Check against delivery.
The role of the ACCC and competition in a transitioning economy
Thank you very much for that introduction and thank you to the Press Club for hosting this event today.
I would like to begin by acknowledging the traditional custodians of the land on which we gather today, the Ngunnawal people. I pay my respects to them, to their cultures and to their Elders past, present and emerging.
I would also like to acknowledge and pay my respects to Aboriginal and Torres Strait Islander people who are attending today’s event.
It has been a little over 12 months since I started in my role as Chair of the ACCC.
As many of you know, I worked as a competition lawyer in private practice for many years. My passion for competition law flows from its position at the intersection of economics and the law. My driving interest in economics began in my late teens when I decided that to understand the political and commercial forces shaping our lives it was necessary to understand economics. Coupled with my love of a good argument I combined economics with the study of law.
In my past role and in this one, I have enjoyed the challenge of disentangling complex issues through the framework of our Competition and Consumer Act 2010, a landmark piece of legislation with the stated objective to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.
In doing so I have often looked for guidance to the writings of the late Professor Maureen Brunt, who, upon taking up her appointment at Monash University in 1967, was the first woman to hold the title of Professorial Chair in Economics in Australia. Professor Brunt is little known outside competition law circles, but her influence – in Australia and globally – has been profound. She made a significant contribution to the establishment and application of competition law and economics in Australia and New Zealand through her research, academic writing, and as a Foundation member of the Trade Practices Tribunal (now Australian Competition Tribunal) and High Court of New Zealand in competition cases.
Professor Brunt was ahead of her time in considering how competition law intersected with economics as well as social and political objectives.
She noted the need for antitrust law, or competition law as we know it, to be relevant and socially useful– and in her words “to keep our eyes on the ultimate objective, namely the protection of the consumer by means of an efficient competitive process”.
This is at the centre of my approach as the Chair of the ACCC at a time of great transition for the Australian economy.
COVID-19 disrupted production and distribution in many critical industries, globally and domestically. We emerge from those challenges, many of which remain unresolved, into an inflationary environment which is testing consumers, businesses, and governments as we embark on a transition to a more sustainable and technologically advanced economy.
The process of competition is more important than it ever has been before. This transition will affect all of Australia’s critical industries. It will affect Australian consumers and small businesses. New markets will emerge and develop in ways we can’t anticipate. Competition can be a driving force for the investment and innovation required to undertake this transition.
An example of the critical role that competition policy reform can play in economic transition is the 1995 National Competition Policy reforms that responded to the recommendations of the 1993 Hilmer Report. These reforms applied nationally consistent competition conduct rules to all market participants regardless of ownership or legal structure, established the National Access Regime, bound Commonwealth and State governments to the provisions of the Act if they were carrying on a business and introduced the welfare object clause into the Act. The legislative reforms, together with the associated agreements with States and Territories, were heralded as the most important single development in micro-economic reform in that decade.
Now we are in another period of significant economic transition. It is a good time, then, to consider whether this critical piece of legislation remains fit for purpose.
Mergers
And so I turn to our merger laws. My predecessor Rod Sims outlined proposed changes to Australia’s merger laws. After 12 months in this role, I have observed first-hand the challenges with the current settings and formed the view that changes are needed. The concerns that Rod identified about the need for merger reform and the broad direction of the reform proposals I would now like to put forward remain the same. However, informed by stakeholder feedback and our recent experiences with formal merger authorisations, we have adjusted some of the elements as I will shortly outline.
The vast majority of merger transactions do not harm competition and can provide benefits, including by allowing firms to achieve efficiencies, diversify risk or enter new markets.
But we should acknowledge that mergers can affect the competitive conditions of an industry.
We should also acknowledge that mergers can entail a material change in the structure of a market.
The ACCC needs to have the tools necessary to be able to properly scrutinise and, if necessary, prevent those mergers that are likely to substantially lessen competition.
Without these tools, some markets are particularly vulnerable to being adversely affected by further consolidation. In particular, markets that already have large incumbents with positions of market power and markets where it is difficult for new rivals to enter.
As we know, concentrated markets are generally not good for consumers – or indeed for economic growth and productivity. Companies operating in concentrated markets tend to charge higher price markups over costs for their goods and services, and often have less incentive to innovate in ways that benefit consumers. In short – to paraphrase a Professor Brunt quote – these players can give less, and charge more, but retain their grip on the market.
The problem of concentration is a growing one in Australia. A 2021 Treasury Working Paper by Jonathan Hambur suggests that higher markups in the Australian economy are more likely to be caused by a decline in competition than the increased stature of more productive firms.
As I stand here today, many Australians are counting every dollar. I am concerned that consumers and the Australian economy are particularly exposed in the current environment of uncertainty and vulnerability from supply chain pressures, geopolitical issues and the climate change transition. In addition, technological advances are driving rapid structural changes to markets. A handful of large tech companies are playing increasingly important roles in our lives, as gatekeepers over how we interact with each other and businesses, and yet in many cases, these companies face only limited competitive constraint. Part of responding to these challenges is to encourage competitive, innovative and dynamic markets.
Australia’s current merger regime is not well placed to deal with these issues.
There is no requirement for merger parties to notify the ACCC of proposed mergers and acquisitions or to wait for clearance before they can complete. In instances where the ACCC considers a merger to be anti-competitive, and where the merger parties do not voluntarily abandon the transaction or offer remedies that address the competition concerns, the ACCC must take action in the Federal Court to seek orders to prevent or unwind the transaction.
For these reasons, Australia’s current merger control model is best described as voluntary and enforcement-based.
While there has been a recent rise in applications for merger authorisation, which is a voluntary but formal administrative process, the informal regime is the main avenue used by businesses.
The informal regime has developed over time, without any supporting legislative process framework, to enable businesses to seek the ACCC’s view on whether their transaction is likely to be opposed.
But we are finding that businesses are pushing the boundaries of the informal regime. Given that there are no up-front information requirements for an informal review, merger parties are increasingly giving us late, incomplete, or incorrect information. An increasing number are threatening to complete their transaction before we have finalised our review. This leads to the situation where we find ourselves negotiating with the merger parties to obtain sufficient information and time to conduct our review.
In global transactions, we often find that merger filings in other regimes that require mandatory clearances are prioritised over our voluntary informal regime. This has hamstrung the ACCC’s ability to assess mergers and prevent potentially anti-competitive mergers.
The process is one issue. The other is the merger law.
The merger law is forward looking. In the enforcement model, to prove a breach in court, we must establish in court that the merger is likely to have the effect of substantially lessening competition in the future, in breach of section 50 of the Competition and Consumer Act 2010.
The future is inherently uncertain, and is particularly so where markets are dynamic and there are complex commercial considerations. This uncertainty can be the driving factor behind the difficulties of positively proving a breach of section 50. A result of these challenges is that where there is uncertainty, the default position becomes to permit, or not to oppose, the merger. Overall, the enforcement model means that the balance is shifted too much toward avoiding the risk of opposing a benign merger, at the expense of increasing the risk of enabling anti-competitive mergers. Where there are risks that a merger will result in significantly less competition, it is the public rather than the merger parties that ends up bearing the risk.
Merger control is an important lever used by competition authorities to help preserve a competitive economy. Changes to Australia’s current regime are needed. It is no longer fit for purpose.
The proposed regime:
Australia’s merger regime needs to move away from a voluntary enforcement model to a formal clearance model, where merger parties must demonstrate to the satisfaction of the ACCC that their transaction is not likely to substantially lessen competition before they can proceed.
We propose adopting measures common in overseas merger regimes. These include a mandatory requirement for the ACCC to be notified of mergers above specified thresholds, a requirement for transactions to be suspended from completion without ACCC clearance, and upfront information requirements. This would bring Australia into line with most other OECD jurisdictions.
Determining the thresholds will require careful consideration but, as with international merger regimes, these could be based on the size of the proposed transaction, the size of the business being acquired globally and/or within Australia, or a combination of these factors.
For situations where a transaction doesn’t meet the notification threshold, but nonetheless raises competition concerns, the ACCC should be able to call-in the transaction and assess it in the formal system.
In terms of the appropriate review period, we would again be guided by international best practice. Most regimes internationally provide a short period for straightforward matters and allow longer for more complex reviews.
Merger parties proposing a non-contentious transaction could apply for a notification waiver that, if granted, would mean the parties would not have to make a full formal application and the merger could be dealt with expeditiously. The overwhelming majority of proposed transactions would be dealt with in this way, just like our current pre-assessment triage process in the informal regime.
In the proposed new formal process, the ACCC, or Australian Competition Tribunal on review, would not clear a merger unless it is satisfied that the transaction is not likely to substantially lessen competition. This is important because it recalibrates the decision on whether a merger proceeds where there is a risk of competitive harm – it means the ACCC must be positively satisfied there is no likely substantial lessening of competition, which is consistent with the current merger authorisation test.
The ACCC’s initial proposals in late 2021 did not include an option for mergers to be considered under a public benefit test. We have heard feedback on the value of retaining this option because it provides flexibility where a merger may have the effect of substantially lessening competition but would nonetheless provide real, verifiable and significant public benefits. We therefore consider that merger parties should have the option of subsequently being able to apply for clearance on public benefits grounds if the applicants are not able to first satisfy the ACCC or Tribunal that a transaction can be cleared on competition grounds.
Adopting a second stage public benefit clearance option reflects the fact that the majority of mergers are decided on competition grounds without reference to public benefits.
As noted, we consider that the Australian Competition Tribunal is the appropriate review body for ACCC decisions in the formal regime. The Federal Court would continue to consider applications for declaration and judicial review.
The role of the Federal Court in considering merger enforcement matters would also continue for transactions that do not trigger the notification thresholds.
I will now shift briefly to the merger law.
Section 50 of the Competition and Consumer Act 2010 sets out what is often referred to as the “SLC test” – the prohibition of mergers that are likely to substantially lessen competition.
We maintain our position that there should be a greater focus on how a merger changes the structural conditions in a market, as structural conditions are a key determinant of the level of competition.
However, we heard feedback about how the deeming provision the ACCC proposed in late 2021 would work in practice.
We now propose a model, which would include words in the legislation to make it clear that the substantial lessening of competition test includes “entrenching, materially increasing or materially extending a position of substantial market power”. This would be similar to how the European Commission’s merger test is framed. We consider that this change would ensure that the focus is not just on the incremental change arising from a merger but also the overall enhancement of dominant positions by large firms in the market.
This would also assist with addressing concerns about creeping acquisitions – the accretion of market power through a strategy of small serial acquisitions that may not amount to a substantial lessening of competition on their own. While this is an issue across the economy, this has been a particular concern in digital platform markets.
Another change we support is in relation to the factors that must be taken into account in considering whether a transaction is likely to substantially lessen competition.
These so-called “merger factors” include the current level of competition in a market, concentration of the relevant market and the availability of substitutes. We believe that these should be updated to focus on the changes that occur overall as a result of a merger.
For example, this would involve a merger factor referring to the impacts on the height of barriers to entry.
We also propose new factors that refer to:
I believe this package is both measured and appropriate. A mandatory and suspensory regime combined with changes to the merger law will shift the balance to a merger regime that better protects competitive markets and consumers. It is our view that we can’t achieve meaningful change without a policy and law shift.
It will be a matter for the Government to consider and progress any reforms.
Beyond the merger regime, there are real challenges and opportunities present as the global economy moves forward in the digital age. This is an area that demonstrates vividly the importance of the ACCC’s complementary expertise in consumer and competition issues. While we understand the significant benefits that digital platforms provide, a range of conduct relating to digital platform services and wider digital practices by businesses outside the platform environment create widespread competition and consumer harms. Many of these harms cannot be adequately addressed by Australia’s current laws.
The behaviours that concern the ACCC from a competition perspective include self-preferencing, restricting interoperability, exclusivity agreements, practices that limit consumers’ ability to switch between services or devices, or denying access to technological infrastructure. The ACCC has recommended a range of new competition measures to combat these practices in our recent Regulatory Reform Report. Most notably, these include service-specific mandatory codes of conduct for designated influential digital platforms.
These would allow for dynamic and flexible obligations that could be targeted and tailored to the particular competition issues relevant to each service.
Consumer trust continues to be an important aspect to enhance competitive conduct and fair trading in an online environment. From a consumer perspective, addressing misconduct in relation to influencers, harmful practices, scams and fake reviews by businesses and individuals that are facilitated by platforms is a key priority. For victims of harmful practices, the emotional and financial cost is often exacerbated by the lack of effective avenues for dispute resolution and proper redress. We have recommended mechanisms including notice and action requirements, improved verification of certain business users, public reporting on mitigation efforts, and effective avenues for redress when issues arise, including through an external ombuds scheme to collectively assist in addressing these issues.
It is not about the conduct of platforms alone. Increasingly the practices online by some businesses and individuals cause significant harm or are exploitative. We continue to advocate for an unfair trade practices prohibition, which we believe will assist consumers and small businesses exposed to manipulative practices designed to get them to agree to unfair or unfavourable contact terms.
This approach aligns with the views of regulators around the world that urgent reforms are needed to address the competition and consumer issues in the digital space.
Steps to decarbonise and develop market-based responses to climate change are rapidly emerging. As an economic regulator, this impacts many areas of the ACCC’s work.
We have a Taskforce within the ACCC to provide expert input on issues related to sustainability across all the ACCC’s functions, and to help ensure competition and consumer protection issues are front of mind in sustainability-related policy and business decision making.
The ACCC has a number of enforcement investigations underway that relate to false and misleading representations in relation to environmental and sustainability claims by businesses. We intend to complement these investigations with work that we doing to improve compliance using a range of other tools including publishing guidelines– to encourage truthful claims that we know consumers are seeking. We want to assure that trust in business is not eroded, and that consumers get the value they seek, and often pay a premium for.
However, sustainability issues extend beyond greenwashing.
The ACCC will be closely monitoring for illegal collusion as the green transition unfolds. Collusion distorts market incentives and investment signals, which may in turn hinder the development of market-based responses to environmental challenges. Assessment of mergers in key transitioning industries will also be critical. Collusion or anti-competitive aggregations could damage the economy and diminish environmental benefits.
Notwithstanding the potential for anti-competitive conduct, we recognise that as industries decarbonise or look to achieve other environmental outcomes, there will be instances where it is more efficient and effective for companies to work together. Industry collaboration between competitors can assist in removing first mover disadvantage and free-rider problems, which could lead to significant environmental and economic benefits for the Australian and global population.
In Australia we have the authorisation framework already in place to deal with exemptions for proposed agreements between competitors. Our authorisation regime enables us to take real, verifiable and significant environmental benefits into account as part of the ‘net public benefit’ test if businesses wish to put proposals for exemption on the basis of necessary coordination to achieve sustainability goals.
The record of application, enforcement and timely reform of the competition and consumer law demonstrates real and tangible impacts in the day-to-day lives of many Australians. In a rising cost of living environment, this practical consideration is particularly front of mind for consumers experiencing vulnerability and disadvantage. They are the Australians who most acutely feel the impact of poor competition, with less choice, higher prices, poorer services and poorer quality products.
The ACCC at all times is committed to its core remit – investigating and taking enforcement action to combat breaches of the law. Last year we achieved $200 million in penalties imposed by the Federal Court against contravenors, which serves as the most effective deterrent for conduct that breaches the law and to promote the achievement of the objects of our law.
In this period of significant transition across our economy effective merger control is crucial to ensuring competition in the supply of products, prices and service delivery. Stronger consumer protections online and in the general economy would support consumer trust in business required to engage with and fully benefit from new and innovative products. Reform of the competition and consumer law will make our law and regulatory enforcement powers fit for purpose in this transition period of great opportunity and critical challenges.
