Roundtable with four Chairs of the ACCC, past and present: Competition law in a changing economy and rise of the digital era
On 28 September of this year, CLARS and the Centre for Global Business (of the Faculty of Business and Economics) teamed up to organise a one-of-a-kind seminar featuring all of the Chairs who have led the Australian Competition and Consumer Commission (ACCC), from its inception in 1995 to the present day. The current Chair, Gina Cass-Gottlieb, and the three historical Chairs – Allan Fels (1995-2003), Graeme Samuel (2003-2011) and Rod Sims (2011-2022) – had never before been brought together for such a “summit” meeting.
From left to right: Mel Marquis (CLARS), Michelle Welsh (Bus-Eco), Roger Featherston (ex-ACCC), Allan Fels (ex-ACCC), Gina Cass-Gottlieb (ACCC), Graeme Samuel (ex-ACCC), Rod Sims (ex-ACCC), Bryan Horrigan (Law) and Chongwoo Choe (Centre for Global Business)
Opening remarks by Senior Deputy Dean Michelle Welsh (Bus-Eco) and Dean Bryan Horrigan (Law) were followed by a Keynote address by Ms Cass-Gottlieb, who then joined a rousing panel discussion featuring the four Chairs. The panel was moderated by former ACCC Commissioner Roger Featherston (2014-2019).
The event was part of an ongoing series of inter-faculty competition law and economics seminars organised by CLARS in cooperation with the Faculty of Business and Economics.
The seminar of 28 September, which was recorded on video and may be watched at https://www.youtube.com/watch?v=qsajvLRUw00, comes at a time when the ACCC is applying “intense focus” on the digital economy, as digital platforms such as Google and Facebook (Meta) continue to draw allegations that they engage in misleading and manipulative practices that harm consumers. (Story continues below.)
For example, in August, the Federal Court of Australia imposed penalties of AUD 60 million on Google for misleading consumers about the collection and use of their personal location data on Android phones from 2017 to 2018. In March, the ACCC lodged an action against Facebook/Meta for allegedly engaging in false, misleading or deceptive conduct by publishing scam advertisements that featured prominent public figures (e.g., David Koch, Mike Baird and others) and promoted dubious money-making and cryptocurrency investment opportunities. The ACCC is pursuing the latter action in addition to its separate case against Facebook alleging that it misled consumers by representing that the Onavo Protect app would keep users’ personal activity data private and secret, without using it for other purposes, when instead the company commercialised the collected data.
The ACCC’s increased scrutiny of the “gatekeepers” of the digital economy reflects a worldwide trend of competition law and consumer law enforcement actions in courts and administrative investigations.
The ACCC has provided the Federal Government with its fifth interim report on regulatory reform for digital platforms (a part of the 2020-2025 Digital Platform Services Inquiry), which sets forth a significant agenda. According to Ms Cass-Gottlieb, the report puts forward our views on whether supplementary regulatory reforms are required to better address competition and consumer harms in digital markets”. The report follows trends in the EU and the UK and calls for a range of measures such as a code of conduct that would target large firms with substantial “platform power”, subjecting them to prohibitions against, for example, “self-preferencing” behaviour.
The Chair added that mergers involving Big Tech were another area of focus for the ACCC, in particular given “the difficult issue of large incumbent digital platforms buying out nascent competitive threats”. As she explained, there is a “a collective understanding globally now among many competition authorities that digital acquisitions have cemented incumbent positions, and regulators need to do more so we don’t foreclose the potential emergence of rivals in existing and emerging digital markets”. In Australia, a prime example of the kind of global transaction that raised such concerns was the acquisition by Google of Fitbit, which proceeded without the ACCC’s blessing, and which was analysed in a joint CLARS/Bus-Eco seminar in 2021.