial law and explains the rules, principles, policies and practices that comprise this area of law and the wide-ranging influences that shape it.
Philip Clarke, Julie Clarke and Nadine Courmadias, Contract Law - Casebook Companion, Butterworths 3rd ed, 2005 (316 pages)
Contract Law is designed for students who have no previous knowledge of contract law. The book covers all aspects of contract law, including: the nature and development of contract law; agreement; consideration; intention to create legal relations; capacities and formalities; terms and their construction; matters rendering a contract void, voidable or unenforceable; performance and termination; remedies; and solving contract problems.
Earlier edition: Philip Clarke, Roger Gamble and Julie Brebner, Contract Law - Casebook Companion, Butterworths 2nd ed, 2000
Book chapters and contributions
Julie Clarke and Barbora Jedličková 'Australia' in Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds) Antitrust in Pharmaceutical Markets & Geographical Rules of Origin, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (forthcoming June 2017) ch 2 (ISBN 978-3-319-55812-7).
Publisher blurb: '... The first part discusses the application of competition law in the pharmaceutical sector, which continues to be a focus for anti-trust authorities around the world. A detailed international report explores the extent to which the application of the competition rules in the pharmaceutical sector should be affected by the specific characteristics of those products and markets (including consumer protection rules, the need to promote innovation, the need to protect public budgets, and other public interest considerations). It provides an excellent comparative study of this complex subject, which lies at the interface between competition law and intellectual property law.'
Barbora Jedličková, Julie Clarke and Sitesh Bhojani, 'Australia' in Bruce Kilpatrick, Pierre Kobel and Pranvera Këllezi (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (2016)
Publisher blurb: 'This book provides and unparalleled comparative analysis of two "hot topics" in the field of antitrust and unfair competition laws with regard to a number of key countries. The first part of the book examines the consistency and compatibility of transactional resolutions of antitrust proceedings (such as settlement procedures, leniency programmes and commitments) with due process and the fundamental rights of the parties. This is a particularly important topic, given the widespread adoption of these procedures by anti-trust authorities worldwide. The individual chapters consider how the leniency, settlement and commitments procedures have developed across a range of jurisdictions, and discuss the extent to which checks and balances have been applied in those national procedures in order to safeguard the fundamental rights of the parties involved. A detailed international report identifies general trends and highlights the differences between and most interesting features of national regulations.'
Julie Clarke, 'Current Issues in Merger Law' in John Duns, Brendan Sweeney and Arlen Duke, Comparative Competition Law (Edward Elgar, Research Handbooks in Comparative Law series, November 2015) (or ebook version)
Publisher's description: Comparative Competition Law examines the key global issues facing competition law and policy. Taken together, the specially commissioned, original chapters by leading writers from the United States, Europe, Japan, India, China, South America, and Australia provide a synthesis of how these current issues are dealt with by drawing on approaches taken in different jurisdictions.
Barbora Jedličková and Julie Clarke, 'Australia' in Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds) Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social Responsibility, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (2015)
Publisher blurb: 'The book provides an analysis of the grocery retail market in a very large number of countries with an international report written by an economist. The second part of the book offers the analysis of liability issues in relation to non-compliance with CSRs with an international report by a British barrister. Both topics are very timely.'
Julie Clarke,‘Competition Law’ in (pages 238-248) in Rick Krever (ed), Mastering Law Studies and Law Exam Techniques (8th edn, 2014)
'Successfully navigating the particular requirements of law school and legal study can be challenging, even for the most capable of students. In the new edition of this indispensible guide, Richard Krever and a team of contributors de-mystify the process of studying law and provide the foundations for law school success.'
Australian Law Dictionary, OUP, 2009 (contributing author)
'The Australian Law Dictionary is a key reference for those who need familiarity with, and knowledge of Australian legal terms.'
The International Regulation of Transnational Mergers
(PhD Thesis, Qld UT, 2010)
Transnational mergers are mergers involving firms operating in more than one jurisdiction, or which occur in one jurisdiction but have an impact on competition in another. Being of this nature, they have the potential to raise competition law concerns in more than one jurisdiction. When they do, the transaction costs of the merger to the firms involved, and the competition law authorities, are likely to increase significantly and, even where the merger is allowed to proceed, delays are likely to occur in reaping the benefits of the merger. Ultimately, these costs are borne by consumers. This thesis will identify the nature and source of regulatory costs associated with transnational merger review and identify and evaluate possible mechanisms by which these costs might be reduced. It will conclude that there is no single panacea for transnational merger regulation, but that a multi-faceted approach, including the adoption of common filing forms, agreement on filing and review deadlines and continuing efforts toward increasing international cooperation in merger enforcement, is needed to reduce regulatory costs and more successfully improve the welfare outcomes to which merger regulation is directed.
Mirko Bagaric, Julie Clarke and William Rininger, 'Plea Bargaining: From Patent Unfairness to Transparent Justice' Missouri Law Review (forthcoming 2019) (available at SSRN)
The United States is in the midst of an unprecedented mass incarceration crisis. It imprisons more of its citizens than any other country—and by a considerable margin. It is now widely acknowledged that there is no community dividend stemming from an overly punitive sentencing system. Over-incarceration does not make the community safer and diverts billions of dollars annually from productive social services, such as health and education. Lawmakers have failed to find overarching solutions to this crisis. This Article proposes to change that paradigm by offering concrete reforms to a key failing of the sentencing system ...
Julie Clarke, ‘Section 46: its purpose and the proposed new effects test’ (2017) 45(5) Australian Business Law Review 364-386
The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Cth) will give effect to the Harper Report recommendation to introduce an effects test for Australia’s misuse of market power prohibition to replace the existing purpose-based test. Commencement of the effects test is contingent on the passage of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016. This proposed change has generated more political debate and public commentary than any other aspect of the proposed Harper reforms. This article examines the convoluted process that has led to the introduction of the effects test, before identifying the object of Australia’s misuse of market power law and examining the existing and proposed laws against that objective. It concludes that the existing law is misdirected as a matter of policy and is ineffective in practice. The proposed law will, by removing the “take advantage” element and shifting the focus from competitors to competition, be more aligned with the object of the provision and with international best practice.
Julie Clarke, ‘The Opinion of AG Wahl in the lntel rebates case: A triumph of substance over form?'’ (2017) 40 World Competition Law and Economics Review 421-270
Rebates are a ubiquitous form of price competition which can be utilized either to intensify or to harm competition. Distinguishing pro-competitive from anti-competitive rebates and translating this into effective and administrable legal rules, remains a key challenge for competition law. The recent Opinion by Advocate General Wahl in the Intel appeal has identified deficiencies in the legal approach to dominant firm rebates under Article 102 TFEU and has proposed a ‘more economic’ case-by-case approach to their assessment. The proposed approach and the attempt by AG Wahl to reconcile it with existing case-law, raises a number of important questions for consideration by the European Court of Justice. This article examines AG Wahl’s Opinion and suggests that, while the substance of the proposed approach has merit, the form proposed is deficient in a number of respects.
Julie Clarke, ‘The increasing criminalization of economic law – a competition law perspective’ (2011) 19(1) Journal of Financial Crime 76-98
Purpose – The purpose of this paper is to examine the trend towards the criminalization of hard core cartel conduct and to consider the appropriateness and effectiveness of extending the criminal law to this conduct. In addition, it will consider some of the legal implications, including the exposure of directors of companies to potential racketeering charges.
Design/methodology/approach – The paper first examines cartel theory and the justification for prohibition. The paper then identifies the emerging trend toward criminalization of hard core cartel conduct, followed by an assessment of potential justifications for criminalization. Implications of criminalization, including the potential impact of organized crime legislation on offenders and regulators, will then be considered.
Findings – There is a clear trend towards the criminalization of hard core cartels. The paper argues that this trend is appropriate, both because of the moral culpability it attracts and because of its potential to enhance general deterrence. The paper also argues that cartel conduct, in jurisdictions in which it is criminalized, will constitute "organized crime" as defined in the Palermo Convention and, as such, expose participants to potential money laundering and asset forfeiture consequences.
Julie Clarke, 'Unconscionable Conduct: an evolving moral judgment' (September/October 2011) 106 Precedent: Australian Plaintiff Lawyers Association Journal 30-35
Statutory unconscionable conduct has been a controversial component of Australia's consumer laws since well before the first provision was introduced in 1986. Nevertheless, it has survived numerous reviews and has expanded beyond its early focus on consumers to provide small business - and, more recently, any business other than a listed company - statutory protection against unconscionable conduct occurring in trade or commerce.
Julie Clarke, 'Running a Cartel? Go Directly to Jail' (May 2010) Law Institute Journal 52
Operators of cartels now face not only big fines, but also time in jail. And new laws criminalising cartels leave no room to move.
Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2009) 1(2) Competition Law Reports 86-92 (India)
Updated: Radical changes to the Trade Practices Act have the potential to affect significantly the ability of businesses to engage in vigorous price competition. These changes are designed to prohibit what is colloquially referred to as predatory pricing; the practice of a firm temporarily reducing its prices to a level designed to eliminate its competitors so that, free of competition, it can thereafter lift them to supra-competitive levels. Unfortunately, because of its scope and the ambiguous new concepts it employs, the section has the potential to apply to all forms of vigorous price competition and creates significant risks for those businesses who seek to compete with their rivals by systematically, or irregularly, selling at lower prices than they do. This note examines the section’s nature and scope and identifies the pitfalls that it presents for such firms.
Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2008) 1 Deakin Business Review 6
Radical changes to the Trade Practices Act have the potential to affect significantly the ability of businesses to engage in vigorous price competition. These changes are designed to prohibit what is colloquially referred to as predatory pricing; the practice of a firm temporarily reducing its prices to a level designed to eliminate its competitors so that, free of competition, it can thereafter lift them to supracompetitive levels. Unfortunately, because of its scope and the ambiguous new concepts it employs, the section has the potential to apply to all forms of vigorous price competition and creates significant risks for those businesses who seek to compete with their rivals by systematically, or irregularly, selling at lower prices than they do. This note examines the section’s nature and scope and identifies the pitfalls that it presents for such firms.
Julie Clarke, ‘Multi-jurisdictional merger review procedures: a better way’ (2006) 14 Trade Practices Law Journal 90-109
Corporate mergers whose effects transcend national borders have faced increasing regulation over the past few decades as more jurisdictions have developed merger laws and imposed pre-merger notification requirements. The level of regulatory response to multi-jurisdictional mergers is likely to continue to increase as even more jurisdictions contemplate the introduction of competition laws. This level of regulation now goes beyond that required to protect national economies from potentially harmful mergers and has seen burgeoning costs to business, regulators and, ultimately, the public. In recognition of this, the relatively newly formed International Competition Network has placed merger regulation at the forefront of its agenda for greater harmonisation and cooperation in competition law. This has seen, over the past three years, the development of a set of guiding principles and recommended practices for merger notification procedures designed to reduce the regulatory burden. This article evaluates these recommendations and discusses areas for further reform.
Mirko Bagaric and Julie Clarke, ‘Tortured Responses (A Reply to our Critics): Physically Persuading Suspects is Morally Preferable to Allowing the Innocent to be Murdered’ (2006) 40 University of San Francisco Law Review 703
It is no exaggeration to state that our first article on torture ... provoked a furious debate. ... The slippery slope argument is an expedience in this debate by some critics as a basis to avoid considering the actual proposal at hand (torture to save lives), and instead is used as a launching pad to embark on a non-responsive dissertation about practices that have little connection with the proposal ...
Julie Clarke, ‘Criminal Penalties for Contraventions of Part IV of the Trade Practices Act’ (2005) 10(1) Deakin Law Review 141-176
In 2003 the Dawson Committee, commissioned by the Government, recommended that criminal penalties should be introduced for cartel conduct. The Government accepted this recommendation in principle and set up a working party to consider the implementation difficulties that had been identified in the Dawson Report. Nothing further was heard from the Government until February 2005 when the Government announced that it would introduce criminal penalties for serious cartel conduct. This paper evaluates the Government proposals and makes suggestions for their implementation.]
Mirko Bagaric and Julie Clarke, ‘Not Enough (official) torture in the world? The circumstances in which torture is morally justifiable’ (2005) 39 University of San Francisco Law Review 581-616
Recent events stemming from the "war on terrorism" have highlighted the prevalence of torture, both as an interrogation technique and as a punitive measure. ... This Article focuses on the use of torture as an interrogation device and poses that the device is only permissible to prevent significant harm to others ...
Julie Clarke, ‘The Dawson Report and Merger Regulation’ (2003) 8(2) Deakin Law Review 245
The Review of the Competition Law Provisions of the Trade Practices Act ('the Dawson Report') was released by the Federal Government in April 2003. In the first substantial chapter of the Report, the Dawson Committee ('the Committee') made a number of recommendations in relation to the merger prohibitions and procedures. Briefly, while recommending the retention of the current substantial lessening of competition test, the Committee made a number of significant recommendations for change regarding the procedures to be applied in assessing potential mergers. These recommendations have received the support of the Government, though no bill has yet been released for consideration by Parliament. This paper will discuss the recommendations of the Committee in light of the submissions it received. It will also consider Government, Australian Competition and Consumer Commission (ACCC) and other responses to the Review and speculate as to the likelihood and desirability of any or all of the recommendations being implemented. [Footnotes omitted]
Philip Clarke and Julie Clarke, ‘Players, Clubs, Events and the Trade Practices Act: A Primer for Sporting Clubs’ (2003) 6(2) Sport Management Review 169-184
The Trade Practices Act (TPA) has had an enormous impact on how corporations in Australia may conduct their business. In relation to sporting clubs, it limits the freedom of clubs to deal with players, each other and the public. While previously many clubs may have escaped the ambit of the TPA because they were not "corporations", state equivalent Fair Trading legislation and the introduction of the national competition policy in 1995 have effectively expanded the scope of consumer and competition regulation to include individuals and associations. Consequently, an understanding of the nature and scope of trade practices regulation is now important for any sporting organisation – regardless of size or structure. This paper identifies the legislative provisions most likely to impact upon sporting clubs and examines some possible circumstances in which clubs might find themselves exposed to liability.
Julie Clarke and Mirko Bagaric, ‘The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act’ (2003) 31(3) Australian Business Law Review 192-209
Following the introduction of criminal sanctions, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime.
Julie Clarke, ‘The Relevance of Import Competition to Merger Assessment in Australia’ (2002) 10(2) Competition and Consumer Law Journal 119-143
The Australian Competition and Consumer Commission has been criticised for failing to take due account of the impact import competition has on domestic firms when assessing whether or not a proposed merger will be likely to substantially lessen competition. This article reviews the approach taken by the ACCC to import competition in its merger assessments. Consideration is given to both the policy adopted by the ACCC and the statistical relevance that has, in fact, been placed on import competition in merger assessment. A conclusion is then drawn as to the appropriateness of the ACCC’s current policy and practice.
Mirko Bagaric and Julie Clarke ‘The solution to the dilemma presented by the guilty plea discount: the qualified guilty plea - I'm pleading guilty only because of the discount ...' (2002) 30 International Journal of the Sociology of Law 51-74
The guilty plea sentencing discount is arguably a triumph of expediency over principle. Strong utilitarian reasons favour providing less severe sentences to defendants who plead guilty. However, an unsavoury by-product of the guilty plea discount is that some innocent people are pressuredinto pleading guilty. This article suggests that a possible solution to the problems caused by the discount is to permit defendants to enter a ‘qualified guilty plea’. While formally amounting to a guilty of plea, the defendant would be permitted to advance submissions consistent with innocence as part of the plea in mitigation. If the sentencer is persuaded that the defendant had a tenable chance of an acquittal a penalty discount in excess of that available for merely pleading guilty would be conferred.
Mirko Bagaric and Julie Clarke, 'The Guilty Plea Discount: Why and How Much - An Analysis of Cameron' (2002) 2(3) Bourke's Criminal Law News Victoria 17
The guilty plea discount remains one of the most controversial aspects of sentencing. There are strong utilitarian reasons in favour of encouraging defendants to plead guilty. A guilty plea saves the community the expense of a contested hearing and spares witnesses the stress of giving evidence. However, the discount comes at a very price. It puts pressure on some innocent defendants to plead guilty. The High Court in Cameron v R (2002) 187 ALR 65; BC200200226;  HCA 6 recently approved of the discount and in the process the majority of the court rejected the argument that it constitutes a form of discrimination against offenders who elect to pursue their “right” to a trial. This paper examines the nature of the guilty plea discount and the reasoning of the Court in Cameron.
Julie Clarke, 'Resale Price Maintenance - The Need for Further Reform' (2001) 9 Trade Practices Law Journal 18
The Competition Policy Reform Act 1995 (Cth) extended the resale price maintenance provisions of the Trade Practices Act 1974 (Cth) to include services, and provide for authorisation where the conduct can be shown to benefit the public such that it should be allowed. This article explores the scope of these changes and their shortcomings. It also seeks to provide some guidance as to their likely application, and makes recommendations for further reform.
Smoking in Shopping Centres, Property Council News, August 2000, 13 (with Max Cameron)
Julie Clarke, 'Breen v Williams: A lost opportunity or a welcome conservatism?' (1996) 3 Deakin Law Review 237 (published 1998)
The recent case of Breen v. Williams provided the High Court with an opportunity to re-evaluate the fiduciary law of this country to bring it into line with that of the Canadian jurisdiction. Canadian courts have a history of imposing positive obligations on fiduciaries in novel situations, most recently in respect of doctor-patient relationships. Such relationships, it held, were fiduciary in nature and, by virtue of this, the doctor was said to be burdened with a positive obligation to act with 'utmost good faith and loyalty' towards the patient, an incident of which was to allow patients access to their medical records. However, in a clear rejection of Canadian developments, the High Court unanimously refused to expand the nature and scope of Australian fiduciary law in such a way as to impose upon doctors such an obligation. [footnotes omitted]
Other articles and notes
Extra-territoriality and markets "In Australia" (2017) 25 Australian Journal of Competition and Consumer Law 292-300
Competition law cases before the High Court are relatively rare. Cartel rulings from the High Court are rarer still. It is therefore notable that the High Court has made two determinations in relation to cartel conduct in the past 12 months. ...
Australia: Harper Reforms (2018) 39(5) European Competition Law Review (forthcoming)
On 6 November 2017 significant reforms to the Competition and Consumer Act 2010 (the CCA) commenced. These were contained in two Acts of Parliament: the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (MMP Act) and the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (CPR Act) which, together, represent the culmination of a major independent policy review (the Competition Policy Review) that reported in 2015.
Australia: Anti-competitive agreements (2017) 38(12) European Competition Law Review N-134-N135
The Japanese shipping company, Nippon Yusen Kabushiki Kaisha (NYK), recently became the first company to be convicted and fined for cartel conduct under criminal cartel laws introduced in Australia in 2009.
Australia: Anti-competitive agreements (Air Cargo) (2017) 38(11) European Competition Law Review N-133-N134
On 14 June 2017 the High Court of Australia (Australia’s highest court) dismissed appeals by Air New Zealand Ltd and PT Garuda Indonesia Ltd (the airlines) concerning claims of collusion in respect of international air cargo surcharges and other fees. The focus of the appeal was not on whether collusion occurred, but rather whether it occurred in a “market in Australia”. The High Court unanimously held that it did, notwithstanding that the decision as to choice of airline (the “switching decision”) took place at the country of departure, outside Australia.
Australia: Mergers (2017) 38(11) European Competition Law Review N-133-N134
On 22 June 2017 the Australian Competition Tribunal (Tribunal) authorised the proposed acquisition by Tabcorp Holdings Ltd (Tabcorp) of Tatts Group Ltd (Tatts). Tabcorp and Tatts are two of Australia’s largest gambling companies. The authorisation was granted on public benefit, rather than competition, grounds.
The Federal Court of Australia rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union), e-Competitions Bulletin June 2015, Art. N° 73596
On 1 May 2015 the Full Court of the Federal Court of Australia ruled that it was not permissible for parties to make joint submissions as to the appropriate ‘pecuniary penalty’ to be imposed: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59 (1 May 2015) (CFMEU). This decision has significant implications for the existing common practice of the Australian Competition and Consumer Commission (ACCC) and respondents to make agreed joint submissions as to appropriate pecuniary penalties in competition law cases.
Julie Clarke, The Australian Competition and Consumer Commission grants first resale price maintenance authorisation to a power tools manufacturer (Tooltechnics), 5 December 2014, e-Competitions Bulletin March 2015, Art. N° 72020
On 5 December 2014 the Australian Competition and Consumer Commission (ACCC) granted its first authorisation in relation to resale price maintenance (RPM). RPM is per se prohibited in Australia. Although an authorisation (exemption) mechanism for RPM, determined on public benefits grounds, has been available in Australia since 1995, this application was the first to be made to the ACCC.
The Federal Court of Australia finds no breach of legislation in air cargo cartel case on ground that it did not involve a ‘market in Australia’ (Air New Zealand), 31 October 2014, e-Competitions Bulletin December 2014, Art. N° 70608
The Australian Federal Court recently handed down a decision relating to the international air cargo cartel (the Air NZ case). Despite finding that the defendants, Air New Zealand Limited (Air NZ) and PT Garuda Indonesia Ltd (Garuda), had engaged in price fixing conduct which might have affected prices in Australia, Justice Perram held that there was no contravention of Australian competition law because the conduct did not take place in a ‘market in Australia’.
Australian Competition Tribunal grants first direct merger authorisation (Macquarie Generation, AGL Energy) (18 September 2014, e-Competitions (N° 68908, www.concurrences.com))
On 25 June 2014 the Australian Competition Tribunal (Tribunal) handed down its first direct authorisation decision, approving the AU$1.505 billion acquisition by AGL Energy Limited of the assets of Macquarie Generation (MacGen), a state-owned corporation (AGL-MacGen). The authorisation decision followed advice from the Australian Competition and Consumer Commission ( ACCC) that it would oppose the proposed deal. The Tribunal disagreed with the ACCC’s assessment of the likely anti-competitive impact of the merger and also considered that there were public benefits associated with the proposal that justified allowing it to proceed. On 3 Sept 2014 AGL announced it completed the $1,505 million acquisition of MacGen assets from the NSW Government. (view on e-Concurrences)
Philip Clarke and Julie Clarke, ‘Resale Price: Australian Experience and Perspectives’ (CPI Antitrust Chronicle, October 2013)
The prohibition of RPM occupies a special position in Australian competition law. It was the first anticompetitive practice to be specifically outlawed when Australian competition law commenced in earnest in the 1970s, is a per seoffense, has been expanded in scope rather than curtailed, and, unlike most other jurisdictions, is not inhibited by the requirement that there be an agreement to fix a resale price. As result, it is a powerful prohibition that applies to unilateral conduct designed to achieve RPM as well as RPM agreements between suppliers and retailers.
Julie Clarke, 'The Australian Competition and Consumer Commission releases new authorisation guidelines' (12 September 2013, e-Competitions)
In June 2013 the Australian Competition and Consumer Commission (ACCC) released new Authorisation Guidelines (new Guidelines). These replace the 2007 Guide to Authorisation (as updated by a 2011 addendum) (2007 Guide) and reflect the current approach taken by the ACCC to authorising otherwise anti-competitive conduct.
Julie Clarke, 'The Federal Court of Australia hands down its first decision involving a bid rigging case after the entry into force of new cartel laws (Norcast v Braken)' (6 May 2013, e-Competitions) (download PDF document)
In July 2009 Australia’s new cartel laws entered into force. On 19 March 2013 the Federal Court of Australia (Gordon J) handed down its first decision involving these new laws. Norcast S.ár.L( Norcast), a subsidiary of the private equity fund, Pala Investments Limited (Pala), alleged that Castle Harlan, Inc (Castle Harlan), another private equity fund, and Bradken Limited (Bradken) had entered into an arrangement whereby Castle Harlan would bid for the acquisition of Norcast’s subsidiary, NWS, and Bradken would not. Castle Harlan bid successfully for NWS and acquired it through its subsidiary, BC. Bradken Operations Pty Ltd (Bradken’s subsidiary) then exercised rights, acquired pursuant to a Subscription, Governance and Purchase Agreement (SGPA), to acquire all shares in BC and thereby acquired NWS. ...
Julie Clarke, 'The Australian Competition Tribunal ‘undeclares' third party access for rail lines company applying ‘private profitability' test to 44H(4)(b) (The Pilbara Infrastructure Pty)' (8 February 2013, e-Competitions, N°51089, www.concurrences.com)
On 8 February 2013 the Australian Competition Tribunal (Tribunal) handed down its decision in Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd. This brought to an end a long running legal dispute over third party access to Rio Tinto’s rail lines in the Pilbara region of Western Australia. ...
Julie Clarke, 'Fortune Telling: Australian Competition Law in 2013' (CPI Antitrust Chronical, 15 January 2013)
"Trying to predict the future is like trying to drive down a country road at night with no lights while looking out the back window" Predicting the path of Australian competition law in 2013 may be more difficult still. It is an election year in Australia3 and, if history is any guide, this will generate some populist political promises, frequently at odds with sound competition policy. Political debate is likely to focus on the need, or otherwise, for a major review of Australia’s competition laws and see philippics over who’s policies are most likely to support small business, or curtail the market power allegedly enjoyed by big supermarkets, banks, and petrol companies. ... [footnotes omitted]
Conference Papers and seminars
Julie Clarke, 'A ‘more economic approach’ to unilateral conduct laws in Australia', Research Seminar, Centre for Competition Policy, University of East Anglia, Norwich, Friday 9 January 2016
Julie Clarke, 'The Challenge of International Merger Regulation', Research Seminar, Institute of Advanced Legal Studies, London, 27 February 2013.
The seminar will discuss the current approach to regulating transnational mergers in a competition law context. A merger is considered transnational if it has the potential to impact upon competition in more than one jurisdiction. The proliferation of pre-merger review systems over the past two decades has prompted several proposals for supranational solutions, ranging from proposals for an international law and adjudicative body to more modest proposals for soft harmonization. Although there has been an increase in the level of ‘soft’ harmonization, largely attributable to the work of the International Competition Network, significant differences remain and compliance costs continue to rise as more jurisdictions adopt pre-merger notification regimes. The seminar will identify key points of convergence and divergence between national merger regimes and discuss whether or not it is possible or desirable to further streamline the current multi-national merger review process to improve economic and social outcomes.
Julie Clarke, 'International and comparative merger law; is there a need for greater convergence?', UQ Law Research Seminar Series, 7 September 2012
The seminar will discuss the current system of regulating multi‐jurisdictional mergers. A merger may be “multi‐jurisdictional” because the parties are located in more than one jurisdiction, or because it has the potential to impact upon competition in more than one jurisdiction. The proliferation of competition laws and the significant increase in the number of countries now imposing pre‐merger notification obligations has prompted several proposals for multi‐jurisdictional merger reform, ranging from proposals for an international law and adjudicative body to more modest proposals for soft harmonisation. To some degree, the International Competition Network has, over the last decade, facilitated greater ‘soft harmonisation’ in the national approach to merger regulation, but inefficiencies still remain. The seminar will discuss whether or not it is possible or desirable to further streamline the current multinational merger review process to improve economic and social outcomes.
The increasing criminalization of economic law – a competition law perspective, Workshop paper presented at 28th International Symposium on Economic Crime 2010, Jesus College, University of Cambridge, 9 September 2010 [program]
There is a clear trend towards the criminalization of ‘hard core’ antitrust cartels. Countries that have recently criminalised anti-competitive behaviour include United Kingdom, Australia, South Africa and Russia. Important questions arise regarding the appropriateness and effectiveness of extending the criminal law to this conduct. This workshop will consider whether or not cartel conduct should be treated as criminal. Standard justifications will be considered, including moral blameworthiness, the proportionality principle and general deterrence. In addition, it will consider some of the legal implications, for instance, the exposure of directors of companies to potential racketeering charges. The definition of ‘organized crime’ in the Palermo Convention will be considered as well as potential money laundering and asset forfeiture consequences.
Trade Practices Update, CLE seminar for the Geelong Law Association, 30 October 2009 (Geelong)
This CLE seminar was part of a Deakin University/Geelong Law Association CLE program and was designed to update local practitioners on recent changes to competition and consumer laws
Trade Practices Update, Deakin University Faculty of Business and Law, Business Breakfast, Geelong, 15 October 2008
This seminar was designed for small business people in the Geelong area and highlighted key issues in competition and consumer law relevant for small business.
Proposed Changes to Merger Regulation in Australia, Paper presented at Australasian Law Teachers' Association Annual Conference 2003, Novotel Hotel, Brisbane, 7 July 2003
The way in which mergers are evaluated in Australia is set to undergo significant change in the coming months. The Review of the Competition Law Provisions of the Trade Practices Act (the Dawson Review) was released by the Government in April. While recommending the retention of the current substantial lessening of competition test, the Dawson Committee made a number of recommendations for change regarding the procedures to be applied in assessing potential mergers. These recommendations have received the support of the federal Government. This paper will critically discuss the recommendations of the Committee in light of the submissions made to the Review and international best practice. It will also consider the possible amendments to the TPA that may flow from the Committee’s recommendations and the likely impact of those changes.
Julie Clarke and Barbora Jedličková, ‘Competition issues generated by the growth of online sales platforms’ (Report for the Rio de Janeiro conference, 2017)
In response to question: What are the major competition/anti-trust issues generated by the growth of online sales platforms, and how should they be resolved?
Barbora Jedličková, Julie Clarke and Sitesh Bhojani, ‘The consistency and compatibility of transactional resolutions of antitrust proceedings with the due process and fundamental rights of the parties in Australia’, Report to for the Torino Congress 2014 (International League of Competition Law)
The Australian competition-law regime is primarily governed by the Competition and Consumer Act 2010 (Cth) (CCA) and is based on both private and public enforcement. However, Australian competition law is primarily enforced and regulated publicly, by the Australian Competition and Consumer Commission (ACCC). The ACCC has investigative and information-gathering powers under Part XID of the CCA. It resolves matters either by administratively encouraging consultation or negotiation to settle disputes, or via litigation. Nevertheless, only the court has the power to declare whether particular conduct contravenes the CCA and make findings of liability. The ACCC is empowered to institute proceedings in the court for the declaration of an infringement of the CCA and for the recovery of a pecuniary penalty on behalf of the Commonwealth. The ACCC may also apply for injunctions, damages and a range of orders. ...
Barbora Jedličková and Julie Clarke, ‘The Grocery Retail Market: Is Antitrust Efficiently Handling This Market? Australian Perspective’, Report to for the Kiev Congress 2013 (International League of Competition Law)
The Australian grocery retail market is concentrated with the major supermarket chains holding significant bargaining power. Bargaining power, particularly in the form of buyer power, has been the focus of concern in Australia in relation to the retail grocery market. Existing merger laws can assist, to a degree, in curtailing further concentration in this sector, but do not address existing power imbalances. The role of Australia’s abuse of power provisions in addressing some of the concerns associated with supermarket buyer power is regularly debated in Australia, but to date abuse of power provisions have not been a significant feature of competition law enforcement with respect to the supermarket industry. A proposed new code of conduct may address several issues such as delisting of suppliers, lower payments and other unilateral changes to concluded supply agreements. These issues arise from imbalances in the negotiation of supply between the major retailers and their suppliers.
Julie Clarke, 'Book Review: Australian Cartel Regulation: Law, Policy and Practice in an International Context by Caron Beaton-Wells and Brent Fisse' (2010-2011) 18 Competition and Consumer Law Journal 299
Submissions to Inquiries
Submission to Senate Standing Committee on Economics Inquiry into the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (6 January 2017) (see on Review website)
Senate Inquiry into Competition and Consumer Amendment (Misuse of Market Power) Bill 2016, Public Submission No 7 (2017) (cited extensively in Committee Report and in Parliament by Andrew Gee MP, 27 March 2017)
Submission to Competition Policy Review 2014-2015 (Harper Review) on Draft Report (see on Review website) (November 2014)
Submission to Senate Inquiry into Trade Practices Amendment (Material Lessening of Competition - Richmond Amendment) Bill 2009, 18 December 2009, Public Submission No 6 (see Senate Economics Committee web site)
Submission relating to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Exposure Draft Bill - see Treasury web site) 29 February 2008
Submissions prepared on behalf of other organisations
Institute of Public Accountants, Submission to Senate Standing Committee on Economics Inquiry into the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (January 2017) (prepared with Philip Clarke as part of the IPA Deakin University SME Research Partnership) (see on Review website)
Institute of Public Accountants, Submission Australian Consumer Law Review Interim Report, October 2016 (prepared with Philip Clarke as part of the IPA Deakin University SME Research Partnership)
Institute of Public Accountants, Submission to Treasury inquiry on Competition and Consumer Amendment (Competition Policy Review) Bill 2016 (Exposure Draft) , October 2016 (prepared as part of the IPA Deakin University SME Research Partnership)
Institute of Public Accountants, Submission to the Treasury on Options to stengthen the misuse of market power law, February 2016 (prepared as part of the IPA Deakin University SME Research Partnership)
The Conversation, op-ed's and other media
Julie Clarke and Philip Clarke, 'Jetstar and Virgin caught out for overlooking mobile commerce' The Conversation, 20 November 2015
'This week’s successful prosecution of airlines Jetstar and Virgin Australia by the Australian Competition and Consumer Commission comes after the regulator warned it would crack down on drip pricing.'
Julie Clarke, 'Why it's time to scrap price signalling laws' The Conversation, 23 September 2014
'Price signalling laws in Australia have an almost comical, and highly political, history. Their genesis was the Australian Competition and Consumer Commission’s defeat in a number of high profile petrol price fixing cases. This led to calls to expand the scope of the existing price fixing provision to capture a broader range of 'concerted practices'.'
Philip Clarke and Julie Clarke, 'The ACCC wants to take the drip out of pricing' The Conversation, 25 February 2014
'ACCC Chairman Rod Sims has put drip pricing in online markets on the regulator’s hit list for the year ahead, warning there would “shortly be enforcement in this area”. It’s a welcome and overdue move.'
Julie Clarke, 'When the price isn't right: ACCC sets sights on price gougers in wake of carbon tax', The Conversation, 29 June 2012
'In the lead-up to the introduction of the carbon tax on July 1, there has been considerable focus on the potential for price gouging – inflating prices beyond the cost increases reasonably attributable to the tax. In recent days, this has been fuelled by a letter sent to small business from the opposition, urging them to place flyers in their shops apologising for any carbon-tax related price increases.'
Julie Clarke, ‘Trust the Market – Why regulation won’t stop carbon tax gouging’, The Conversation, 18 July 2011
'Federal Treasurer Wayne Swan has announced that the government will provide the competition watchdog with almost $13 million in extra funding to tackle carbon tax-related price-gouging.'
Farmers milked dry
Article by Olivia Fens, 2 April 2011, featured in the News Mail (page 8), Gympie Times (page 34), Northern Star (page 8), Toowoomba Chronicle (page 26), Daily News (page 17), Fraser Coast Chronicle (p 22), Daily Mercury (p 10), Queensland Times (p 47) and Gladstone Observer (p 22). See also 'Milk war is not all beer and skittles' (article by Olivia Fens, 2 April 2011, Sunshine Coast Daily, page 42)
Emily Chantiri, 'Handshake Hassles', Business Review Weekly, 28 January 2010, page 48
'Whether you're a small operator or a large company, entering into contract negotiations has become part of everyday business. Some business arrangements may be simple enough for a business person to draft, while others may require the help of a legal adviser. Regardless of whether it's a phone contract or a multimillion-dollar commercial contract, the fundamentals remain the same ...'
The World Today with Peter Cave, Radio Interview with Ashley Hall, Monday 29 June 2009 at 12.52pm
ACCC action against Cabcharge
Julie Clarke, 'Review Misses Bill's Key Points', Australian Financial Review, Tuesday 21 April 2009, p 63
'The Senate economics committee recommended on February 26 that the Senate pass the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 ("criminal cartel bill") without amendment. The recommendation to criminalise cartels is welcome, but the report is disappointing.'
Jason Bryce, 'Suppresion of bank payments festers for eBay', The Sheet (8 July 2008)
'Confusion and anger continues to rain down on eBay Australia from its own devotees. eBay discussion boards are full of sellers not wanting to have to offer PayPal if they don’t choose to. That change was introduced by eBay on 21 May as the first part of the now abandoned project to make eBay.com.au a marketplace where PayPal was the only acceptable payment mechanism (either in its own right, or with PayPal acting as gateway for a credit card payment).'
Jason Bryce, 'Australia the Testing Ground for eBay', The Sheet (20 May 2008)
'Australia’s almost unique competition laws are allowing eBay to test their plan for PayPal-only payments without fear of prosecution.'
Jason Bryce, 'eBay's PayPal plan sparks user revolt', Courier Mail (18 May 2008)
'THE Australian Competition and Consumer Commission has been flooded with submissions opposing eBay Australia's proposal to force buyers and sellers to use its subsidiary PayPal to handle payments.'
Tony Raggatt, 'Reforms pose discount risk' Townsville Bulletin (Thursday 20 September 2007) p 43
(quoted regarding predatory pricing amendments to TPA)
Mark Fenton-Jones, ‘TPA bill fails small business’ The Australian Financial Review (Tuesday 10 July 2007) pp 47 and 49
ABC, PM, 'Farmers urge Government to stay the course on competition law reform'
Interview with Clint Jasper, 6 September 2016
Radio National, Asia Pacific with Linda LoPresti
Interview with Joanna McCarthy on proposed rice cartel between Mekong Nations
Radio National, Breakfast (Early) with Steve Cannane
Interview with Joanna McCarthy on proposed rice cartel between Mekong Nations
'The George and Paul Show’ with George Moore and Paul B Kidd, 8.15am Saturday 25 August 2007, Radio 2UE, Sydney (live interview)
Discussion of petrol inquiry
'The Law Report’ with Damian Carrick, Tuesday 15 February 2005, ABC Radio National AM621
Pre-recorded on 10 February
'Life Matters’ with Julie McCrossin, 9am Tuesday 17 August 2004, ABC Radio National AM621
Web sites and blogs
Australian Competition Law
This site is designed to provide resources relating to Australia's competition laws. In addition to the key sections highlighted above, it includes a blog, links to legislative history, information about relevant guidelines, expert and judicial profiles, a chronology of Australian competition law, key links to further resources and more. For comments, suggestions or notification of dead links please contact Julie Clarke.
Competition Law on Twitter
Blog pieces (select)
'Harper Exposure Draft Legislation Released' (Australian Competition Law Blog, 5 September 2016)
'Which party has the best competition policy?' (Competition Law Blog, 15 August 2010)
Conference papers and seminars
Institute of Advanced Legal Studies, London, 27 February 2013 ('The Challenge of International Merger Regulation')
University of Queensland Law Research Seminar Series , Brisbane, 7 September 2012 ('International and comparative merger law; is there a need for greater convergence?')
28th International Symposium on Economic Crime 2010, Jesus College, University of Cambridge, 9 September 2010 (‘The increasing criminalization of economic law – a competition law perspective’)
Geelong Law Association, CLE seminar, 30 October 2009 (‘Trade Practices Update’)
Deakin University Faculty of Business and Law, Business Breakfast, Geelong, 15 October 2008 (‘Trade Practices Update’)
Australasian Law Teachers' Association Annual Conference 2003, Novotel Hotel, Brisbane, 7 July 2003 (‘Proposed Changes to Merger Regulation in Australia’)
Research conferences attended
Competition Law Conference (Sydney) May 2017
Innovation Economics Conference (King's College London, February 2017)
Competition Law Conference (Sydney) May 2016
UniSA 13th Annual Competition Law and Economics Workshop (Adelaide) 23-25 October 2015
Competition Law Conference (Sydney) May 2015
UniSA 12th Annual Competition and Consumer Workshop (Adelaide) 10-11 October 2014
Competition Law Conference (Sydney) May 2014
UniSA 11th Annual Competition and Consumer Workshop (Adelaide) October 2013
Competition Law Conference (Sydney) May 2013
Competition Law Conference (Sydney) May 2012
LCA Rising Stars of Competition Workshop (Melbourne) 11-12 November 2011
UniSA 9th Annual Competition and Consumer Workshop (Adelaide) 14-15 October 2011
International Symposium on Economic Crime (Cambridge, UK) September 2010 (delivered paper)
Competition Law Conference (Sydney) 29 May 2010
UniSA Trade Practices Workshop (Adelaide) 16-17 October 2009
ABA Conference: Cross-Border Collaboration, Convergence and Conflict (Sydney) 9 February 2010
Competition Law Conference (Sydney) 23 May 2009
UniSA Trade Practices Workshop (Adelaide) 17-18 October 2008
Fordham International Antitrust Conference (New York) 25-26 September 2008
Competition Law Conference (Sydney) May 2008
Cartel seminar (Fisse and Beaton-Wells) (Sydney) 21 February 2008
Australasian Law Teachers' Association Annual Conference (Novotel Hotel, Brisbane) 7 July 2003 (Delivered paper: 'Proposed Changes to Merger Regulation in Australia')
Australasian Law Teachers' Association Annual Conference (Novotel Hotel, Brisbane) 7 July 2003 (Delivered paper: 'Proposed Changes to Merger Regulation in Australia')