Bumps and breakthroughs: the journey of Australia's merger reforms
I acknowledge the Wurundjeri Woi‑wurrung and Bunurong/Boon Wurrung peoples of the Kulin, and pay respect to all First Nations people present.
Thank you to the Committee for Economic Development of Australia for hosting today’s event. Economics is a powerful tool for public policy and the Committee provides a valuable forum for debate. CEDA was founded in 1960 by Douglas Copland, who also set up the economics departments at the University of Tasmania and the University of Melbourne, helped establish the Economics Society of Australia, and was the founding Vice‑Chancellor of the Australian National University. Copland and CEDA are a reminder that we should always be asking ourselves how our institutions could be strengthened and improved.
Over many occasions, I’ve appreciated the chance to address the Committee on issues such as multinational tax reform, job security and disadvantage, and gender equality and the value of work.
Those of you who have been regulars at CEDA’s events will know that policy and laws should evolve as the economy evolves. But as history shows, Australia’s ad‑hoc approach to dealing with anti‑competitive mergers hasn’t kept up, lagging best practice in comparable countries.
Merger law is one of the main pillars of competition policy alongside cartels and concerted practices and misuse of market power. However, merger law is unique because it acts as ‘the preventative medicine of competition law’ (Walker 2021). It deals with expectations about the likely future effects rather than focusing on past or current conduct (Walker 2020). This means economic analysis heavily underpins merger assessment and law.
Mergers allow capital to go where it is most needed. Most mergers don’t raise competition concerns and are a healthy way for firms to achieve economies of scale and scope, and access new resources, technology and expertise. However, they can cause serious economic harm when firms are focused on squeezing out competitors to capture a larger percentage of the market. The small number of proposed mergers that raise competition concerns warrant close scrutiny.
For business, a less competitive market can increase the cost of doing business, and reduce the incentives and opportunities to invest, grow and innovate. For consumers, a less competitive market leads to higher prices, less choice, and lower wage growth (Leigh 2024).
The strength and effectiveness of our merger law says a lot about the type of competitive industry structure we want in our economy. And today I want to cover some of the pivotal merger reform breakthroughs – and the bumps along the way – in Australia over the past 6 decades. I will conclude by outlining how the Australian Government is acting today to strengthen and modernise our merger law.
1962: Barwick’s bid
Attorney‑General in the Menzies government, Garfield Barwick, was one of the first to have a shot at merger regulation in Australia.
In 1962, Barwick ‘operated virtually as a commission of one’ to prepare ‘proposals for legislation on restrictive trade practices and monopolies’ (Freeth 1962).
Barwick’s nearly 8,000‑word statement was delivered in parliament by acting Attorney‑General Gordon Freeth, since Barwick himself was overseas. In the statement, Barwick linked restrictive practices to the public interest. In Barwick’s words, the public interest was in ‘the maintenance of free enterprise’ and ‘ensuring competitive conditions’.
Barwick argued that competitive conditions ‘tend to initiative, resourcefulness, productive efficiency, high output and fair and reasonable prices to the consumer’ (Freeth 1962).
As part of his statement, Barwick proposed requiring registration of certain restrictive trade practices. He also proposed a merger system where a Commission with a registrar would have an opportunity to intervene before an anti‑competitive merger took place.
Barwick’s vision for merger regulation was one where the Commission ‘would have the right within a limited period to approach the tribunal for a finding.’
He argued that it would be unmanageable to examine every merger and said a monetary threshold would be appropriate.
Barwick also noted companies go ‘a considerable distance’ to furnish shareholders with a ‘great deal of information’ about merger proposals. And companies should provide the same information to the Commission – together with information on the purpose and effect of the merger.
Barwick was following a global trend. Enacted in 1947, Japan’s Dokusen Kinshi Hō (Antimonopoly Act), required the mandatory notification of mergers. Around the same time as Barwick was writing, the United Kingdom was considering a merger clearance process (Whitlam 1965). But Barwick was ahead of his time in proposing mandatory and suspensory notification. Such requirements were not introduced in other jurisdictions until much later: the United States in 1976, Canada in 1986 and the European Union in 1989.[1]
Barwick was satisfied he had put forward ‘a sensible and workable scheme of control of harmful restrictive practices in Australia’ (Freeth 1962). He hoped his statement would ‘excite’.
And excite it did. It ‘exploded in the press’ and many industry groups were ‘incensed’ according to researchers Kerrie Round and Martin Shanahan (Round & Shanahan 2012).
Barwick duly defended his statement until his appointment as Chief Justice of Australia in 1964. Then it was over to Billy Snedden to finalise the Trade Practices Act 1965.
1965: Snedden shirks
Snedden’s bill retained aspects of Barwick’s proposal but with noticeable differences and omissions. A register of trade agreements would be introduced but applicable to fewer restrictive practices than had been envisaged by Barwick. The bill did not prohibit resale price maintenance and exclusive dealing. The control of mergers was not included at all (Round & Shanahan 2012).
Gough Whitlam told Parliament that Snedden’s bill was a clear case where the sights had been lowered (Whitlam 1965). He argued Barwick’s proposal had been diluted and the public interest had been betrayed.
In hindsight, the legislation was a ‘toe in the water’. But the trade practices register exposed ‘the kind and extent of anti‑competitive conduct which was commonplace in Australia at the time’ (Jagot 2018; Bannerman 1985). Annual reports to the Parliament under this law by Trade Practices Commissioner Ron Bannerman showed ‘how the web of anti‑competitive restriction spread across industry and hampered the efficiency that the economic climate was demanding’.
1974: Murphy’s law
In 1974, the Whitlam government through Lionel Murphy as attorney‑general enacted the Trade Practices Act 1974.
As Treasurer Jim Chalmers said at the Bannerman Lecture earlier this year, the Act helped transform the Australian economy (Chalmers 2024a).
Thanks to Murphy, the Trade Practices Act 1974, now known as the Competition and Consumer Act 2010, has stood the test of time.
Murphy’s Act was significant for many reasons including the ban on anti‑competitive mergers.
Murphy introduced a prohibition on mergers which substantially lessen competition – a test also used in other parts of the Act (Williams & Woodbridge 2001).
But it is fair to say, the mergers test would become a great source of debate over the next 3 decades (Williams & Woodbridge 2001).
Murphy introduced voluntary and non‑suspensory merger clearance and authorisation processes. Companies could choose whether or not to apply for immunity from legal action for their merger, and they didn’t have to wait for approval before merging.
Judicial enforcement through the Federal Court was established with the Trade Practices Commission and attorney‑general having the power to take merger cases to court. Only 4 cases would go on to be litigated to judgment in the first 25 years of the Act, with parties possibly deterred by the time, uncertainty and cost associated with litigation (Williams & Woodbridge 2001).
1977: Howard hollows out the laws
A few years later, the very existence of Australia’s merger laws was again on the line when the Minister for Business and Consumer Affairs, John Howard, established the Swanson Committee to consider the operation and effect of the new Act.
Some submissions called for merger laws to be abolished, but most said the laws should be retained with changes (Swanson Review 1976).
The Swanson Committee handed down its report in August 1976 stating that merger law was needed. In fact, it said it was ‘proper to have legislation dealing with merger activity as part of a competition policy law’.
But the Committee did raise concerns about the possible application of the merger laws to smaller businesses and favoured the introduction of a monetary threshold test based on turnover of the target.
Despite the findings, the Fraser government repealed the merger clearance process and weakened the merger test as part of the Trade Practices Amendment Act 1977.
As a result, merger control was limited to voluntary and non‑suspensory applications for merger authorisations. In other words, the Trade Practices Commission could investigate potentially anti‑competitive mergers but it was up to companies to choose whether to apply for formal protection from legal action for proposed mergers and they were not required to wait before merging.
The ‘substantial lessening of competition’ test was replaced with a ‘dominance’ test.
This meant that the only acquisitions prohibited were those which resulted in, or substantially strengthened, a position to control or dominate a market.
Howard argued that ‘there should be no unnecessary impediment, legislative or administrative, to the attainment of rationalisation of Australian industry’ (Howard 1977). His logic was that ‘It is in Australia’s best interest to achieve economies of scale and improved international competitiveness.’
In other words, big is beautiful.
It was in this period following 1977 that the ‘informal merger review process’ emerged. A voluntary informal review was considered to be more simple and less onerous than merger authorisation (Fels, Heger & Cunningham 2021), enabling merger parties to seek the Trade Practices Commission’s view on whether a proposal would be likely to breach the mergers test (Griffiths Report 1989).
1980s: Decade of the dealmakers
In his book The Eighties, historian Frank Bongiorno dedicated an entire chapter to ‘the deal‑makers’ (Bongiorno 2015, Ch 5).
According to Bongiorno, it was an era where corporate tall poppies were admired for their beauty and the media reported on business deals like they were sporting contests.
The merger laws were considered to be ‘still in the development stage’ (Griffiths Report 1989). But Attorney‑General Lionel Bowen made improvements in 1986 following the Hawke government’s Green Paper on proposals for change (Evans, Cohen & Willis 1984).
Lionel Bowen’s amendments closed loopholes around joint ventures and inserted a new clause to deal with offshore mergers (Bowen 1986).
The words ‘control or’ were omitted from the test of ‘control or dominance’ following judgment in Trade Practices Commission’s case against Ansett Transport Industries (Griffiths Report 1989).[2]
Towards the end of the 1980s, takeovers such as Coles/Myer, News Ltd/Herald and Weekly Times and Ansett/East West were starting to change the public mindset. And there were calls for greater consideration of the public interest in merger regulation (Griffiths Report 1989).
Alan Griffiths chaired a House of Representatives committee inquiry into mergers, takeovers and monopolies handing down a report in 1989 recommending retaining the dominance test.
The Committee wasn’t convinced about the need for a pre‑notification scheme after New Zealand experienced a ‘great paper war’ when introducing a similar requirement (Griffiths Report 1989).
1992: Keating restores the substantial lessening of competition test
Barney Cooney’s Senate Committee inquiry was next. It had a brief to delve deeper into the adequacy of merger laws including the test and compulsory pre‑merger notification (Cooney Report 1991).
The Cooney Committee published its report in 1991 recommending the repeal of the ‘dominance’ test and a return to the ‘substantial lessening of competition’ test. But it went further and recommended a non‑exhaustive list of matters a Court had to consider in applying the test.
The Committee also backed mandatory notification ‘where mergers or acquisitions of a substantial nature are proposed’.
As part of a wider response to the Griffiths and Cooney reports, in 1992, the Keating government replaced the ‘dominance’ test with a ‘substantial lessening of competition’ test including a list of merger factors to take into account.
This pivot back to the ‘substantial lessening of competition’ test took place in January 1993.
Allan Fels, who served as chair of the Australian Competition and Consumer Commission, has pointed to several mergers that went through under the dominance test which in his view would not have been allowed under Murphy’s ‘substantial lessening of competition’ test (Fels 2002). These included the mergers between Coles and Myer, News Ltd and Herald & Weekly Times, and Ansett Airlines and East West Airlines.
Interlude: The Hilmer reforms
At around the same time, the Hilmer Review and subsequent National Competition Policy were shaping up as one of the most significant economic reforms in Australia’s history.
They were driven by the reforming energy of then prime minister Paul Keating, who was keen to work with state and territory governments to open up markets and scrap unnecessary regulations.
Around 1,800 laws and regulations that restricted competition were reviewed and, where appropriate, reformed.
For the first time, retail energy markets were opened to competition, enabling consumers to shop around.
Government businesses were restructured to operate more efficiently and the playing field was levelled with the Trade Practices Act extended to previously excluded businesses – such as professionals.
These reforms can provide useful lessons today. In a speech and subsequent article marking their 30th anniversary, I outlined 7 lessons of the Hilmer reforms for modern‑day competition reform (Leigh 2022).
In terms of mergers, the Hilmer Review also acknowledged the government’s recent changes to the mergers test.
And it noted the government’s plans to adopt an administratively simple pre‑merger notification scheme for substantial mergers (Hilmer Review 1993).
The Hilmer Review said such a scheme could help ensure the competition authority is given sufficient notice about mergers but it needed to be balanced against imposing a burden on businesses.
The government issued a consultation paper on possible options for the notification scheme (Gear 1994). Alas, the idea of a simple pre‑merger notification scheme was dropped when the Howard government won office in 1996.
In 1999, the Howard government missed another opportunity – passing up the chance to act on the Baird Committee’s recommendation for mandatory notification of mergers in the grocery sector.
2008–2011: Controlling creeping acquisitions
After the Hilmer Review had expanded competition and extended the reach of the Trade Practices Act, the Howard government appointed Daryl Dawson to examine the competition provisions of the Act.
The Dawson Review made 43 recommendations (Dawson Review 2003). This included recommendations on the introduction of criminal sanctions for cartel conduct – which Labor Minister Chris Bowen later actioned in 2008.
On the mergers front, the Dawson Review focused on the merger assessment process, recommending the introduction of an additional formal clearance process.
In 2006, the Howard government enacted reforms to create the additional voluntary formal merger clearance system and change the merger authorisation process (Costello 2006).
After Labor won office in 2007, the Rudd and Gillard governments brought about changes to clarify merger laws and address growing concerns.
One of those concerns was creeping acquisitions – a series of smaller acquisitions by large firms which collectively amount to a substantial lessening of competition.
The Australian Competition and Consumer Commission’s 2008 grocery inquiry supported the introduction of a general creeping acquisition law (ACCC 2008).
The Rudd government issued discussion papers in 2008 and 2009 to canvas possible options on creeping acquisitions (Bradbury 2011).
David Bradbury, parliamentary secretary to the treasurer, then brought to parliament a bill to amend the merger laws to make it clear that a court or the Australian Competition and Consumer Commission can consider the effects of a merger or acquisition on multiple markets in conducting its assessment (Bradbury 2011).
These amendments also deleted the requirement for a market to be ‘substantial’ from Section 50. This allowed ‘the ACCC or a court to continue to examine acquisitions in all markets, including in relatively small, local markets’ (Bradbury 2011).
2015: Harper’s hope
Prior to the 2013 election, the Coalition’s signature competition policy was a wide‑ranging review. Upon winning office, Prime Minister Tony Abbott and Treasurer Joe Hockey commissioned Ian Harper to produce the report. The Harper Competition Review was handed to the government in 2015 with the goal of ‘reinvigorating Australia’s competition landscape’ (Harper Review 2015).
It was the misuse of market power provisions that dominated debate. In relation to the mergers test, which had been debated in reviews in the previous 30 years, ‘submissions offered near‑universal support for the substantial lessening of competition test’ (Harper Review 2015, 314).
At the time, merger parties had 3 main avenues for review: the informal merger review process, formal clearance by the ACCC, and authorisation by the Tribunal.
The Harper Review recommended retaining the informal process, and combining the formal clearance and authorisation process.
This made the Australian Competition and Consumer Commission the first instance decision‑maker in the combined formal process.
The Turnbull government accepted the Harper Review recommendations and enacted legislation to give effect to the changes in 2017 (Morrison 2017).
On creeping acquisitions, the Harper Review did not consider that ‘a sufficiently strong case for change’ had been made for further amendments.
The Harper Review was comprehensive, with 56 recommendations on reforms to competition policy, laws and institutions. While the Harper Review resulted in some significant changes, core recommendations that would have reinvigorated National Competition Policy were never really implemented (Chalmers 2024).
2024: Labor announces the most significant merger reforms in 50 years
Serving as Labor’s competition spokesperson during our 9 years in opposition, I became concerned that the Australian economy was insufficiently competitive. As one policy wonk put it to me, the challenge with Australia is to name more than a handful of industries that are not dominated by a few big firms.
In published work with Adam Triggs, we used data from IBIS World to analyse the degree of market concentration across the Australian economy (Leigh & Triggs 2016). We studied legal decisions to see how Chicago School ‘big is beautiful’ thinking had shaped Australian jurisprudence (Triggs & Leigh 2019). We carried out the first Australian analysis of common ownership (Leigh & Triggs 2021). We showed that monopoly power worsens inequality by transferring resources from consumers to shareholders (Gans & others 2019). And we laid out some of the stories about monopolies behaving badly in the marketplace (Leigh & Triggs 2017).
After Labor’s election win in 2022, I worked with Treasury experts to analyse industry‑level microdata. In a series of articles in economic journals, we showed evidence that market concentration had worsened (Leigh 2022a), markups had risen (Leigh 2023a), monopsony hiring power was a problem in many labour markets (Leigh 2023b), and competition was a risk in new sectors, such as artificial intelligence (Leigh 2023c). We also looked at lessons from competition reformers internationally (Leigh 2022b), as well as from the Hilmer reforms (Leigh 2023d).
With Treasurer Jim Chalmers, we established a Competition Taskforce in Treasury, focused on providing advice to government about actionable reforms to create a more dynamic and productive economy. This approach differed from past reform efforts, which had tended to ask a handpicked group of experts to deliver a doorstopper report.
The advantage of the taskforce approach is that it builds up expertise within the public service. Our approach to competition reform was also far more data‑heavy than previous efforts. Thanks to the Business Longitudinal Analysis Data Environment (BLADE) dataset, we were guided by empirics, not just theory (for an insightful history of this dataset, see Gruen 2024). In parallel to this, the House Economics Committee, chaired by Daniel Mulino, carried an inquiry into boosting economic dynamism (Mulino 2024).
The top priority of Treasury’s Competition Taskforce was to consider reforms to Australia’s merger laws. In this, the Australian Government was guided by the principle that any change must deliver benefits to the economy and to consumers while providing certainty to businesses.
Consulting over summer 2023–24, the stakeholder feedback was clear: Australia’s ‘ad hoc’ merger process is unfit for a modern economy and we lag best practice in other countries (Competition Taskforce, 2024). Australia is out of step with most of our international peers, being one of only 3 OECD jurisdictions with a voluntary merger notification system (OECD 2021).
Businesses told the Competition Taskforce that uncontentious mergers were subject to frustrating delays, uncertainty, and added costs. Some in the business community opposed changing the Australian Competition and Consumer Commission’s test to ‘reverse the onus of proof’. We heard that feedback, and the government is not reversing the onus of proof in merger reviews.
On the other hand, the Australian Competition and Consumer Commission was telling us about concerns with the approach to merger control in Australia. The Australian Competition and Consumer Commission was dealing with inadequate merger notifications, insufficient information, and a reactive, adversarial approach from some businesses, with limited capacity to present economic evidence in court.
And for the wider community, engaging with the Australian Competition and Consumer Commission’s merger reviews is often difficult.
On 10 April 2024, Treasurer Jim Chalmers and I announced the most significant reforms to merger settings in almost 50 years (Chalmers and Leigh 2024).
As the Treasurer outlined in his speech (Chalmers 2024a), the proposed reforms will make Australia’s merger approval system faster, stronger, simpler, targeted and more transparent.
Where the Australian Competition and Consumer Commission considers that a merger poses no threat to competition – which is most mergers – approvals will be provided within 30 working days.
We are legislating a mandatory notification system and we are empowering the Australian Competition and Consumer Commission as the single decision maker on all mergers that meet the notification thresholds.
Mergers above monetary thresholds or market concentration thresholds will need to be notified to the Australian Competition and Consumer Commission to be approved before proceeding. We will set the thresholds based on international practice and through consultation (Chalmer 2024a).
We are reducing 3 merger review streams to a single, streamlined path to approval that removes duplication and standardises notification requirements for all mergers.
Mergers that create, strengthen or entrench substantial market power will be identified and stopped while those consistent with our national economic interest will be fast tracked.
Finally, the merger system will be more transparent, by ensuring the community – consumers, businesses and the public – has better visibility of merger activity.
There will be a public register of all mergers and acquisitions notified to the Australian Competition and Consumer Commission to promote transparency and accountability.
Reviews of the Australian Competition and Consumer Commission’s decisions will be the responsibility of the Australian Competition Tribunal, made up of a Federal Court judge, an economist and a business leader.
These changes – some of which have been debated for decades – will make it easier for the majority of mergers to be approved quickly, so the Australian Competition and Consumer Commission can focus on the minority that give rise to competition concerns.
We’re working to finalise the details in advance of the new system beginning from 1 January 2026. In recent weeks, we released draft legislation, with submissions open until 13 August 2024 (Chalmers 2024b). As always, in this remarkable story of bumps and breakthroughs we welcome the views of the Committee for Economic Development of Australia and your members.
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[1] Hart-Scott-Rodino Antitrust Improvements Act of 1976 (US).
[2] Ansett Transport Industries (Operations) Pty Ltd & Ors v Trade Practices Commission (1978) ATPR 40-071.