Already a subscriber?Competition watchdog chief Gina Cass-Gottlieb says the Albanese government’s mergers shake-up is needed to stop big tech entrenching market power by snapping up start-ups, despite warnings it could have a chilling effect on venture capital funding.
Giving the ACCC the ability to give more weight to whether a merger would create, strengthen or entrench substantial market power when deciding if a merger would substantially lessen competition is a key plank of Treasurer Jim Chalmers’But the tech sector is fearful the ACCC’s new powers will limit the ability of smaller firms to sell themselves to tech giants. For venture capital-backed firms, these exits create returns for investors that are often ploughed back into the start-up ecosystem.
Under the current system, parties can seek approval from the ACCC or fight for it in the Federal Court, but the court option will no longer be available.Appeals from the ACCC to the Competition Tribunal will also be severely restricted to information that was considered by the ACCC in its decision. Allens Partner and head of competition Jacqueline Downes also expressed “significant concerns” about the limited tribunal review process.“I question whether it provides sufficient procedural fairness as parties don’t have the right to access the material before the ACCC prior to the tribunal phase, so cannot cross-examine evidence,” Ms Downes said.
She also indicated that having everything before the courts discouraged competitors or suppliers who were heavily dependent on one or more of the parties involved from making submissions to the merger approvals process.Reflecting criticism from one of her predecessors at the ACCC, Allan Fels, Ms Cass-Gottlieb was also critical of the court’s default position in allowing mergers where there was uncertainty around the outcome of a transaction, which she added encouraged “forum shopping”.
“It’s important the government doesn’t confuse competition policy with competitiveness of the economy. Labor’s policies on energy, IR and tax are making Australia a less attractive place to do business,” Mr Taylor said.Greens senator Nick McKim said the reforms did not go far enough.The Greens’ treasury spokesman indicated concern Treasury’s economy taskforce – led by Kerry Schott, David Gonski, Danielle Wood and Rod Sims, among others – had got the balance wrong.
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