When antitrust theory meets practice Stephen P. King Monash University.

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Presentation transcript:

When antitrust theory meets practice Stephen P. King Monash University

Questions What is the role of economics and economists in the enforcement of antitrust laws in Australia? Economics and the ACCC Economics and the Courts Economics and the law How should the ACCC be structured?

Background

Establishes four regulatory bodies Infrastructure access Antitrust Pricing Inquiries Individual industry rules Australian consumer law

Economics and the Australian competition and consumer commission

Economics and the ACCC Remit: Core enforcement body for antitrust laws Core enforcement body for consumer protection laws Close relationship with main utility regulator (the AER)

Economics and the ACCC Independent statutory authority

Economics and the ACCC 7 commissioners Chairman is also CEO Close relationship between commissioners and staff on day- to-day basis

Economics and the ACCC 7 commissioners Lack of separation of investigators and commissioners

Economics and the ACCC 7 commissioners Lack of separation of investigators and commissioners Designated commissioners

Economics and the ACCC 7 commissioners Lack of separation of investigators and commissioners Designated commissioners Economics influence has been building (but could be stronger)

Economics and the ACCC Conclusion: The role of economics in the ACCC is stronger now than at any time in its history. But there is little connection between academic economics and the ACCC in practice.

Economics and the Courts

The Australian Competition Tribunal

Economics and the Courts The Federal Court

Economics and the Courts The Federal Court Economics without ‘market’ corroboration does not make the cut

Economics and the Courts The Federal Court Economics without ‘market corroboration does not make the cut Key economic ideas ignored or given little weight

Economics and the Courts The Federal Court Economics without ‘market corroboration does not make the cut Key economic ideas ignored or given little weight Key economic ideas misunderstood

Economics and the Courts The Federal Court Economics without ‘market corroboration does not make the cut Key economic ideas ignored or given little weight Key economic ideas misunderstood Economic ideas are badly communicated

Economics and the Courts In key areas economics and economists have failed to communicate key ideas to the Courts. This will continue unless the Courts realize that they need help

Economics and the law

Current Competition Policy Review

Economics and the law Current Competition Policy Review Should businesses with substantial market power have ‘additional’ obligations compared to other businesses?

Economics and the law Current Competition Policy Review Should businesses with substantial market power have ‘additional’ obligations compared to other businesses? Conclusion – academic economists have left the antitrust debate in Australia to consulting economists and lawyers.

So … At the time when the competition regulator is at its strongest in terms of economics, and when economic debate underpins competition law reform, academic economists in Australia are MIA.

So … At the time when the competition regulator is at its strongest in terms of economics, and when economic debate underpins competition law reform, academic economists in Australia are MIA.

How should the ACCC be structured? Should it be ‘independent’ or part of a department? What functions should it have? Competition laws Utility regulation Consumer protection How should it be internally structured?

So … The ACCC could be a great competition regulator. It could also be a great consumer regulator or it could be a great utility regulator. But it can’t be all three.

So … The ACCC could be a great competition regulator. It could also be a great consumer regulator or it could be a great utility regulator. But it can’t be all three.

So … The ACCC could be a great competition regulator. It could also be a great consumer regulator or it could be a great utility regulator. But it can’t be all three.

Take-aways 1. Australia’s main competition regulator needs to be completely restructured - so that it becomes a competition regulator

Take-aways 2. Academic economists in Australia have ceded competition policy to lawyers and consultants. We need to seize it back.