Month: April 2025

Source: Allens Insights (legal sector)

Lessons from ACCC v Telstra 5 min read

On 21 February 2025, the Federal Court of Australia (the Court) handed down its decision in Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93. The Court found Telstra misled nearly 9000 customers via its Belong broadband service by failing to inform them of a reduction to the maximum upload speed on their internet plans.

The decision is a reminder that not informing customers about changes to a material feature of a product or service can be considered misleading or deceptive under the Australian Consumer Law (ACL), if the circumstances create a reasonable expectation that the service remains unchanged.

In this Insight, we explore the decision and its implications for businesses in Australia.

Key takeaways

• Failure to notify customers about a material change to a product or service can amount to a false or misleading representation, or misleading or deceptive conduct under the ACL. This is especially the case where the product or service continues to be marketed, invoiced and administered in the same manner, creating a reasonable expectation amongst consumers that the product or service is the same in all material aspects as it has always been.
• Businesses should be proactive in notifying customers in a timely manner of changes that impact the value or performance of their service to mitigate regulatory and reputational risks.

ACCC allegations

The Australian Competition and Consumer Commission (ACCC) alleged that Telstra, operating the Belong brand, contravened the ACL by changing the upload speed of its ‘Premium’ NBN plan from 40Mbps to 20Mbps in late 2020 without notifying affected customers.

The ACCC’s case focussed on two classes of customers who purchased the ‘Premium’ plan prior to being migrated to a slower 20Mbps plan without being notified:

• Cohort A, being 2785 customers who originally signed up to the ‘Premium’ plan when it was expressly advertised in published materials as including 40Mbps upload speeds. These customers were informed of the change retrospectively in 2021 and 2023; and
• Cohort B, being 6112 customers who signed up for the ‘Premium’ plan after Belong had stopped specifying an upload speed in its published materials, referring only to the plan as ‘Premium’.

For both cohorts, the ACCC alleged that Telstra engaged in misleading or deceptive conduct and made false or misleading representations to customers that the service they were receiving was the same as what they had originally signed up for, when it was not.

Telstra admitted to having misled Cohort A customers but denied making any misleading representations to Cohort B customers.

The Court’s findings

The Court found that Telstra contravened the ACL by unilaterally migrating its customers to a different plan without notifying them. In respect of Cohort A customers, the Court found this conduct contravened sections 18, 29(1)(b) and 29(1)(g) of the ACL.

In respect of Cohort B customers, the Court found this conduct contravened sections 18 and 29(1)(g) (false and misleading representations surrounding the performance characteristics of a good or service) but did not amount to a contravention of section 29(1)(b) (false and misleading representations surrounding the particular standard, quality, value or grade of a service).

Cohort A customers

In respect of Cohort A customers, the Court found that Telstra represented to consumers that the ‘Premium’ plan maintained the same upload speed capabilities after the migration as it did before. This representation arose because customers had a reasonable expectation that they would be notified of any detrimental changes to their service—an expectation created by Belong’s silence contextualised by the published assertions about the plan’s characteristics (including explicit references to the plan possessing maximum upload speeds of 40Mbps) and the ongoing administration of the service as if nothing had changed.

In these circumstances, the Court held that on and from the date of the migration, and until Belong corrected the representations in 2021 and 2023, Telstra’s silence amounted to misleading or deceptive conduct for the purposes of section 18 of the ACL, and constituted a false and misleading statement regarding the standard of the service and the service’s performance characteristics, amounting to contraventions of sections 29(1)(b) and 29(1)(g) respectively.

Cohort B customers

In the case of Cohort B customers, Telstra denied it made any false or misleading representations to consumers. While Belong did not expressly state the maximum upload speed to these customers at the time of purchase, the ACCC alleged that Telstra nevertheless represented to consumers that their service was the same as it was at the time of purchase. This representation was said to be created by Telstra’s silence contextualised by Belong’s terms and conditions (which provided that Belong could migrate customers to alternative services provided ‘reasonable notice’ was given to customers) (Terms and Conditions Conduct), the continued marketing of the plan as a ‘Premium’ plan (Marketing Conduct), and the continued invoicing of the ‘Premium’ plan (Invoicing Conduct).

The Court found that the upload speed was ‘sufficiently critical’ to the character of an NBN plan that customers would reasonably expect to be advised of a detrimental change to it. The Court also considered that Telstra’s silence combined with the Marketing Conduct and Invoicing conduct, created a representation that a consumer’s service had not changed in any material respect (including upload speed). It followed that, by failing to notify customers of their migration to plans with slower upload speeds, Telstra falsely represented to customers that their plans continued to have the same maximum upload speeds as they always had, when in fact they did not. In reaching this conclusion, the Court considered various combinations of Telstra’s Terms and Conditions Conduct, Marketing Conduct, Invoicing Conduct and silence to identify which combinations had the effect of creating a false representation.

Ultimately, the Court found that Telstra engaged in misleading or deceptive conduct for the purposes of section 18 of the ACL, and made a false and misleading statement regarding the service’s performance characteristics in contravention of section 29(1)(g). Telstra was not found to have contravened section 29(1)(b), as Belong did not represent the particular standard of the service, only that the service continued to provide the same upload speeds as at the time of purchase.

What this means for businesses in Australia

This case highlights the critical importance of transparency and clear communication with consumers.

Businesses must ensure that any changes to their service terms, especially changes that could be perceived as detrimental, are clearly and proactively communicated to customers. This is particularly the case where the change relates to a term which is material to the service, such that customers would reasonably expect to be notified of any change.

Source: Allens Insights (legal sector)

Exploring the ‘gold standard’ in Indigenous engagement 4 min read

The principle of ‘free, prior and informed consent’ (FPIC) is recognised as a ‘gold standard’ for engaging with First Nations communities in the context of environmental, social and governance (ESG) considerations.

FPIC is encompassed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, although ratified by Australia, has not yet been incorporated into domestic law. FPIC is prominent as a consideration for project proponents consulting with First Nations stakeholders in relation to native title approvals for project development, and protection of cultural heritage. Notably, in its current review of the future act regime under the Native Title Act 1993 (Cth) the Australian Law Reform Commission (ALRC) is examining whether the future acts regime adequately reflects internationally recognised principles of human rights, including FPIC.¹

In this Insight, we consider a recent Canadian decision on FPIC and explore its potential impact on FPIC considerations in Australia.

Status of UNDRIP in Canada

In contrast to Australia, Canada has incorporated UNDRIP into its domestic law. As one of the first countries to enact domestic legislation implementing UNDRIP through the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14) (UNDA), Canada has been at the forefront of developments in Indigenous rights and consultation.

In Kebaowek First Nation v Canadian Nuclear Laboratories 2025 FC 319, the Federal Court of Canada recently provided clarification on the application of the UNDRIP and FPIC in Canadian law. This decision has the potential to influence how FPIC is approached by other countries, including Australia.

Background

Canadian Nuclear Laboratories Ltd (CNL) sought to amend its operating licence for the Chalk River Laboratories site to modernise its nuclear waste disposal facility. The site is situated in Kebaowek First Nation’s traditional territory.

In January 2024, the Canadian Nuclear Safety Commission granted CNL’s application. Kebaowek First Nation challenged this decision, including on the ground that the Commission (as an agent of the Crown) failed to consider UNDRIP’s implications in relation to the duty to consult and accommodate the Indigenous owners.

The court’s decision

Federal Court Justice Blackhawk agreed with the Kebaowek First Nation, finding that the Commission’s failure to consider the UNDRIP as an important contextual factor in assessing the adequacy of Crown consultation was an error of law.² The court emphasised that with Canada’s enactment of UNDA, UNDRIP now serves as an interpretative lens in determining whether the relevant duty to consult and accommodate had been discharged.³

Importantly, having considered international scholarship, Justice Blackhawk held that FPIC does not grant a substantive veto right. While FPIC mandates a robust process, this does not extend to a right to a particular outcome.⁴

The court found that the consultation necessary to give effect to FPIC does, however, place ‘a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement’⁵ and requires ‘significant robust processes tailored to consider the impacted Indigenous Nations laws, knowledge and practices’.⁶

Concerning CNL’s application, the Court found it would have been consistent with the FPIC standard for the Commission to modify the consultation process to address some of the Kebaowek’s suggestions.⁷

The Court quashed the decision and remitted the matter back to the Commission.

Implications for the Australian context

The Canadian Federal Court decision clearly articulates that FPIC under UNDRIP necessitates a deep level of consultation with First Nations peoples, but does not extend to a power of veto. This is contrary to the views of some commentators, First Nations peoples and NGOs on UNDRIP, particularly in the context of Article 29.2, which concerns the storage or disposal of hazardous waste (which was of particular relevance in the Keboawek case). Notwithstanding the divergence in views, for Australia, where ALRC discussions around implementing similar standards continue, this case provides insight into how the integration of FPIC into domestic law might be approached.

The Issues Paper released by the ALRC in November 2024 notes that suggestions for reform of the future act regime include ‘more clearly incorporating international law principles such as FPIC in the future acts regime’.⁸ In light of the Keboawek case, it will be preferrable if—as part of any such integration—the parameters of FPIC are clearly delineated, such that litigation is not required for clarification.

Stakeholders will have the opportunity to make submissions on the ALRC reforms when the Discussion Paper is released in May. The ALRC is due to provide its final report to the Attorney-General by 8 December 2025.

Source: Australian Ministers for Regional Development

The ACCC is seeking stakeholder feedback on its preliminary view to not object to Australia Post’s proposed stamp price increase of 13.3 per cent from mid–2025.

Under the draft proposal submitted in November 2024, Australia Post intends to increase the prices for reserved ordinary letters delivered to the regular timetable from:

Australia Post is not proposing to increase the price of concession stamps ($3 for five) or stamps for seasonal greeting cards (65 cents).

After assessing the draft price notification in line with its role, the ACCC has found that Australia Post is unlikely to recover revenue in excess of its costs for its reserved postal services.

“Our preliminary assessment found that Australia Post’s proposed price increase is unlikely to produce surplus revenue for the reserved letter service over the coming years,” ACCC Commissioner Dr Philip Williams said.

Australia Post’s letter services – including its reserved services – have incurred significant losses in recent years, which Australia Post attributes primarily to the ongoing reduction in letter volumes combined with an increase in delivery points.

Currently, Australia Post only delivers around two letters to each household per week and expects reserved letter volumes to continue to decrease by around 10.6 per cent annually until 2027–28. At the same time, the number of delivery addresses serviced by Australia Post continues to grow, which adds to the financial pressure on the letter service.

“The ubiquity of digital communication options has impacted the commercial viability of letter delivery globally,” Dr Williams said.

“At the same time, Australia Post remains an essential national service – especially for vulnerable members of the community and those in regional and remote parts of the country.”

For the average Australian household, which sends around six letters per year, the proposed basic postage increase to $1.70 would result in an additional annual cost of approximately $1.20. However, the ACCC recognises that the proposed price rise would be the third such increase within four financial years, from a basic postage rate of $1.10 at the start of 2022–23.

In forming its preliminary view, the ACCC carefully considered the feedback presented by stakeholders during a consultation process in late–2024. While the ACCC acknowledges public opposition to the proposed increase, it has applied a cost-based approach in its analysis within the confines of its regulatory role.

“Our assessment seeks to balance the needs of consumers who rely on mail with the financial sustainability of the letter service, and we’re very conscious that further stamp price increases may present affordability challenges for some consumers and small businesses,” Mr Williams said.

Following feedback from mail users, the ACCC recommends Australia Post increase the annual cap on the number of concessional stamps available to eligible concession card holders as a way to lessen the impacts of the proposed price rise for these customers.

The ACCC also acknowledges that the proposed price increases may have a disproportionate impact on businesses and organisations sending large volumes of mail as part of their operations – particularly those which are subject to legal obligations to send correspondence by post.

“For those businesses which are heavily reliant on the postal service or are unable to change to electronic alternatives, we consider Australia Post should explore ways to make letter sending more affordable in addition to the existing bulk rates on offer,” Dr Williams said.

In March 2024, the ACCC made several recommendations to Australia Post regarding changes to its financial modelling and forecasting as well as improvements to its cost allocation model ahead of future price notification processes. Australia Post has addressed a number of the ACCC’s recommendations, including the commissioning of an expenditure review by Frontier Economics into the efficiency of Australia Post’s costs.

“While Australia Post has made progress on the recommendations, further work is needed to support any future ACCC pricing assessments,” Dr Williams said.

“We also consider that Australia Post needs to be more transparent with the public about its implementation of such recommendations.”

The ACCC invites submissions in response to its preliminary view paper by 5pm Monday 12 May 2025. Submissions received will be considered by the ACCC in making its final decision.

The ACCC will issue a final decision after receiving a formal price notification from Australia Post.

Australia Post must also notify the Minister for Communications of the proposed price increase and must not increase prices if the Minister rejects the proposal within 30 days.

Background

Australia Post’s proposed price change was outlined in a draft price notification provided to the ACCC in November 2024.

Under the Competition and Consumer Act, the ACCC is responsible for assessing proposed price increases by Australia Post for its reserved ordinary letter services delivered to the regular timetable. The ACCC must consider Australia Post’s proposed price increases of these services and may decide to:

• not object to the price increase
• not object to a price that is less than that proposed, or
• object to the price increase.

The ACCC does not have the role of approving any proposed price increase under the Australia Post price notification framework. Only the Minister for Communications has the power to reject a price increase proposed by Australia Post.

Australia Post’s reserved ordinary letter services are services that Australia Post has a statutory monopoly over and are declared as ‘notified services’ for the purposes of Part VIIA of the Competition and Consumer Act. The current declaration for Australia Post’s notified services is due to expire on 30 September 2025 unless extended.

Source: Australian Ministers for Regional Development

Commissioner Liza Carver will leave the ACCC in mid-May after making a significant contribution to our agency, including as Chair of the ACCC’s Enforcement Committee.

“Liza is one of Australia’s leading minds in the field of competition and consumer law. Her contribution to the ACCC has been outstanding and she will leave an important and lasting legacy,” ACCC Chair Gina Cass-Gottlieb said. 

“Liza’s legal skill and rigour, strategic insights and guidance have shaped our enforcement program in recent years, and her input has been central to many of our most important outcomes.”

“Liza has made important contributions in many areas of our work, including in merger review and digital platforms regulation.”

In reflecting on her time with the ACCC Ms Carver said “‘It has been an absolute privilege to serve as a Commissioner with the ACCC under the leadership of Gina Cass-Gottlieb. The importance of the agency to the welfare of consumers and the competitiveness of the Australian economy cannot be overstated, nor can the diligence and commitment of its staff and Commissioners. I look forward to watching its successes in the future.”

This period has rounded out a large body of public service by Ms Carver. Commissioner Carver’s most recent appointment to the ACCC commenced in March 2022. She had been an Associate Commissioner with the Trade Practices Commission and the ACCC between 1993 and 1999, as well as a Commissioner with the Australian Energy Markets Commission between 2005 and 2008. She was also a member of IPART from 1997 to 2000 before moving into private practice.

“I am most grateful to have had Liza’s expertise and experience on our team. We at the ACCC wish Liza all the best for her future endeavours,” Ms Cass-Gottlieb said.

Source: Allens Insights (legal sector)

Multi-purpose reports remain most challenging for privilege 9 min read

A recent Federal Court decision has further highlighted the challenges of maintaining privilege claims over third-party investigation reports. This is particularly relevant where those reports are—or become—relied on for non-legal purposes, including operational, regulatory and public or investor relations.

Medibank has had mixed results in defending challenges to privilege claims over a series of third-party reports relating to its 2022 major data breach. It successfully defended claims over narrower and more targeted reports and communications with CyberCX, Coveware, CrowdStrike and Threat Intelligence, including, eg, those concerning negotiations with the threat actor.

However, Medibank failed to sustain its claim over three wider-ranging reports prepared by consultant Deloitte, which the court found had multiple purposes, with the legal purpose not being predominant.

While the court’s reasoning is consistent with the Full Federal Court’s decision in Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 (see our previous Insight), it demonstrates that the challenges of maintaining privilege claims can remain even when detailed witness evidence is carefully prepared to support those claims.

Medibank has sought leave to appeal the court’s decision in relation to the reports by Deloitte.

This Insight considers the implications of the decision and outlines practical steps to take when an investigation report is commissioned for a legal purpose.

Key takeaways

• The Federal Court has rejected Medibank’s privilege claims over three factual investigation reports prepared by Deloitte following a major data breach, but has accepted communications and reports from cybersecurity firms CrowdStrike and Threat Intelligence as privileged.
• The decision is largely consistent with the Full Federal Court’s recent decision on similar privilege claims in the Optus data breach class action, further highlighting the difficulties associated with claiming privilege over investigation reports prepared for multiple purposes, including legal, governance, regulatory compliance and/or operational purposes.
• The legal purpose for preparing a report must predominate other purposes—this is generally assessed at the time the report was commissioned, but later evidence can inform this assessment, particularly where the purpose evolves.
• It is not sufficient merely to assert that a document is privileged or, for that matter, to adduce evidence only from inhouse counsel. Courts will rigorously examine the nature of the document and the surrounding circumstances to determine the document’s dominant purpose. In this case, that process involved focused cross-examination of Medibank’s CEO and chair.
• The decision also further highlights the risks associated with making public statements about investigation reports, particularly the potential for those statements to highlight a material non-legal purpose of the document or otherwise to waive any legal privilege that attaches to it.

Background

From August to October 2022, Medibank experienced a cyber incident where cyber criminals accessed its IT systems and exfiltrated customer data. In a subsequent class action against Medibank, the applicants sought production of several reports prepared by Deloitte, CrowdStrike and Threat Intelligence, as well as communications involving CyberCX and Coveware. Medibank claimed legal privilege over these documents, contending that were created for the dominant purpose of obtaining legal advice or for use in any litigation relating to the cyber incident.

CyberCX, Coveware, CrowdStrike and Threat Intelligence reports privileged

Justice Rofe held that Medibank’s communications with, and reports prepared by, cybersecurity experts CyberCX, Coveware, CrowdStrike and Threat Intelligence were privileged because the evidence established that those firms were engaged by Medibank’s lawyers for the dominant purpose of providing technical assistance and advice to enable Medibank’s lawyers to provide legal advice, including in relation to legal proceedings. For example, the reports were used for the purposes of briefing counsel, responding to regulatory notices, and preparing Medibank’s defence in the proceeding.¹

Importantly, even though the scope of services provided by those firms to Medibank’s lawyers was not, in many cases, materially different from the scope of services already being provided to Medibank under previous direct engagements, Justice Rofe held that the relevant consideration is the purpose for which the relevant documents came into existence, and that the scope of services was only one factor to consider. In these cases, the documents being created possessed a dominant legal purpose.²

Deloitte reports not privileged

Justice Rofe decided that the three reports prepared by Deloitte were not privileged because the provision of legal advice was not the dominant purpose for which they were commissioned. Rather, the following purposes were found to be ‘at least equally dominant, if not more dominant’:³

• Assuaging market and consumer concerns: Medibank made numerous public references to the commissioning of the external review and the appointment of Deloitte, including in ASX announcements and communications with employees, customers and health partners. These statements stated that Medibank, not its lawyers, were responsible for commissioning the report, and that the purpose of the report was to ‘protect and safeguard customers’.⁴ These statements were considered strong evidence that one of the dominant purposes of the report was assuaging market and consumer concerns.
• Avoiding independent APRA review: evidence was given that a key concern for Medibank was to avoid the need for the Australian Prudential Regulation Authority (APRA) to conduct its own review of the data breach, which it was highly unlikely to avoid unless Medibank conducted a review in accordance with APRA’s requirements. The close communication between APRA and Medibank regarding the scope of the review (which notably did not copy in any of Medibank’s lawyers in most instances) and the ‘tri-partite’ meetings between Medibank, APRA and Deloitte were considered strong evidence that one of the dominant purposes of the report was avoiding an APRA investigation.⁵

The applicants also submitted that the board’s oversight role in the production of the reports demonstrated a further governance purpose. While Justice Rofe did not decide that this governance purpose was equally dominant as the legal purpose, her Honour did find that certain factors weighed against the dominant purpose being the legal purpose, including the board’s desire for an overview of what had occurred, rather than for unvarnished legal advice, and the direct reporting by Deloitte to the board, rather than via Medibank’s lawyers.⁶

Although Justice Rofe found that the Deloitte reports were not privileged from the outset, her Honour decided that Medibank’s public statement, which referred to the implementation of one of the Deloitte reports’ recommendations, would have waived privilege in the document because Medibank was seeking to take advantage of its implementation of the recommendations resulting from the external incident review to deflect criticism, and enhance or maintain its good standing in the eyes of its shareholders and customers, and its share price. In the circumstances, her Honour observed that Medibank ‘cannot at the same time maintain privilege in that part of the report setting out the recommendations to enhance Medibank’s IT processes and systems‘.⁷

Consistency with Optus’s privilege claims

Justice Rofe’s reasoning is largely consistent with the Full Federal Court’s recent decision in the Optus data breach class action. In that case, Optus’s privilege claim over the Deloitte report failed because it was not created for the dominant purpose of legal advice or litigation, but rather for multiple purposes, including operational, governance, regulatory and public relations purposes.⁸

The failure of the privilege claim in that case was, in large part, because testimonial evidence of Optus’s general counsel to the effect that the legal purpose of the investigation report was the dominant purpose was contradicted by Optus’s public statements and board materials.

In contrast, in this case, Medibank adduced very detailed and focused testimonial  evidence of the Deloitte reports’ legal purpose, including from their CEO and chair. Even adopting that approach, Justice Rofe decided that the testimonial evidence was insufficient to outweigh contemporaneous documentary evidence, including Medibank’s repeated public references to the review’s purpose being to learn from the incident so as to protect customer data, as well as the close ongoing communication between Deloitte and APRA without Medibank’s lawyers. This contextual evidence tended to indicate that, despite the testimony given by various executives, parts of the business were not aligned on the legal purpose being the dominant one, with the board using the reports for a variety of functions. This further highlights that courts will not hesitate to disregard witness testimony where there is contradictory contextual evidence, and underscores the importance of ensuring whole-of-business alignment in treating documents in a practical sense as being for a legal purpose, rather than simply agreeing that they are.

Implications

This decision highlights the challenges in seeking to claim privilege over investigation reports and root cause analyses that follow material events, such as cyber incidents, and demonstrates that oral testimony, including statements of individuals’ subjective intentions, will not necessarily be determinative of the question of whether a legal purpose is dominant.

It demonstrates the importance of carefully considering the purpose(s) that the report is intended to serve before it is commissioned. Where it is likely to be used for multiple purposes, separate, dedicated reports may be more appropriate. Where it is intended that the dominant purpose of any report is a legal one, it is critical that the entire business is aligned on that purpose and that no steps are taken, such as making public statements or statements to regulators, that could compromise that alignment by exposing the existence of another non-legal purpose.

As noted above, Medibank has sought leave to appeal the court’s decision in relation to the reports by Deloitte.

Practical steps to take

When an investigation report is commissioned for a legal purpose, it is important to:

• Go beyond declarations of privilege: ensure that there is alignment across the business on the dominance of the legal purpose and that the business acts consistently with that alignment, including by:
  • ensuring that the terms of reference and engagement are formulated to confine the scope of the report to legal advice;
  • avoiding or otherwise limiting public statements or statements to regulators that could compromise that alignment, eg by suggesting the existence of material non-legal purposes or by waiving any privilege that subsists in the report; and
  • communicating through appropriate legal channels, including ensuring that internal or external lawyers, rather than the board, have responsibility for oversight of the investigation.
• Consider commissioning separate investigation reports: where a factual investigation is intended to be taken for legal and non-legal purposes, consider commissioning separate legal and non-legal reports. The utility and effect of this approach will depend, at least in part, on the extent to which the content of each report will differ. The courts will be sceptical of so-called privileged reports that cover matters of operational significance that are not also covered in the non-privileged report.

Source: New South Wales Ministerial News

The City of Greater Bendigo has launched its Customer First survey this week to gain valuable insights on ways to further enhance its overall customer experience.

This survey will target 5,400 customers who have lodged a request in the past four months either by phone, in person, or digitally such as via the City’s website or email.

The first stage of the survey aims to gather valuable customer feedback on how specific requests were managed from start to finish.

Director Corporate Performance Jess Howard said she was delighted to launch the Customer First survey.

“This is one of the City’s key priorities to further enhance our customer service across the organisation,” Ms Howard said.

“This survey will allow us to gather valuable insights about customer interactions with the City when they lodge a request.

“The survey focuses on ease, action, and outcome.

“We want to gain an understanding of how we have managed specific customer requests and to gauge overall satisfaction with the process.

“We want to hear what is working well, what areas of the process need improvement, and concerns experienced by customers during their interactions with the City.

“As the survey questions are related to a recent request made over the past four months, customers will be familiar with the details which will be greatly beneficial.

“The information from the survey is important as it will help guide the development of a Customer First Action Plan, the next step in the project.

“The plan will help us improve the way the City responds to our customers and hopefully increase customer satisfaction.

“Putting customers first is our priority.”

In the last financial year, the City’s Customer Experience staff managed over 91,000 phone calls and 32,000 digital requests lodged via the City website, email, or from a mobile phone.

Requests not resolved during the initial contact with Customer Experience staff are added to the City’s customer request system to be actioned by the relevant unit within the organisation.

The survey will be led and conducted by the City’s Senior Customer Experience staff who will call or email selected participants during business hours only, and not at weekends.

No personal or financial information will be requested from participants for the survey.

If you receive a phone call or email and are unsure about its authenticity, you are encouraged to contact the City’s Customer Experience staff for confirmation via phone or email:

[email protected]

1300 002 642

Source: Australian Ministers for Regional Development

The ACCC will not oppose Qube Holdings Limited’s (ASX:QUB) proposed acquisition of Melbourne International RoRo & Auto Terminal Pty Ltd (MIRRAT), after accepting a court-enforceable undertaking to remedy competition concerns.

The court-enforceable undertaking accepted by the ACCC prevents Qube, its subsidiary Australian Amalgamated Terminals Pty Ltd (AAT) and MIRRAT from discriminating against downstream rivals at Webb Dock West at the Port of Melbourne.

The undertaking also imposes additional obligations on AAT in relation to its operations at Port Kembla in NSW, Fisherman Islands in Queensland and Appleton Dock in Melbourne. The undertaking will replace both the existing AAT undertaking, and MIRRAT’s existing undertaking in relation to its operations at the automotive terminal at Webb Dock West.

MIRRAT operates the automotive/roll-on roll-off terminal at Webb Dock West in Melbourne. The proposed acquisition would permit Qube to control the operation of automotive roll-on roll-off trade through the Port of Melbourne.

Qube, through its wholly owned subsidiary, AAT, operates automotive cargo terminals at the Port of Brisbane and Port Kembla, as well as a general cargo terminal at Appleton Dock at the Port of Melbourne.

Qube is Australia’s largest provider of import and export logistics services including port-related activities of terminal management, stevedoring, processing, pre-delivery inspection (PDI) and delivery.

The ACCC’s investigations focused on the acquisition’s impact on competition in downstream services, such as automotive stevedoring and PDI services at the Port of Melbourne.

The ACCC also examined potential competition concerns arising from Qube’s operation of the three major automotive terminals on the east coast of Australia.

“The ACCC concluded that, in the absence of adequate safeguards, Qube, through its ownership of MIRRAT, would likely have the ability and incentive to discriminate against rival stevedores and PDI providers at Webb Dock West,” ACCC Chair Gina Cass-Gottlieb said.

“MIRRAT could do this, for example, by restricting its downstream rivals’ access to the terminal or related services, raising prices or lowering the quality of terminal services provided to them.”

“The ACCC also closely considered whether, by operating all three of the major east coast automotive terminals, Qube, through AAT and MIRRAT, could have an increased ability and incentive to discriminate against rivals at each of the terminals in a way that would harm downstream competition,” Ms Cass-Gottlieb said.

Concerns were also raised with the ACCC that Qube would have access to rival stevedore or PDI operators’ commercially sensitive information through AAT and MIRRAT as the terminal operators.

“With these significant concerns in mind, the ACCC only decided not to oppose the acquisition with a strong court-enforceable undertaking from Qube, AAT and MIRRAT,” Ms Cass-Gottlieb said.

The undertaking requires AAT and MIRRAT to meet the following obligations to:

• not discriminate between terminal users in favour of its own interests in the automotive supply chain,
• provide for certain price and non-price dispute resolution processes,
• comply with access and berthing allocation rules, as well as ring fencing of certain confidential information,
• report periodically on its compliance with the undertaking and facilitate independent oversight (including by an independent auditor),
• comply with restrictions on AAT’s and MIRRAT’s ability to introduce or change certain tariffs.

“Long-term behavioural remedies come with particular risks and uncertainty. The ACCC is not generally supportive of such undertakings. This is why we have carefully assessed these risks when deciding whether to accept the undertaking in this matter. In the unique circumstances of this transaction, where there is already a similar undertaking in other ports, and where MIRRAT itself is already subject to an undertaking due to its existing vertical integration with shipping, after careful consideration we decided to accept the undertaking,” Ms Cass-Gottlieb said.

“Most users of the terminal and participants in the vehicle import supply chain were supportive of Qube acquiring MIRRAT.”

The new undertaking will cover all of AAT and MIRRAT’s east coast automotive terminals and is expected to be in place perpetually.

More information, including the undertaking can be found on the ACCC’s public register here: Qube Holdings Limited (Qube) – Melbourne International RoRo & Auto Terminal Pty Ltd (MIRRAT)

Note to editors

In considering the proposed merger, the ACCC applies the legal test set out in section 50 of the Competition and Consumer Act.

In general terms, section 50 prohibits acquisitions that would have the effect, or be likely to have the effect, of substantially lessening competition in any market.

Background

Qube, through AAT, proposed to enter into a share sale agreement to acquire all shares in MIRRAT.

Webb Dock West is the key facility for the processing of automotive and roll-on roll-off cargo through the Port of Melbourne.

“Roll-on Roll-off (RoRo)” refers to ships designed to carry wheeled cargo, such as cars, motorcycles, trucks, semi-trailer trucks, buses, trailers, and railroad cars, that are driven on and off the ship on their own wheels or using a platform vehicle.

MIRRAT

MIRRAT’s ultimate parent company is Wallenius Wilhelmsen ASA (WW). WW is a Norway-based global provider of roll-on roll-off shipping and vehicle logistics and operates automotive terminals in Europe, the UK, the US and the Asia-Pacific. MIRRAT’s only operation in Australia is the automotive/roll-on roll-off terminal at Webb Dock West.

MIRRAT operates Webb Dock West subject to a section 87B undertaking accepted by the ACCC on 27 March 2014 (MIRRAT Undertaking). The MIRRAT Undertaking was accepted by the ACCC in relation to MIRRAT’s acquisition of a long-term lease to operate the Webb Dock West roll-on roll-off terminal at Port Melbourne. The MIRRAT Undertaking commenced on 1 January 2018. It expires when MIRRAT ceases to operate the Terminal, which may occur on or before 30 June 2040, and when the ACCC confirms this in writing.

The full text of the existing MIRRAT Undertaking can be found on the ACCC’s s87B undertakings register. Once in effect, the new undertaking offered by Qube, AAT and MIRRAT will replace the MIRRAT Undertaking.

Qube

Qube is Australia’s largest integrated provider of import and export logistics services. Its port-related activities include facilities management, stevedoring, processing, PDI and delivery. It manages and develops strategic properties such as inland rail terminals and related logistics facilities. It provides road and rail transport of freight to and from ports, operation of container parks, customs and quarantine services, warehousing, intermodal terminals, and international freight forwarding.

In addition to being a terminal operator, Qube provides general stevedoring, automotive stevedoring and PDI services at each of its eastern seaboard ports. It provides general and automotive stevedoring through its affiliated entity ‘Qube Ports’. Qube provides PDI services through its 50% interest in K Line Auto Logistics which owns and operates PrixCar.

AAT (Qube) operates automotive cargo terminals in Port of Brisbane and Port Kembla, as well as a general cargo terminal at Appleton Dock in Port of Melbourne. The facilities are operated under a s87B undertaking accepted by the ACCC in 2016 (AAT Undertaking). Once in effect, the new undertaking offered by Qube, AAT and MIRRAT will replace the AAT Undertaking.

Source:

Source: Northern Territory Police and Fire Services

Source: Northern Territory Police and Fire Services