It’s a lawyer! Gina Cass-Gottlieb named new ACCC boss

Gina Cass-Gottlieb will become the fifth lawyer to lead Australia’s competition watchdog and she’s go outstanding real-world qualifications for the job.

New ACCC chairperson Gina Cass-Gottlieb. Picture: NCA NewsWire / Gary Ramage

So, for the first time in over ten years Australia gets a new competition czar.

The most significant thing about the appointment of Gina Cass-Gottlieb to head the ACCC – she’ll get there in March - is not that she’s a ‘woman’ but that she’s a lawyer.

Unfortunately, Treasurer Josh Frydenberg – who can be as ‘woke’ as, if you’ll excuse the term, as you must, as I always use it non-gender specifically, the next guy – couldn’t help himself: he just had to note that “Ms Cass-Gottlieb would be the first female ACCC Chairperson”.

Now, the ‘first female ACCC chairperson’ isn’t quite there just yet. She has to be ticked off by the state and territory leaders, in a process that sits somewhere between a formality and the old ‘black ball’ membership process at, ahem, gentlemen’s clubs.

There’s zero prospect of that happening. No state leader is going to ‘black ball’ the, to quote Frydenberg again, “first female ACCC chairperson”. I would prefer to see both the appointment and its immediate, universal endorsement by the state leaders, as recognition of Cass-Gottlieb’s outstanding real-world qualifications for the job.

New Australian Competition and Consumer Commission chairperson Gina Cass-Gottlieb. Picture: NCA NewsWire / Gary Ramage

Indeed, she’s spent over a quarter-of-a-century almost preparing for the job as a senior competition lawyer at Gilbert + Tobin. It is that, not her sex, which makes her appointment both interesting and instructive of what we might expect from the ACCC as we travel through what is going to be a very ‘interesting’ 2020s.

The most important thing about the departing ACCC chief Rod Sims is not that he’s a man but that he’s an economist. This has always been the big question: do you want an economist to be the ACCC chair and inevitably the driver both of its strategic mission and both practical operational focus and what outcomes are pursued and how are they resolved? Or a lawyer?

With, the economist having strong legal advice to call on, and a smattering of legal knowledge; or the lawyer having the right economists and some personal background in the subject as well?

Crudely, the distinction is whether you see the ACCC’s job as primarily applying the (competition) law or promoting competition more broadly, with more of a ‘spirit-of-the-law’ underpinning. The conundrum of this sort of choice applies across the regulatory institutional framework. Like at the corporate regulator ASIC: lawyer versus investment banker? But it’s at its most challenging and indeed in practice ‘interesting’ at the ACCC – in large part, but more historically than in recent times, because the ACCC has two, potentially competing mandates.

It is the Australian Competition and Consumer Commission.

So it’s there to promote competition on the one hand, as an economist would more easily see it. That’s both beyond the letter or even the spirit of the law but yes also enforcing it.

It’s also there to stop consumers being ripped off beyond just because of anti-competitive (price-fixing) behaviour, which sits more clearly within the ambit of a lawyer and mediator.

Governments have tended to opt for the lawyer. There have been six ACCC heads; only two have been economists. Cass-Gottlieb makes five lawyers out of seven. An economist like Sims was clearly what we needed in the tumultuous decade of the 2010s, when both the explosion of tech – Google, Apple and Facebook - and the aftermath of the GFC saw competition challenges running light years ahead of legislation, of ‘the law’. The fairly simple ideas we had about competition even ten years ago – with smart phones just three or four years old – to say nothing of 20 years ago were utterly swamped by rapid and continuous seminal change.

As a lawyer Cass-Gottlieb gets her feet under the desk at an interesting, read challenging, time. To both promote competition and protect consumers.