ACCC defends its track record and says the ANZ/Suncorp loss bolsters reform push

The ACCC has defended its track record in merger approvals and says the Australian Competition Tribunal ruling on ANZ’s $4.9bn Suncorp Bank buyout reinforces its case for merger reform.

ACCC chair Gina Cass-Gottlieb. Picture: Sam Ruttyn

The competition regulator defended its record in merger approvals and argued the Australian Competition Tribunal ruling to overturn its decision to block ANZ’s $4.9bn Suncorp Bank buyout adds to its case for merger reform. The ACT on Tuesday overturned the ACCC’s decision to block ANZ’s takeover of Suncorp’s regional bank in the first major loss for the regulator since chair Gina Cass-Gottlieb took the top job in 2022.

“I do not consider we failed to do anything. We ran a robust and rigorous process. We put all of our evidence and our reasoning before the tribunal.,” she said.

“When we come before the tribunal … we are telling the tribunal about the views that we formed and why we ruled that the merger should not be authorised, but the tribunal makes its own decision, and reasonable minds differ. That always happens in legal matters.”

The tribunal disagreed with the ACCC’s argument that the merger would substantially lessen competition in home loans, and in the agribusiness and business lending markets in Queensland. Federal Court justice John Halley said the tribunal concluded that the small increase in ANZ’s market share the bank bought would not have a meaningful impact on lenders’ engagement in “co-ordination” – a term that describes companies acting together to limit competition, even without explicitly agreeing to do so, in order to preserve the status quo.

Ms Cass-Gottlieb, a former competition lawyer, was not involved in the ANZ matter after she removed herself over a potential conflict from before she was appointed to head the regulator.

She noted, however, that in the past decade the regulator has approved over 90 per cent of merger referrals within a month. Last year, the ACCC convinced the tribunal to turn down an appeal of its decision to block Telstra and TPG’s $1.8bn infrastructure-sharing deal.

But outside of that win, the ACCC has lost most mergers it has opposed in recent history.

“The ACCC does not have a good track record on contested mergers,” says King & Wood Mallesons competition partner Simon Cooke. “I don’t necessarily think that’s a criticism of the ACCC. Yes they may need to think about the transactions that they are opposing and challenging, but they are a regulator that needs to have mergers tested.”

Ms Cass-Gottlieb said despite arriving at opposite decisions, scrutiny had been appropriately applied to the dynamics of a concentrated sector impacting millions of Australians. “This process that has occurred shows the merits of an expert administrative decision making process, which is what the formal merger authorisation regime is.”