Proposed company merger reforms get mixed reaction

Sheep Central, April 10, 2024

The Greens want to know how the merger reforms will affect supermarket power.

PROPOSED company merger and acquisition reforms have been welcomed by the National Farmers Federation, but branded as weak and inadequate by The Greens.

The Albanese Government said it will reform Australia’s merger rules to boost competition and productivity in the economy.

A joint media release from Treasurer Jim Chalmers and Andrew Leigh MP, assistant Minister for Competition, Charities and Treasury, and assistant Minister for Employment, said the proposed merger reforms would make Australia’s merger approval system faster, stronger, simpler, more targeted and more transparent.

The release said new analysis shows Australia’s competitiveness has been declining since the 2000s, while market concentration has nearly doubled since 2010.

“We will simplify and speed up the process for mergers that are in the national interest and give the regulator stronger powers to identify and scrutinise transactions that pose a risk to competition, consumers and the economy,” the release said.

The reforms will give the Australian Competition and Consumer Commission additional powers and responsibilities, and mergers will be approved to proceed within 30 working days where the regulator decides they raise no competition concerns.

Other reforms include that:

  • Mergers above monetary and market share thresholds (to be determined through consultation) will be required by law to be notified to and determined by the ACCC – ensuring acquisitions most likely to impact consumers are subject to sufficient scrutiny.
  • The law will specify the factors the ACCC must consider for merger applications, helping the regulator to better differentiate between benign acquisitions and those that would entrench or extend market power.
  • To protect consumers from possible impacts of serial acquisitions in certain industries, the ACCC will be able to take into consideration the cumulative effect of mergers by the acquirer or target within the previous three years.
  • Competition issues will no longer be separately assessed under the Foreign Acquisitions and Takeovers Act of 1975, removing unnecessary regulatory duplication for businesses.
  • General notification requirements will apply and the Minister will be given power to introduce additional targeted notification obligations.

Under the proposed reforms, the ACCC will review mergers that pose a risk to competition, consumers and the economy, while transactions that are in the national interest will be fast‑tracked. The ACCC will also have greater visibility of merger activity and competition issues, and a public register of all mergers and acquisitions will be created to promote transparency, accountability and competition.

All ACCC determinations will be subject to review by the Australian Competition Tribunal, ensuring reviews are conducted by legal and economic experts. Judicial review of Tribunal determinations will be available in the Federal Court.

Subject to the passage of legislation, the reforms will commence on 1 January 2026, the release said. Details of the reforms are available on the Treasury website.

NFF welcomes proposed reforms

NFF President David Jochinke said farmers welcomed efforts to ensure corporate activity supported increased competition in Australia’s supply chains.

“Ensuring a competitive supply chain is crucial to Australian agriculture, and getting competition settings right is critical to better outcomes for both producers and consumers.

“We’ve stated for a long time that mergers and acquisition reform was a central to improving the competitive landscape, and welcome the announcements made today as important and tangible actions,” Mr Jochinke said.

The NFF also supported giving increased powers to the ACCC to assess the competitive impacts of proposed mergers and acquisitions activity to ensure pro-competitive outcomes, including bolstering assessment of proposed activity by those with substantial market power in concentrated sectors such as supply chains, and assessing the cumulative impacts of multiple mergers and acquisitions.

“This reform package appears to be a step in the right direction in balancing the need to have a review process that does not deter investment in the Australian economy, but similarly ensures a strong and appropriate framework is in place to protect Australian producers and consumers,” Mr Jochinke said.

“While there is still more to do, we thank the Treasurer and Assistant Minister for the work to improve Australia’s competition laws and we look forward to staying engaged with the process as they implement this package.”

Greens brands reforms ‘weak and inadequate’

However, The Greens said Labor’s proposed merger reforms were weak and inadequate, and show how much the party is in the thrall of big business.

“This is becoming a well-established pattern for Labor – giving themselves a huge pat on the back for doing the bare minimum and caving into big business demands,” Greens cconomic justice spokesperson Senator Nick McKim said.

“Labor is just not doing enough.

“This is Labor yet again failing to take the necessary steps to tackle the market dominance which is allowing the supermarket duopoly to gouge prices,” he said.

“This reform will not give the ACCC the tools they need – and have asked for – to stop further concentration of market power.

”This will not reverse the onus of proof for the substantial lessening of competition test, which means the default will remain to approve mergers,” Senator McKim said.

“The Treasurer has not substantially changed the test for assessing mergers, for example by including consideration of national market share – something which has been revealed to be critical to the misuse of market power by the supermarket duopoly.

“This is yet another example of Labor dancing to the tune of big business, instead of doing what is right by consumers.”

After a preliminary analysis, the Greens said its concerns with Labor’s proposal include:

  • It has not reversed the onus of proof on ‘substantially lessening of competition’ test.
  • The Treasurer has not set the threshold for mergers that will need approval from the ACCC before proceeding.
  • The ACCC has no call-in power for mergers below the threshold.
  • The Treasurer has said the ‘vast majority of mergers’ will be excluded from the threshold.
  • The Treasurer has not said whether supermarkets will be captured by the threshold, or how these changes will address the supermarket duopoly’s market power.
  • The Treasurer has not substantially changed the test for assessing mergers.


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