NO.022

EMBARGO 06.30am Wednesday 28 April AEST.

The Treasurer will today sign The Australia United States Mutual Antitrust Enforcement Assistance Agreement with Ms Janet Reno, the Attorney-General for the United States of America and Mr Robert Pitofsky, the Chairman of the US Federal Trade Commission (FTC), at a signing ceremony in Washington DC.

This is the first bilateral Agreement to be signed under the United States International Antitrust Enforcement Assistance Act 1994.

Australian competition authorities can already provide assistance to US competition authorities in competition law matters under the Mutual Assistance in Criminal Matters Act 1987 and the Mutual Assistance in Business Regulation Act 1992. However, the US law requires a bilateral Agreement to be in place before US competition authorities can provide assistance on a reciprocal basis.

Under the Agreement, the Australian and United States competition authorities will be able to exchange evidence and assist each others competition law enforcement activities. In particular, it will assist those authorities in obtaining evidence located in the others jurisdiction while ensuring that confidential information is protected.

Highlights of the new agreement include:-

• The United States and Australia undertake “to assist one another and to cooperate on a reciprocal basis in providing or obtaining anti-trust” evidence, through a variety of means, pursuant to their respective mutual assistance legislation, and regardless of whether the conduct underlying a request would violate the laws of the requested party.
• Evidence obtained under the proposed agreement would be used only for anti-trust enforcement purposes, except in certain narrow circumstances consistent with the Act. Before turning over evidence, a party must determine if executing the request would be consistent with its public interest. The agreement also provides that nothing in it “compels a person to provide anti-trust evidence in violation of any legally applicable right or privilege.”

• All Australian requests for assistance will be channelled through the US Department of Justice, as required by the Act. However, requests may be executed by either the Department or the FTC (or both), as appropriate. Both the Department and the FTC may make requests for assistance directly to the Australian Consumer and Competition Commission (ACCC), and US requests will be executed by the ACCC, the Attorney-Generals Department, or both, as appropriate;
• The Agreement contains strict confidentiality requirements to protect sensitive business information that might be exchanged pursuant to the Act.

The Agreement represents a step forward for the enforcement of Australian competition laws, since Australia will now receive assistance, where needed, from US authorities in gathering evidence.

WASHINGTON D.C.

For further information contact Alistair Davey, Treasurers Office, CANBERRA, (02) 62777340.