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The Competition and Consumer Amendment Bill (No. 1) 2011 (Exposure Draft): A Problematic Attempt to Prohibit Information Disclosure

Australian Business Law Review, Vol. 39, No. 1, 2011

U of Melbourne Legal Studies Research Paper No. 534

21 Pages Posted: 8 Apr 2011  

Brent Fisse

The University of Sydney Law School

Caron Beaton-Wells

Melbourne Law School

Date Written: April 5, 2011

Abstract

The Competition and Consumer Amendment Bill (No. 1) 2011 (Exposure Draft) seeks to prohibit anti-competitive disclosure of information by one competitor to another. The proposed prohibition under s 44ZZW seeks to ban the private disclosure of price-related information. The proposed prohibition under s 44ZZX seeks to ban the public or private disclosure of price-related and certain other information for the purpose of substantially lessening competition in a market. Neither prohibition has a cogent rationale. As a result, both suffer from dire overreach and are likely to produce unintended consequences. The most fundamental flaw is that the proposed prohibitions focus on information disclosure whereas the relevant economic concern is not information disclosure of itself but the facilitation of coordinated conduct by competitors. Another serious flaw is that the proposed exceptions to the prohibitions are too limited in scope. There is also a potential loophole, namely the conceivable use of continuous disclosure by public-listed companies as an avenue for getting around the prohibition against public disclosure of information under s 44ZZX.

Keywords: competition law, anticompetitive, information disclosure

JEL Classification: K00, K21, K39, K49

Suggested Citation

Fisse, Brent and Beaton-Wells, Caron, The Competition and Consumer Amendment Bill (No. 1) 2011 (Exposure Draft): A Problematic Attempt to Prohibit Information Disclosure (April 5, 2011). Australian Business Law Review, Vol. 39, No. 1, 2011; U of Melbourne Legal Studies Research Paper No. 534. Available at SSRN: https://ssrn.com/abstract=1803843

Brent Fisse

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Caron Y. Beaton Wells (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

HOME PAGE: http://www.law.unimelb.edu.au/staff/Caron%20Beaton%2DWells

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