Defined Terms and Documents    

Argy Bargy means with regard to this submission the below quote from RBA's Consultation Document titled "Reform of Credit Card Schemes in Australia: "A Consultation Document" – December 2001 acknowledges that "rules and regulations and pricing are agreed between the financial institutions (Issuers and Acquirers) that are members of each scheme", and not by the RBA, albeit the RBA 'rubber stamps" it:

1.2  Regulations in credit card schemes

Payment instruments that involve the transfer of funds across the books of financial institutions require co-operation between these institutions to ensure that payments can be effected. Co-operation normally takes the form of various rules and regulations agreed by participating institutions, either bilaterally or on an industry-wide basis, covering such matters as procedures for funds transfers, technical and operational procedures and criteria for participation.

The Bankcard, MasterCard and Visa credit card schemes have extensive rules and regulations that govern their operations. The main characteristic of ‘four party’ card schemes, which distinguishes them from the three party schemes, is that the rules and regulations are determined collectively by the financial institutions (Issuers and Acquirers) that are members of each scheme, but that are otherwise competitors in providing credit card services to Cardholders and Merchants. In particular, members of each card scheme collectively:

  • set the wholesale fees (known as Interchange Fees) that are paid to the Issuer by the Acquirer whenever a Merchant accepts a credit card for payment;

  • determine the criteria for membership of the schemes and the membership fee (ie the price for access); and

  • in the case of the MasterCard and Visa schemes, impose restrictions that prevent Merchants passing on the cost of accepting Credit Cards to Cardholders – the so-called ‘no surcharge’ rule. (These restrictions are also imposed on Merchants by the three party schemes.)

Although some minimum set of private-sector regulations is likely to be necessary for the safe and orderly operation of a payment system, co-operative behaviour between competitors which involves the collective setting of prices is rarely permitted in market economies. Prima facie, such behaviour is anti-competitive and, where it is allowed, it typically requires some form of dispensation by competition authorities on the basis that there are offsetting benefits to the public. In Australia, the Trade Practices Act 1974 prohibits co-operative behaviour between competitors if it has the effect of substantially lessening competition, fixing or maintaining prices, or restricting or limiting dealings with particular persons such as new entrants to a market. However, such conduct may be authorised by the Australian Competition and Consumer Commission (ACCC) if it judges it to result in a net public benefit.

Several payment systems in Australia have sought authorisation to ensure that their regulations can satisfy a public interest test. For instance, the regulations and procedures for four clearing streams operated by the Australian Payments Clearing Association (APCA) – which govern the transfer of funds involved in ATM and debit card (EFTPOS) transactions, cheques, bulk electronic and high-value transactions – have been authorised under the Trade Practices Act 1974, and participants are thus free from the risk of prosecution for engaging in the behaviour authorised.

However, none of the credit card schemes in Australia are authorised under the Trade Practices Act 1974. The Bankcard scheme was granted authorisation in 1980 by the Trade Practices Commission, the predecessor of the ACCC, on condition that scheme members not impose restrictions on the freedom of merchants to determine the prices they were prepared to charge customers paying either with cash or Bankcard. The authorisation was revoked in 1990, one reason being the Commission's concerns about Bankcard's restrictive membership criteria. Neither the MasterCard nor Visa credit card schemes has applied for authorisation.