Interesting speech by Sims at the National Press Club. Not only did he seem to write off the new s46 as being useless, calling for a new unfair practices prohibition but he also called for changes to merger laws because the ACCC "hasn't won outright in a contested merger case since the current substantial lessening of competition test was introduced in 1992".I think he may be writing off the new s46 provision a bit too soon, as it is not impossible to establish a substantial lessening competition (SLC) case. For example my team at the ACCC was able to establish SLC cases against spirited opposition from both Liquorland and Woolworths in the liquor cases back in 2006.
Also in relation to merger cases, the reality is that the merger parties generally abandon clearly anti-competitive mergers in the face of ACCC opposition with only marginal cases going to court. The ACCC should expect to lose a high number of the marginal cases. The more significant issues are whether the ACCC (1) are opposing the right mergers (eg Vodaphone / TPG and PN Aurizon which were very weak cases) and (2) are running their merger litigation effectively (eg Metcash which was poorly run).