Antitrust in focus - July 2023
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European Commission’s record gun-jumping fine on Illumina serves as warning to merging parties
The European Commission (EC) has imposed a fine of around EUR432 million on genomics company Illumina for closing its acquisition of blood-based cancer test developer GRAIL before the conclusion of the EC’s merger control investigation into the transaction. GRAIL was fined EUR1,000.
Illumina’s fine is the highest ever imposed by the EC for breach of procedural rules under the EU Merger Regulation (EUMR). It is almost four times higher than the EUR124.5m gun-jumping fine imposed on Altice in 2018.
But it was not unexpected.
Illumina disputed that the EC had jurisdiction to assess its planned acquisition of GRAIL. It challenged the EC’s revised policy on Article 22 referrals, which allows member state antitrust authorities to refer to it for review transactions that do not meet EU or national merger control thresholds (see our commentary on this aspect of the case).
In August 2021, while the EC’s in-depth investigation into the transaction was ongoing, Illumina publicly announced that it had completed the deal. Unsurprisingly, the EC launched an investigation into whether Illumina breached the EUMR’s “standstill” obligation, which prevents merging parties from implementing their transaction prior to receiving EC approval.
Shortly after, the EC adopted interim measures aimed at preventing harm to competition pending the outcome of the EC’s merger review. The measures required GRAIL to be kept separate from Illumina (with Illumina providing funds for GRAIL’s operation and development), prohibited the sharing of confidential information and obliged the parties to deal with each other on arm’s length terms. This was the first time the EC had adopted interim measures in a gun-jumping scenario. The parties have appealed.
The EC has now concluded its gun-jumping probe. It found that Illumina and GRAIL “knowingly and intentionally” breached the standstill obligation. This was, said the EC, an “unprecedented and very serious infringement undermining the effective functioning of the EU merger control system”. In particular, the authority took issue with the fact that Illumina had strategically weighed up the risk of a gun-jumping fine against the risk of having to pay a high break-up fee (USD300m) in the event that the deal failed.
The case is unusual on its facts. It is the first (and only) time that merging parties have intentionally completed a transaction during an ongoing EC merger review. We don’t expect to see many other cases with the same fact pattern.
However, for merging parties, the fine is still a clear warning of the risks of breaching procedural merger control rules. It shows the EC’s willingness to use the full extent of its powers. In its press release the EC suggests that it initially set a higher fine, but was ultimately subject to the statutory limit of 10% of Illumina’s global turnover and so had to impose an amount of around EUR432m.
The EUR1,000 fine on GRAIL is also important. The EC notes it was only symbolic given that this is the first time it has imposed a gun-jumping fine on a target company. But the authority made clear its findings that GRAIL played an active role in the infringement. In future, target companies knowingly involved in any breach may well face much higher penalties.
The saga of this case continues. In September 2022 the EC blocked the transaction, concluding it would harm competition, stifle innovation and reduce choice in the emerging market for blood-based early cancer detection tests. This in itself was a landmark decision, marking the EC’s first prohibition based solely on vertical concerns and the first time the EC has blocked a below-threshold merger.
The parties’ appeal of the prohibition decision is pending, as is their appeal of the interim measures decision and the European Court of Justice’s ruling on the EC’s revised Article 22 policy. Even the gun-jumping aspects of the case are not over – Illumina has announced it will appeal the fine.
In the meantime, the parties await a final EC decision on how the deal should be unwound. We will keep you updated as developments unfold.
EU Foreign Subsidies Regulation takes effect with procedural rules clarified
Most of the provisions of the EU Foreign Subsidies Regulation (FSR) took effect this month. The European Commission (EC) also adopted its long-awaited implementing regulation (IR) – containing the notification forms and important procedural rules – as well as an updated Q&A document.
As a reminder, the regime enables the EC to tackle foreign subsidies that it concludes will distort competition in the EU internal market. It introduces new suspensory notification requirements (applying from 12 October 2023) for companies participating in certain M&A transactions, joint ventures and public/utilities tenders. The FSR also enables the EC (from 12 July 2023) to investigate potentially distortive foreign subsidies on its own initiative.
If the EC finds a distortive foreign subsidy following either a review of a transaction/public procurement procedure or an own-initiative investigation, the EC has wide powers to impose redressive measures, including blocking deals or tender awards. For more on how the regime will work, see our previous alert.
Our latest commentary considers the newly finalised IR.
We explain how the final version of the IR limits some of the information disclosures required by the notification forms, as compared to the far-reaching requirements of the original draft. In particular, we discuss when investment funds and private equity firms will be able to take advantage of a carve-out from certain disclosure obligations.
We also consider the processes for (i) requesting waivers from information requirements, and (ii) pre-notification discussions with the EC, which will in principle be available from September 2023.
Finally, our alert suggests steps that businesses should be taking now to ensure compliance with the new regime. Read it here.
New U.S. merger guidelines rewrite framework for reviewing M&A transactions
After many months of anticipation, the Federal Trade Commission and Department of Justice Antitrust Division have finally issued revised draft merger guidelines.
The guidelines are ground-breaking. While the agencies claim that they “build upon, expand and clarify” previous versions, in fact the revisions effectively amount to a rewrite of how the agencies will review transactions under the U.S. merger control rules and what they will demand of notifying parties. However, this does not change the legal standards applied by courts. The agencies will need to continue to prove a substantial lessening of competition in line with existing judicial precedent.
Key points include:
- A presumption of illegality for mergers creating or involving a firm with a market share of over 30%.
- Merging guidance on vertical and horizontal mergers, putting non-horizontal deals on the same level as transactions between rivals.
- A focus on a merger’s effects on labour markets, as well as a spotlight on serial acquisitions and minority stake deals.
The draft guidelines now face a 60-day public comment period, after which they will be finalised.
Read more about the new guidelines in our alert.
This is the second major U.S. merger control reform proposal in a month.
In our last edition of Antitrust in focus, we discussed the planned overhaul of the U.S. merger control notification form, announced by the U.S. antitrust agencies in June. The proposed changes – the most significant to the U.S. merger review process in four decades – will dramatically expand the scope of information that merging parties will need to submit. You can read our more detailed briefing on the proposals and their implications here.
UK government publishes second annual report on the National Security and Investment Act
The UK government’s latest annual report on activity under the National Security and Investment Act (NSIA) – the UK’s investment screening mechanism – is the first to cover a full calendar year. It relates to the period 1 April 2022 to 31 March 2023 and sets out key statistics relating to the cases reviewed under the regime.
Key takeaways are as follows:
- 866 notifications were received during the period, fewer than the government’s initial prediction. Unsurprisingly, the vast majority (77%) were mandatory filings.
- 65 deals were called-in for an in-depth review – including ten that were not notified – again, lower than government estimations.
- 15 of those 65 ended in government intervention – five were prohibited (including some where the acquirer was forced to sell off the entire target business) and ten were cleared subject to conditions.
- On timing, 93% of deals notified were cleared within 30 working days, with in-depth assessments resulting in clearance taking a further 25 working days on average, or 81 working days where conditions were imposed.
- Chinese investments attracted the most scrutiny and the highest levels of intervention – 42% of called-in deals were related to China.
- Mandatory notifications were focused on the defence sector (47%), but the government intervened in deals across a range of sectors, including military and dual use, communications, defence, energy, computing hardware and advanced materials.
- No penalties were issued during the period, and no criminal prosecutions were concluded.
Overall, the government believes the regime is working well. It describes it as “light touch” and “proportionate”. But the government wants to keep an open dialogue with businesses to look at how the system can be improved – something to be welcomed given that, in our experience, there are a number of underlying issues with its operation.
For more on the data (and our views on what it means), see our alert.
Significant reforms to German antitrust law include new power for FCO to impose remedies following sector inquiries
Likely in late September 2023, substantial amendments to the German Act Against Restraints of Competition will come into effect. The reforms introduce three key changes:
- Following completion of a sector inquiry, a new competition tool empowers the Federal Cartel Office (FCO) to impose remedies, including (as a last resort) divestitures, to address “significant and continuous disruptions of competition”. This tool will be available irrespective of the addressee’s compliance with antitrust law. In addition, the threshold for the FCO to be able to require individual undertakings to notify future mergers may be substantially lowered and therefore bring M&A in small and regional markets under the FCO’s scrutiny.
- In relation to the EU’s Digital Markets Act (DMA), provisions empower the FCO to conduct investigations and support the European Commission’s own enforcement of the rules. The amendments also establish the procedural and substantive rules for private enforcement of the DMA in Germany.
- The FCO’s ability to seek public disgorgement is improved through a new rebuttable presumption that anti-competitive profits amount to 1% of an undertaking’s sales of goods or services affected by the infringement.
Our alert takes you through each of the reforms in more detail and discusses how they could impact public and/or private enforcement. It is worth noting that a 12th amendment to the antitrust law is already underway, which will reportedly address ESG and private enforcement aspects (although no draft has so far become public).
China’s SAMR consults on draft standard essential patent antitrust guideline
At the end of last month, China’s State Administration for Market Regulation (SAMR) published a draft antitrust guideline for standard essential patents (SEPs).
The draft guideline covers a number of antitrust issues relating to SEPs. It follows the principles underlying China’s Anti-Monopoly Law and previous SAMR and court precedents.
The key highlights include:
- information disclosure requirements in the standard setting process
- the licensing framework based on fair, reasonable, and non-discriminatory (FRAND) terms, in particular the steps to follow for good-faith negotiation
- guidance for assessing abuse of dominant position concerning SEPs including licensing SEPs at unfairly high prices and imposing unreasonable trading conditions
- guidelines on monopoly agreements, including patent pools and information exchange
- factors SAMR should consider when reviewing mergers involving SEPs
The guideline reflects SAMR’s increased focus on the potential abuse of SEPs. Future SEP-related antitrust enforcement activity may centre on the information communication technology sector as well as emerging sectors such as the automotive industry (although the draft guideline does not address certain controversial SEP licensing issues in that industry).
The draft also fits into the wider global focus on SEPs. In April this year, for example, the European Commission published a proposal for a regulation on SEPs. It has also addressed some antitrust issues relating to SEPs in its recently adopted guidelines on horizontal cooperation agreements.
The draft guideline is open for public comment until 29 July. Read more about it in our alert.
Australian tribunal upholds prohibition of Telstra/TPG network sharing deal
The Australian Competition Tribunal has confirmed the decision of the Australian Competition and Consumer Commission (ACCC) to block a network sharing agreement between rivals Telstra and TPG Telecom.
Early in 2022, the telecoms companies reached three separate agreements to share mobile infrastructure and spectrum in certain regional areas (the Regional Coverage Zone) for a ten-year period.
Under a spectrum authorisation agreement, TPG would allow Telstra to operate radio communication devices and use its 4G and 5G spectrum licences in the Regional Coverage Zone (and beyond) for the purposes of its radio access network. TPG also committed in a second agreement to transferring 169 of its mobile sites in the Regional Coverage Zone to Telstra and decommissioning the rest. In return, under a third agreement, Telstra would use its radio access network to supply TPG with 4G and 5G services.
The ACCC refused to authorise the deal. The authority recognised that the arrangements would give rise to some benefits by improving TPG’s network coverage and lead to cost savings for the companies. However, on balance it concluded that the arrangements would likely result in less competition in the longer term, leaving Australian consumers worse off in terms of price and regional coverage, and negatively impacting incentives to innovate and improve networks. The ACCC also found that the deal would entrench Telstra’s dominant position as the strongest mobile network operator in Australia. It rejected the remedies offered by the parties.
The Tribunal has now upheld the prohibition decision on appeal, setting out its findings in a summary of reasons.
The Tribunal found that the spectrum authorisation agreement would provide Telstra with commercial and competitive benefits that would entrench its position in both the retail and wholesale segments of the market. This would undermine the incentives of the parties’ main rival Optus to invest in 5G technology. Over time, it would weaken the competitive constraints on Telstra, leading to a gap in quality and increased prices and margins.
The ACCC has welcomed the Tribunal’s reasoning. The case marks the first review by the Tribunal of a merger authorisation under revised Australian merger control rules which took effect in 2017. The ACCC notes that the clarification of approach will be helpful in future applications for authorisation.
For telecoms companies wishing to enter into network sharing agreements, the outcome of the case may at first sight give cause for concern. However, the Tribunal is clear that its “determination should not be understood as suggesting that network sharing arrangements…would always have the effect of substantially lessening competition or give rise to net public detriments”.
In fact, the Tribunal goes even further, stating that there are “strong commercial and economic incentives” for the mobile network operators to share network infrastructure in regional areas, and where “appropriately structured”, such arrangements can deliver efficiency benefits without harming competition. It will be interesting to see if the Tribunal’s full decision adds any more guidance to these statements.
Network sharing agreements have received plenty of attention from antitrust authorities over the years, which have sought to strike a balance between the efficiencies that network sharing can generate and the impact it may have on competition in infrastructure investment and in wholesale and/or retail markets.
Recently, in the EU, the European Commission (EC) has published specific guidelines on horizontal cooperation agreements, which set out the principles under which it will assess network sharing agreements. These include a number of minimum conditions for network operators to comply with in order to minimise the risk of infringing EU antitrust law, eg that operators should control and manage their own core network, maintain independent retail and wholesale operations, maintain the ability to follow independent spectrum strategies and only exchange information that is strictly necessary.
This guidance follows a 2022 decision by the EC to accept commitments from Czech mobile operators (and their parent companies) to address concerns that their network sharing agreements reduced incentives to invest and upgrade infrastructure and that information exchanged between the parties went beyond what was strictly necessary for the purposes of the agreement.
Australian antitrust authority focuses on data broker services
The Australian Competition and Consumer Commission (ACCC) has launched a market inquiry into possible competition and consumer issues relating to data broker services in Australia.
The ACCC will focus on third-party data brokers, which the authority describes as businesses that collect consumer data from third-party sources to then sell or share with others. In an issues paper it seeks views on the business practices of data brokers, the products and services they create/supply and possible harms to consumers and small businesses.
The questions posed suggest that the ACCC is considering issues such as the level of competition between data brokers, barriers to entry and expansion, how data is used and whether access to large volumes of data provides a competitive advantage.
The data broker inquiry forms part of the ACCC’s five-year digital platform services inquiry, started in 2019, in which the authority prepares bi-annual reports examining different forms of digital platform services. To date, the inquiry has focused on Big Tech players. The ACCC has looked into app stores, online marketplaces, social media, web browsers and search services.
The move to consider data brokers is one of the first times the authority has shifted its scrutiny to smaller players in the ecosystem. But this is not necessarily surprising. When it directed the ACCC to conduct the five-year inquiry, the Australian government asked it to consider the provision of data broker services. Plus the collection and use of data, from both a competition and consumer perspective, has been one of the ACCC’s main focus areas since it began its work into digital platforms.
The ACCC has requested responses to its issues paper by 7 August 2023. The ACCC will ultimately produce a report in March 2024, setting out its findings. If it uncovers particular areas of concern, it will likely recommend further action, which could include voluntary steps by industry, new regulation or other measures.
ECJ confirms no higher standard for blocking mergers short of dominance
The European Court of Justice (ECJ) has delivered its landmark judgment on the acquisition by CK Hutchison (owner of UK mobile network operator (MNO) Three) of O2 (one of three other UK MNOs).
The EC blocked the deal in 2016. In 2020, the General Court annulled the EC’s prohibition decision. In doing so, it materially tightened the conditions to be met before the EC could block a deal involving the combination of two (or more) of a small number of large market players but falling short of creating a dominant firm (see our previous alert). This raised the hopes for future consolidation in the telecoms sector and more broadly.
This month, the ECJ (following the opinion of the Advocate General) has reversed the General Court’s ruling.
The ECJ emphasised that the EC is able to block any transaction resulting in a “substantial impediment to effective competition” (the relevant test under the EU Merger Regulation), clarifying certain aspects of the assessment such as “important competitive force”. It endorsed the balance of probabilities standard of proof in all cases, rather than a higher “strong probability” standard applying in some situations. The ECJ also rejected the General Court’s ruling on efficiencies.
The case has now been remitted to the General Court for a new ruling.
The ECJ’s judgment is significant. It may mean merging parties find it more challenging to get EU merger control clearance – both in EU telecoms markets and other concentrated sectors.
For more on the ruling and its implications, see our alert.
ECJ confirms antitrust authorities can examine compliance with GDPR in context of abuse of dominance probe
The European Court of Justice (ECJ) has given an important ruling that considers the relationship between antitrust authorities (in particular when carrying out abuse of dominance investigations) and data protection supervisory authorities.
The ruling stems from a 2019 decision of the German Federal Cartel Office (FCO) finding that “[t]he extent to which [Meta] collects, merges and uses data in user accounts constitutes an abuse of a dominant position”. The FCO used European data protection provisions under the GDPR “as a standard” for examining Meta’s conduct under abuse of dominance rules.
Meta appealed, and as part of the appeal proceedings the Higher Regional Court of Düsseldorf referred various questions to the ECJ. These covered both antitrust and data protection issues.
On the data protection side, the ECJ’s judgment deals with a number of points relating to Meta’s data processing operations. In this summary, we focus on the antitrust aspects of the ruling.
The ECJ held that “in the context of the examination of an abuse of a dominant position by an undertaking on a particular market, it may be necessary for the competition authority of the Member State concerned also to examine whether that undertaking’s conduct complies with rules other than those relating to competition law, such as the rules on the protection of personal data laid down by the GDPR”.
It noted that “access to personal data and the fact that it is possible to process such data have become a significant parameter of competition between undertakings in the digital economy”. To exclude data protection rules from the legal framework to be considered by national antitrust authorities carrying out an abuse of dominance probe “would disregard the reality of this development and would be liable to undermine the effectiveness of competition law within the European Union”.
However, the court went on to state that where an antitrust authority “identifies an infringement of [the GDPR] in the context of the finding of an abuse of dominance, it does not replace the supervisory authorities”. The antitrust authority’s “sole purpose” in assessing compliance with the GDPR “is merely to establish an abuse of dominance and impose measures to put an end to that abuse”.
In fact, said the ECJ, antitrust authorities are “required to consult and cooperate sincerely” with the data protection supervisory authorities and together they must “ensure the consistency of application” of the GDPR.
The antitrust authority must ascertain whether the conduct (or similar conduct) of the allegedly dominant firm has already been the subject of a decision by the competent supervisory authority or the ECJ and, if so, “cannot depart from it, although it remains free to draw its own conclusions from the point of view of the application of competition law”. The antitrust authority must consult the supervisory authority if it has any doubts as to the scope of such a decision. It must also consult where the supervisory authority is simultaneously looking at the same or similar conduct or if the antitrust authority believes the GDPR has been infringed.
Finally, the ECJ held that “the fact that the operator of an online social network, as controller, holds a dominant position on the social network market does not, as such, prevent the users of that social network from validly giving their consent, within the meaning of…the GDPR, to the processing of their personal data by that operator”. Nevertheless, it is “an important factor in determining whether the consent was in fact validly and, in particular, freely given, which it is for that operator to prove”.
The judgment sets out key parameters governing how EU member state antitrust authorities must cooperate and consult with data protection supervisory authorities when considering GDPR issues in antitrust investigations. The Düsseldorf Court will now rule on the case in light of the ECJ’s judgment.
Fuel markets: antitrust enforcement hots up
Fuel prices have risen globally following Russia’s invasion of Ukraine. Unsurprisingly, antitrust authorities – particularly in Europe – have stepped up their monitoring of the sector. This month we have seen several interesting developments.
UK CMA recommends data transparency and new fuel monitor
In the UK, the Competition and Markets Authority (CMA) published the final report on its road fuel market study.
It has found evidence that there has been a national weakening of competition between road fuel retailers since the beginning of the Covid-19 pandemic. It also details an increase in profit margins on fuel, particularly diesel where there has been “feathering” (a slow drop) in 2023 prices as wholesale prices have fallen. Average annual supermarket margins, for example, rose by 6 pence per litre between 2019 and 2022.
The CMA’s solution is to drive down prices through increasing real-time price transparency. At present, UK retailers only provide information on prices at the petrol stations themselves. The CMA would like the government to establish a statutory fuel finder open data scheme, and for fuel retailers to be obliged to provide up-to-date pricing data in an open and accessible format that can be easily used by third party apps (such as satnavs or map apps) and/or through a dedicated fuel finder app.
The CMA also recommends that the government establish a new “fuel monitor” oversight body to follow prices and margins, including local variations, on an ongoing basis and recommend further action if competition continues to weaken in the market.
The government has already announced that it has agreed to the CMA's recommendations. It will consult on the design of the open data scheme and market monitoring function this autumn. In the interim, the CMA will set up a simpler scheme for major retailers to make available daily prices on a voluntary basis, by the end of August, and will continue to monitor prices using its existing powers.
Notably, however, the CMA does not consider that there are deficiencies in competition in the wholesale sector or the refining sector that merit remedial action. In addition, it has not found any evidence of cartel behaviour in the retail sector and has no plans to open an antitrust enforcement case.
Italian cartel enforcement in fuel sector
In contrast, this month the Italian Antitrust Authority (IAA) fined eight fuel stations in the municipality of Livigno EUR4.2m for colluding to fix the retail prices of petrol and diesel on a weekly basis for ten years.
Interestingly, the IAA conducted dawn raids in 2022 after Italy’s financial police shared emails from the former head of the town’s tax office to the fuel distributors explicitly specifying fuel rates which the companies then followed. Indeed, the case could be indicative of a broader trend of non-antitrust criminal investigations becoming an important alternative information source for the authority.
The IAA noted that, because of a favourable local tax relief regime, Livigno’s petrol stations typically charge below average fuel prices and attract consumers from an unusually large catchment area. The IAA imposed maximum statutory fines, sending a strong signal that recent court rulings have not dampened its zeal to fight cartels.
Separately, the IAA has launched a probe into a number of oil companies over a suspected cartel in the motor fuel sector.
In particular, it is looking into allegations that the firms may have colluded in determining the value of the bio-component needed to comply with legislation. The IAA suspects that the companies’ simultaneous price increases may have been the result of information exchanges, including through articles published in an industry newspaper.
The IAA learned of the suspected conduct via its whistleblowing platform and then carried out dawn raids. It is the first time an investigation has been opened on the basis of information received through the whistleblowing platform, which was launched in February 2023.
Also this month, the IAA wrapped up its market study into the fuel sector, publishing a report on automotive fuel prices and the oil supply chain. The authority found that price tensions experienced from 2022 onwards are primarily attributable to exceptional events of an international nature, which leave little legal scope for national antitrust intervention. Interestingly, however, the IAA makes recommendations as to how price transparency measures, including existing price comparison tools, could be improved to enable their greater use.
Australian ACCC looks closely at fuel merger
From a merger control perspective the fuel sector is also under scrutiny. The Australian Competition and Consumer Commission (ACCC) has started a review of Viva Energy’s planned acquisition of rival OTR Group.
It will consider the impact of the deal on retail fuel prices as well as on Viva Energy’s incentives to supply wholesale customers which compete with OTR at the retail level.
To pre-empt any possible concerns of the ACCC, Viva Energy has pro-actively offered to divest 23 of its 32 retail fuel and convenience sits in Adelaide.
And that’s not all…
Elsewhere, further enforcement in the fuel sector is on the horizon.
In January, for example, Sweden’s antitrust authority launched a market inquiry. In June, the Polish antitrust authority closed its preliminary investigation into pricing policies on the national fuel market. Although it did not find any antitrust infringements, it will continue to monitor the market. In Germany, an ad hoc sector study into fuels at the refinery and wholesale level is ongoing and may lead to subsequent enforcement under the new 11th amendment powers to remedy “disruptions of competition” (see article above). Plus, interestingly, the UK government references the success of a German open data scheme in the gas station (retail) sector.
We will keep you informed as other developments arise.
A&O Antitrust team in publication
Recent publications/initiatives by members of our global team include:
Florence Ninane (partner, Paris) and David Por (partner, Paris): The Intellectual Property and Antitrust Review: France, The Intellectual Property and Antitrust Review, July 2023
About your editor
Lisa is a partner in our global antitrust team, based in Sydney. Her practice focus is on providing commercial advice to help clients navigate complex merger control transactions and business-critical regulatory investigations in Australia and across the APAC region. She has extensive experience in providing specialist advice on a range of business structures and transactions, including M&A, joint ventures and other collaborative arrangements. She advises clients on all types of engagement with antitrust regulators, from merger review to market studies and enforcement action.
Lisa’s expertise stretches across a variety of industries, with a particular focus on digital platforms (including acting for clients on major digital platform inquiries and investigations by competition regulators throughout APAC), energy and resources and financial services.
Lisa obtained her LLB BA from the University of New South Wales. Her past experience includes serving as an associate to a judge in the Federal Court of Australia. On the pro bono side, Lisa advises and represents refugees and asylum seekers on behalf of the Refugee Advice and Casework Service, an independent body which provides access to legal support for people seeking asylum in Australia.