[MUSIC] Hello from Gilbert and Tobin, I'm Moe Adod. And I'm Matt Rubenstein and this is the competitive edge. What you need to know about competition law in Australia and around the world. Today, crimes of fashion. Hartner Louise Clamcut joins us to talk about antitrust in the world of Hort Korture. There is always an overlay in any market, but especially in consumer facing markets of customer preference. And there are going to be some customers that prefer a particular brand over another. But that does not mean that those preferences are a determinative of a particular market definition. Those things are still in an economic sense, substitutable for one another. Just because these individuals feel they only want the Birken bag and that a high end Gucci or a handmade Louis Vuitton special edition is not the same for them. It's not going to be in a separate market from an economic perspective. Now, crimes of fashion is a good title, Matt, although we're really looking at civil cases here, not criminal prosecutions. But is this a book or a movie or a common on my wardrobe? It's actually two unrelated made for TV movies. There was crimes of fashion from 2004, starring Megan Fox, and crimes of fashion, Colin, Killer Clutch from this year. Those are the name of a number of books, mostly self-published. Oh, did we think about, I don't know, the Devil Wears Prada? Well, we did, but we couldn't find any successful antitrust actions against Prada. We actually have a pretty decent antitrust policy, which we can link to in the show notes. But didn't the editorial board of the Wall Street Journal write a piece about the luxury handbag case called Lena Khan Wears Prada? They did, but Lena Khan has denied she ever owned any Prada. Ah, I didn't know he had so much in common. All right, crimes of fashion it is. But first, Matt, what's been happening around the grounds? Well, we've been talking about growth through suppliers for a while now, and the atropalcy has just launched civil actions against coals and woolworths, alleging the supermarkets have made misleading claims about discount pricing. So these allegations about what they call "was now pricing," where customers may be more likely to buy a discounted product because everyone loves a bargain. That's right, and that can be misleading, if for example, you never actually offered that product at the "was price." And if you only offered it very briefly, that could be just as bad. You'd need to have offered it for a reasonable period, and you probably need to have made some actual sales at that price. So earlier this year, the atropalcy won its case against Bluemex, where the flowers weren't ever sold for the "was price," so the claim that the "now price" was 50% off was misleading. Right, and a few years ago, it also won its case against Cogan for offering a 10% discount after raising prices on many of its products immediately before the discount period. And is this what's being alleged here? This is a little bit different, because here the atropalcy is saying the supermarkets had raised their prices for up to 45 days before they cut them and called that a "saving off the higher price." So in the concise statement, they say, "Wallworth raised the price of Oreos and then lowered it after 22 days, and calls raised the price of honey and lemon strips and lowered that after 28 days." That's right, and the atropalcy says this involved a representation that the "now price" was a reduction or discount off the previous regular price, and that would mislead or deceive the ordinary or reasonable supermarket chopper. So the supermarkets might have thought that waited a reasonable period or had enough sales to establish a "was price," but it sounds like the atropalcy has taken a different view. It does, and we don't have a lot of the specifics yet, apart from those two examples, so we'll have to see what comes out as the cases go forward. But if the lesson for retailers is that they should keep prices higher for longer, that doesn't seem like it's necessarily the best thing for consumers. Interesting. Well, as atropalcy chair Gina Cascotleid told Emlex recently, "This isn't an issue of price gouging. It's about the way that discounts are represented, and that was after the Greens introduced a bill to make excessive pricing a misuse of market power," and Senator McKim said that the atropalcy's allegations were a textbook definition of price gouging. Yeah, and it's interesting that both for Oreos example and the strips, this example, we're responding to the suppliers request for a price increase. It does show how the supermarkets are being pressed to increase the prices they pay to suppliers, and reduce the prices they charge to consumers at the same time. And I see there's a new food and grocery code of conduct out for consultation right now. Yeah, that code applies to the relationships between the grocery wholesalers and retailers and their suppliers. At the moment, it's voluntary, though the major players have all agreed to be bound by it. So under the proposed amendments, the code will be mandatory. It'll have stronger dispute resolution arrangements. It'll prohibit any retaliation against suppliers for exercising their rights under the code, and it'll introduce penalties for contravention. Yeah, and those penalties will start at around $200,000, and then there's meant to be a separate bill to introduce higher tier penalties of up to $10 million, or three times the benefit, or 10% return over, for particular contraventions and circumstances. And the atropalcy is also in the middle of an inquiry into supermarket pricing practices, and the relationship between wholesale and retail prices, isn't it? That's right. It sent its interim report to the government at the end of August, and it was actually released after you asked that question, but before I recorded this answer, we'll link to the report in the show notes and talk about it in more detail next time. There's a lot going on in the sector, so we'll keep you up to date on the price of Oreos. What else is going on? Well, if we're going to be talking about Oat Couture, we might head over to Europe where there's been some controversial changes in the European Commission and some important decisions from the courts around mergers and digital platforms. Well, I remember when the Competition Commissioner Margaret Vesteria spoke at the Danish fashion summit about sustainability in fashion. You can take the lightest, most ethereal silk. It rests that is almost floating on air, and yet it touches the person who wears it. And you can take the most fantastic, original fashion, but it still touches and relates to the society that we live in. It was great speech. And Commissioner Vesteria is finishing up as Competition Commissioner when the new term of the European Commission begins, perhaps as early as November. The other news is that Tieri Breton has not been reappointed to his role as the tech commissioner after clashing with both Commissioner Vesteria and returning President Ursula von Delayon, or VDL, as she's sometimes known. So Tieri Breton was the main commissioner for the Digital Services Act and the Digital Marketing Act. And he recently clashed with Elon Musk and the platform formerly known as Twitter, didn't he? He did. When he heard that Musk was planning to interview former President Donald Trump on his platform, he sent a letter reminding him of his obligations under the DSA, including not amplifying content that promotes hatred, excitement, or violence or disinformation. But he did that without talking to EC President VDL first, didn't he? That's right. And so she wasn't happy about that. And neither was Elon Musk. He responded with what I guess would call a profanity laden meme. Well, he didn't say that he didn't want to respond with that meme, which he then attached, but said he would never do something so rude and disrespectful. Yeah, this is the rhetorical device of a poffesis where you say something by saying you're not going to say it. It's something Donald Trump uses quite a bit, as in why would Kim Jong-Un call me old when I would never call him short and fat? Well, I thought poffesis was the end of the world. While you're thinking of apocalypse, a poffesis is where you transcend mortality and become a god. No, that's a poffiosis. A poffesis is a punctuation mark indicating possession or contraction. I'm pretty sure that's a post-reface. So it is. Anyway, the story is that VDL told France that if they nominated someone other than Terry Bretton to represent them at the European Commission, they'd have a more expanded role. And will that role include competition or digital platforms? That won't be a primary focus. The new commissioner for digital and frontier technologies will be Hener Vyokkonen from Finland, so she'll pretty much have Terry Bretton's role. And the new commissioner for competition will be Spain's Theresa Rivera Rodriguez, who'll also be EVP for clean, just and competitive transition. That's right. And VDL's mission letter to her says that Europe needs a new approach to competition policy that's more supportive of companies scaling up in global markets, and is better geared to Europe's common goals, including decarbonisation and adjust transition. Well, that sounds consistent with the recent report from Mario Draghi, the former Prime Minister of Italy and President of the European Central Bank, which says that Europe needs a new industrial and competition policy that focuses more on strengthening European industry sectors and innovation rather than just low prices. That's right. And I haven't read that 400 page report, but I have read a very useful update from Peter Waters and Andrew Low, both fashion icons, by the way. Indeed. Which we'll link to in the show notes. And of course, VDL has also told Commissioner Vieckanan that she needs to strengthen and speed up enforcement of competition rules and take rapid and effective enforcement actions under the DMA. Yes, she has. So the new approach may be to allow European businesses to scale up, but they'll still keep a close eye on the designated digital platforms, which are all from outside Europe. Well, except for seznet.cz, of course. But it's interesting that competition in the energy transition are now explicitly in the same portfolio. That is interesting. But it's a due for now to Terry Breton and in honor of his time at the commission, I have ordered a secondhand copy of his 1984 techno thriller Soft War. And I'll report back on that when I've read it. Are we starting a competitive age club? Well, we are running out of fast and furious movies, so something's going to have to fill that void. Oh, dear. So Europe going forward is going to rely increasingly on its ex-ante regulation when it comes to digital platforms. But it's got a few old-fashioned ex-post-enforcement cases working their way through the courts, doesn't it? It does, with some mixed results so far. The general court has just ever turned the European Commission's 1.49 billion Euro fine against Google in the AdSense case. This is the case where the European Commission argued that Google
had abused its dominance by requiring websites who wanted to use its advertising services to basically privilege those services over its competitors. That's right, and the courts agreed that Google had a dominant position in search advertising, but it found that Google hadn't abused that dominance. Basically, it wasn't convinced that Google had actually foreclosed its competitors from a significant part of the market. But the commission can appeal that to the European Court of Justice. They can, and the ECJ has just upheld Google's 2.4 billion euro fund in the shopping appareison case, and it's about to hear the appeal of Google's 4.1 billion euro fund in the Android case. And that was reduced from 4.34 billion euros by the general court, which wasn't really much of a discount. Gosh, talk about what was now pricing. Those are eye-watering numbers. But stepping outside of Big Tech for a moment, the ECJ has handed down a very consequential decision in the Illumina and Grail merger. Yeah, and this was the merger between the DaVinci Code and Indiana Jones, or something, which was opposed by the European Commission and the FTC after it was completed. Well, both agencies ordered Illumina to divest Grail, which they did in June this year, throwing it into the big crack that appeared when they crossed the seal at that Treasury in Petra or something. They did, but the ECJ has just decided they didn't have to do that after all, because the European Commission didn't have jurisdiction over the merger under their revenue thresholds. So the commission had tried to get around those thresholds by inviting member states to refer matters to the commission if they wanted to prevent strategic acquisitions of small companies. But the court found that went too far and presented too much uncertainty. And if the EC, or member states, wanted mergers to be reviewed, they'd have to do something about their threshold or come up with some kind of call in power. Yeah, and there are other merger reviews that have been referred in the same way, including one involving Microsoft and AI company inflection. So those are actually to slip through as well. But it does illustrate the issues that are rise from all these merger frameworks around over capture, under capture and certainty. There's a lot going on. But more, you've just sat down with partner Louise Clamker to talk about competition law in the fashion industry, which has been making headlines lately. I sure did. And I think I have a very fashionable range of football jerseys, but Louise is no slurge either. So we had a quick virtual round the world trip, first class, to check out the iconic Birken bag, single product markets and lots more. Let's take a listen. I'm very pleased to welcome Louise Clamker back to the pod today. Louise is a partner in the competition consumer and market regulation group. We have heard from her before on the subject of airlines, but today she's here in a very different capacity. Louise, welcome. Thanks, Moe. I appreciate to be here. You're here as a fashion guru today. Well, a moderate connoisseur, a fashion from time to time. Sure. Okay. So today we will be talking boots and bags and so on. I mean, I do consider myself a bit of a connoisseur. I've always thought that Moe. Yeah. Well, you know, I mean Nike, Adidas, Essex, I'm broke. I've had a lot of different kinds of boots actually. Is that what we hear to talk about? Not quite. We're here to talk about some less practical fashion items. We're here to talk about those that are the most sought after handbags and luxury leather goods that have been the inspiration for some very unusual competition law claims of late. Okay. So my Osprey backpack and my Codapaxi bum bag aren't going to cut it? They may be functionally substitutable for a book and bag, but no, I think they're very much in a different market. Okay. So why are we talking about luxury fashion? What's going on? Today we're talking about fashion because there's been a recent spate of competition and consumer law cases, particularly in the US and Europe in this space that I think are worth talking about. So as a person who finds so much joy in competition law and in fashion, Louise, you must be thrilled about this development. I am indeed. So tell us first about the big news out of the US. So have you ever heard about the Birken bag? You're going to need to fill me in. So there is a particular bag that the luxury fashion house Hermes makes called the Birken bag. And it was first launched in the 80s and is named after the French actress Jane Birken. And this is arguably the most sought after bag in the fashion world. So you will see lots of a-listers walking around with them with their paparazzi snaps in the fashion magazines. Oh, will I? Okay. Well, if you look for them, you will. Maybe next time you're sitting at the hairdresser, pick one up, have a look, open a page and see whether you see a Jennifer Aniston with a Birken bag walking down a New York street. They are handmade. They come in a variety of leathers. The ostrich is apparently the most expensive and alligator and all sorts of colours and sizes, but they are really hard to get. But it takes a long time to catch all those ostriches and alligators. I'm not sure that they have to go out into the wild and lasso, then I think they're probably a farm, but you know, okay, but but remind you they're handmade. They are handmade. And that's one of the things that Hermes claims as distinct from other fashion brands that their goods are each individually made by a single person who takes their time and you can see that workmanship and that's their claim to fame. So they don't go out in the same mass market way that some of the other major fashion brands do. They are slow fashion. They are luxury items that have been handmade in the same way for a very long time and that's one of their claims to fame. And the Birken bag is the pinnacle of their offering. They don't just sell it, they don't sell it online, they don't sell it at the front of their shops. If you want to buy one, you have to have qualified to buy one by buying an assortment of other Hermes products before you can be offered it. And that practice of tying the purchase of the Birken bag to a sales history with Hermes is the very thing that a group or at least two individuals are trying to argue as a breach of competition laws in the US and they're trying to bring a class action against Hermes alleging that this is a monopolization abuse. So they're like, I want to spend 50 grand on a handbag and you're not selling it to me and I'm very annoyed about that so I'm going to sue you. That's right. Okay, what's the argument? So they are arguing that they have been forced into buying other products before being allowed to buy the product that they really want the Birken bag and that by doing that, Hermes has engaged in some kind of abuse of its market position and that they have suffered loss as a result. Okay, so it turns like a tying argument. Yeah, well, I think the first thing you need to ask is whether they actually have market power, whether they can be seen to be a monopolist, tying in itself is not a problem at all. Businesses are free to sell their goods in whatever way they want. They can bundle them with another one of their products. They can choose to only sell in a particular area or to particular people. They have freedom to make their own choices as long as they do that independently about how they market their goods. The only time that they need to be careful about that is if they have market power. So before they can even get to the question of whether there was any unlawfulness about the tying, they need to establish that Hermes has a level of market power or monopolisation that could lead to an anti-competitive effect as a result. Okay, so probably we are going to talk about market definition, I feel. Yeah, so in what market? In what market would they actually have that level of power? We're looking at a global market for luxury goods. Very high-end luxury goods, though. High-end luxury goods, but that covers quite a large expanse. Believe it or not, I don't know where people get the money from, but there is a huge market for high-end luxury goods around the world. And it's not geographically truncated to any particular one place. I don't think that you could possibly argue, although they are trying to, that the Birkenberg is in its own market. So I understand that the individuals bringing this action are trying to argue that the exclusivity and the rarity that attaches to the Birkenberg makes it hard to substitute it for any other luxury bag. Whereas if you actually looked at the available luxury bags out there, including at those high price points, you would find that there are many alternatives. Well, it's interesting because the complaint says that the Birkenberg's exclusivity, limited availability and iconic status make it difficult to find a perfect substitute. So they almost are saying that it's in its own market, aren't they? Yes, that's exactly what they're saying. And I just don't find that plausible. They even say that offerings from rival luxury brands, such as Gucci, Prada and Louis Vuitton, lack the unique brand identity and exclusivity that define the Birkenberg. So I think this comes down to a question of preference versus actual market definition. So when you're looking to define a market, you're looking at substitutability, both on a supply and demand side, you're looking at the functionality, you're looking at what other alternatives serve the same purpose. And there are going to be some customers that prefer a particular brand over another is going to be some who want particular features, rather than others. Those things are still in an economic sense substitutable for one another.
just because these individuals feel that they only want the Birken bag and that a high end Gucci or a handmade Louis Vuitton special edition is not the same for them, it's not going to be in a separate market from an economic perspective. So that's a preference, not a market? Correct. So do these plaintiffs have this case in the bag? Boy, they definitely don't have it in the bag. They don't? I'd be highly surprised if they were able to establish a class and then establish a breach of competition more. But you know who does have it in the bag? Who? Simone Biles. Wait, what? Yeah, not only did she win all those gold medals, but apparently the first thing she did post-closing ceremony was take herself off to Urmay and buy herself a Birken bag according to Instaul Magazine. Oh really? Buy? Shouldn't they just give it to her? She's Simone Biles. They may well have given it to her. Product placement on her arm easily. Exactly. So maybe she didn't need to do all of the pre-purchasing. Maybe all of her medals counted as a qualifying criteria. I would say so. Yeah, okay. You're Simone Biles. Yeah. Which is fair. Well, which is fair. But you know, as sporting analogies go, it feels to me like it. It's a bit like saying everyone wants tickets to the Cup Final, but we are going to sell the tickets to the people who've come to all the games this season so far. So if you want a Cup Final ticket, you can't just like rock up and get a ticket to the Cup Final. We are going to allocate this scarce product to the people who have shown their loyalty to us all through the season. And that might well be exclusive because some people can't afford to buy all those tickets every week. That's right. It's a legitimate strategy of prioritising the sale of what is and is designed to be a exclusive product. So what else is going on in the US in the fashion industry and any trust? There's been a very interesting merger case going on in the fashion space. So tapestry group that owns the brands of Kate's Bay and Coach is wanting to go to the Cup, which owns Michael Cors, Jimmy Chu, Versace amongst others. And the Federal Trade Commission has taken issue with this acquisition and they are seeking to block it. Oh, why? So they say that the two brands closely compete in a market that they have defined as accessible luxury in personal luxury fashion goods. So handbags, accessories and other fashion items along those lines. They are saying that it relates to a class of products that is a step up from your general high street fashion items, but is not at that sort of more expensive luxury level. It is accessible. So it's a few hundreds of dollars for a handbag versus a few thousands of dollars for a handbag. So it's not in the crazy sphere. No. So why would this be a problem? Personally, I don't think it is a problem, but the Fed's argue that there is a separate market at this particular price point, which does not compete with those at a lower or higher price bracket. To me, that doesn't ring true because I think when you're looking at market definition, there is generally a spectrum of substitutability. So people will be looking at a variety of factors when they're making a purchasing decision, especially one that's a deal with fashion or any other personal consumer decision, where personal preference again comes into it a lot. So people will be looking at the features of the product, things like the colour, the style, the fashion forwardness of the item. They'll also be looking at price. They might be more willing to spend a little bit more on a product if they really like it, or they might be unwilling to buy it unless it's on sale or a bit cheaper. But really, it's very difficult to see how there could be a specific market around a single price point. And even if there was, there is such a wide range of competition out there. It's a global market. And since we have had online sales and global brands that have proliferated every market around the world really, you can't look at things in a isolated way. It is a global market. And you have so many competitors and you have a highly fractured set of options out there from individual brands to particular department stores to fashion brands that segue into accessories. It's not like these are your only options. In fact, on the Fed's own assessment, the merged parties would have less than 10% market share of personal luxury items in the US alone. I just don't see that as a basis to block a transaction. The FTC has been extremely proactive in the merger space. And this is only the latest of a number of mergers that they have tried to block. Many along these lines of customer preference, which I find very interesting that this is coming into so many markets, including in the airline space where they decided to block the JetBlue acquisition of Spirit Airlines. There's also a labour market angle on this though. Well, tell us about that. Yeah. So the other argument that they're making is that the merger of the two parties who together employ around 33,000 people would reduce competition for the acquisition of hourly paid workers. Again, and even more so than on the product dimension, I find it very difficult to see how this argument could be sustained. It's not a specialised workforce. It's a generalized workforce who could presumably work in any retail role for similar pay-in conditions. I can see how you could possibly make the argument if you're talking about a very specialised set of skills, like a particular medical profession or a particular set of software engineering skills, really highly specialised things for which there's a small pool and maybe competitors are vigorously trying to get at that pool and that's the key to their ability to compete in a market. You can have a foreclosure effect and it could distort pay-in conditions. But in such a general industry, I just don't see it. So I did actually hear Henry Lou, the director of the FTC competition branch, speaking when I was in Washington earlier in the year about this very issue, about combating concentration in labour markets in a merger context and justifying why they are being so interventionist in this space. And from an Australian perspective, it was really quite confronting to hear the shoe horning of labour issues into a competition narrative where it doesn't really fit. And it struck me as there's clearly a problem in the US with labour market regulation. It's highly unregulated. Because don't really have the same protections as they have in Europe or in Australia. And it seems to me that the government is taking a stance on these issues because they can see that there's a real social ill that needs to be addressed and are trying to shoe horny into competition in the absence of having industrial relations laws to rely on. So I feel like it is very much a specific time and place thing for the US for this to be such a big issue in these labour markets focus. And I don't believe that it is a real competition law issue. It just doesn't stand up to the market definition analysis of substantial listening competition, analysis of substitutes that we would normally do in a merger context. I can't see it really applying here or in other places really. Well, that's interesting because there is another case involving Sachs Fifth Avenue where the US Department of Justice and a bunch of state attorney generals want to reinstate a lawsuit that relates to labour law, right? Yeah, there is. And that's quite a different issue. So in that matter, Sachs Fifth Avenue and various high-end fashion brands had reached an agreement about not employing particular ex-staff members for a period of time. So a restraint of trade or a non-compete was being incorporated into people's contracts. And this is an issue that is also a priority in the current Australian Commonwealth Government's review into competition laws through the competition task force. I think it's the Assistant Minister for Competition, Dr Andrew Lee, who says that gardeners are being put on gardening leave now in Australia these days. So it's not such a surprise then that the 2024-25 Federal Budget provides some additional funding to expand the scope of the competition review to include advice on non-compete clauses. I certainly think that that is an area that the government is focusing on and that is something that can raise real competition issues. I can't see a proper justification for it in those kind of roles. Well, that's an interesting roundup of the US. So discussion of fashion and antitrust would be complete without a visit to Milan. So what can you tell us about what's happening there? So there is a case that is quite horrifying coming out of Italy at the moment, which touches more on consumer law issues, but also indirectly can affect the competitiveness of different players in this area. So Italy's competition authority has been investigating whether our money and Dior have misled consumers by claiming that their products are made in Italy, where they allege workers are being brought into Italy, being placed in conditions one would not normally expect workers to be found in Europe, and making the products which are then
stamp as handmade in Italy, but under similar conditions as they might be in Asia, Bangladesh, China, somewhere where people aren't paying that premium price. So there's a bit of a misleading and deceptive conduct allegation as well as social welfare washing if you will. Well, ESG washing really is about ethics and social responsibility. If you claim you have a clean supply chain and you don't, then that's what we might call ESG washing. Yeah. And that's what these allegations are about, right? Yeah, absolutely. It'll be interesting to see the outcome of this and see what evidence is brought to light. But certainly from a consumer perspective, if you are choosing to purchase something for a particular price point in response to their claims of quality and sustainability and the handmade nature and welfare of the employees, and it turns out to be untrue, then that raises a significant problem under consumer law. Arguably, it also impedes competition because the companies who are making those claims have an advantage on a cost basis over others, maybe like Umei, who are having their products genuinely made in a handmade, sustainable way. Thank you very much for that round the world trip. I feel like I've been first class around the world to the US via Milan on the way home, the way so thank you for joining us. Thanks very much. What a great interview, of course every time either of you mentioned handbags I thought of Lady Braknell in the importance of being honest. Of course you did. A handbag. A handbag. a handbag. A handbag. A handbag. A handbag. A handbag. A handbag. A handbag. And, wasn't there a ludicrously capacious handbag in succession? There absolutely was. One's laughing up their sleeves about your date. What? Why? Why? Because she's brought a ludicrously capacious bag. What? What's even in there? Huh? Flat shoes for the subway, her lunchpale. I mean, Greg, it's monstrous. It's Greg and Chooin. You can take a campaign. You can slide it across the floor after a bank job. I think it was a burberry handbag, wasn't it? Would that be capacious enough for say a crystal ball? Well, that's another excellent segue, Moe. And we do have something in the crystal ball because the Australian competition tribunal have just added three new members to their line up. And that's important because they're likely to have quite a bit more to do when the new merger of your framework comes into effect in 2026. So the tribunal has a president and a number of deputy presidents who are all federal court judges. And then it has what are sometimes called lay members because they're not judges, but they have knowledge or experience in industry, commerce, economics, law, or public administration. Yeah, the existing members are Dr. Jill Walker from the ACCC and the New Zealand Commerce Commission, Diana Eilert, who's from the corporate sector, and Ray Steinwell, who's some of us know best from his massive annotated competition and consumer legislation. True. And the new members are all at universities at the moment among other roles. Yeah, Professor David Byrne teaches economics at Melbourne Uni with a focus on behavioral economics, market power, and market distortions. Wait, wasn't he also in talking hits? I'm not sure about that. Though he did say that this was a once-in-a-lifetime appointment. Certainly not a road to nowhere. And this must be the place for true stories of psychokiller acquisitions that stop making sense unless they strengthen extender and trench substantial market power. Oh, very good. It's a wild, wild life, huh? And Professor Flavia Menaisi teaches economics at Queensland Uni and is chair of the Queensland Competition Authority. We were VP's at Charles River Associates at the same time back in the '90s. Indeed. And Associate Professor Catherine Kemp, of course, teaches at UNSW in the shadow of the Moyer Dodd Grandstand. She won't have learnt much sitting there, but we know she's already an expert on competition law and privacy and consumer protection since she was on this podcast a couple of years ago. And she was. She's also one of the few people to have filled in and submitted our competition law cryptic crossword. Oh, so maybe we'll get a shout-out in a tribunal decision, even if we don't get anything from the federal court? We might. Or we might get nothing but flowers. Oh. So for each matter before the tribunal, there's one presidential member, so one of the judges and two lay members. Questions of law are decided by the judge and other questions are decided by a majority. And there's only a single determination by the tribunal, so no separate opinions are anything. So there must be a way to get a cryptic crossword referencing to one of the determinations in appropriate circumstances, you know? We'll certainly keep an eye out. And the tribunal is already the refute body for merger and non-merge authorizations and exclusive dealing notifications, as well as decisions on access to essential facilities and international line of cargo shipping. But there are as many of those as they used to be. So it's not a coincidence that these new members are heavily into economics and competition law, at a time when we're expecting the tribunal to be looking at more mergers. Yeah, and to be expounding and developing the law and precedent around merger review, now that the federal court will have a more limited role. Very interesting to see how all that will work. Remember, you can find relevant links in the show notes and email us at
[email protected]. And we've got some great guests still to come, including the Chair of the Productivity Commission, Daniel Wood and GNT Partner Jeff Peterson with the latest on electricity regulation on the way to net zero. And if you enjoyed today's episode, please subscribe, leave us a review, and tell your friends. To next time, this was The Competitive Edge with Gilbertan Tobin.
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