Competition law issues for the professions

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Health Minister approves Medical Herbalists for Registration (media release, New Zealand Association of Medical Herbalists, New Zealand, 20 July 2007).

117 Herbalists Proposal at 3.

118 Australian Competition and Consumer Commission, Emerging Professions (ACCC, Canberra, 2008) at

119 Herbalists Proposal at 19-20.

120 Blevins S, The Medical Monopoly: Protecting Consumers or Limiting Competition? (Cato Institute Policy Analysis, Boston, December 15, 1995) available at (“Blevins” ).

121 See Blevins. Note also that this article also contains an interesting history of licensing regulation in the US in the context of the medical and CAM industry.

122 See Blevins. See also Moynihan R, “Physician, Herb Thyself” Sydney Morning Herald (12 April 2003) p 18 (“Moynihan”).

123 See Lunstroth J, “Voluntary Self-Regulation of Complementary and Alternative Medicine” (2006) 70 Alb. L. Rev. 209 (“Lunstroth”).

124 For an indication of Australian regulation see Carlton and Bensoussan at 20-21.Lunstroth at 289 describes “statutory self regulation” in the US.

125 See Carlton and Bensoussan at 20. See also Moynihan, p 18.

126 In 2006, Council of Australian Governments accepted that a national scheme should be in place. See Therapeutic Goods Administration, Implementation of the Government Response to the Recommendations of the Expert Committee on Complementary Medicine in the Health System Progress Report (Department of Health and Aging, Canberra, October 2006) at 10 available at . See also Expert Committee Report, stating that some government regulation is necessary and cf with Carlton and Bensoussan at 21, stating governments have pushed for self–regulation as an alternative to government statutory regulation.

127 Allen S, “Caning the Cartels” The Press (6 May 2005) p 14 (“Caning the Cartels article”).

128 See Caning the Cartels article.

129 Allen S, “No hiding place for price-fixers Commerce Commission warns” The Dominion Post (2 March 2006) p 1.

130 (2007) ATPR 42-185; [2007] FCA 1617

131 See eg Sexton E, “To Catch a Cartel” Sydney Morning Herald (21 March 2008) p 35; Gray J, “Regulator to Tap Phones in Cartels Biltz” Australian Financial Review (24 October 2007) p 1; Speedy B, “ACCC boxed in by lack of prison options” Weekend Australian (17 November 2007) p 12.

132 See Caning the Cartels article

133 See Caning the Cartels article.

134 As described in Organisation for Economic Co-operation and Development Competition Committee, Cartels: Sanctions Against Individuals (OCED, 2003) available from (“OCED paper”). The actual report is entitled New Zealand, Optimal Sanctions in Cartel Cases: report submitted to the OCED Competition Committee on the Review of Penalties, Remedies and Court Processes under the Commerce Act 1986 (OCED, 2001).

135 As described in OCED Paper at 21-22.

136 How J et al, Doing Time Under the Trade Practices Act: the criminalisation of cartel conduct (Russell McVeagh, Auckland, 2008) available at .

137 OCED paper at 49. This paper also explains the potential imprisonment terms and fines offenders may be subjected to under the Canadian Competition Act, see OCED paper at 52.

138 OCED paper at 105.

139 The proposed legislation is Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

140 There have been criticisms of such a description, see Shirrefs D, “No Simple Legal Fix for Cartels” Australian Financial Review (22 October 2007) p 63.

141 See Department of Treasury, Discussion Paper: Criminal penalties for serious cartel conduct (Department of Treasury, Canberra, 2008) at 1-2. Available from (“Cartel Discussion Paper”).

142 Cartel Discussion Paper, at 2-3.

143 The Honourable Justice Peter Heerey, “Commentary on the Paper of Brent Fisse and Caron Beaton-Wells” Seminar on Criminalising Cartel Conduct: Centre for Corporate Law and Securities Regulation (University of Melbourne, Melbourne, 25 February 2008) at 4 (“Heerey J”).

144 The new cartel offences (containing the dishonesty element/test) appear in the draft Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 s 44ZZRF and s 44ZZRRZG. Further sections define dishonest (s 44ZZRB) and deal with other matters (ss 44ZZRH(1)-(3)).

145 Beaton Wells C and Fisse B, “Criminalising Serious Cartel Conduct: Issues of Law and Policy” Seminar on Criminalising Cartel Conduct: Centre for Corporate Law and Securities Regulation (University of Melbourne, Melbourne, 26 February 2008) at 8 (“Beaton-Wells and Fisse”).

146 Beaton-Wells and Fisse at 8. See 27-36 of this source for more detailed discussion.

147 Heerey J at 1.

148 Heerey J at 2-3. See also Drummond M, “Judge Joins call for Cartel Jail Option” Australian Financial Review (27 November 2007) p 5, which mentions Weinberg J’s comments on the “dishonesty element” to similar effect during the period when then-treasurer Peter Costello announced cartel reforms.

149 Beaton-Wells and Fisse at 70-71.

150 Beaton-Wells and Fisse at 70-71.

151 Beaton-Wells and Fisse at 70-71.

152 Beaton-Wells and Fisse at 71-74.

153 Beaton-Wells and Fisse at 75-76.

154 This is alluded to in a very general way (not specific to professions) in Beaton-Wells and Fisse at 76.

155 See eg the submissions put forward by the Chartered Secretaries Association (secretarial profession), the Australian Constructors Association and Leighton Holdings (the construction industry) and the Fair Trading Coalition (whose members include motor trade associations and pharmacy associations). Several law firms and a trade practices association (constituted in part by lawyers) also submitted responses though not from the perspective of the impact upon the legal profession. In comparison, the American Bar Association made a submission though again not from a ‘legal profession’ perspective. All submissions provided as a response to the public consultation are available at .

156 See the Fair Trading Coalition, Submission on Exposure Draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Commonwealth Department of Treasury, 29 February 2008) at 6-7; Australian Banker’s Association, Submission of the Australian Bankers’ Association to the Discussion Paper: Criminal Penalties for Serious Cartel Conduct (Commonwealth Department of Treasury, 4 March 2008). Both available at .

157 See references to Fn 27 and 28 above

158 It may also be that there is a greater ethos supporting independence of structure and regulation because the training processes are apparently necessarily largely provided by practising doctors rather than dedicated academic teachers. There may be other cultural reasons for the medical profession being so resistant to external regulation. I have seen no material proposing those possibilities, and I am not qualified to assess whether they exist.

159 Hatfield, at p 102-103

160 Hatfield, at p 104

161 Hatfield, at p 107

162 Mansfield, “Opportunities and Challenges: Evidence in Cases under the Trade Practices Act 1974”, a paper delivered to the Competition Law Conference on 24 May 2008

163 Hatfield, at p 120

164 Hatfield, at p 144

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