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It is a great pleasure and honour to be attending and speaking at Fordham’s 49th Annual Conference on International Antitrust Law and Policy. After around 35 years as a competition lawyer, it is about time that I attended this important conference. The ACCC senior attendees value it highly.

In these remarks I focus on the ACCC’s current priorities and the regulatory tools and approaches we employ in pursuing those priorities.

Our objective is to make markets work for the benefit of all Australians; each year we review, set and announce some months in advance our compliance and enforcement priorities. This ensures that we are transparent about our areas of focus and that our resources are directed to the issues that matter most. This process for setting our priorities allows us to be informed by a range of factors, including current economic conditions and key themes of the times.

Our compliance and enforcement priorities this financial year include maintenance of competition in supply chains, consideration of cross ownership of minority interests, the competition and consumer harms associated with large digital platforms and competition in the financial services sector.

1. Our current priorities

Supply chains

As an island continent Australia has a particularly keen interest in well-functioning and efficient supply chains.  The COVID-19 pandemic has seen global supply chains face the perfect storm of disruption– consumer demand increased at a time when supply of many products was curtailed by the effects of COVID-related staff shortages, and disruptions to logistics impacted both the flow of inputs to businesses and the flow of goods to consumers. 

From a competition enforcers’ perspective, we are determined to ensure that disruptions to supply chains do not provide opportunities for businesses to collude or engage in other conduct that damages the competitive process.

To further our work in this area, we are part of a working group with our fellow competition authorities in the US, the UK, Canada and New Zealand to share intelligence and work together to detect any attempts by businesses to use the pandemic as a veil for collusion or other illegal conduct. 

Our investigators are meeting regularly to share intelligence, and for the ACCC this has helped us in identifying markets that warrant focussed attention. 

In addition to our enforcement activities at the ACCC we have a range of continuing periodic market inquiries that encompass key supply chain infrastructure. One of these is our role in monitoring and reporting on the prices, costs and profits of container stevedores at key ports in Australia. 

The stevedoring price monitoring direction was given to us in 1999, or six Australian prime ministers ago. The initial aims of it were to monitor the progress of Australia’s waterfront reforms, to ensure the stevedores absorbed a temporary levy which funded those reforms, and to monitor the stevedoring duopoly which ended about a decade ago with the entry of new competitors. Suffice to say, these have long since been superseded and our reporting has evolved considerably since then.

Given the interconnected nature of container freight, our reports have started to take a much wider look across the whole supply chain to help us understand the trends we’re observing in the stevedoring data. The major disruptions in 2020-21 were driven by a combination of worldwide factors including port closures and reduced staff, government restrictions, and the pandemic driving a surge in consumer demand towards containerised cargo. Worryingly, the container freight supply chain remains very congested, and the reliability of international shipping line schedules hasn’t materially improved since last year. Freight rates remain elevated and critical inputs to business and consumer goods remain constrained.  

Our work in this area provides us with a wealth of information and knowledge about operations at Australian ports that enable us to provide transparency to government, industry and Australian importers and exporters. It also informs our enforcement activities.  We are engaged with key participants in Australia’s supply chains and we are focused on identifying anti-competitive conduct and pursuing enforcement in this area.

The importance of critical supply chains for Australian imports and exports is also apparent in our mergers work.

For example, we had significant concerns in relation to the proposed merger of Cargotec-Konecranes which was ultimately abandoned by the merger parties. Australia was of course not the only competition agency that raised concerns regarding this transaction.

For us, the critical nature of cargo handling equipment to Australian supply chains, which are already under severe stress due to the pandemic, meant that there was the potential for significant damage across various parts of the economy.

In another recent matter, we identified competition concerns regarding the likely impact on competition from a proposed acquisition of a large port in the state of Victoria by an investment consortium some members of which had management and partial ownership interests in a nearby competing bulk port. The two ports competed for the business of long-term bulk product exporters and importers. The consortium ultimately decided to not proceed with the transaction and withdrew its request for merger clearance.

This was an example of a further emerging issue – mergers and conduct that involves commonly held and/or managed minority interests and the extent to which concerns are raised about control and influence across competing businesses and the risk of concerted practices.

We are aware that the minority interests of private equity and managed fund investors in competing firms are attracting close interest around the world. This is an area in which we will continue to engage closely with fellow international regulators.

Since being appointed as Chair of the ACCC, I have come to fully appreciate the significant level of collaboration and cooperation that takes place with our international counterparts on global transactions, and the importance of this to our decision-making in many reviews.

International cooperation enables a more efficient process for both streamlining reviews and the consideration of remedies.

Collaborating with overseas agencies on global merger reviews brings important benefits in terms of process and timing, which are important for both the competition authorities and merger parties. It reduces duplicative efforts and results in more efficient investigations, as where the same information is relevant, it can be produced to multiple authorities in similar scope.

Every competition authority must make its own separate decision and satisfy itself that it has all relevant evidence that pertains to an assessment of the potential competitive impacts in its jurisdiction. However, cooperation provides a more efficient investigation. In some instances, it also provides greater certainty to merger parties as they navigate the intersection of various jurisdictional regulatory hurdles, particularly in relation to review timelines.

Regulation of digital platforms and other significant tech providers

Earlier this year the ACCC announced that two of our enforcement and compliance priorities would focus on digital: manipulative or deceptive advertising and marketing practices in the digital economy; and competition and consumer harms relating to digital platforms.

Many businesses and consumers have benefited from digital services. But in the several years the ACCC has been examining digital platforms and services, we have seen concerning instances of conduct negatively impacting consumers, including manipulative practices that harm consumers as well as competition.

The ACCC has produced important work in identifying market power and conduct of digital platforms that impacts both competition and consumers through our enforcement work and our ongoing digital platforms market studies.

In the last financial year, the ACCC published the final report of its inquiry into advertising technology (ad tech), as well as the third and fourth interim reports of the ACCC’s five-year Digital Platform Services Inquiry.  The Ad Tech Inquiry final report observed that Google had used its dominant position in key parts of the ad tech supply chain to preference its own services. It made six recommendations including the development of sector specific rules to address conflicts of interest and competition issues, and powers to develop and enforce rules to improve transparency of the price and performance of ad tech services.

The third interim DPSI report examined the provision of web browsers and general search services to Australian consumers and the effectiveness of choice screens in facilitating competition and improving consumer choice.

The fourth interim report focused on examining general online retail marketplaces, such as Amazon Australia, eBay Australia, as well as Catch and Kogan, two Australian online retailers. It highlighted a range of consumer concerns about how these marketplaces operate as well as the transaction benefits they provide to consumers and sellers.

Later this month we will be providing the Government with our fifth report on whether supplementary regulatory reforms are required to better address competition and consumer harms in digital markets.

Importantly, given our complementary roles in competition and consumer law, the reforms considered in that report will consider consumer protection as well as competition concerns.

We’re paying close attention to developments in other jurisdictions, including the recent progress of various regulatory frameworks, and support the principle of ‘regulatory coherence’ between regimes.

As has been noted in other jurisdictions, we anticipate that any ex ante regulation specific to digital platforms would work alongside traditional antitrust enforcement tools, rather than replace them.

In our enforcement work we have recently secured significant outcomes against major digital players.

Only last month, the Federal Court ordered Google pay $60 million in penalties for making false or misleading representations to some consumers about the collection and use of their personal location data on Android phones between January 2017 and December 2018.

We also have two cases in the Federal Court against Meta, one relating to claims about its Onavo Protect app, and one launched more recently, in March, alleging Meta engaged in false, misleading or deceptive conduct by publishing cryptocurrency scam advertisements featuring prominent Australian public figures.

In April, the Federal Court ordered Trivago to pay penalties of $44.7 million for making misleading representations about hotel room rates on its website and in television advertising, in proceedings brought by the ACCC.

The Court found that Trivago had breached the Australian Consumer Law by misleading consumers when representing that its website would help users quickly and easily identify the cheapest rates available for a given hotel room. In fact, Trivago used an algorithm which often placed significant weight on the cost-per-click fee paid by the relevant advertiser, such that the cheapest rates for the hotel room were not always most prominently displayed.

During the Trivago investigation the analysis of data and source code helped our investigators understand how Trivago’s algorithm operated, and was crucial to establishing the conduct under investigation.

We have examined firms’ algorithms in several cases since – including during our investigations into conduct by Uber and Airbnb. In April, Uber admitted that it breached the Australian Consumer Law by making false or misleading statements in its cancellation warning messages and Uber Taxi fare estimates. More recently, in June, we instituted proceedings against Airbnb for allegedly misleading consumers into believing prices for Australian accommodation were in Australian dollars, when in fact for many consumers prices were in US dollars.

We have also examined algorithms in the context of our reports on the supply of digital platform services. For example, in a report released in March, we noted that information available to us indicated that some online marketplace algorithms “boost” their own products when determining the order to display search results to consumers on their sites.

We remain focussed on increasing our data capability, including skills such as data analysis, algorithm analysis, data visualisation, applying machine learning techniques and data collection including through web scraping. We are seeking to apply best practice data and analytics methodologies to enhance decision-making by our agency.

Competition in the Financial Services Sector

In our work in the financial services sector we have a focus on competition in payment services.  In May of this year we instituted proceedings against Mastercard alleging that it has misused its substantial market power to damage competition in the supply of debit card acceptance services in Australia. As consumers have increasingly shifted towards paying for goods and services by card, payment systems and services have been rapidly evolving, particularly in the digital ecosystem. This is a critical time for the ACCC to protect and promote emerging competition and ensure that consumers aren’t paying too much for every-day transactions.

2. The role of economics in enforcement

Economics plays a fundamental role in our enforcement activities. Competition law is grounded in economics and our decisions therefore need to be guided by economic theory and empirical analysis.

Our economic team works closely with investigation teams and integrates into enforcement and merger matters as needed.

In our enforcement work, the primary role of economics is to help us identify an economic framework that helps us makes sense of the facts before us and informs our thinking on whether the conduct or merger is concerning.

We always seek to ensure that sound economic principles underpin our theories of harm. In Australia we like to channel one of the great early minds of competition law and economics in our country, Professor Maureen Brunt, who would urge one to consider:

‘what is going on here?’ when faced with an allegation of anti-competitive conduct or a merger.[1]

Prof Brunt stressed the important role of economic analysis to distinguish between conduct that is part of the competitive process, and conduct that interferes with that process.

While this is the case, assessing the likely effects of conduct or a merger on consumers or, more broadly, all of the parties who may be impacted by the conduct or merger also assists in distinguishing between conduct or mergers that substantially lessen competition and those that do not.

Unless there is a coherent logic about how the conduct or merger is likely to cause economic harm - for example in chilling dynamic competition, undermining incentives to innovate, or causing harm to downstream consumers or upstream suppliers - one needs to think carefully before intervening. In doing so we take a broad view of economic harm including the potential for higher prices, lower output, less choice, lower quality and less innovation.

Our concern is to preserve competition on its merits and to take action where conduct or mergers are likely to interfere with the competitive process. We think economics has a long and robust record of showing that this focus will deliver the best outcomes for society.

We recently developed an in-house behavioural economics capability which has been useful in helping us navigate cases involving consumer facing markets.  For example, their involvement on the theory of harm and evidence preparation was critical to our success in the Google location data case.

Economics sits alongside other disciplines which help us in our decision making on which cases to take. I have already mentioned our in-house data analytics and data science capability, which gives us the capacity to undertake complex data analysis, including to understand how tools and methods such as AI and types of algorithms are being utilised in the commercial world.

Economic analysis will always be central to the way we undertake competition analysis and to help us understand competition problems.

But our analysis is at all times grounded in the facts, evidence and commercial realities we are dealing with. We ask and investigate what is really going on here - looking at the real impacts on business, the economy and importantly, the community.

We do not use bright-line economic tests to define precise boundaries of markets or take a strict approach in requiring an economic model to demonstrate a certain level of price increase. We look at the totality of evidence, including economic evidence, and make the best assessment we can.

Some new markets, like digital platforms, are extremely challenging and complex. This is primarily because of the characteristics and business models of large digital platforms (for example, multi-sided platforms servicing different user groups, network effects, use/importance of individual-level data, supply of ‘free’ services, when the user is providing personalised data that is monetised by the platform supplying advertising). In some cases, this requires us to ensure we use the right tool for the job: is it a competition problem, a consumer protection issue or a privacy issue?  Economics still has a role to play in answering these intersectional questions.

Professor Maureen Brunt expressed how we can address the intersection of issues and disciplines when she said,

‘For antitrust law to be relevant and socially useful it must have mixed economic and legal content with due attention given to each term…most obviously antitrust law is a type of regulatory law directed to achieving economic and associated social and political objectives.
So the terms of the statute are to be interpreted in light of the overall policy objectives of that statute.’

Our antitrust law, the Competition and Consumer Act, sets out a broad policy framework and the object of our Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

It is this broad policy framework, together with our forensic interest in understanding ‘what is going on here’, that ensures we have a good understanding of firms’ conduct and business strategies and it is, in my view, how we ensure antitrust law is relevant and socially useful.


I have sought to address in this speech the critical economic, political and social issues we are currently grappling with using antitrust and consumer protection law and economics guided by our statutory objectives.

Fordham’s long history in providing a thought provoking forum for discussion amongst practitioners, academics, economic experts and enforcers internationally shines a light on the leading anti-trust issues of the day.

Thank you for your time and attention today.

[1] Antitrust in the Courts: The Role of Economics and Economists, (1999) in Maureen Brunt, Economic Essays on Australian and New Zealand Competition Law, p. 354