Yet More Probes Into The Great Supermarket Rip-off!

The Australian Government has directed the ACCC to conduct an inquiry into Australia’s supermarket sector, including the pricing practices of the supermarkets and the relationship between wholesale, including farmgate, and retail prices.

The year-long inquiry will also examine competition in the supermarket sector and how it has changed since the ACCC’s last inquiry in 2008.

“We know grocery prices have become a major concern for the millions of Australians experiencing cost of living pressures,” ACCC Chair Gina Cass-Gottlieb said.

“When it comes to fresh produce, we understand that many farmers are concerned about weak correlation between the price they receive for their produce and the price consumers pay at the checkout.”

“We will use our full range of legal powers to conduct a detailed examination of the supermarket sector, and where we identify problems or opportunities for improvement, we will carefully consider what recommendations we can make to Government,” Ms Cass-Gottlieb said.

Like London buses, you wait a long time, then they come in bunches – this is the fourth inquiry currently underway across the sector. As well as price gouging, shrinkflation, supplier management and competition need to be addressed.

In a year, we will know if it was worth the wait!

http://www.martinnorth.com/

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Yet More Probes Into The Great Supermarket Rip-off!
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ACCC focusses on energy, broadband, net economy and financial services in 2018

Chairman Rod Sims has today announced the ACCC’s compliance and enforcement priorities for 2018 at a CEDA event in Sydney.

He signalled that the ACCC will shortly release its interim report into residential mortgage pricing and a key focus will be on transparency, particularly how the major banks balance the interests of consumers and shareholders in making their interest rate decisions.

This year, the regulator will focus on consumer issues in broadband services and energy, competition in the financial services and commercial construction sectors, systemic consumer guarantee issues, and conduct that may contravene the new misuse of market power and concerted practices provisions.

“As I have repeatedly said, Australia faces an energy affordability crisis. This has upended one of Australia’s core sources of competitive advantages, and caused significant consumer harm. The ACCC’s retail electricity pricing inquiry report and the ACCC’s wholesale gas inquiry have given us, and the wider community, a far stronger understanding of the issues and pressures around rising energy prices,” said Mr Sims.

“Armed with the clear findings on the causes of the problem, the ACCC will now focus on making recommendations that will improve electricity affordability across the National Electricity Market and provide recommendations for reform in our final report at the end of June 2018.”

“Consumer issues in the provision of broadband services, including addressing misleading speed claims and statements made during the transition to the NBN, have become one of the ACCC’s most prominent issues in the past two years and highlights the importance of both our consumer and competition focus.”

“The first report of the ACCC’s Measuring Broadband Australia program will be released shortly, and our commitment to truth in advertising related to broadband speeds is making it easier for Australians to choose a service provider. You have seen a number of ACCC enforcement actions in 2017 and can expect further interventions this year.”

The ACCC is also well placed to play a role in consumer and competition issues relating to access to data, as recognised by the government.

“This is a hugely important pro-competition and pro-consumer innovation. At the heart of the proposals is giving consumers access to data that is held about them by business, including the ability to direct that such data be copied and provided to a third party.”

The ACCC’s Financial Services Unit is now well established and will, post 1 July, proactively identify and investigate competition issues in the sector.

“Importantly, the ACCC is due to release its interim report into residential mortgage pricing shortly. As directed by the Treasurer, a key focus will be on transparency, particularly how the major banks balance the interests of consumers and shareholders in making their interest rate decisions.

Mr Sims highlighted 2018 as the first full year the ACCC will have powers covering misuse of market power and concerted practices.

“In response to the Harper Reform legislation, the ACCC has established the Substantial Lessening of Competition (SLC) Unit to focus on investigations that could give rise to cases under the new laws. The SLC Unit also has a broader mandate to enhance our investigation of competition cases and look afresh at the way we handle such investigations. The ACCC fought hard for these provisions and we will be using them,” Mr Sims said.

Mr Sims also stressed the importance of higher penalties under both consumer and competition law. In relation to the Australian Consumer Law (ACL), legislation was introduced last week to raise penalties from $1.1 million for companies to the greater of $10 million, three times the value of the benefit received, or where the benefit cannot be calculated, 10 per cent of annual turnover in the preceding 12 months.

“Currently, the maximum penalties for breaches of the ACL are, for corporations, approximately one-tenth of the lowest maximum penalty for breaches of the Competition Law. There is no good reason for this difference as we have seen cases where consumer law breaches have led to very substantial harm to many consumers.”

In relation to competition penalties, the ACCC is also anticipating the launch of an OECD report at the end of March will shine a light on Australia’s approach to antitrust sanctions in comparison with other developed competition law jurisdictions.

“Put simply, we believe large businesses should bear penalties which are commensurate to their size, in order to achieve specific and general deterrence. Making this happen is a huge priority and challenge for the ACCC in 2018.”

Most keenly anticipated, perhaps, is the ACCC’s inquiry into digital platforms.

“Concerns about the influence of digital platforms have become prominent in recent years, on many fronts, and this inquiry will be the first of its kind to explore broadly the competition and consumer implications,” Mr Sims said.

“A key question will be how much consumers know about the amount and use of the data about them that is collected and sold by the digital platforms in the form of advertising.”

Australia isn’t dominated by big businesses that gouge customers: Grattan report

From The Conversation.

When we see excessive spikes in fuel prices, rapid annual increases in health insurance premiums, and a confusing array of electricity options to choose from, it is easy to conclude that big companies are using their market power to gouge their customers.

But the latest report from the Grattan Institute finds claims about Australia being dominated by oligopolies are overblown. Only about 15% of the economy is dominated by large firms.

In the “natural monopolies”, such as electricity distribution, a single firm typically serves the market. And where the largest firms enjoy strong scale advantages, such as in mobile telecoms, just a handful of options are available to consumers.

Then there are sectors where competition is constrained by regulation, such as banking and pharmacies. In such sectors, the largest four firms earn more than two-thirds of revenue, on average.

Australians have long been concerned about oligopoly power. But in the largest sectors with barriers to entry, markets are not much more concentrated in Australia than they are in other economies of a similar size. Supermarkets in Australia are the exception to this rule.

While the United States is less concentrated at a national level, much of this is explained by its larger population. In Florida, for example, a state with a population of 21 million, its sectors are typically just as concentrated as Australia’s, if not more so.

The report also finds no clear trend toward higher concentration in Australia, unlike the case in the US. The revenue of the top 100 Australian listed firms relative to GDP has changed little since the early 1990s.

While the market share of Australia’s big four banks increased through mergers and acquisitions, Coles’ and Woolworths’ dominance appears to be in decline with the rise of Aldi and Costco.

Whether high concentration in Australia is a problem depends on its impact on consumers. Our report finds that sectors with high barriers to entry are about 20% more profitable than sectors with no significant barriers, although there is plenty of variation.

The most profitable sectors include supermarkets, telecommunications (wireless and fixed-line), internet publishing, electricity distribution and transmission, airports and gambling. The banks’ profitability has fallen since the global financial crisis, while their cost of equity has risen due to increased risk.

In some regulated sectors, consumers could clearly do better. Banking regulations push up costs and can weigh heavily on smaller firms as well as on consumers. In the pharmacy sector, competition is directly restricted.

In natural monopoly sectors, where super-profits account for 10% of what consumers pay, on average, it’s also difficult to conclude that consumers benefit.

But less concentrated markets may not make consumers better off. Many profitable big firms must have lower costs than smaller ones; otherwise they would lose market share.

For example, average prices at Coles and Woolworths are lower than IGA, even while profits are higher: it seems that some of the large chains’ scale economies are passed on to consumers. Regulation that limits the size of the largest firms might reduce profits, but could push costs and prices up.

What can policymakers do to get better outcomes for consumers? In the natural monopolies, regulators need to get tougher. For example, they could start regulating prices at airports, rather than just monitoring them.

Across the economy, regulators should continue to focus on protecting competition and preventing the misuse of market power. Government should increase the penalties for cartels and other concerted practices.

Governments could help cut entry barriers, for example by harmonising product standards to reduce trade costs, or freeing up zoning to make it easy for competing supermarkets to expand. And they should make it easier for consumers to switch between providers and control their own data in sectors like banking and even social networks.

There is also much that can be done where retail competition is not working well, such as in superannuation and in retail electricity.

But overall, Australia’s oligopoly problem is a lot smaller than many believe. It’s also not getting worse; our competition policy and regulation is broadly working well.

Authors: Jim Minifie, Productivity Growth Program Director, Grattan Institute; Cameron Chisholm, Senior Associate, Productivity Growth, Grattan Institute; Lucy Percival, Associate, Grattan Institute

Inquiry into the State of Competition in the Financial System Announced

Following reports over the weekend, the Treasurer has confirmed that the Productivity Commission will examine competition in Australia’s financial system. This includes a consideration of vertical and horizontal integration and access to banking services for small business.

The Government is committed to ensuring that Australia’s financial system is competitive and innovative.

That is why I have tasked the Productivity Commission to hold an inquiry into competition in Australia’s financial system. Competition is central to the Government’s plans to support innovation and economic growth, and deliver better outcomes for consumers and small businesses.

This delivers on the Turnbull Government’s commitment to task the Productivity Commission to review the state of competition in the financial system, made as part of the Government’s response to the Financial System Inquiry.

The Productivity Commission will look at how to improve consumer outcomes, the productivity and international competitiveness of the financial system and economy more broadly, and support financial system innovation, while balancing financial stability objectives.

In doing so it will consider the level of contestability and concentration in key segments of the financial system, including the degree of vertical and horizontal integration. It will also examine competition in the provision of personal deposit accounts and mortgages and services and finance to small and medium businesses.

The Government encourages all parties with an interest in competition in the financial system to consider making a submission to the Commission.

The Inquiry will commence on 1 July 2017 and is due to report to the Government by 1 July 2018.

Further information and the terms of reference will be available on the Commission’s website.

The Customer Owned Banking Association welcomed the news.

The customer owned banking sector welcomes today’s announcement by the Treasurer of a Productivity Commission (PC) inquiry into the state of competition in the financial system.

“The enduring solution to concerns about the banking market is action to promote sustainable competition so that poor conduct is swiftly punished by loss of market share,” said COBA CEO Mark Degotardi.

“Customer owned banking institutions – mutual banks, credit unions and building societies – are eager to build on their 4-million strong customer base, but we need a fairer regulatory framework.

“Fast-tracking this PC inquiry was our top policy priority for the 2017-18 Budget so we are delighted it has been unveiled a day early.

“Consumers stand to gain from a more competitive banking market where all competitors have a fair go.

“Currently, major banks benefit from unfair regulatory capital settings and a free subsidy from taxpayers in the form of an implicit guarantee that significantly lowers their cost of funding.

“These problems can be addressed by the PC as well as measures to empower consumers to more easily find the best deal for them on a savings account, credit card or home loan.

“This PC inquiry was recommended by the Financial System Inquiry because the current regulatory framework suffers from ‘complacency’ about competition.

“COBA believes one way to tackle this problem is to give the powerful banking regulator APRA an explicit ‘secondary competition mandate’ and an obligation to report annually against this mandate.

“We look forward to engaging with the PC inquiry, particularly on removing barriers to innovation and competition.”

The Free Market And Competition

Rod Sims, ACCC Chairman spoke at the Competition Law Conference 2017.

He argued that competition law and the work of the ACCC is essential to maintaining faith in Australia’s free market system. He also highlights that penalties actually imposed here in Australia are stunningly lower than those in other comparable jurisdictions.

It is an important time to be talking about competition. Competition law and policy are essential underpinnings of our free market economy. We are, however, in the midst of a crisis of faith in free markets which should, and I know does, worry us all. Today I want to make four points, as follows.

  • First, I will briefly outline the loss of faith in the free markets and why this should concern us all
  • Second, I will briefly discuss how some prominent economists have seen the role of competition policy and law in our market economy through time, and today
  • Third, I will explain why effective enforcement of the Competition and Consumer Act (CCA) is so important to people having faith in free markets, and
  • Fourth, I will suggest how we can improve the effectiveness of the CCA, particularly through higher penalties for competition law breaches.

Of specific interest was his comments on the low typical fines imposed on corporates, such that there may be little financial incentive to do the right thing.

The ACCC is very concerned that penalties imposed by Australian Courts in both competition and consumer cases historically have not been sufficiently high to deter contraventions, particularly in cases involving larger businesses.

On the consumer side, the ACCC strongly welcomes the current Australian Consumer Law Review. This review acknowledges that the maximum penalties for breaches of consumer law are inadequate. They are too low to provide a powerful deterrent effect, and this is particularly the case for breaches by large corporate players that are unlikely to be deterred by a maximum penalty of $1.1 million per contravention.

The ACL Review recommends that the ACL penalties be comparable to competition law penalties that also operate across the economy. There appears to be no policy reason for the maximum penalties under the ACL being lower than those available for breaches of competition laws.

As one example, we were pleased late last year when Nurofen maker, Reckitt Benckiser, had its penalty increased by the appeal court from $1.75 million to $6 million, after it was found that the original penalty could not be viewed as substantial or as achieving deterrence.

The Court held that the penalty imposed by the first instance judge of $1.75 million was “manifestly inadequate”, and that a penalty at that level “would reinforce a view that the price to be paid for the contraventions was an acceptable business strategy, and was no more than a cost of doing business.”

Perhaps had competition law penalties been available to the court we could have seen a penalty many times higher than the amount awarded to act as specific deterrents to large, multinational companies such as Reckitt Benckiser.

I suggest, although we have no way of knowing, that the vast majority of Australians would consider a $60 million penalty more appropriate as a specific deterrent for Reckitt Benckiser, which is a large multinational company.

Turning now to competition law, we have a very different story. The penalties available in Australia are broadly in line with international trends. However, penalties actually imposed here in Australia are stunningly lower than those in other comparable jurisdictions.

The key reason for this is that Australian competition law penalties were only brought into line with those overseas in 2009. From that date Australian courts now have been able to impose penalties of up to 10% of turnover where, as is usual, the benefits obtained from the illegal activity cannot be calculated.

For a company that, say, has an Australian turnover of $1 billion, the maximum penalty per contravention can now be $100 million, rather than $10 million as it was before this change was introduced in 2009.

While we are only now encountering cases where the relevant behavior occurred post 2009, the Parliament has clearly spoken. It now wants higher competition penalties as, I suspect, does the average Australian.

As with the Nurofen case in consumer law, the courts also seem to be focusing on the level of deterrence required. In his judgment on our proceedings against ANZ Bank and Macquarie Bank last December, Justice Wigney expressed reservations about the amount of the penalty that was by agreement jointly submitted to the court.

He said that the penalties were “at the very bottom of the range of agreed penalties” and that he would have ordered a much higher penalty had there been no agreed penalty. He also said:

“A very sizable penalty is plainly required to deter a financial institution of the size of ANZ from engaging in such conduct again. Equally, a very sizeable penalty is required to deter institutions in positions similar to ANZ who might be tempted to engage in similar contravening conduct”.

Clearly the size of the company does matter when having regard to the level of penalty required to achieve specific and general deterrence.

The ACCC has been for some time giving this issue careful thought. In particular we have had regard to the way in which other countries quantify their penalties in order to achieve deterrence.

In December 2016, for example, Australia participated in a Global Forum on competition hosted by the OECD. A key issue discussed was sanctions in competition cases. The research revealed that most other OECD jurisdictions, including the US, UK and the EU have very transparent methodologies for determining penalties.

In the United States, Europe and the UK the methodology used to determine penalties includes the calculation of a ‘base fine’. This is usually done by reference to a set percentage (between 10% and 30%) of the relevant turnover of the business being penalised. The turnover figure is often the turnover of the firm in the jurisdiction concerned but sometimes it is the relevant global turnover of the firm.

Commonly once the base fine is calculated, it is increased having regard to duration of the conduct and numbers of contraventions, and other aggravating factors. Mitigating factors are then applied which reduce the fine before a final figure is determined.

An important difference between our approach and that of other overseas jurisdictions is that our Courts do not start the exercise of determining penalties by calculating a base figure calculated by reference to turnover of the firm.

If the base penalty approach was applied in Australia, firms with smaller turnover might end up with similar fines to those currently imposed, but importantly firms with substantially larger turnovers would generally end up with much higher penalties.

As an example, Professor Caron Beaton-Wells of the University of Melbourne has used the USA methodology to calculate that in the Visy case, instead of the penalty of $33m imposed then by the Court, the starting figure would have been $212 million, with potential to increase above that level. Under the EC’s 2006 Guidelines, Visy’s base figure would have been even higher.

In the ACCC’s view, penalties imposed under the CCA need to be many times higher than they are now to have a sufficient deterrent effect on larger firms. The current ACL Review has recommended such higher penalties for consumer law breaches; and we, the ACCC, must work with the courts to give effect to Parliament’s clear intention of a step change in penalties for competition law breaches by larger companies.

The Increasing Concentration in Australia’s Economy

Australian Competition and Consumer Commission Chairman Rod Sims discussed increasing concentration in the Australian economy at today’s RBB Economics Conference in Sydney.

“The rise of large corporations in the Australian economy has been substantial. Indeed it seems we have outpaced the US,” Mr Sims said.

Analysis prepared by Port Jackson Partners Limited shows the revenue of Australia’s largest 100 listed companies increased from 27% of GDP in 1993 to 47% of GDP in 2015. This compares to the US figures of 33% to 46%.

ASX Top 100 Revenue Proportion of GDP

“In Australia many markets are concentrated or are likely to become concentrated as firms pursue efficiencies from scale. In some markets there may not be room for more than a few efficiently sized firms given the size of demand,” Mr Sims said.

“From a competition perspective, what we need to understand is whether smaller rivals or new entrants can readily contest the position of larger, more established firms.”

“We should, therefore, have an eye to how often the identity of large firms change,” Mr Sims said.

Again, drawing on work by Port Jackson Partners Ltd, of the ASX top 100 companies in 1990, only 29 companies remained in the top 100 as at October 2015.

Chart showing, of the ASX top 100 in 1990 only 29 companies survive in the top 100 as at October 2015

Mr Sims, however, questioned the increasingly put view that we need not be concerned with industries becoming heavily concentrated, and with monopolies and their behaviour.

“It seems to me that, absent a clear and convincing economic and evidence based explanation of how a merger will avoid harming consumers, the standard economic wisdom should prevail,” Mr Sims said.

“This wisdom is that mergers resulting in high levels of concentration in markets with substantial barriers to entry will usually reduce competition and cause harm to consumers and our economy.”

He also said circumstances where monopoly pricing has no effect, or only a small effect on economic efficiency, are rare.

While not advocating any positions, Mr Sims then raised a series of questions for further consideration about market concentration and merger analysis, including:

  • Why is it that economic argument and opinion increasingly down plays conventional economic theory and wisdom on high levels of consolidation and monopolies?
  • Do we need to consider something similar to the approach adopted by US courts where once markets are defined and the merger is likely to result in a significant increase in concentration, there exists a “rebuttable presumption” that the merger should not proceed absent evidence to the contrary?There will be times when a merger to high concentration is acceptable, due perhaps to low entry barriers, but logic says it will not be the norm. Why shouldn’t those arguing the unconventional have the burden of producing evidence to support their position?
  • Are regulators able to analyse and act where large incumbent firms continue to acquire promising start-ups?
  • Is there too much focus on overlap in specific narrow market sectors? Should we focus more on the wider actual and potential competitive constraints and the extent or strength of those constraints?
  • How many different forms of remedy should a competition regulator need to assess before saying “enough”?

“All of us here today understand the importance of strong actual or potential competition to the effective working of our market economy. This is why we all have an interest in these questions,” Mr Sims said.

Read the Chairman’s speech

ACCC Chairman discusses competition law and economics

Australian Competition and Consumer Commission Chairman Rod Sims today delivered the opening address at the 13th Annual Competition Law and Economics Workshop in Adelaide.

This year the ACCC and the University of South Australia are co-hosting the two-day event for the first time. The workshop will bring together local and international experts to discuss the practical application of competition law and economics.

Introducing the workshop theme, Mr Sims discussed issues confronting the ACCC when applying Australia’s competition law, the importance of the Harper Review and the reality of increasing globalisation.

“There is a criticism that competition agencies, are either overly legalistic in the way they interpret the law, or overly theoretical in the way they apply the law,” Mr Sims said.

“An example arises with the emergence of many peer-to-peer business models, which the ACCC strongly welcomes. The ACCC is keen to ensure incumbent firms, with substantial market power, do not attempt to thwart new business models, and indeed, the potential for creative destruction.”

“Some have said we are adopting a theoretical approach, out of touch with the real world; we should simply stand back and observe.”

Citing the recent ihail draft decision, Mr Sims dismissed such claims. He said the ACCC is acutely aware of the profit maximising incentives and strategies of commercial firms, and that this approach is inherent in the ACCC’s competition assessments.

Mr Sims also spoke about the importance and challenges of making evidence based decisions, often in the face of speculative predictions of parties with vested interests.

In the second part of the speech, Mr Sims said the ACCC is very supportive of the vast majority of the Competition Review Panel’s findings, both as they relate to the Competition and Consumer Act and policy settings more broadly.

“The Harper Review’s recommendations on competition law showed a desire to both take a real world view, and a desire to bring our law into line with that applying overseas,” Mr Sims said.

“Harper’s recommendations on mergers and concerted practices illustrate this, as does the Panel’s recommendation on the misuse of market power.”

Mr Sims said other Harper recommendations do not get the focus they deserve.

“I believe Harper’s recommendations on collective bargaining, which could more readily allow collective boycott, can improve the bargaining power of small businesses and farmers in particular circumstances.”

“Another important recommendation, that does not get enough attention, is to ensure the CCA’s treatment of commercial activities by governments is consistent with those of private sector players.”

In the final part of his speech, Mr Sims discussed the reality of increasing globalisation and the response from competition agencies.

“Economic globalisation has resulted in an increasing number of reviews of mergers and investigations into cartels and unilateral conduct that transcend jurisdictional boundaries. This reality requires competition agencies, including the ACCC, to act cooperatively and collaborate,” Mr Sims said.

“Our engagement with other competition agencies has also helped us understand the significance of competition advocacy and impressed on us the value of market studies as a tool for analysing complex competition and consumer problems.”

“We are now more actively using the market studies tool with studies currently focussing on the Eastern Australian gas market as well as petrol markets in particular regional cities.”