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An interview with Allan Fels
Consumers andmarket reform
Consumer protection
PLUS
ACCC
updateIssue 9, August 2001
An interview with Allan Fels
Consumers andmarket reform
Consumer protection
PLUS
In this issue
3
5
7
An interview with Allan Fels
Market forces change
how electricity is supplied
A revolution in gas
Consumers and
market reform
8
9
10
12
14
16
17
18
19
19
Airport deregulation
Major price falls in
telephone market
Advertising and selling
— what you should expect
Debt collection
tested in courts
Post-GST price movements
What does ‘Made in
Australia’ really mean?
The ACCC’s new rural
and regional program
The ACCC and complaints
Commission contacts
New on the bookshelf
Consumer protection
updateACCC
Produced by the ACCC Publishing Unit.
Photographs by Arthur Mostead
© Australian Competition andConsumer Commission 2001
ISSN 1443–0681 Issue 9, August 2001
What does the Trade
Practices Act mean for
consumers?
It's easy to be blinded or bewildered by much of the large
scale work of the ACCC and to think that it couldn't have
the remotest benefit to the ordinary consumer. For
instance, what possible effect could access arrangements
in the gas, electricity and telecommunications markets
have on you?
This issue of looks at the impact of utilities
reform on consumers, but it also looks at what is thought
of as the more traditional aspects of consumer protection
work and brings you up to date with what is currently
occupying the ACCC's energies.
To begin with is an interview with ACCC Chairman,
Professor Allan Fels, AO, who gives his slant on the 'big
picture' for consumers.
ACCC update
2 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
An interviewwith Allan Fels
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 3
The following is an interview with
ACCC Chairman, Professor Allan Fels, AO,
on what he sees as the most important
issues facing the ACCC in protecting
consumers.
Consumer protection is often thought
of — in terms of fair trading and
consumer protection laws — as
misleading and deceptive conduct,
faulty products and so on. But the most
important factor affecting consumers is
the competition itself.
So we see vigorous enforcement of
competition law via active pursuit of
cartels, a firm but sensible approach to
mergers, and actions against
monopolistic exploitation as being the
most important issues in our area for
consumers.
Often, the seemingly technical decisions
the Commission makes about
competition affect consumers to the tune
of millions and millions of dollars.
That's not to say that there aren't
important scams occurring in traditional
areas of consumer protection, particularly
in the new economy with e-commerce
scams, and also with utility deregulation
and other areas of deregulation such as
the health sector.
The Commission is neutral in its attitude
to the issue of public or private
ownership. It is of some concern,
however, that governments have a
conflict of interest as owners of the
utilities and also as the entity responsible
for efficient, competitive behaviour in the
economy.
We find time and again at all levels of
government that there are pressures for
pulling back on the vigorous application
of competition policy because of
government revenue interests.
Once privatisation or even
corporatisation or commercialisation
occurs, in most cases a very high degree
of market power remains in the hands of
the incumbent. And traditionally those
incumbents have not then formally
regulated — ministers and cabinets have
still made the decisions about pricing and
other matters, and there is usually a
regulatory gap.
If the privatised entities have market
power they need to be properly
regulated or otherwise they'll just
become monopolies that exploit
consumers.
On the whole a high level of regulation
is required. Mostly because there is a very
high degree of market power to begin
with and the deregulating utilities are not
like other sectors where there's more
competition — especially where they
control some form of network, whether
it's a telecom network, an airport or a gas
pipeline or an electricity grid.
And not only do we apply traditional
regulation but we usually have to beef it
up; something extra is generally required.
Access remains a fundamental policy
variable in all of the utility areas. Not in
every single activity that utilities do, but
because some of the utilities in the past
had monopolies over areas where there
can be competition, such as generation
in electricity.
There has been quite a lot of criticism of
national competition policy in rural and
regional Australia. Interestingly, when the
ACCC visits those areas the main
complaint is that we aren't doing enough
— and that's been recognised by the
government with additional funding.
Regional and rural people suffer as much
as, or more than, others from exploitation
by cartels and monopolies, all sorts of
monopolies. More than others often
because in big cities there are often more
competitors. Take petrol. Marketing in
country areas is inherently less competitive
because there are fewer players, and
country people suffer as a result.
What are the ACCC's major
concerns regarding
consumers now and for the
next few years?
In terms of utility
deregulation, many see
privatisation of once
government-owned bodies
as the government
abandoning them, and as
one-off sales being for the
short-term gain of
government. How does the
ACCC feel about it?
What level of regulation is
appropriate for some of
these entities?
And this is where access
arrangements come in?
Leaving utilities aside for
the moment, what special
issues face rural and
regional consumers?
cont...
An interview with Allan Fels
What we have decided to step up
heavily, are our attempts to be in touch
with regional and rural Australia. Using
satellite TV transmission via Sky we're
now having major seminars two or three
times a year in something like 60 towns
at a time. We do an interview in the
central studio in Sydney that includes
me, other ACCC Commissioners and
various business personalities like ACCI
representatives. Following that we take
questions live from these different
venues. We've found the two-way
education process to be extremely
valuable.
Yes. Fines aren't enough for big business
collusion. Collusion is a calculated
decision for big business people who
factor in the low probability of being
caught, together with the fact that the
fines might be less than the gains they
make from collusion. And there has been
some increase in the amount of cartel
behaviour both locally and globally in
recent times. Also, it's appropriate
because secret collusions that harm
consumers are like a form of fraud, like a
form of theft, and a criminal deterrent
would be far more effective than the
thought of fines.
At the moment we've been floating the
ideas of public discussion and then
we're going to take it to the government
in due course. We're not expecting an
immediate answer. But we think the
case for coming into line with the
United States, Canada, Japan and Korea
is quite strong.
It always has been strong, but when it
was originally discussed in 1974 the big
business lobby was more powerful and
also there was more uncertainty about
what the Act meant. Now it's pretty clear
cut what it says about collusion.
We would like to see a stronger law
regarding the misuse of market power by
big business and the opportunity to
move against it more quickly.
Typically at the moment there are long
delays before we can win cases in court.
There might be a case for some kind of
short-term cease and desist power where
the Commission can order certain
behaviour to stop for, say, 90 days.
On consumer protection, we want to take
nothing away from the law, but we'd like
to add a wider set of options to the
remedies currently available — to almost
the opposite of the competition law where
we need a criminal sanction added.
With consumer protection there's the
opposite gap. They have a criminal
sanction but they don't have some of the
normal civil remedies available under
part V. So in a lot of consumer matters
the Commission faces a rather extreme
choice between criminal action or not
doing anything much at all.
Well, the middle path in both part IV and
part V is to have a full set of possible
remedies. In part IV just add on criminal
and subtract nothing from all the civil
remedies. In part V there's a gap in that
the civil remedies are quite limited; they
don't include the possibility of fines for
example and some other actions. So we'd
like to have pretty much the same set of
remedies across both parts of the Act.
We're getting a fairly sympathetic
hearing. It's hard to say how it will turn
out. At this stage I haven't detected a
kind of hysterical response from anyone,
so I'm hopeful that there will be serious
considered debate by everyone about
the issues.
Yes, I hope it would help. One of the
interesting points is that most businesses
think that the Commission is too strong,
too powerful, too draconian.
Most of the public thinks the opposite. As
the Commission has become better
known and more effective, more people
have heard of it and more people think
that it is rather ineffective.
The reality is quite different. Everything
we do ultimately benefits consumers.
The fact that there's new issues constantly
coming up. There's never a dull moment.
You recently called for
criminal sanctions for price
fixing. Do you think the
Trade Practices Act should
be changed to allow for
that?
Is the government making
any move to take this up?
Are there any other
changes you would like to
see to the Act that would
benefit consumers?
What would that middle
path be?
Are you expecting a
favourable response from
government on that score?
Do you hope it will answer
the complaints that the
ACCC does not have the
power to act?
What do you personally
find the most stimulating
part of your job?
An interviewwith Allan Fels
4 • A C C C u p d a t e 9 — A u g u s t 2 0 0 1
The big pictureThe big picture
Consumers may wonder why governments are going
through the long and what probably seems contrived process
of reforming the utilities — that is, the bodies that provide our
electricity, gas and telecommunications, and
manage our airports.
Ultimately, the aim is to make those
areas more competitive. They have
traditionally operated as monopolies
and have enjoyed the benefits that situation brings, with
government intervening to cap pricing. But if they run their
businesses under a more competitive framework, then it can
only benefit consumers with better service and fairer prices.
In this section of , we look at how the ACCC is
regulating this process and what the benefits will eventually
be for consumers.
update
Come 2003 the retail end of the
electricity market in most States
will be completely deregulated.
This is likely to increase the
pressure to make the supply of
electricity more efficient, reducing
the possibility of blackouts and
supply interruptions.
In fact, a reliability survey by the Office
of the Regulator General in Victoria a
couple of years ago concluded that
supply reliability had improved under
private ownership. The consequences
for a private sector supplier getting it
wrong and blacking out its customers
can be quite damaging. Not only do
they face potential political censure and
negative media exposure, they have to
deal with the reaction of shareholders
and, of course, angry customers.
'There's nothing special about
governments owning these things
because they certainly don't manage
them any better than the private sector,'
said Michael Rawstron, head of the
ACCC's electricity group. 'There's no
share price to discipline them. There's no
threat of takeover. If the board of
directors of a government-owned
business makes a mistake, who
disciplines them?'
In a deregulated environment, the
reliability of power stations has improved
markedly since the reforms commenced.
Before the reforms, power stations were
built on the assumption that between
30 and 40 per cent of the time they
would be out of operation because of
technical or other problems.
Now, in a more deregulated
environment, most are running at close
to 90 per cent availability.
'They haven't put any extra dollars in —
we're simply talking about getting the
same assets working harder.’
As in the supply of gas and
telecommunications, deregulation could
also completely change how electricity is
billed to customers, with incentives
offered by various retailers.
Utilities companies may jointly bill,
combining gas, phone and electricity on
the one invoice, thereby saving IT costs
for them and simplifying payment for
customers.
As has happened in overseas markets,
incentives could include frequent flyer
points, discounts, credit cards etc.
The gradual introduction of smart
meters, as needed, will give consumers
much greater information about how
and when they use their power. The
meters may eventually be able to signal
people to reduce consumption at times
of high electricity prices, flagging the
price, the time and the amount of
energy consumed.
Restructuring in the electricity market
has gone through a couple of stages. In
the first stage in the 1980s, most States
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 5
cont...
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Market forces changehow electricity is supplied
Consumers and market reform
6 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
had an electricity commission that was
then corporatised. During the second
stage, the monopoly parts of the
business — that is, the transmission —
was separated out, and the remaining
generating and retail segments were
broken up into competing businesses
and deregulated.
The transmission of electricity along high
voltage wires, like Telstra's copper
network, is uneconomic to duplicate
and for the process to run smoothly, it
must be easily accessible at both the
production end (the power stations) and
the distribution/retail end (the low
voltage lines to consumers). The ACCC
regulates access to this system by setting
the maximum income that the
transmission network can earn.
Reform of the electricity market has
varied around the States. Until the
process began, each State generated its
own power to sell to its own customers.
There was no national planning.
According to Rawstron, if New South
Wales had surplus capacity this was not
considered important in terms of what a
nearby State might do, even if it was
short of power, and vice versa. This
situation led to governments spending
billions of dollars building power
stations that could have been deferred if
they had imported power from States
that had surplus generation.
The structural reforms broke up the
electricity market by function. In some
States, such as Victoria, it resulted in
competing power stations; in other
States such as New South Wales and
Queensland, separate competing power
companies were the result. At the
distribution and retail end, companies
such as Integral, ActewAGL, Country
Energy, Energy Australia, Ergon and
Energex evolved.
In Victoria and South Australia, the retail
and generation companies are privately
owned, whereas in Queensland and New
South Wales, they are publicly owned.
For most States (except WA and NT),
trade across the borders in each other's
territory has been made possible by
interconnecting their high voltage
networks. Stronger interconnection
meant States could share their reserves,
plan for contingencies, assess the need
for investment in new infrastructure and
have greater security of supply. The
benefit of this was savings in the order
of billions of dollars a year.
Rawstron said that the reforms to the
electricity sector so far had resulted in
about 70 per cent of the market, in
terms of value, being deregulated. This
has largely been the wholesale market
— that is, the buying of power by
retailers from the producers, and its
transmission and distribution.
The prices paid by retailers are usually
set under contracts, or else decided on
the spot market. Prices paid by
consumers are still regulated and will
stay so in most States until 2003.
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Market forces changehow electricity is supplied
Consumers and market reform
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Billing and other services
involved in supplying energy
and telecommunications to
households are likely to undergo
a revolution in the near future.
Full deregulation in the United Kingdom
has transformed the system — now,
rather than receiving separate bills for
electricity, phone and gas they can be
integrated. Different energy and phone
retailers offer different deals, involving
credit cards, frequent flyer points etc.
In Australia, the process of utility market
reform is well under way. While reform
in the gas market is lagging behind
electricity, it has a very different
appearance to that of a few years ago.
Previously State corporations owned a
significant proportion of the
infrastructure, except the wells where
the gas was drilled. Trade between
States was restricted, and the
exploration and processing was carried
out by a few companies operating
under long-term leases granted by State
and Territory Governments.
Usually a single transmission pipeline
connected a single gas basin to the
major population centre and regional
markets.
In 1994 the Council of Australian
Governments (COAG) decided the
industry could do with a series of
reforms. These included opening up
access to gas fields to new explorers and
producers; allowing trade between
States; and restructuring the gas utilities.
State Governments have separated the
various elements — transmission,
distribution and retail — and sold them
to private investors. The most dramatic
restructuring of this kind occurred in
Victoria.
The National Gas Code was also
developed and implemented. It sets out
the procedure the ACCC, and the State
and Territory regulators, must follow
when assessing proposals from pipeline
operators to sell transmission and
distribution services to customers.
So now the chain is clear. The elements
are now largely independent: the
exploration company (such as Santos or
BHP), the transmission company or
pipeline operator (such as Duke, Epic or
EAPL) which owns the huge pipes
linking the wells to the distribution
centres, the distributors (such as AGL or
Envestra) which pipe the gas to
households and businesses, and the
retailers (AGL Retail, Energy 21 or
Kinetic) which actually sell the gas.
It is anticipated that
the most competitive
link in the chain will
be the retailers who
supply the customer
with the product. Because of the huge
costs involved in setting up the
infrastructure, the other elements are
traditionally less competitive, although
this is gradually changing. As more
major pipelines are built between gas
basins and distribution centres, the
whole process will become more
competitive.
In the meantime, the pace of reform
continues, albeit not as quickly as some
would like.
The ACCC is the designated regulator for
gas transmission pipelines in all States
and Territories except WA. This involves
assessing applications by new and
existing companies seeking access to
pipelines, arbitrating disputes between
pipeline owners and other companies
seeking access, and other steps involved
in making sure gas is supplied as
competitively as possible.
The ACCC also regulates the gas
industry through other parts of the
Trade Practices Act, such as the sections
covering mergers, anti-competitive
conduct, fair trading and consumer
protection.
Full retail competition will allow
industrial and commercial customers to
negotiate contracts that suit their needs.
All this is ultimately good news for
consumers. Competition generally leads
to lower prices and
greater choice. It also
leads to greater
transparency of pricing.
Major consumers, like big
manufacturing businesses, will be able
to strike better deals. And even
individual consumers will benefit by
being able to choose between retailers
and the different deals they offer.
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 7
A revolution in gas
reform is well
under way
As in other sectors that were once
government owned, a stiff wind
of change has been blowing
through the aviation industry in
the last five years.
Some changes have been very
apparent, such as the entrance, and
demise, of new airlines and the
accompanying see-sawing of airfares.
With Virgin Blue now on the scene,
Australians are again being offered
airfares at a fraction of former costs. So
while the competitive pressure among
the airlines has been intense, domestic
travellers have been doing well.
Another change that may be less well
known is that in 1997 and 1998, 17 of
the 22 Commonwealth-owned airports
moved into private hands as part of the
Commonwealth Government's
economic reforms.
Because airports can be monopoly
facilities in their geographic markets the
government brought in a package of
airport-specific regulation — under a new
— to be administered
by the ACCC. This means for instance
owners or operators can't charge more
than they need to; that is, take advantage
of that monopoly market power.
The Airports Act divided the privatised
airports into two broad groups. The
major passenger ones became core
regulated airports that are subject to
economic regulation administered by
the ACCC*. The general aviation
airports are non-core and not subject
to the same regulations.
Under the Airports Act the ACCC
monitors and publishes data on the core
airports' financial and service quality
performance.
Under the
— legislation that the ACCC administers
— some prices charged by airports to
airlines are capped, meaning the
airports can't increase them just because
they want to. At most major airports this
price cap has led to steady reductions
ranging from 1 per cent per annum at
Canberra and Townsville airports to
5.5 per cent at Perth airport.
Another ACCC responsibility is to assess
new investment proposals by airports.
The ACCC will approve some increases
in airport prices to fund the investment,
if airport users by and large agree with
the proposals — giving airports an
incentive to undertake investments that
improve the efficiency of the airport and
the quality of service provided to airlines
and travellers.
So far, good quality of service results have
been recorded, suggesting that even in
the face of price reductions, quality of
service standards haven't been sacrificed
by airport operators to cut costs.
Examples of investment developments
are the international terminal at Sydney
airport before the 2000 Olympics and
the construction of common user
terminals at Sydney, Melbourne and
Brisbane airports. These terminals have
been essential to the operations of Virgin
Blue, and central to the low airfares.
The ACCC also monitors the prices of
some aeronautical-related services, such
as refuelling services, check-in counters
and car parking. The ACCC doesn't have
to be notified of increases in these
prices, but because the reports are
made public the prices are open to
general scrutiny, including by the ACCC.
In relation to some services the ACCC
recently made a submission to the
Productivity Commission's inquiry into
price regulation of airports,
recommending they be subject to
price regulation — the intent being
to ensure that airport operators can't
use their market power to the detriment
of air travellers.
Access to essential airport facilities is also
regulated, through the Airports Act and
part IIIA of the Trade Practices Act. The
purpose is to make sure that businesses
needing access can negotiate with
airport operators on commercial terms
— or, if negotiations fail, to have terms
and conditions arbitrated by the ACCC.
This may be especially important when
new airlines are establishing themselves.
It has also allowed some smaller
businesses to compete with airport
operators in providing services such as
cargo handling.Airports Act 1996
Prices Surveillance Act 1983
*Core regulated airports:
Brisbane, Melbourne, Perth,
Adelaide, Alice Springs,
Canberra, Coolangatta,
Darwin, Hobart,
Launceston and Townsville.
Although Sydney airport has
not yet been privatised it is
regulated by the ACCC.
8 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
Airport deregulation
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Deregulation in the
telecommunications market has
resulted in much lower prices for
most telephone services — in the
past five years overall prices have
dropped by 17.5 per cent.
The most startling decreases have been
in international calls (53 per cent fall),
national long-distance calls (23.5 per
cent) and mobile calls (19 per cent).
Even local calls fell substantially in price,
with most of the decrease occurring in
the past two years.
Cheaper prices for consumers in fixed
line calls — that is, calls that at least
partly travel along copper lines — can
be completely attributed to greater
competition in just some parts of the
industry.
'If you think of a simple phone call as a
linear thing with a start and a finish,' said
the ACCC's head of telecommunications,
Michael Cosgrave, 'then a lot of the
competition has occurred in the middle
parts of the call.'
History explains how. In Australia over
the past 100 years, the Postmaster
General's Department and its
descendants, built up a huge
infrastructure called the customer access
network, running a copper network all
around the country.
The customer access network directly
connects customers via 10 million lines
to the nearest local Telstra telephone
exchange. It's an infrastructure that is
uneconomic to duplicate — and it's that
network where competition is, as yet,
unfeasible.
But not so the switches. A call that starts
in the home travels along the copper
line to a Telstra switch, and from there it
is taken to a point of interconnection. At
that point the call can then be directed
off to another switch, which can be
owned and operated by another carrier
such as Optus, AAPT, Primus or the now-
defunct One.Tel. That is where
competition has occurred in the market,
and where price gains have been made.
The call is only delivered back to a Telstra
switch at the other end for delivery.
In 1997 the Trade Practices Act was
amended to ensure that other providers
could get access to services (such as
Telstra's customer access network) on
reasonable commercial terms. If the
business seeking access believes that the
conditions imposed are not reasonable,
it can ask the ACCC to intervene.
Other carriers have to pay Telstra for
providing access to its network which,
at the moment, is about 1.5 cents a
minute.
The current flaw in this compensation
arrangement is the fact that it is based
on timed amounts.
'If you think about it, it doesn't make
much sense,' said Cosgrave. 'As you
move into an Internet world where calls
can last for 40 or 50 minutes, a service
provider will end up paying more in
compensation than it can make out of
the call, given Internet calls are costed at
local rates through a local switch.'
He said the ACCC would continue to
review the nature of such
interconnection payments between
carriers, particularly given the
technological advances that continue to
occur — such as DSL (digital subscriber
line) technology that offers transfer of
high speed data over the copper
network.
The rolling out of fibre optic cable,
especially in metropolitan areas, is also
affecting the current debate surrounding
access regulation. While the total
network would certainly be
uneconomic to duplicate, the laying of
cable in the cities will have a major
impact on how the Telstra network and
services are regulated.
As the industry opens up to greater
competition, further industry
rationalisation is also a possibility,
according to Cosgrave. During the early
days of competition, many new
companies enter the market — some
successfully, others less so as was seen
recently with One.Tel.
'From a competition perspective, you'd
find plenty of people who'd say that's
healthy — that's inefficient entry going
out. They were just priced too low and
they couldn't sustain it.'
Despite such industry consolidation over
the next few years, the converging of
technologies, such as telephony and
video/information
platforms, and new
market entrants
should see
competition thrive.
This rigorous
competition will
keep prices down
and efficiency up,
leading to better
services at lower
prices for
customers.
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 9
Major price falls in telephone market
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1 0 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
The objective of consumer protection law is to strengthen
the position of consumers in their everyday dealings with
suppliers of goods and services who often have stronger
bargaining positions.
The Trade Practices Act prohibits unfair practices such as:
misleading and deceptive conduct; false representations;
misleading statements; harassment and coercion; bait
advertising; referral selling; and pyramid selling.
Consumer (and many business) transactions are automatically
given warranty protection by the law, whether or not
suppliers give their own warranties or guarantees. This
protection includes the right to refund if goods are defective.
All States and Territories have their own fair trading laws
which mirror or partly mirror these parts of the law. So many
issues or concerns that consumers have in dealing with
suppliers can be successfully taken up by State departments of
fair trading or consumer affairs.
On the other hand, the ACCC focuses on industry-wide
conduct and conduct that affects large numbers of
consumers.
Some of the areas which especially concern the ACCC are
outlined below.
Sometimes it's hard to believe
some of the advertising you see.
Sometimes it's difficult to believe
what you're told by a salesperson.
Difficult to believe or not, you should be
able to rely on it — because part V of
the Trade Practices Act has some basic
rules that advertisers, marketers and
salespeople should adhere to.
Businesses are supposed to act fairly by
giving consumers accurate information
about products and services. Consumers
rely on the information they're given
because they expect the business to be
knowledgeable about their own
products and services.
What falls into the scope of advertising
and selling? The following are some
examples:
Broadly put, part V of the Act tells
businesses not to engage in activities
that actually mislead or deceive; or are
likely to mislead or deceive. Take the
example below.
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information provided by call
centres;
promises and negotiations;
terms of leases, contracts and
agreements;
predictions about risk, profitability or
value;
statements in labelling and
packaging;
descriptions of goods or services;
silence or omissions which 'mean
something' in a given context;
claims of association with other
products or persons;
mimicking of products or names;
and
distribution of financial, mortgage
or insurance documentation.
A perennial problem area to watch out
for is disclaimers and fine print in
advertising. These are designed to limit
expectations that might be created by
the first impression. However, all
conditions should be easy to see. You
shouldn't have to look in obscure
locations, be able to speed read or
search exhaustively for these
This is a form of advertising that
highlights the differences between
products. It can be very appealing
because it may show that one product is
better than another. But businesses
Disclaimers and fine print
Comparative advertising
details.
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Consumer protection
exampleA student wants a computer that can
be used for high resolution graphic
design. The computer salesperson
recommends a particular model but
fails to explain that it doesn't have the
processing capacity needed to run
certain graphics applications.
The student buys the computer and
finds it doesn't do the job. Therefore,
the student was misled because the
information provided by the
salesperson gave the impression that
it was the right product for the job.
Advertising and selling — what you should expect
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 1 1
need to be extra careful with it because
comparisons should only be made when
the products or services are reasonably
similar. They also need to consider how
soon their competitors are likely to
respond because if a competitor moves
quickly to change its own prices the
original comparative campaign could
become misleading.
Many complaints about misleading
conduct are explained by businesses as
an error or an oversight, e.g. a computer
error that leads to overcharging or an
inexperienced sales person. Either way
consumers may still be misled and suffer
as a result. The Trade Practices Act
protects consumers regardless of intent,
and places responsibility on the business
to avoid such conduct.
Marketers may have very specific
target audiences in mind, but can't
always control who receives the
message and who is likely to be
influenced by it. They must consider
the likely audience, how they could
be influenced, and what impression
they could take away with them.
Businesses should always step back from
their marketing and advertising to look
at the overall impression that has been
created. They need to ask: How is a
consumer likely to look at it? Is the
emphasis correct? Have any important
details been left out? Can there be
more than one meaning?
Most businesses that provide goods or
services directly to consumers would
know about their obligations. But
marketers also need to know about the
law so they can help clients to avoid
bending the truth. Similarly, if the media
adopts, advises or endorses a misleading
message that it has been asked to carry, it
may be breaching the Trade Practices Act.
Presently the penalties for offences are
up to $40 000 per offence for individuals
and $200 000 per offence for
companies.
On 18 June 2001 the Australian Senate
agreed to increase them to about
$1 million for corporations and
$200 000 for individuals. The new
penalties will only apply to future
conduct.
To avoid misleading consumers,
businesses need to consider these
principles:
Your intent is not important.
Is the target audience the only audience
that will receive your message ?
The overall impression you create.
Marketers and the media
Penalties
If you would like to know more,
look up the ACCC's publication
at
<http://www.accc.gov.au>.
At the moment it is only available on
the website but an updated print
version will be published later this year.
Advertising and Selling
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Until last year section 60 of the Trade
Practices Act remained untested in
the courts, leaving the community
unsure to what extent harassing or
coercive conduct adopted by some
debt collectors was against the law.
But in August 2000 the Perth Federal Court found that Cash
Return Mercantile Pty Ltd, a debt collection agency, and its
former agent, Ms Sharyn McCaskey, had breached the Act.
They had engaged in undue harassment, undue coercion
and misleading conduct while collecting debts from
consumers, the court found. They had made an excessive
number of phone calls to debtors; they had adopted a
threatening, aggressive and abusive manner; and they had
misled debtors and others about recovery procedures and the
consequences of not paying the debts.
This case has clarified the ACCC's guidelines (see below)
describing conduct that would be likely to contravene the
laws.
However, the guidelines point out that if the debt collector
contravenes s. 60, it doesn't mean the debtor can get away
with not paying the debt. Consumers who are legally bound
to pay or repay money must do so unless they have a valid
defence.
Creditors can take reasonable steps to ensure their debt is
repaid but they are not allowed to be unfair or intimidating.
The guidelines acknowledge that failure to repay a debt may
6 • A C C C u p d a t e — 2 0 0 11 2 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
ACCC guidelines
Debt collectors are not supposed to pester or
frighten a debtor, tell others about the debts,
or threaten to take action they aren't legally
entitled to take. This all comes under undue
harassment, and it is against the law. This
applies to anyone collecting debts, such as
banks, finance companies, shops, hospitals,
solicitors or debt collectors.
People who owe debts should not be harassed or called at
unreasonable hours. After 7.30 a.m. and before 9 p.m. is
okay, unless the debtor has arranged something else or
unless the debt collector has been trying for
a while to contact the debtor during the day.
Collectors should make their initial contacts,
at least, outside of someone's work. If a
collector needs to communicate with a
debtor at work, they should do so discreetly
and with care. A collector should only do
this if specifically asked, if an alternative hasn't been
provided, or if the debt relates to a debtor's own business.
If a collector does contact a debtor at work, they should
not let others know about the debt.
Collectors can visit in person but privacy and security
should be respected. They should use less intrusive means
if possible, especially initially, such as by phone, fax or mail.
Collectors should only make calls that are absolutely
necessary, up to about three (that you answer) a week, or
10 a month.
If a debtor has made arrangements to pay, a collector
should not contact them. They should also not contact a
debtor if liability has been denied in writing or that they
intend to defend any legal proceedings.
If the debtor has a lawyer, financial counsellor or someone
else representing them, a collector should contact them first.
When they should call
Where they should call
How they should call
How often they should call
Who they should call
Debt collection tested in the courts
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A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 1 3
Can they call family and friends?
What they can't do
If collectors don't know how to contact a debtor,
they can contact family and friends to find out
where the debtor is. However, those friends and
family don't have to tell them the debtor’s
whereabouts and they are not liable for the debt.
The collector should not discuss the debt with
them or talk with the debtor’s children without
permission. They are not allowed to trick people
into disclosing their whereabouts.
Collectors are not allowed to lie or mislead a
debtor about:
They should also not use abusive, threatening or
obscene language, and they must not use or
threaten violence against either the debtor or
their property.
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who they are and who they represent;
the amount of money owed; and
what will happen if the debt isn’t paid.
Steps consumerscan take
If a debtor is not disputing the debt, realistic repayment
arrangements can be negotiated. Early and clear
communication as soon as difficulties arise will help
resolve any problems.
A debtor should also advise creditors of:
If a debtor wants a collector to stop a particular type of
contact, they should write to them saying what conduct
they don't like and what would be acceptable, for
example, telephoning them at home instead of work. They
should keep a copy of the letter.
They should keep accurate details about what has been
said and done, in case they need to make a complaint.
If a debtor needs help to manage what may seem to be an
unmanageable situation, they should talk to:
Complaints can be made to:
If a creditor contravenes s. 60, it is a criminal offence and
can lead to fines of up to $200 000 for a corporation, or
$40 000 for an individual.
Civil remedies include injunctions, damages, other orders
such as compliance programs and enforceable
undertakings.
Even if a creditor uses an agent to collect debts, the
creditor may still be liable for the agent's conduct if it
contravenes the Act.
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current contact details; and
any financial difficulties they may be having.
a free financial counselling service (usually listed under
community advisory services in the Yellow Pages); or
a free community legal centre.
State and Territory fair trading agencies; or
the ACCC.
Where to go for help
The end result
not be deliberate. It could be because people have
overcommitted themselves, or their financial
circumstances have changed because of
unemployment, ill health, divorce or separation.
Not paying a debt may also be because someone
disputes its existence or the amount of debt.
1 4 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
Surveys by the ACCC checking price movements pre-
and post- GST show that businesses generally
haven't used the change as an opportunity to
increase profit margins.
The ACCC has been surveying prices since December 1999.
The ongoing general survey involves collecting the prices
of identical products at different times. About 340 000
comparisons were made between May 2000 and
February 2001.
The survey covers prices for a wide range of common
household goods and services. Prices are collected from
around 10 000 sites in 115 locations (capital cities, major
regional cities and towns) in all States and Territories.
Between May 2000 (just before the GST was introduced)
and February 2001 the overall average price change was
an increase of only 4.4 per cent.
If you exclude fresh fruit and vegetables, which have
highly variable supply and demand characteristics because
of their perishable and seasonal nature, the increase drops
to 3.2 per cent.
Remove alcohol and tobacco products (subject to CPI-related
half-yearly indexation of excise rates unrelated to the New
Tax System) and it drops further to 2.9 per cent.
On the same basis, the average price change between
May–October 2000 was only +2.6 per cent — which means
that between October 2000 and February 2001 there was
only a slight average increase.
The ACCC considers that price increases happened mainly in
the three months after 30 June 2000, and that further
increases resulting from the New Tax System are unlikely.
Prices that have risen since September 2000 have generally
been in line with inflation trends that existed before the New
Tax System changes.
Others may be accounted for by some businesses having
separated tax and non-tax factors in pricing and holding off
passing on the non-tax factors when the tax changes
occurred. These businesses would now need to make sure
that future price increases are justified by these non-tax
factors and aren't implemented under the guise of the GST.
It's these non-tax factors that are now increasingly responsible
for price changes. They include increasing production costs
for raw materials, labour, imported plant and equipment;
changes in the Australian dollar exchange rate; fuel price
rises; and climatic conditions and seasonal patterns affecting
fresh produce supply.
The table shows that average price changes for most
products have moved moderately since October 2000. The
May 2000–February 2001 averages are in the unshaded
column, with those for May–October 2000 shown in the
next. The fresh food group jumped to 10.3 per cent during
May 2000–February 2001 because of large increases in the
prices of bananas, apples, pears, potatoes, pumpkins and
lettuces.
Before the February survey the following factors, unrelated to
tax changes, affected the supply-side of fresh food prices
surveyed:
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floods in northern New South Wales and southern
Queensland growing areas during November 2000; and
extreme heat conditions over summer creating poor
growing conditions for many crops, particularly lettuce,
onions and potatoes.
Post-GST price movements
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A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 1 5
The surveys also showed almost no significant differences in
average price changes when comparing:
Apart from checking prices to assess the general impact of
the New Tax System on prices, the ACCC's monitoring work
also helped to identify potential cases of price exploitation.
Most of those investigated arose because businesses either
experienced technical errors with their GST implementation
or misunderstood its effect on the supplies made by their
businesses. Errors included charging GST:
In most cases businesses readily admitted their error and took
corrective action including providing refunds or discounting
products for an agreed period.�
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capital cities with regional areas;
smaller businesses with larger retailers/retail chains; and
the States and Territories.
on GST-free items, such as food, sunscreen products and
prescription medicines;
in relation to a pre-GST contract in circumstances where
the contract provided no review opportunity; and
in the absence of a clause allowing the business to pass
on any GST charge to the customer.
Advertising prices
Advertised or quoted prices should include GST. Some
businesses complain that including GST in their prices will
lose them sales because customers will believe their prices
are higher than their competitors. It's a good reason for
standardising the way prices are advertised.
And that's what the ACCC is working towards: if a business
supplies goods and/or services to individual customers (who
cannot claim input tax credits, and who therefore pay GST
that won't be refunded later), then the prices should be GST-
inclusive — because customers are entitled to know the total
price before deciding to buy.
Product group average price changes — May 2000–February 2001 survey data
Group Average change Average change Estimated New Tax
System effect on
prices by end 2000
3.2
10.3
2.8
4.2
-0.3
-5.9
2.0
1.8
8.5
4.2
5.9
5.1
11.2
All groups weighted average 4.4 2.7* 3.0
May '00–February '01 May–October '00
% % %
Clothing and footwear 3.8 7.5
Fresh/unprocessed food 2.9 -1.1
Household furnishings and equipment 1.2 2.2
Household services and operation 2.6 2.2
Personal care -1.2 1.5
Recreation — audio visual -6.1 -3.6
Recreation — other 1.8 3.2
Processed food and beverages 0.2 -0.3
Meals out and takeaway food 8.1 9.2
Miscellaneous goods and services 3.6 3.6
Medical and health 5.5 5.4
Motor vehicle expenses 2.9 1.9
Alcohol and tobacco products not applicable 6.0
* The May–October 2000 overall result does not include alcohol and tobacco products.
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1 6 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
What does ‘Made in Australia’ really mean?
Is the fact that a product is labelled
‘Made in Australia’ an important
factor in your decision to buy it?
Do you understand the difference
between ‘Made in Australia’ and
‘Product of Australia’?
If you suspect something doesn't
originate in Australia, but claims to, do
you know what you can do about it?
The Trade Practices Act prohibits
businesses from making a false or
misleading claim about the place of
origin of goods. Under the Act,
businesses are protected against such
charges if they meet certain tests. For a
product labelled 'Made in Australia', the
two tests are that the product should be
substantially transformed here, and at
least 50 per cent of the costs of
production should have occurred here.
Australian icon, Golden Circle, agreed to
amend its labelling three years ago
when it claimed some juices were
Australian made when, at the time, they
actually contained high levels of
imported concentrate.
As ACCC Chairman, Professor Allan Fels,
said, 'The ACCC takes seriously
potentially misleading claims about a
product's country of origin as many
consumers place great importance on
buying Australian products.'
For goods to be 'substantially
transformed' they must have undergone
a fundamental change in form,
appearance or nature so that they are
new and different goods to those
existing before. This means that
processes such as repackaging or mere
assembly are not likely to qualify an
imported good as ‘Made in Australia’.
But it can be difficult to pick. For
example, the ACCC decided, despite
some legal opinion to the contrary, that
substantial transformation occurs when
tablets or capsules are made in Australia
from imported ingredients. This decision,
welcomed by the complementary health
care industry, arose from a review of
how the country of origin laws applied
to the industry.
Not only must goods be substantially
transformed, but 50 per cent or more of
the cost of their production or
manufacture must have occurred here.
To qualify, three broad categories of
costs of production or manufacture are
considered: the costs of materials,
labour and overheads.
Material costs are usually easy to
calculate. But labour and overheads
only count towards the costs of the final
goods.
'Product of …' is a premium claim about
a good's origin, and the criteria to
qualify for protection under the Act are
much stricter. They are:
These criteria apply to any variations of
the words, including 'produce of' and
'produced in', and they also apply to
goods produced in any country, not just
Australia.
In July 2000 the ACCC took Taj Food
Sales Pty Limited to court for making
false country of origin claims about its
basmati rice. It had been importing
basmati rice from Pakistan and
packaging it in 1-kilo bags marked with
the words 'Produce of India'.
Some consumers believe Indian basmati
rice to be superior to that grown in
other countries and it was this
conception that the company was
trying to exploit.
The Federal Court, where the case was
heard, found that it had made these
false claims. The company agreed not to
do so again and published corrective
newspaper advertisements offering
refunds to consumers.
In another case the issue of what
constitutes a 'significant ingredient' was
raised. YBD Pty Ltd is a Victorian-based
company that produces muesli slices
and other related products. Many of its
products were labelled as ‘Product of
Australia’ and, in finer print, 'Made from
local and imported ingredients'.
The imported ingredients were apricots,
sultanas and coconut. The ACCC
believed these constituted significant
ingredients because they were the
essential defining element of the
product, rather than the main ingredient
in terms of percentage.
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each significant component or
ingredient must originate from the
country of the claim; and
all, or virtually all, of the production
processes must take place in Australia.
What is 'substantiallytransformed'?
What are the costs ofproduction?
How does ‘Made inAustralia’ differ from‘Product of Australia’?
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A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 1 7
The ACCC contacted the company,
which agreed to remove the words
‘Product of Australia’ and replace them
with ‘Australian made Australian
owned’.
Some companies prefer to use more
qualified claims so that they don't have
to meet in full the 'substantial
transformation' or '50 per cent content'
tests for ‘Made in Australia’. However,
even for qualified claims, close attention
should be paid to the wording. For
example, if the imported content is
greater than the local, the label should
read 'Made in Australia from imported
and local ingredients'. Or if the local
content is greater, 'Made in Australia
from local and imported ingredients'.
Other claims, if brought to the notice of
the ACCC, will be assessed on their
merits. They may try to imply a lesser
connection with the country, for
example, 'Built in …' or 'Assembled in
…'. But if they are misleading they still
run the risk of legal action by the ACCC,
a competitor or any other interested
party.
Other claims are
sometimes made
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The ACCC is developing a program
specifically to keep people in rural
and regional Australia informed
about their rights under the Trade
Practices Act. It should mean
they're better prepared to recognise
anti-competitive practices and
consumer protection issues.
Through its first Competing Fairly Forum
(discussed below), the ACCC learned
that many in these communities know
nothing about the Act or the ACCC.
Over the next six months the ACCC will
be working with rural and regional
communities to identify relevant trade
practices issues to help it better target
the work of the program.
The ACCC already has an extensive
network of contacts throughout all
States and Territories that includes fair
trading organisations, small business
industry associations, local government,
area consultative committees and
business enterprise centres.
Communication with rural and regional
communities is one of the key aims of
the new program, so the ACCC will be
hiring regional outreach officers in each
of its regional offices and it will be their
job to regularly visit communities to
discuss trade practices issues and
concerns.
They will build on the work the ACCC
has already done with the satellite
broadcasting of its Competing Fairly
Forums, which give these communities
the opportunity to participate directly
with the ACCC's Chairman and
Commissioners, and other trade
practices experts, and to have their
concerns heard directly.
Two forums have been broadcast so
far. The first in November 2000
discussed broad trade practices issues
and went to 28 towns. The second,
in May 2001, went to 62 and
focused on the issue of
unconscionable conduct — a topic
participants in the first forum wanted
more information about.
Future forum broadcasts will explore
other trade practices issues relevant
to rural and regional communities.
Information on the forums can be
found at the website
<http://www.forums.accc.gov.au>.
The ACCC produces a wide range of
information about its role and
functions, and the Trade Practices
Act. One publication directed
specifically at the rural and regional
sector is
. More, on topical issues,
are planned. Videos are also
planned, to add to one already
available on unconscionable
conduct.
The program will also target rural
and regional press with
advertisements and articles on trade
practices issues.
Rural industry and the Trade
Practices Act
For more information on the
rural and regional program,
call the ACCC infocentre on
1300 302 502.
The ACCC’s new rural
and regional program
1 8 A C C C u p d a t e 9 — A u g u s t 2 0 0 1•
Commission offices
ACT
New South Wales
Tamworth
Victoria
South Australia
Queensland
North Queensland
Western Australia
Tasmania
Northern Territory
(national office)
Chief Executive Officer, Brian Cassidy
PO Box 1199, DICKSON ACT 2602
Tel: (02) 6243 1111 Fax: (02) 6243 1199
Regional Director, Geoff Williams
GPO Box 3648, SYDNEY NSW 1044
Tel: (02) 9230 9133 Fax: (02) 9223 1092
Director, Albert Julum
PO Box 2071, TAMWORTH NSW 2340
Tel: (02) 6761 2000 Fax: (02) 6761 2445
Regional Director, Tom Fahy
GPO Box 520J, MELBOURNE VIC 3001
Tel: (03) 9290 1800 Fax: (03) 9663 3699
Regional Director, Bob Weymouth
GPO Box 922, ADELAIDE SA 5001
Tel: (08) 8213 3444 Fax: (08) 8410 4155
Regional Director, Alan Ducret
PO Box 10048, Adelaide Street Post Office
BRISBANE QLD 4000
Tel: (07) 3835 4666 Fax: (07) 3832 0372
Director, Tony Hilton
PO Box 2016, TOWNSVILLE QLD 4810
Tel: (07) 4729 2666 Fax: (07) 4721 1538
Regional Director, Sam Di Scerni
PO Box 6381, EAST PERTH WA 6892
Tel: (08) 9325 3622 Fax: (08) 9325 5976
Regional Director, Peter Clemes
GPO Box 1210, HOBART TAS 7001
Tel: (03) 6215 9333 Fax: (03) 6234 7796
Regional Director, Derek Farrell
GPO Box 3056, DARWIN NT 0801
Tel: (08) 8946 9666 Fax: (08) 8946 9600
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The ACCC receives complaints from
consumers and businesses via:
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the ACCC infocentre on
1300 302 502;
email through its website at
<http://www.accc.gov.au>;
letters and faxes sent to ACCC
offices all around Australia; and
electronic forms submitted through
the ACCC's website Slam-a-
Cyberscam facility.
The ACCC's new infocentre team are
professional problem solvers whose job
it is to take inquiries and complaints by
telephone. The calls they receive cover
all aspects of the Trade Practices Act
from consumer protection to regulatory
issues. Some are referred to more
appropriate agencies, and others
referred to the relevant ACCC
investigator.
Complaints received via email are
analysed for trade practices issues by
the infocentre team, then referred on
or answered as appropriate.
Complaints sent as letters or faxes are
often more detailed about specific
ACCC investigations, and these are
referred to investigating officers. More
general complaints undergo the same
analysis process as other forms.
ACCC infocentre
Letters and faxes
Electronic complaints
ACCC response-ibilities
ACCC priorities
Slam-a-Cyberscam is located on the
ACCC website and allows victims of
online scams to lodge complaints with
the ACCC electronically. The ACCC
monitors these complaints for trends in
online conduct, and refers them to
other agencies as appropriate. The
ACCC will investigate any complaints
that are clear breaches of the Trade
Practices Act, providing they include
evidence and contact details.
The ACCC service charter requires that:
The ACCC is a Federal authority and
investigates matters that involve:
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telephone messages be acted on
within 24 hours;
written complaints be
acknowledged within 7 days;
written complaints be responded
to within 28 days; or
when a response is not possible
within 28 days, the complainant to
be kept informed of progress.
apparent blatant disregard
of the law;
a history of previous
contraventions of the law;
significant public detriment;
the potential for action to
have worthwhile educative
or deterrent effect;
a significant new market issue; or
a likely outcome that would
justify the use of the resources.
The ACCC and complaints
A C C C u p d a t e 9 — A u g u s t 2 0 0 1 • 1 9
Chief Executive Officer
Mergers and Asset Sales
Adjudication Branch
Compliance Division
Consumer Protection
Small Business
Brian Cassidy (02) 6243 1124
Mark Pearson (02) 6243 1276
Tim Grimwade (02) 6243 1226
David Smith (02) 6243 1234
Carl Buik (02) 6243 1066
Nigel Ridgway (02) 6243 1223
Restrictive Trade Practices
Michael Kiley (02) 6243 1052
GST Operations
Rod Overall (02) 6243 1297
Corporate Management
Legal Group
Regulatory Affairs
Electricity Group
Gas Group
Transport and Prices Oversight
Telecommunications Group
Helen Lu (02) 6243 1009
Bruce Brown (02) 6243 1273
Bob Alexander (General Counsel)
(02) 6243 1283
Joe Dimasi (03) 9290 1814
Michael Rawstron (02) 6243 1249
Kanwaljit Kaur (02) 6243 1259
Margaret Arblaster (03) 9290 1862
Michael Cosgrave (03) 9290 1914
Media liaison
General publications queries
ebsites
Lin Enright (02) 6243 1108
(02) 6243 1143
publications.unit@accc.gov.au
http://www.accc.gov.au
http://gst.accc.gov.au
http://forums.accc.gov.au
ACCC infocentre
1300 302 502
W
Commission contacts
New on the bookshelf
The ACCC has released the following publications this year.
— A bi-monthly subscription
publication — now available on CD-ROM
— free
— free magazine
— a publication of the Utility Regulators
Forum. Free magazine
— 30 min video explaining
unconscionable conduct. $10 from Canberra office
— videos from the 1st and 2nd
forums. $10 from Canberra office
— monitoring report. $10
by Karen Yeung. $25
—
a magazine giving non-technical readers an understanding
of the ACCC's role in the telco industry. Free
ACCC Journal 31, 32, 33
ACCC Journal cumulative index for
January–December 2000
ACCC update 8
Network 6, 7
Fair game or fair go
Competing Fairly Forum
Impact of farmgate deregulation on the Australian
milk industry
The public enforcement of Australian competition
law
Telecommunications infrastructure industries
fair.com — advertising and promoting Internet access.
Free booklet.
Inquiries into the declaration and revocation of
services and exemptions
Changes in the prices paid for telecommunications
services in Australia
Telecommunications competitive safeguards
Telstra's compliance with the price control
arrangements
Telecommunication Infrastructures in Australia
2001
Report on ACCC Price Surveys: General Survey,
February 2001 collection
GST Talks 10, 11
GST News for Business 17, 18
Report under s. 75AZ of the Trade Practices Act
GST Bulletin 22–27
— website only
— free
and
— free
— a BIS Shrapnel report prepared for the ACCC.
$25 from Canberra office
— free
— free
— free
—
5th and 6th reports free from Canberra and Melbourne
offices
— website only
Print Post approved PP255003/04404
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