Sam Rae (Hawke, Australian Labor Party) Share this | Link to this | Hansard source

The Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 is a landmark piece of legislation that will modernise Australia's merger framework for the first time in nearly five decades. This reform is about striking a critical balance: equipping our competition regulator with the authority it needs to safeguard markets and protect consumers while also enabling it to operate with speed and clarity, providing certainty for businesses and for our economy at large.

Mergers and acquisitions are absolutely essential to a thriving economy. They bring investment and allow businesses to scale and promote innovation. Successful mergers can drive greater efficiencies, expand consumer choices and, importantly, lower costs. However, not all mergers are beneficial for consumers or for our economy. Some entrench market power, reduce competition and, ultimately, harm consumers. For instance, in the supermarket sector, acquisitions by dominant chains have reduced competition in local markets, leaving consumers with fewer options and higher prices, particularly in regional areas. Similarly, in telecommunications, mergers between major providers have raised concerns about reduced market competition leading to higher costs and slower innovation in essential services such as mobile and internet access. These examples highlight how unchecked consolidation can harm Australians in their everyday lives and underscore the need for reform.

Such harmful mergers show why a robust and responsive competition regime is absolutely essential. We must ensure that harmful mergers are identified and prevented, fostering a competitive environment that delivers fair prices, greater choice and innovation for Australians, yet Australia's current system falls short of what a modern economy needs. We are one of only three OECD nations without a mandatory notification system for mergers, leaving our competition regulator, the ACCC, to rely on a voluntary and highly reactive process. This creates significant blind spots, allowing mergers with potential risks to competition to proceed without adequate scrutiny. Meanwhile, pro-competitive and non-contentious mergers often face delays and uncertainty, burdening businesses unnecessarily.

The Albanese government's reforms will bring Australia's merger framework into the 21st century. These changes will establish a mandatory notification system, providing the ACCC with full visibility of significant transactions. This ensures that the regulator can focus on the mergers that pose the greatest risks to competition, while businesses pursuing beneficial transactions are supported with a streamlined and efficient process. The reforms will strengthen the ACCC's ability to act decisively. Pro-competitive mergers will advance quickly, with a clear pathway for approvals within 30 working days where there are no concerns for consumers. Harmful or risky transactions, on the other hand, will be scrutinised and, if necessary, prevented. This balance of ensuring markets are both dynamic and protected is critical to the health of our economy.

The bill also introduces monetary thresholds to focus resources where they are most needed. By targeting mergers with the potential to lessen competition substantially, the ACCC can direct its efforts toward transactions with significant economic impact. Transparency and accountability will also be enhanced for the creation of a public register of notified mergers, giving businesses, consumers and stakeholders a clearer view of the process.

These reforms are integral to our broader economic vision—an economy built on strong competition, higher productivity and good wages for working people. Competition is the lifeblood of a dynamic economy. It compels businesses to innovate, improve efficiency and deliver better value to consumers, but its benefits extend far beyond markets. When businesses innovate and productivity rises, workers are better positioned to share in these gains of secure jobs, higher wages and improved conditions. By fostering competition, we reduce the power of monopolies and oligopolies that distort markets and concentrate wealth in fewer hands. Fairer markets lead to fairer outcomes, lower prices for essential goods and services, greater access to opportunities for workers and more choices for consumers. Importantly, fair competition encourages businesses to invest in their people, recognising that skilled and well-supported workers are critical to long-term success.

The Albanese government's approach reflects our belief that strong competition, higher productivity and good wages for working people are not just desirable but essential for a fairer, stronger and more resilient economy. Through these reforms, we ensure that Australia's economic growth lifts everyone, building a future that rewards effort, encourages innovation and supports working Australians and their families. These outcomes are only possible with a regulator equipped to act decisively and efficiently. That is why these reforms provide the ACCC with the authority and the framework to protect competition effectively. Pro-competitive mergers will move forward without unnecessary delays, while harmful or risky transactions will face rigorous scrutiny and intervention if required. This approach not only fosters market dynamism but also safeguards consumer interests.

These are key foundations for our strong and fair economy. This reform reflects our commitment to ensuring a competition regulator that is both effective and efficient in protecting the interests of Australians, while providing businesses with greater certainty. It demonstrates the Albanese Labor government's dedication to creating a stronger, fairer and more competitive economy that benefits all Australians now and into the future.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

():  There's no doubt Australia is in a period of significant economic transition. The COVID-19 pandemic disrupted many critical industries, both globally and domestically, and it will be some time before our economy fully recovers. Coming out the other side of the pandemic, we've entered an inflationary environment that puts immense pressure on consumers, businesses and governments. At the same time, we are embarking on a much-needed transition to a net zero economy. In this context, competition is more important than ever before. This transition will impact Australia's critical industries, consumers and small businesses in profound ways. New markets are on the horizon, and it is impossible to anticipate how they will emerge or develop.

Competition can be a driving force for investment, dynamism and innovation. All are required to undertake this transition; therefore, it is critical we protect it by getting our competition policy reform right from the start. While most merger transactions do not harm competition and, indeed, provide many benefits, some can and do affect the competitive conditions of an industry. The growing trend of market concentration in Australia since the early 2000s is not one that we should continue to ignore.

According to a 2023 report from e61 Institute, in seven per cent of Australian industries the top four firms had more than 80 per cent of the market share. I just want to repeat that. In seven per cent of Australian industries, the top four firms had more than 80 per cent market share. Compare this to countries like the United States, where only one per cent of the industries have a market concentration that high. Ultimately, however, my community and indeed most Australians don't need statistics to understand the problem. Whether it's electricity, health insurance or retail, the Australian economy is rife with examples of markets where a few big players dominate, and, as a consequence, consumers are arguably missing out while producers and suppliers are squeezed ruthlessly.

We see this perhaps most acutely in the tech and supermarket sectors. In tech, a handful of companies are playing an increasingly significant role in our lives, influencing how we interact with each other and do business. I had a striking real-world experience when I recently tried to plug my iPhone into the jack of a Volvo that my friend owns. I received a message from my phone saying, 'This accessory is not supported by the device.' The Volvo was the accessory that the iPhone wouldn't accommodate! I was struck by Apple's market concentration and their ability to corner the market. Meanwhile, in the supermarket sector, Woolworths and Coles alone control about two-thirds of the market. Again, I've witnessed the implications of this personally, with many orchards in my home town of Coonabarabran forced to bulldoze their trees after the long-term local independent grocer was acquired by one of the two large supermarket chains.

Part of the problem is the ability of large businesses to hollow out markets through targeted acquisitions. As multiple former ACCC chairs have acknowledged, Australia's current merger regime is not well placed to deal with this problem. Under the ACCC's current framework, companies aren't required to notify the ACCC of mergers, leaving the commission most often flying blind. Additionally, the ACCC reviews only a fraction of the mergers that happen each year—an average of 330 annually of the more than 1,000 mergers that occur. This gap leads to situations like that of Petstock, which grew through a series of small acquisitions into the second-largest speciality pet supply retail chain in Australia, unbeknownst to the ACCC. No wonder the former ACCC chair Rod Sims has described Australia's merger regime as the weakest of any country we compare ourselves to.

These trends have consequences for us all. Recent decades have seen businesses increase the mark-ups to goods and services by more than two per cent. As CHOICE and the Consumers Federation of Australia put it, consumers pay the price of highly concentrated markets, including through higher prices, poorer customer service and lower product and service quality. In this context, I largely welcome this bill and commend the government for taking steps towards a regime that more effectively targets anticompetitive mergers while fast-tracking mergers that are pro-competition. It is a step towards a future focused economy that is diverse, efficient and welcoming of new market entrants.

However, there are ways I believe this legislation, and competition policy reform more broadly, could be improved. Firstly, we must ensure that the Australian Competition and Consumer Commission are adequately staffed and resourced to effectively manage the significant increase in assessments that will result from the changes outlined in this bill. Secondly, we must strengthen the ACCC's ability to block problematic mergers. Thirdly, we must ensure thresholds for notification capture all anticompetitive acquisitions. Finally, to truly improve competition and innovation in Australia, we must not only prevent anticompetitive mergers but also actively support small and emerging businesses.

I'll go to the specifics of the bill before us. This bill will empower the ACCC as the decision-maker on all mergers. Under this new system, the commission would undertake an economic and legal assessment to determine whether acquisitions are likely to substantially reduce competition or be of public benefit. This would be tied to a mandatory notification system where acquisitions that meet a certain threshold would need to be referred to the ACCC for assessment prior to completion. These key thresholds are (1) when the Australian turnover of the combined business exceeds $200 million and the assets being acquired have either an Australian turnover of more than $50 million or a global transaction value above $250 million; (2) when a business with an Australian turnover of more than $500 million is buying a smaller business with a turnover above $10 million; and, finally, (3) all mergers by businesses with a combined Australian turnover of more than $200 million where total similar acquisitions over a three-year period have a cumulative turnover of at least $50 million. Importantly, the bill allows the Treasurer to adjust these thresholds in response to concerns from the ACCC about high-risk mergers.

The commissions approval system would also be reformed with the goal of completing approvals in under 30 days for mergers that are determined not to pose a threat to competition, and these changes would also provide for the Competition Tribunal to review the ACCC's decisions. Finally, the bill would establish a public register of all mergers and acquisitions, providing all of us a clear line of sight on how our markets and suppliers are developing. As a result of these reforms, there's a lot to like about this legislation. It improves oversight for both large acquisitions and the accumulation of smaller creeping acquisitions, it makes an effort to balance this new oversight with efficiency under a faster approval process for unproblematic mergers, and it allows for the thresholds to be flexible over time.

I've noted that the ACCC currently only assesses a small proportion of mergers, however, and this reform will be a significant change for the commission as it deals with the potential for more assessments and a commitment to faster approvals. The government has argued that the increased resourcing given to the ACCC will be commensurate with the increased workload, and the January 2026 commencement date will give the commission time to prepare for the transition. This may be true, but it isn't guaranteed. We're talking about the biggest merger reform in nearly half a century. The transition will have to be managed properly to prevent a blowout in costs and delays for government and business alike.

Historically, the ACCC has been unable to prevent many large mergers. In fact, just last year, the commission blocked the ANZ bank from a $4.9 billion takeover of Suncorp's banking arm, only to have their decision overturned by the Competition Tribunal. The same thing occurred in 2017 with the merger of Tabcorp and the Tatts Group. This is not to say that the oversight of the Competition Tribunal is a bad thing, but it does suggest that the two organisations are not always aligned on principle, and it's unclear what that means for the ACCC's ability to effectively block what it may deem to be an anticompetitive acquisition.

More importantly, the thresholds in this bill may not capture several kinds of concerning mergers and acquisitions. Under this framework, for example, businesses with a combined Australian turnover of less than $200 million will not need to report unless the business or assets being acquired have a cumulative Australian turnover of over $50 million over a three-year period or a global transaction value of about $250 million.

That is already quite a high bar, but the real problem here is that these thresholds don't consider the size of the market a business is operating in. For large high-turnover markets like medical insurance or electricity retail, these thresholds may be reasonable, but, if the market is smaller, numbers like $200 million may represent a much higher percentage of total market activity, and businesses with significant market share may fly under the radar. We know that the government was considering a market concentration threshold during consultation, so I've got to confess that I'm disappointed to see that it's absent from this bill. Overall market share is a much better indicator of the problem we're trying to prevent than simple monetary turnover.

Similarly, the thresholds don't consider regional market concentration. Again, I speak from personal experience. Having grown up in regional Australia, I'm aware of the limited choices that consumers sometimes face. There might only be one bank, one grocery store and one petrol station in the whole town. Under this legislation, mergers could potentially be used to corner a market in an entire regional area while staying under the notification threshold.

The threshold also wouldn't stop large companies from gaining an early advantage in markets by acquiring early-stage companies who don't yet have a high turnover. The obvious example is Instagram. When Facebook bought Instagram, the company had no revenue. If this purchase happened in the Australian context, this bill wouldn't have required that to be referred to the ACCC. Clearly parts of this legislation could be strengthened. Instead of it simply allowing the Treasurer to adjust these thresholds over time, we should aim to get them right from the beginning. We need merger reform that tackles market share, early acquisitions and geographic considerations.

Finally, I'd like to speak about the role of small business in the context of these reforms. To truly embrace competition, we must do more than simply regulate big mergers. We need to actively support new and established small businesses. According to the Bureau of Statistics, 2023-24 saw a 1.4 per cent decrease in the number of Australian businesses with one to four employees, while businesses with five to 19 employees remained relatively stagnant with only a 0.4 per cent increase. This is reflected in the GDP figures. In 2006, small businesses contributed 40 per cent of our GDP; now that number is 33 per cent.

Australian Small Business and Family Enterprise Ombudsman Bruce Billson described Australia as 'sleepwalking into a big corporate economy'. To increase competition and drive an efficient, diverse economy, we must consider measures to support these small businesses, especially in their early stages. There are many ways we could do this, from expanding the digital learning and practical support tools available online to increasing tax offsets for new small businesses. Of particular relevance to competition reform, however, is the need to implement a ban on unfair business and trading practices which harm small businesses and discourage investment. When there is a power imbalance, big businesses in Australia can impose harsh commercial arrangements or behaviours on smaller ones. Singapore, the United Kingdom and the European Union all have laws that explicitly ban this kind of unfair practice, and Australia should follow suit. In short, we should be using all the tools at our disposal to build a competitive economy with a thriving small business sector.

I commend the government for bringing this bill before the House to improve Australia's management of large mergers and acquisitions, but I also encourage the government to make sure not only that the ACCC is resourced to handle this transition properly but also that the thresholds truly prevent mergers from slipping through the cracks and that, ultimately, we support new small businesses to create a truly future focused economy for all Australians.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

Ensuring suitable levels of competition in the Australian economy has been something many Australians have taken for granted for a long time, but currently, in a cost-of-living crisis, the issue of competition is front of mind for many of my community. Research conducted by e61 last year showed that Australia was far more prone to higher levels of market concentration compared to our peers, like the United States. And it shows. Currently we have two supermarkets that dominate 70 per cent of the food and grocery market, two airlines that represent 98 per cent of the domestic airline market, four banks representing 75 per cent of the market, four media outlets representing 78 per cent of the market, three telcos operating with 89 per cent of the communications market, three insurers representing 74 per cent of the general insurance market and, as of today, we have two political parties hoping to capture 100 per cent of the vote market.

In fact, the e61 research shows that around seven per cent of all Australian industries had more than 80 per cent of the market share, dominated by four companies or fewer. Compare this to the US, where only one per cent of their industries had that level of concentration. I admit that Australia and the US are different countries and have different market dynamics in different scale. I also acknowledge that, in certain circumstances, economies of scale mean that we do get cheaper products to consumers so there are benefits of bigger companies in certain circumstances, but I think there has never been a more urgent opportunity and urgent need for competition to be a focal point for regulation.

I welcome the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 for its intent to modernise merger reforms and introduce an international best-practice approach for dealing with competition considerations in Australia, but I and others do have concerns about the unintended consequences this bill will have for small and, particularly, young firms. While I'm glad to see there are review provisions in this legislation, we will monitor this legislation closely going forward.

The bill would replace existing merger frameworks with one including mandatory notification. In practice, this puts the onus on companies to disclose ahead of time so that proper consideration can take place, instead of requiring the ACCC to initiate proceedings. The law will specify the M&A proposals that meet one of the notification thresholds that would require mandatory reporting. These notification thresholds cover mergers that represent a combined turnover of the business that is above $200 million; part of a series of mergers of the same or similar goods and services within a three-year period; and any merger involving a very large business with a turnover of more than $500 million buying a business where the acquisition exceeds $10 million. These thresholds will increase the number of mergers the ACCC will need to review and will effectively cover many of the mergers or acquisitions of Australia's largest companies. The Senate reports notes that stakeholders are broadly on board with the proposed changes and that there is broad cross-party support.

While the monitoring of competition impacts of M&A is important, I note that this bill is not without the risk of unintended consequences. These risks particularly affect young firms if the ability to be acquired or merge is impeded or restricted. For young firms an acquisition provides one of the few opportunities for early-stage investors to exit and realise gains on an investment often made several years before. If a merger cannot take place, the investor must wait either for another investor to buy them out or for the company to list publicly. Patient capital is hard to find and getting harder, with banks and superannuation funds effectively holding their nominal investments in small-business and venture flat over the past decade. That's not a good for anyone. Acquisitions also provide good businesses and good ideas the opportunity to scale quickly. It's not always the case that a reduction in acquisition is bad. I note that the Treasurer has agreed to review the thresholds after a period of 12 months, a condition that I warmly welcome.

I also note that the impost of this regulation is of concern for different parts of the economy that I've spoken to, including the property sector and other sectors, which are questioning how they will or should be fitting into this legislation.

As I said I welcome this bill. I think it is appropriate. But I do think we need to get it right. And I do have concerns in particular about the ability of the regulator to meet the additional requirements.

A division having been called in the House of Representatives—

Sitting suspended from 17:21 to 17:56

As I was saying, whilst I welcome a best-practice approach, I do have concerns about the ability of the regulator to meet the additional requirements and their ability to undertake their investigations in a diligent and timely way.

The legislation requires phase 1 determinations to be made within 30 days and phase 2 determinations to be made after 90 days. But, as we've seen with other regulatory organisations, these types of benchmarks are easily skirted and often not met, and I hold the same concerns here, including that stop the clock rights exist for the ACCC as we see for other regulators. Additional requests for information are anecdotally used by regulators to create more time when they've got challenges meeting their deadlines. If this is the case, the legislation has the potential to delay mergers, costing money and resources and placing businesses through additional regulatory hurdles with limited benefit to competition and the community. I encourage the review in 12 months to also consider the responsiveness of the ACCC, to assess that as part of the review and also to assess whether measures like stop the clock or other types of additional information measures are being used in ways that are actually delaying the assessment of these applications.

I'd also like to acknowledge that this bill has undergone a Senate review that made four recommendations in light of these concerns and concerns made by others. In particular, I welcome recommendation 2. In addition to the 12 month review, the Senate report recommended an expert implementation advisory panel to be established which specifically called out the likes of the Tech Council of Australia, that represent many of these young and innovative firms. I think it is absolutely critical that young and innovative firms are represented in this sort of panel of review because it is critical that this legislation really enables competition, innovation and dynamism, and there is a danger that there could be some unintended consequences which, under certain circumstances, may actually dampen that competition, dynamism and creation of new firms. I warmly support that recommendation, and I think it would help the business community be reassured that the unintended consequences of the bill will be taken seriously.

In conclusion, I support this bill because competition is a major concern, and I note that similar models are working effectively in other jurisdictions and have the ability to ensure that Australia continues to be a country with effective and robust business competition. I support this bill because I really want to support young, innovative and small businesses, and I think it's really important that we continue to let those businesses thrive. Part of that is making sure that they have and are able to compete with larger businesses.

However, I identify the risks associated with imposing these different burdens on businesses, including stifling exit opportunities and thus investment, and delaying the process of effective mergers through regulatory bottlenecks. I think an implementation review is a sensible recommendation in addition to the 12-month review of thresholds, and I encourage the government to seriously consider implementing the recommendations of the Senate report.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

There's no doubt that a huge number of Australians are suffering serious cost-of-living challenges, and there's significant political pressure to come up with instant solutions to make a real difference to the cost of living. While the government can have an impact on inflation, many of the factors affecting inflation and the cost of living are beyond the reach of the federal government. Geopolitics, pandemics, supply chain complexities—governments may be blamed for these things, but they can't really do much about them. But one of the things that the government can impact is competition. This is not a quick fix for the cost of living, but, over the long term, getting the rules right when it comes to how companies can compete in Australia has a significant impact on costs for consumers. Effective competition drives efficiency and productivity. That means better products at lower prices for Australian consumers.

Duopolies and oligopolies are bad for consumers. While competition law is complicated, most people understand this intuitively and are suspicious of big companies having too much power. For groceries and living essentials, the Coles-Woolworths duopoly has been accused of driving up prices and passing the buck to shoppers. For travel, the Qantas-Virgin duopoly has similarly been accused of forcing out competition and passing on poor service and high costs to travellers. And, here in politics, the duopoly of the Labor and Liberal political parties has been accused of using parliamentary power to shut out new political entrants. Now, obviously the political party duopoly is not considered as part of the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024, unfortunately, but it is good to see the government promoting competition in business. Voters might be stuck with less political competition, but this amendment is a good move for consumers.

The existing merger law and clearance process has been in need of reform for some time. In 2021, the then ACCC chair Rod Sims argued for reform, and his successor, Gina Cass-Gottlieb, an eminent competition lawyer with extensive experience on both sides of the merger regulation process, also supports the creation of a formal merger clearance process. The current law in the Competition and Consumer Act says that companies can't acquire shares or assets in a company that would substantially lessen competition in any market. The key problem with this law is that there's no requirement for parties to notify the ACCC before completing a merger. Because there's no requirement, the ACCC instead has established an informal merger review process, where parties can first ask the ACCC for advice on the competitiveness of the merger before it's completed. This process, which has no formal status in law, lacks transparency and does not provide an informed basis for market participants to understand their legal and regulatory risk. In short, it's not fit for purpose.

This bill amends the Competition and Consumer Act to better reflect the requirements of modern markets. This bill introduces mandatory notification when companies involved in mergers meet certain thresholds. Monetary thresholds are the simplest way for companies to know when they need to notify. This regime needs to work for businesses. But the bill also preserves an ability for the minister to introduce market-concentration-based thresholds for compulsory notification in the future. I'm concerned about this. Although these types of thresholds have been used overseas, market-concentration-based thresholds for compulsory notification add complexity and are opposed by many experts in the field of competition law because they add uncertainty, risk and compliance cost to the first step in the clearance process.

For this reason I'll be proposing an amendment to delete section 51ABP(3)(c), to remove the ability for the minister to introduce market-concentration-based thresholds. It needs to be clear to companies when they need to notify. If, after a review of the act, it's found that the existing thresholds are not working, I think this should come back to parliament for consideration so that further complexity is not added for business without appropriate scrutiny and a weighing of the costs and benefits.

The bill also allows the Treasurer to designate high-risk parts of the economy where the ACCC will be able to review all mergers regardless of whether they meet other thresholds. This could be used for airlines, supermarkets, or any industry where there are specific competition concerns. While I support this aspect of the bill, the bill does not require the Treasurer to seek advice from the ACCC before making such a designation. I think this is a problem. ACCC consultation should be a requirement not an option. The government informs me that the ACCC is likely to be central to this process, so I see no need to allow the Treasurer to designate an industry as high risk without the advice of the ACCC.

I'm concerned that this could be used for political purposes, where a particular industry could be kicked with greater scrutiny in an effort to appease the public, rather than where there are specific and well-founded competition concerns. I'm not reassured by the government saying that the ACCC could always participate in a public consultation process. The ACCC has specific expertise and a specific role in this area, and should be consulted specifically in advance of any public consultation process. For this reason, I will propose that section 51ABQ(4) be amended to change 'may' to 'must' to ensure that the ACCC has a clear role in the designation of any high-risk parts of the economy.

I have one more concern. The merger-specific expanded definition of 'substantial lessening of the competition' is a significant change to a concept that's been the subject of decades of judicial application and reasoning. I'm still not clear why a different definition is necessary here, and I'm concerned that it may cause confusion. I'd urge the government to explain this added complexity and use any opportunity to clarify the difference in definitions.

These minor changes aside, the bill increases the transparency and scrutiny of private mergers and makes the regulation a mandatory reporting regime so that the ACCC can monitor how our business acquisitions are affecting competition. I recognise that we do need to reduce red tape so that businesses can get on with doing what they do best, particularly given our period of low productivity. I recognise that this will create a regulatory burden, particularly in the private equity sector. The coalition has pointed out some other concerns, such as ACCC resourcing and the compliance burden, and I respect that these need to be considered. But the benefits of this amendment could deliver for cost-of-living relief, and that's so important that I'm happy to support the passage of this bill, ideally with my amendments.

More competition in sectors like supermarkets, airlines, fuel and liquor should result in lower prices and more choice for consumers. We need to be more assertive in formulating law and policy to address the stronghold the duopolies and oligopolies have on Australian markets. A fit-for-purpose merger clearance process will improve the regulation of competition in Australia, in turn encouraging innovation and new entry into important sectors in Australia. The goal here is lower prices for consumers. The government must pull all levers possible to respond to the cost-of-living crisis, and ensuring better market competition is one lever to pull.

I commend this bill to the House.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

I thank those members who have contributed to the debate. The Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 delivers a new, faster, stronger, simpler, more targeted and more transparent merger system that will help deliver what we all want: a stronger, more competitive and more productive economy. Our country is facing some of the most significant structural changes in our history, with increasing digitalisation, particularly artificial intelligence; the net zero transformation; and the rise of the care economy. We need to ensure workers aren't unfairly prevented from shifting to a better job. We must look after the most vulnerable.

In Australia, productivity growth has slowed and many aggregate measures of dynamism have declined. A range of competition indicators suggest an overall deterioration in competition in Australia since the early 2000s. We've seen the average market share of the largest four firms in each industry increase from 41 per cent in 2001-02 to 43 per cent in 2018-19. Average price mark-ups are estimated to have increased by around six per cent over the past two decades. A range of concentrated sectors are evident across the economy, ranging from baby food to beer. During consultation, CHOICE and the Consumer Federation of Australia highlighted adverse consumer outcomes in highly concentrated sectors: groceries, banking, telecommunications, energy and the digital economy. Farming groups raised concern about market concentration in supply chains, with limited options for buying inputs and selling products impacting their ability to sell at competitive prices.

Competition encourages innovation, puts downward pressure on prices, and leads to improved choice and quality of products and services for consumers and businesses. Merger law is a key pillar of competition policy. It plays a critical gatekeeper role in preventing anticompetitive mergers before they take place, protecting consumers and promoting competition.

Even small increases in prices resulting from anticompetitive mergers can be harmful for consumers. Analysis by the ACCC and their ex post review of Caltex's acquisition of Milemaker found that petrol prices in local areas near the Milemaker sites had increased by 0.8c per litre at the pump or around 0.5 per cent, costing motorists around $6 million every year. The need for merger reform is clear. The current ad hoc merger process is unfit for a modern economy, lagging behind best practice in comparable countries. Australia is one of only three OECD countries that don't currently require compulsory notification of mergers.

For some businesses, the current system can be too slow and cause expensive delays as they wait. We heard from the Business Council of Australia and the Tech Council that the process can also lead to considerable uncertainty and can be unpredictable. The current system relies on judicial enforcement, which can involve delays of multiple years while cases wind their way through the hierarchy of courts at considerable expense to the parties.

The current approach is also not transparent for businesses or the community. There is widespread agreement from stakeholders that increased transparency would help merger parties, other businesses and consumers to engage with ACCC merger reviews. Improved transparency will also allow the community to understand what mergers are doing to the economy.

For the ACCC itself, it has been dealing with inadequate merger notifications, insufficient information and a reactive, adversarial approach from some businesses, with limited capacity to present economic evidence in court. The voluntary nature means that merger parties can proceed to completion or threaten to complete a merger before the ACCC has finalised its review. Last year, over 1,400 mergers were recorded at a value of around $300 billion. Meanwhile, the ACCC looks at an average of 330 mergers a year. But we don't know whether these are the right 330 or the mergers with the greatest potential to cause harm. What we do know is that there are anticompetitive mergers that have escaped detection under our current system only to be found out after the fact.

In one example the ACCC became aware of a large number of acquisitions completed between 2017 and 2022 by Petstock, the second-largest speciality pet retail chain in Australia. To address concerns about the impact on national and statewide chain-on-chain competition in local areas, the ACCC accepted a court enforceable undertaking from Petstock to divest a package of sites and assets, including 41 speciality pet retail stores and 25 co-located veterinary hospitals.

In another example, Steadfast, Australia's largest Strata insurance broker, brokering around 40 per cent and writing around half of Australia's strata policies, has in just over a decade spent more than $1.6 billion in the acquisition of insurance brokers and underwriters. According to the ACCC, Steadfast has amassed a very significant market position with almost no notifications—only one in the last three years, which was very shortly before completion. The ACCC has publicly highlighted this as an example of the critical problem with the current informal, voluntary approach to merger control in Australia.

In a third example, Primary Health Care did not notify the ACCC of their acquisition of Healthscope's pathology assets, which removed a significant third player, leaving just two major full-service pathology providers in Queensland. After investigation, the ACCC accepted remedies to restore a competitive market structure in Queensland.

But addressing the effects of anticompetitive mergers after the harm has already occurred is not a good deal for consumers dealing with cost-of-living pressures or for businesses. The time and difficulty in obtaining information post completion poses challenges in ineffectively remedying the harm and restoring competition. Concerns have also been raised about potential land banking by supermarkets which may block competitors from developing sites and entering local markets.

This bill responds to those issues, bringing our merger system into the 21st century. These reforms will ensure that future acquisitions that meet the notification threshold will be subject to scrutiny, empowering the ACCC to effectively and efficiently detect and prevent anticompetitive mergers and acquisitions. The size of the benefit is substantial. Drawing on evidence from overseas, Treasury has estimated an effective merger regime may be worth between $340 million and $732 million a year to the Australian economy, while noting that the status quo settings already achieved some of this.

The gains will build over time, too, as more and more areas of the economy are saved from facing higher prices from anticompetitive mergers. If the new system stops just one additional merger that would have resulted in a five per cent price rise in a market the size of $200 million, it will save consumers $10 million a year. For context, a $200 million market is about the size of the newspaper and book retailing market in Western Australia.

Getting our merger and competition settings right will attract investment and allow startups to enter the market to challenge incumbents, promoting growth and innovation, reversing the concentration of market power in a small number of firms. The benefits from stronger competition are significant. Overall, Treasury and Reserve Bank estimates suggest Australia's GDP could be 1.3 percentage points higher if competition were restored to the same level as the 2000s. In today's dollars, that's $30 billion to $80 billion a year.

This bill introduces a mandatory and suspensory administrative system to better address anticompetitive mergers and acquisitions. It'll simplify and speed up the process for the review of mergers and acquisitions for businesses and the ACCC, give the ACCC stronger powers to identify and scrutinise transactions that pose a risk to competition and improve transparency so we're all better informed.

The new merger control system will be mandatory from 1 January 2026. Mergers above certain notification thresholds will need to be notified and approved by the ACCC as the first instance expert administrative decision-maker. Most mergers have genuine economic benefits and are an important feature of a healthy, open financial system. But some mergers can cause serious economic harm. The new system will be targeted and risk-based. Not every merger will be captured, and more resources will be devoted to addressing mergers posing the greatest risk to the economy. The thresholds will be set according to evidence of expected harm, allowing the ACCC to focus its efforts. The system will be responsive to insights from the latest evidence and economic theory as our economy rapidly changes.

Regardless of whether you think mergers are a significant economic problem or not, you should support this bill as best-practice regulation. The notification thresholds will be set through legislative instruments to ensure the system is agile, flexible and able to adapt to evolving issues in the economy. The government intends to set monetary thresholds via legislative instruments following the passage of this bill. There will be three key objective, risk based, targeted thresholds to capture economically significant acquisitions, acquisitions involving very large businesses and serial acquisitions.

We want to see the majority of mergers approved quickly so the ACCC can focus on the minority that give rise to competition concerns. Land acquisitions involving residential property development and certain commercial property acquisitions won't be included, to avoid clogging up the system with simple land purchases.

The bill also provides flexibility to allow the Treasurer to adjust and calibrate the thresholds to respond to evidence based concerns from the ACCC about high-risk mergers, such as in the supermarket sector. On the advice of the ACCC chair, the government also intends to use this power to get the competition regulator to review purchases of an interest above 20 per cent in an unlisted or private company if the monetary notification thresholds are met. This is a significant change for the ACCC, the business and the community, and it will shape the boundaries of merger control over time. These reforms will improve community awareness and understanding of merger assessments, deterring anticompetitive mergers before they are proposed.

To support the transition to the new system, businesses will be able to voluntarily notify and opt into the new system from 1 July 2025. We're also retaining the existing prohibition against anticompetitive mergers for those that are not required to be notified. The ACCC will also be able to waive the requirement to notify, to support businesses to transition to the new system with greater certainty.

There is important work that needs to be done to prepare for the start of the new system, including ensuring the ACCC has economic and data analytics toolkits that it needs ready to go. Passage of the bill this year will give business and the ACCC time to prepare, facilitating a smooth transition and enabling the system to quickly mature. To ensure the system operates as intended into the future, the thresholds will be reviewed 12 months after coming into effect, and there will be a statutory review three years from the start of the new system to evaluate its functioning and effectiveness, driven by data and evidence, designed and supported by the Australian Centre for Evaluation. To promote accountability, the ACCC will report annually on statistics and data underpinning the new scheme. The ACCC is also committed to revitalising and expanding its Performance Consultative Committee to advise on the ACCC's merger review functions as well as the broad range of the ACCC's responsibilities.

Together with the new public register and other safeguards, business and the community can be confident that these reforms will achieve better timing, certainty and transparency around decision-making. Together, these changes will meet community expectations that the ACCC can detect and stop harmful anticompetitive acquisitions, give businesses certainty and predictability and make it easier for the majority of mergers to be approved quickly.

This bill represents the biggest reform to merger settings in half a century. Greater competition is crucial for lifting dynamism, productivity and wages growth, putting downward pressure on prices and delivering more choices for Australians dealing with cost-of-living pressure. The government is committed to building a more competitive, dynamic and productive economy. This bill will help to achieve this.

Finally, I'd like to acknowledge the work of Treasurer Jim Chalmers and the contributions of the Competition Review Expert Advisory Panel, the ACCC, businesses and the broader community to the consultation and development of this bill. A range of stakeholders have expressed support for reform of Australia's approach to merger control, including business, consumer groups, small business, the agricultural sector and competition law experts. I particularly want to thank Tori Barker and Nick Terrell from my office; colleagues from the Treasurer's office; officials from the Department of the Treasury's Competition Taskforce, including Marcus Bezzi, Jason McDonald, Annalisa Heger, Natasha McNamara, Jack Elliott, Stella Leung, Jessica Kwong, Lilian Yan, Sheena Chen, Geoffrey Go, Rocky Mi and Adam Spence; and officials from Treasury's law design team—Jessica Robinson, Amy Jarvoll, David Haines, Ron Harry and Kurt Nakkan. I commend this bill to the House.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Hume has moved an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the amendment be agreed to.

Question unresolved.

As it is necessary to resolve this question to enable further questions to be considered in relation to this bill, in accordance with standing order 195 the bill will be returned to the House for further consideration.