Call me old-fashioned, but I am inclined to the view that the head of a regulatory agency should simply get on with implementing the legislated regulations for which it is responsible as efficiently as possible and leave it at that.
But not our Rod Sims, head of the ACCC. He has been out and about, criticising the privatization of government assets (frankly, I think I would prefer a private monopoly than a government monopoly) and calling for specific changes to the legislation that governs the operation of his agency. As I was driving to lunch, he was on the radio banging on about making it a civil offence for companies to refuse to hand over confidential material to the ACCC when it doing an investigation aka self-seeking frolic. He also proposes meaningful fines for big businesses.
(Clearly, he missed the classes on economic freedom when he attended the University of Melbourne. Hey, hang on, where there any?)
Sims wants to see Section 46 ’beefed up’. This section is about the misuse of market power by shifting it from an intentions test to an effects test. This would be disastrous because any aggressive competitive action by a business that commands a reasonable share of a market (and note the importance of how the market is defined) and which benefit consumers greatly could be charged with a wrongdoing under Section 46.
What Sims doesn’t seem to realise there is a very big difference between promoting competition and protecting competitors. Just because an action by one company damages others does not mean that the first company is acting anti-competitively. In fact, it may mean the reverse – it is hyper-competing.
Sims leans way too far in the direction of protecting competitors. Sadly, there are many of the Coalition government that probably take the Sims line, particularly when it comes to that protected species – small business.
But do you also think that Sims should just shut up? And should the ACCC really be in the game of making a submission about changes to the legislation?
Here is a piece from the Silly:
The head of the consumer watchdog has warned that competition policy needs to be reinvigorated, with governments increasingly failing to make competition central to the privatisation of public assets.
As a result, the federal government needs to ensure the present review of competition policy, the so-called Harper review, is used to both strengthen competition policy as well as to help reinvigorate so-called ”micro-economic reform”, ongoing changes to government policy to revitalise the economy.
”Australia has lost a lot of its pro-competition culture that it gained from the 1990s National Competition Policy. Clearly we need ‘Hilmer Mark II’, as the current Harper review is styled,” Australian Competition and Consumer Commission chairman Rod Sims will say at Monday’s State of the Nation Conference organised by CEDA.
Effective competition policy depends on using competition and other incentives to boost productivity, effective competition laws and creating processes and institutions that continually foster competition. In particular, the present approach to the privatisation of public assets raises particular concern, Mr Sims will say.
”Where governments are increasingly failing is in how to privatise,” Mr Sims will tell the conference.
”Privatising in ways that limit competition in order to maximise the one-off sale proceeds is the wrong way. Such an approach increases the sale proceeds by effectively taxing future generations and Australia’s future competitiveness.”
Mr Sims was speaking after the ACCC moved to block the $1.5 billion acquisition by Australian Gas and Light Co of the largest electricity generator in the country, Macquarie Generation, which it claimed would lessen market competition, since it would result in just three companies controlling more than 80 per cent of power generation.
The ACCC decision has been challenged by AGL, with the Australian Competition Tribunal expected later this week to make its ruling on the matter.
In the field of micro-economic reform, infrastructure is an area of unfinished business, with road supply and usage, congestion pricing and shipping three areas that should be tackled.
”I always find it irritating when people say Australia has picked all the low-hanging micro-economic reform fruit. We have not; and besides, there is never only one crop,” Mr Sims will say.
Foreshadowing the content of the ACCC’s submission to the Harper review, principles including efficiency, universality and clarity are important in determining where competition laws could be improved.
”While the ACCC recognises competition laws must strike a careful balance, and not inhibit healthy competitive behaviour, if competition laws are too weak there are large efficiency and welfare losses from systematically poor conduct.”
Mr Sims nominated Section 46 of the Competition and Consumer Act as a provision that is particularly deficient, and outlined two areas for improvement.
One area of success has been the integration of competition enforcement, consumer protection and economic regulation into a single agency with the sole purpose of making markets work as they should.
To address Australia’s diminished commitment to competition, Mr Sims will say the role of market studies needs to be considered in order to gain an in-depth understanding of how markets or market practices work.
”The inability of the ACCC to initiate market studies using our information-gathering powers means we are out of step with overseas regulators, and Australia is losing an opportunity for a continuing competition focus on particular sectors and activities.”