Outgoing ACCC chair makes one last call for merger law reforms to regulate big tech

Australian Competition and Consumer Commission (ACCC) chair Rod Sims has made one last call for the federal government to make reforms on merger law to crack down on big tech as he prepares to leave the post next month.

“Australia is almost unique in not having a formal merger approval system,” Sims said in his address to the National Press Club on Wednesday.

“We have no formal approval system for mergers in Australia. If it gets to court, we have to prove that future negative consequences will occur, which can only be speculated on against the so-called real-world evidence of the necessarily self-interested merger parties about what will happen in the future.”

The outgoing ACCC chair has been calling for merger law reform for years, having previously said the lack of competition, specifically in digital sectors, has created broad adverse effects on the Australian economy.

“Effective scrutiny of acquisitions by the large technology firms is critical to protect both business users and consumers, who are so reliant on these platforms, from the adverse effects associated with market power,” Sims said in August last year.

During Sim’s tenure, the ACCC has fought against various mergers in court, including losing its bid to block the Vodafone-TPG Telecom merger in 2020.

In his call for merger law reform, Sims acknowledged it would be a slow process due to government agencies being stretched thin across other issues.

“You don’t have to focus on it now, that would have been beyond rude when they’re absolutely flat out. The push for some of these has been fairly recently recent, but you can certainly see there’s a lot of business resistance and when you’ve got a COVID-19 environment as well, I think we’re just going to have to wait,” he said.

Among the merger law reforms that Sims would like to see are a new formal merger review process, changes to the mergers test, and reforms to deal with acquisitions by big tech companies.

Focusing on the need to address big tech dominance, Sims said the ACCC will release a discussion paper early next week proposing new regulation for digital platforms. These proposals include a new code of conduct and upfront rules that seek to “prevent the worst abuses of dominance and protect consumers”.

“[Big tech] have access to and control a massive amount of our data which has seen harms ranging from that seen with the dreadful outcome from the Cambridge Analytica scandal, to profiling people to maximise sales by exploiting consumer vulnerabilities,” he said.

Sims also used his speech to take one last swipe at the federal government for prioritising making a return on the $50 billion spent on the NBN. In doing so, the outgoing ACCC chair called for the government to redo NBN’s regulatory arrangements.

“The objective must not be to get a commercial return on the $50 billion. It must instead be to make the best use of the NBN. The prices that allow the NBN to get a commercial return are very unlikely to be the same prices that make the best use of the NBN,” he said.

Sim’s stance on Wednesday reiterates comments he made last week to Senate estimates, when he said the NBN should be viewed as a sunk cost and decisions should flow from that starting point.

Sims, who has held the ACCC chair mantle for over a decade, is set to leave the post next month. He will be replaced by Gina Cass-Gottlieb, a litigator who currently heads Gilbert + Tobin’s competition and regulation practice. 

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