Federal Government announces three appointments to the Australian Competition Tribunal.
New appointments
Honourable Justice Michael O’Bryan will join the Tribunal as a Deputy President. O’Bryan J was appointed to the Federal Court in 2019 and was a member of the Harper Review in 2014-2015.
Ms Diana Eilert has joined the Tribunal as a lay member. Ms Eilert has considerable business experience from executive roles at Suncorp, Citibank and News Ltd, and is a non-executive director at Domain, Elders and Super Retail Group.
Dr Jill Walker also joins the Tribunal as a lay member. Dr Walker is an economist and a member of the New Zealand Commerce Commission and a former Commissioner of the ACCC. This is Dr Walker’s second appointment to the Tribunal, having previously served as a member in 2001.
Recent work of the Tribunal and its President
The Tribunal has been comparatively quiet in recent years. Following a busy 2016 and 2017, the Tribunal has handed down only one decision in each of 2018 and 2019 – Application by DBNGP (WA) Transmission Pty Ltd [2018] ACompT 1 and Application Port of Newcastle Operations Pty Ltd [2019] ACompT 1. This is partly due to legislative reforms passed in 2017 which abolished limited merits review of decisions made by the Australian Energy Regulator, and changes to merger assessment process which expanded the ACCC’s remit.
The Tribunal’s remit is now limited primarily to review of ACCC authorisation decisions and Treasurer or ACCC decisions under the National Access Regime.
Despite this, the current President of the Tribunal has heard a number of significant applications. Justice Middleton was appointed in 2016 and has presided over Application by SA Power Networks [2016] ACompT 11, Application by Port of Newcastle Operations Pty Ltd [2019] ACompT 1, Applications by Tabcorp Holdings Limited [2017] ACompT 1 & [2017] ACompT 5.
The latter decision was an $11 billion merger between Tabcorp and Tatts, which makes it both the largest gambling merger in Australian history and the largest merger considered by the Tribunal. The decision was exceptionally controversial, drawing criticism from the ACCC and some online gambling companies. It was subsequently overturned by the Federal Court and remitted back to the Tribunal.
Beyond the Tribunal, Justice Middleton has shouldered a significant portion of the Federal Court’s competition law case. His recent high-profile cases include the ongoing Vodafone Hutchison Australia v ACCC (the opposed Vodafone-TPG merger) as well as sitting on the Full Court of the Federal Court for ACCC v Pfizer Australia Pty Ltd [2018] FCAFC 78, Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] FCAFC 30 and ACCC v Colgate-Palmolive Pty Ltd [2019] FCAFC 83.
The future of the Tribunal
Speaking at a presentation in May 2018, Justice Middleton has opined that the Tribunal is currently underutilised. He appears to feel that the Tribunal has a significant role to play in developing competition law in Australia and in easing the burden of complex and lengthy competition litigation on the Court.
His Honour envisions that a judge could utilise the experience of the Tribunal by referring discreet issues to its members (under section 54A of the Federal Court of Australia Act 1976 (Cth)), who can then produce a report for the Court. Alternatively, the Government could expand the jurisdiction of the Tribunal to bring it in line with the responsibilities of other national competition tribunals, for example the United Kingdom Competition Appeal Tribunal and the Canadian Competition Tribunal.
The Tribunal, His Honour notes, is “open for business”.
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