Wednesday, 28 November 2018

Australian Business Law Review

Needless to say, I am very excited to be taking over the role as the General Editor of the Australian Business Law Review (ABLR). My aim as General Editor will not be to attempt to fill Bob Baxt’s shoes (which would be impossible!) but rather to continue the high standards which Bob set for the ABLR.

Thomson Reuters is very pleased to welcome Michael Terceiro to his new role as General Editor of the Australian Business Law Review (ABLR), taking over from the late Professor Robert “Bob” Baxt, who was the Founding Editor of the Journal. Michael is a competition and consumer lawyer who has run his own legal practice Terceiro Legal Consulting for over 10 years.  Michael is also the Deputy Chair of Small and Medium Enterprise Committee (SME Committee) of the Law Council of Australia and the Deputy Chair of the Mortgage and Finance Association of Australia (MFAA) Disciplinary Tribunal. 
Michael earned his Bachelor of Arts and Bachelor of Laws (Hons) at Macquarie University, and completed his Master of Laws at the University of Sydney, a Professional Certificate in Arbitration at the University of Adelaide and a Master of Dispute Resolution (With Excellence) at the University of New South Wales.  Michael will also be commencing a PhD in Law through the University of NSW in 2019. 
Prior to setting up his own practice, Michael worked at the Australian Competition and Consumer Commission (ACCC) for 15 years in a number of senior positions including as a Director of Enforcement and Compliance, the Director in charge of the Sydney Mergers and Asset Sale Branch, the National GST Enforcement Coordinator and the Director in charge of the ACCC’s Waterfront Team during the Waterfront Dispute. 
Michael authored the Anticompetitive Agreements and Secondary Boycotts chapters of the CCH Australian Competition and Consumer Law Reporter. He has also written numerous articles for Lexis Nexis, CCH’s Australian Competition & Consumer Law Reporter and Tracker, the NSW Law Society Journal, Impact! A National Journal of Environmental Law, and the Keeping Good Companies publication. 
We look forward to working with Michael on future issues of the ABLR and wish him all possible success as General Editor.

Massive fines for property spruiker Rick Otton

Property spruiker Rick Otton and We Buy Houses fined record $18 million While I haven't read the judgment yet, $18 million sounds like a mighty high penalty under the ACL, particularly the $6 million against Rick Otton personally. It will be interesting to see how Judge Gleeson arrived at that number.

My Oh My - can it get any worse?

Judge tears up $35m settlement between ASIC and Westpac in lending case It just doesn't seem to be getting any better for ASIC at the moment, with Justice Perram refusing to sign off on the proposed $35m settlement with Westpac for breaches of the National Consumer Credit Protection Act (NCCPA). Perram has rejected the settlement on the basis that ASIC did not particularise the nature and number of Westpac's alleged contraventions. However, it is not too clear whether Perram thinks the penalty is too low or too high. On the one hand, ASIC proposed a total penalty of $35m which would be twice as much as the previous largest penalty under the legislation. However, ASIC then described Westpac's conduct as being due to an innocent mistake, which is never a good way of getting a big penalty. On the other hand, there were a total of 5041 alleged contraventions of section 128 of the NCPAA at $420,000 each which means a maximum penalty of about $2.1 billion. This makes $35m sound very much on the low side. It seems to me that Perram's concern is that he thinks that the proposed penalty of $35m was just plucked out of thin air and there was no principled basis for arriving at that number.

Milking it?

Murray Goulburn: Gary Helou likely to face fines following ACCC settlement Cases like this one drive me nuts. The ACCC takes legal proceedings against Murray Goulburn (MG) in April 2017. In their action the ACCC decides not to seek any pecuniary penalties against MG. Now here we are 18 months, four case management hearings and seven administrative listings later, and it looks like the case will be settled with MG consenting to declarations and agreeing to make a contribution to the ACCC's costs. Why didn't MG and more importantly its Directors make the call to settle this case 18 month ago? If they had made that decision 18 months ago MG would have saved at least $500,000 in legal costs which they paid to their top tier legal firm, as well as a couple hundred thousand to the ACCC for their costs.

Hiring the best

ASIC says it’s now free to hire the best I can't believe the Government fell for the line that ASIC's woes arise from having to hire staff under the Public Service Act (PSA) and as such they could not hire "the best"! Not only is that claim wrong but very insulting to all the hardworking ASIC staff who are doing their best. If that were problem, how is it that the ACCC has had such incredible success in enforcing their legislation, whilst having to hire staff under the PSA? When I worked at the ACCC we attracted the best by selling the advantages of working at he ACCC - ie great training, a wide variety of different types of work and significantly more responsibility than they would get elsewhere. We were also content to get 4 or 5 years out of many new starters who we could see were just passing through. We certainly got value for money out of these people in the 4 to 5 years they were with us! The problem at ASIC is not that they are unable to hire the best but rather a failure of ASIC leadership to instil the right culture. One of ASIC's major failures has been settling cases which it should have litigated which has nothing to do with hiring the best but everything to do with an ineffective, risk averse leadership.

Recent work - Airbnb

Just completed the third and final independent review of Airbnb’s Australian Compliance Program. It has been fantastic working with Airbnb over the last three years - a highly professional and switched on compliance team and organisation with a very strong culture of compliance.

PhD in Law 2019

Very excited to be starting a PhD in Law through UNSW in 2019 under the supervision of Professor Deborah Healey and Professor Alex Steel. My topic is Criminal cartel investigation and enforcement- a comparative analysis of US and Australian approaches. I’ll be looking at the significant differences between the two approaches particularly in relation to criminal cartel investigation, which may mean that the ACCC will struggle to replicate the highly successful criminal prosecution record achieved by the Antitrust Division of the Department of Justice in the US. Also, glad to see the ACCC has ramped up its own criminal cartel enforcement in recent times as that will give me a lot more to go on in terms of my research.