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Law Council of Australia

Business Law Section

Competition Review: Response to further ACCC submission

The Competition and Consumer Committee (Committee) of the Business Law Section of the Law Council of Australia refers to the recent, supplementary submission filed by the ACCC with the Competition Review (Taskforce) and published on 2 February 2024 (Further Submission).

In the Further Submission, the ACCC supports its call for sweeping changes to the Australian merger regime by raising several new matters that the Committee considers require a response. To assist the Taskforce, the Committee has set out in the Annexure to this letter the specific new arguments raised by the ACCC and our response to each.

The Committee is concerned that the nature of the ACCC’s changes are unbalanced and are not supported either by robust evidence establishing the economic problem to be solved or that the ACCC’s proposed solution would yield more economic benefits than harm.

Taken as a package, the ACCC’s proposal would place Australia out of step with other global merger control regimes and introduce substantially more subjectivity, uncertainty and risk for Australian transactions (and global transactions with an Australian dimension).

Specifically, the current section 50 framework offers important discipline and accountability through an objective evidentiary standard coupled with a full and independent assessment of any contested decision before the Federal Court. Removing these checks and balances is likely to have a chilling effect on investment (domestic and global), increase the regulatory burden (and transaction costs) for deals that are productivity-enhancing and reduce consumer welfare. The Committee is also concerned that, over time, this lower threshold and lack of effective oversight will erode the quality and rigour of merger decision making by the ACCC.

Read the full submission below.

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