At last, the government’s Competition Policy Review’s terms of reference have been released, and the panel, with Ian Harper as chair, announced.
The minister for small business, Bruce Billson – charged with overseeing competition policy more generally – has made no secret that he wants this review to pick up where the last competition review, the Hilmer Inquiry, left off. That’s no small task.
Interestingly, the terms of reference are considerably more detailed than those given to the Hilmer Committee by Paul Keating in late 1992. That review, initially scheduled to take just six months, extended over ten months, involved almost 150 public submissions and produced a 400 page report.
Ultimately, it resulted in the most far reaching reform of Australia’s competition laws, and arguably the microeconomic landscape, since the introduction of the Trade Practices Act in 1974.
An ambitious scope
Despite a hiatus of almost four months between the draft and the final terms of reference, little has changed. Presumably the delay was a result of settling on the personnel for the long-promised “root and branch” review of competition policy.
Meanwhile the ambitious scope indicated by the draft terms remains. There are five key areas of focus for the review:
- Identifying impediments throughout the economy that restrict competition and reduce productivity.
- Ensuring that the competition provisions of the Competition and Consumer Act 2010 are effective in “driving efficient, competitive and durable outcomes”.
- Examining how those same competition provisions provide for small business, to ensure that “efficient businesses, both big and small, can compete effectively”.
- Considering whether we have the appropriate institutional arrangements (including whether our regulatory agencies are operating effectively).
- Reviewing government involvement in markets, with a view to reducing such involvement “where there is no longer a clear public interest need”.
The terms of reference make it clear that the recommendations of the panel need not be limited to revising the law itself. Indeed, there is considerable focus on institutional arrangements and whether Australia has appropriate mechanisms for enforcement.
The terms also note that “government should not be a substitute for the private sector”. Consumer protection is specifically carved out of the review’s ambit, except to the extent it relates to protections for small business.
The timetable for the Harper Review is ambitious. Apparently, Professor Harper and his panel are to do all the above (and more) in just 12 months whilst ensuring “thorough engagement with all interested stakeholders”. This includes “at a minimum” releasing an issues papers, having public hearings, receiving written submissions and producing a draft report which is to be subject to further public consultation.
Given it took the government two years to the day since the review was first mooted to release the final terms of reference, this seems a tight timeframe.
The small view or the long view
There are concerns that the review will focus exclusively on just one end of town. Given that its main backer has been Billson, it’s not surprising that the review has repeatedly been framed in terms of small business.
But while the terms of reference do refer specifically to small business a number of times, they are considerably broader. Indeed, the positioning of the review as a “Son of Hilmer” indicates that the bigger picture is clearly in view.
In addition, the panel members themselves suggest a wide ambit. Professor Ian Harper, as chair, is an economist who in recent years has extended his academic expertise into the business world. His credentials lie solidly in the big end of town: a member of the Wallis Inquiry into banking, Professor Harper is now a partner at Deloitte Access Economics.
Professor Harper is joined on the panel by Peter Anderson, a former lawyer, educator and government advisor. Most recently, he was Chief Executive of the Australian Chamber of Commerce and Industry.
Su McCluskey comes to the panel with strong policy credentials and a focus on regional Australia, something to be warmly welcomed given that Australia’s existing competition framework seems to overlook the regions. She is CEO of the Regional Australia Institute, an independent policy think tank devoted to regional issues. In her spare time, she is a beef cattle farmer and regular tweeter.
The final panel member is Michael O’Bryan SC, a highly respected competition lawyer at the Melbourne bar and former partner at Minter Ellison. A past chair of the Law Council’s competition law committee, he has acted for and against the ACCC in a number of very high profile matters.
Finally, it should be noted that Professor Harper has been a regular writer for The Conversation. His contributions reveal a clear interest in the bigger picture. In August 2012 he observed:
We need to stand back from time to time and take a wide-angle view of the trajectory of our financial evolution so as to ensure that the right balance between stability and competition is built into the regulatory framework.
This sounds a lot like his new brief.