ACCC chief Gina Cass-Gottlieb’s key question on mergers

But it reveals that one simple question will be key to his focus: what is going on here?

Cass-Gottlieb says she got a lot of guidance from the woman she calls “the mother of Australian competition law,” Professor Maureen Brunt. In 1996, the founding member of the Australian Trade Practices Tribunal became the first woman to hold a chair in economics in Australia, at Monash University. She died in 2019, aged 90.

Brunt’s first principle, now shared by Cass-Gottlieb, was intentional. In other words, the ACCC and its precursors should make a difference. “We have these powers to really achieve economic well-being and associated social well-being for the community,” Cass-Gottlieb says.

Contrast with the predecessor

The second principle is practical. “You really need to base yourself on facts. Professor Brunt would say, ‘what is going on here?’ So understand what is actually happening in the markets and also understand it in terms of its trading implications that affect markets and economic conditions.

“It’s understanding what’s really going on, what the implications of that are and always keeping the focus on the bottom line, which is ensuring there’s viable competition so the economy has innovation, new services, prices as low as we can in terms of attainable competition, and consumers benefit from that choice, price, and innovation.”

At first glance, this would appear to be a pragmatic approach that will be well received by the business community. But it may also offer some contrast to Cass-Gottlieb’s predecessor, Rod Sims, who, in one of his biggest cases, opposed (and unsuccessfully) the TPG-Vodafone merger not just on the facts of the deal, but also because of the counterfactual argument that stopping it may have forced TPG down a path that improved competition.

Is Cass-Gottlieb charting a different course than his predecessor? She is exquisitely diplomatic.

“I hope that Rod and I had similar principles, but sometimes the principles are applied differently. Lawyers have a good description for it: Reasonable minds can differ.”

And the counterfactual isn’t exactly dead. She says that in most cases, this “kind of logical exercise” isn’t necessary, but there are hard cases where the future is so different from the status quo that it may need to be considered.

But these cases are the exception and not the rule. “The focus on the counterfactual is because it becomes a perhaps quite expected focus on the more difficult questions and cases, rather than the more usual cases.”

Cass-Gottlieb came to the ACCC after a 30-year career in private practice. She says a public role had always been in the back of her mind but, like so many Australians, the pandemic changed her priorities.

“The unpredictability and fragility of all my assumptions were challenged during COVID about what I would do and when. And it pushed me to think that if you want to make a change, you have to act. You can’t assume how much time you have to do these things.”

Cass-Gottlieb has assumed the lead role at an exciting time, with new competition regulators in several key jurisdictions. Perhaps most notable is US Federal Trade Commission Chair Lina Khan, a Biden administration appointee with strong views on the market power of tech giants.

Cass-Gottlieb, who met with Khan, says international cooperation between competition agencies is important, particularly when it comes to issues involving technology companies whose operations are global.

The recent acquisition of iRobot by Amazon, maker of the Roomba range of robotic vacuum cleaners, is a deal that, for Cass-Gottlieb, brings together many of the issues the ACCC has been working on in its review of digital platforms.

This includes the potential for anti-competitive behavior in online marketplaces, where platform owners have been accused of giving preference to their own products.

“Amazon adding another product to their offering will raise those kinds of questions,” she says.

Be the first to comment

Leave a Reply

Your email address will not be published.