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GRC Professional : GRC Autumn 2012
24 GRC Professional • Autumn 2012 concer ned about the com ing dereg ulation of the Wheat Boards, particularly in south australia and Western australia. on the competition side, if we see behaviour that we think is causing major competition or consumer problems and it turns out that it’s not captured by the law, then, in a measured way, we will raise the prospect of change. it really depend s on wh at we see, but i’ve made the point that as the competition regulator, we are much more at the coalface than the policy makers. it’s ultimately up to the policy makers and Parliament to decide policy and we respect that, but i think the aCCC is in a position to notice problems in a way that nobody else can and, when we do, we should say so publically so that ever yone can join in wh atever debate en sues. Are there some key challenges for the ACCC in the current economic climate? the huge change in the australian exchange rate is important. it’s important for mergers because it chang es what could pote ntial ly be import competition. it also causes problems for the economy which bubbles up in certain ways relevant t o us. For ex a mple, the debate about how the supermarkets are dealing with suppliers has got a fair bit to do with the fact that imports that are competing with a lot of the local suppliers to Cole s and Woolwor ths are now a lot cheaper. another issue is the budget situation. like all departments and agencies at Commonwealth level, we are subject to cutbacks and so we will be necessarily reducing our staff over the coming year. Is there anything you’d like to add in relation to the ACCC’s activities over the coming year that might be relevant to compliance and risk officers? the aCCC’s role is to make sure that the market economy works as it should. often, when companies see an economic opportunity that looks fantastic, there is a chance they are going to bump into us. it looks fantastic to merge with your nearest competitor – if you’ve got a fair bit of market power you often want to use it to make sure that potential competitors ca n’t compete. so the bigger the economic opportunity, the closer you need to look at it to make sure you are complying with the law. We are always watching when companies pursue the excellent profit motive. ••• Q&A And what about the ACCC’s role as the carbon price is introduced? our role is to make sure that customers aren’t being duped into accepting price r ises. What we don’t want happening from 1 july is companies saying “ Well, because of the carbon price, our prices have gone up” and customers just accepting it. the aCCC wants to make sure that, if there are any representations as to the effect of the carbon tax on prices, those representations are accurate. now, we aren’t going to second-guess everybody’s arithmetic, but if a company claims the carbon tax has increased prices by 10 per cent when it’s something less than one per cent, then we will be pursuing them on the basis of misleading and deceptive conduct. We’ve spent a good part of the last six months educating the business community about what the carbon price does and doesn’t mean. We think they’ve got the message by and large. so, initially the aCCC had an educational role. this will turn into a n en forcement role when the ca rbon price comes i n. How do you achieve the balance between making an example out of a company that breaks the law and ensuring companies aren’t being punished for honest mistakes? those who have made an honest mistake gener a l ly don’t have a record of having breached the law before. they are very contrite and work with us to solve the problem as quickly as possible. so we have h ad ca ses where we have adopted a ver y different attitude to, on the one hand, a repeat offender and, on the other h and, someone who look s like they just didn’t k now and are working with us to solve the problem. this doesn’t apply if we catch them price fixing – there are no honest mistakes with price fixing. But there are often honest mistakes in, say, misleading and deceptive conduct or misuse of market power where people h ave just not thought about the consequences of what they are doing. a competition lawyer would immediately see that what they are doi ng is proble m atic, but the com pany itself couldn’t see it and we accept that they couldn’t. In which areas is the ACCC likely to advocate policy change this year? on the regulatory side, we see a need to regulate the main airpor t monopolies, which the Government has a different view on, but we quietly keep making the point. We are also The bigger the economic opportunity, the closer you need to look at it to make sure you are complying with the law. We are always watching when companies pursue the excellent profit motive.
GRC Summer 2012
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