Friday, 10 September 2021

Protecting and promoting competition in Australia

I attended the Competition and Consumer Workshop 2021 Virtual Event on 27 August 2021.

The highlight was without doubt Rod Sims' announcement of a package of very significant proposed changes to merger laws in Australia. An outline of the changes is set out in Sims' speech which was released by the ACCC yesterday - link below.

However the biggest tragedy about the range of suggested reforms is the proposal to remove the informal merger clearance system and replace it with a formal system, a proposal which I think will be accepted by the Government.

As a former director of the ACCC's Sydney Mergers and Asset Sales Branch for a number of year I have always been a strong believer in the benefits of Australia's unique informal merger clearance system- it is a quick, efficient and very cost effective system. However, it is a system which is based largely on trust - namely the ACCC has to be able to trust that the merger parties and their legal practitioners have provided accurate and complete information to the ACCC about the merger. Whilst I recall from my days at the ACCC that there were a couple of outliers who regularly provided false and incomplete information, most parties respected and undertstood the need to be truthful.

Unfortunately, it seems to me that over recent years the poor behaviour of most likely only a few merger parties has forced the ACCC to give up on the informal clearance system and propose what will be without a doubt a much slower and much more expensive formal merger clearance system.

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