Professor Samuel, who was chair of the ACCC from 2003 to 2011, said he was “very hesitant about wanting to see a significant change to the law as it currently stands”.
The current laws had worked well for many years and neither of the competition law reviews in 2003 (The Dawson Report) and 2014 (the Harper Review) found that change was necessary, he said.
“Let’s not rush to change law because all of a sudden the ACCC is not being successful in court cases,” he said, noting the regulator’s recent losses in contested merger cases.
“We shouldn’t say that that’s a fault in the law necessarily, or that’s the fault of the courts; maybe it’s just that ACCC has brought on the wrong cases.”
“In some industries it seems that just about any business from across the economy could be a potential competitor,” AI Group chief executive Innes Willox said.
Mr Willox said deep consideration of “counterfactual scenarios” would be required in order to identify whether a potential merger partner might one day become a rival, and this approach risked businesses and regulators “jumping at hypothetical shadows”.
The clear danger is that this would more likely inhibit innovative combination.
AI Group’s Innes Willox
“The clear danger is that this would more likely inhibit innovative combinations than prevent reductions in competitive dynamics,” he said.
The Business Council of Australia (BCA), which represents some Australia’s largest companies, has said it is concerned that the law changes – together with proposed changes to privacy, contracts and trading practices – reaches beyond the digital giants the review was set up to investigate and would have “significant economy-wide impacts”.
Australian Chamber of Commerce and Industry chief economist Ross Lambie said the group was “open to a review of merger legislation” because inappropriate mergers could considerably harm its members and the public.
“Where mergers and acquisitions stifle competition, it’s small and medium businesses as well as their customers who often suffer most,” Dr Lambie said.
Business reporter at The Age and Sydney Morning Herald.
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