Competition Matters 2019
The Commerce Commission Competition Matters 2019 Conference was held on Thursday 25 and Friday 26 July at the Pullman Auckland.
View the conference programme below with links to the speaker presentations and recordings of the keynote sessions.
Day 1 – Thursday 25 July
Anna Rawlings, Chair, Commerce Commission
Keynote – What can we learn from behavioural insights?
We know consumers do not behave as rational models predict, but what are the implications for a competition, consumer and regulatory authority? Dr David Halpern has led the UK's Behavioural Insights Team since it was set up in 2010 and brings with him a wealth of experience in the practical application of behavioural insights to policy challenges. In this session he will be discussing how a better model of consumer and company behaviour can create more effective regulation, from helping consumers to identify the best deals and be more open to switching suppliers, to shifting the composition of products and services available.
Panel – Big tech meets No 8 wire: Challenges for New Zealand competition policy in the era of digitisation
Around the world, concerns have been expressed about whether competition law is fit to deal with the power of large multinational technology firms. Australia has witnessed the entry of Amazon into its domestic market, and the ACCC has conducted a market study on Digital Platforms. In New Zealand, the Commission has considered the impact of firms such as Google and Facebook in several recent decisions. This panel session will explore the impact of large technology firms on competition in New Zealand, the opportunities and challenges they bring, and whether the existing regulatory framework is fit for the era of Big Tech.
Panel – Market studies: evolution or revolution?
Expectations are high for the Commission’s new market studies tool. When can market studies work well to identify issues and recommend solutions to competition problems in markets which are not solved by other competition tools? How have market studies done this in Australia and the UK? Have those recommendations been implemented and been effective in those markets? Are market studies more relevant now for regulators as competition, consumer and regulatory issues converge in markets and gaps in information between providers and consumers grow?
Panel – What does successful economic regulation look like?
Economic regulators face a range of challenges. They need to ensure that their regulatory settings are responsive to consumer and regulated businesses and are appropriate in the face of technological change in the industries that they regulate. In addition, effectiveness requires regulators to have credibility – the public and regulated companies should have confidence in their processes but also certainty that there will be adequate scrutiny and ready sanctions for breaches when required. This session will explore what makes an excellent economic regulator, including; What is the role of regulators in influencing the corporate culture of regulated businesses? What is the impact of institutional design on regulatory effectiveness? How can the risk of regulatory failure be reduced? Is an absence of appeals a reliable indicator of success? And, What role does stakeholder input play?
Keynote – Development of broadband infrastructure and regulation: how do New Zealand and Australia compare?
Many comparisons have been drawn between Australia’s National Broadband Network (NBN) and our own Ultra-Fast Broadband (UFB) Initiative. A big challenge for both countries has been designing a system for the regulation of this key national infrastructure, especially given the pace and nature of technological change in the telecommunications sector and investors’ desire for certainty and predictability. As an observer of developments on both sides of the Tasman, Ed Willett will provide a brief history of how both countries got to where they are now, and an overview of the current state-of-play in broadband infrastructure. He will discuss likely future directions, including feasible developments in technology, competition and the design of regulation. To what extent are technological and market dynamics best left to the market? Or is government intervention desirable, and if so in what form? Should regulators and policy makers play catch-up with market developments, or instead anticipate market developments that may be harmful?
Panel – Are penalties in New Zealand high enough to deter unlawful conduct or are they seen as a cost of doing business?
Sarah Court, Commissioner, Australian Competition and Consumer Commission
This session will focus on what size penalties are sufficient to deter. A recent OECD study found that penalties imposed on Australia for competition law infringements are lower than other comparable jurisdictions. Are there characteristics of the New Zealand and Australian jurisdictions which lead to this result? In Australia and New Zealand penalties are imposed by the Courts following an “instinctive synthesis”. In contrast other jurisdictions deploy more structured methods for determining the level of pecuniary sanction that are described in public documents.
Panel – Consumer data: the intersection of consumer, competition and privacy law
Data driven innovation has the potential to enhance economic competitiveness and productivity. New Zealand will only reap the benefits of consumer data if all the relevant players can confidently participate in the market. Competitors need to be confident they can appropriately access data, consumers need to be able to trust that their personal information is adequately protected and have sufficient control over their data so that they can share it with trusted recipients, and data aggregators need to feel their intellectual property rights in the data are recognised. The panel will discuss the intersections of consumer, competition, and privacy law in relation to consumer data.
Panel – State of the Nation
Regulatory agencies need to evolve with the markets they oversee, and the changing dynamics of business and the behaviour and needs of consumers. This will be a Q&A session with heads of agencies discussing how they strive to keep ahead of the curve and what this means for their agencies’ key priorities and challenges. The discussion will canvass a variety of current issues such as how agencies connect with consumers to influence consumer choices, as well as touching on how agencies are addressing and dealing with and evolving markets.
Programme – Day 2
Friday 26 July
Panel – Why does competition really matter?
Han Li Toh, Chief Executive, Competition & Consumer Commission of Singapore
The New Zealand government is increasingly focussed on how higher living standards can be achieved for all New Zealanders and the policy choices that will achieve this vision. This session will tackle the more macro issue of how the work and outcomes achieved by regulatory agencies fit into that living standards framework, the relevance of these agencies to the broader economy and wellbeing of New Zealanders, and how this type of framework is relevant to the decision-making and prioritisation choices made by these agencies and the tools they use.
Keynote – The future of competition intervention in markets
Dr Howard Shelanski, Professor of Law, Georgetown University, and Partner, Davis, Polk & Wardwell
New Zealand’s more recent history has seen us move from regulation to deregulation, and now increased calls for intervention in some markets. Howard Shelanski will discuss how and when governments and agencies can intervene most effectively in markets, including the intersection between competition law and regulation, and the factors influencing decisions regarding interventions in markets from both a policy and enforcement perspective.
Download Dr James Every-Palmer's presentation
Panel – How should we engage consumers in regulatory decision-making?
Tony Robinson, Chair, AusNet Services Customer Forum
Regulators and regulated businesses all want to know more about what customers actually want from network industries. The quest for consumer engagement has taken different forms all over the world. One of the boldest experiments is a joint initiative of the Australian Energy Regulator, Energy Consumers Australia, and Energy Networks Australia, who have together agreed with Victorian electricity distributor, AusNet Services, on a new regulatory model putting consumers at the heart of economic regulation.
We will be joined in this session by the regulator, the regulated business, and the head of AusNet Services’ Customer Forum to talk about how to feed consumer views into regulatory decision-making. We will also hear about other innovations in consumer engagement occurring elsewhere in the world.
Keynote – Every ad a responsible ad
The Advertising Standards Authority (ASA) is an industry self-regulatory body. Hilary Souter will discuss key requirements of the new Advertising Standards Code which consolidates six codes into one and applies to all advertising in all media. In this world of evolving media platforms, Hilary will highlight the ASA Guidance Note on Identification of Advertisements, and the application of the ASA Codes to social media influencers. Hilary will also discuss a wealth of examples of advertising, both compliant and not, and provide tips for advertisers and their advisers.
Panel – Responsible lending and protecting consumers
Kevin Foo, Senior Manager, Credit, Retail Banking and Payments, Australian Securities and Investments Commission
This panel session will discuss the position of responsible lending in New Zealand consumer credit laws. The panellists will explore issues such as why disclosure (providing information to borrowers about the interest rate, fees etc.) may not be seen as sufficient to prevent harm from lending, as consumers even with full information do not necessarily make rational decisions about loans that will best meet their needs. In particular, vulnerable consumers who may tend to look to the short term rather than the long term.
Panel – Vertical mergers: malignant or just misunderstood?
Torrin Crowther, Partner, Bell Gully
In recent years the Commission has investigated a number of vertical mergers, including Sky/Vodafone, Trade Me/MotorCentral and Ingenico/Paymark. Vertical mergers have also been in the news internationally, most notably AT & T/Time Warner in the US. This session will discuss some of the matters raised in these investigations, particularly in light of recently published academic literature that suggests that vertical mergers may be more likely to generate anti-competitive harms than has generally considered to be the case.
Panel – Consumer protection in an online world
Rami Greiss, Executive General Manager of the Enforcement Division, Australian Competition and Consumer Commission
This panel session will discuss the changing nature of commerce and shopping online. The panel, which includes representatives from an overseas regulator, a consumer protection organisation, industry, and a law firm, will discuss how the law and marketing practices are applied to a changing online environment. It will discuss how consumers are enticed to buy online, how to ensure consumers’ rights are protected, and the challenges in ensuring those rights can be enforced against overseas businesses.
Panel – When should regulated monopolies be allowed to participate in competitive sectors?
Dr Darryl Biggar, Special Economic Adviser, Australian Competition and Consumer Commission and Australian Energy Regulator
Around the world it is common for regulated monopolies to be subject to “line of business” restrictions which limit their participation in adjacent competitive markets. By contrast, such restrictions are rare for unregulated monopolies and any problems are generally addressed on a case by case basis through competition law. What is the justification for such restrictions on regulated monopolies and what are the associated costs? Under what circumstances are such restrictions to be preferred and what form should they take? Can comparisons be drawn with vertical leveraging by the major digital platforms in other markets?
Debate – Can market power exist in fast-moving tech markets?
Neil Anderson, Partner, Chapman Tripp
We are rounding out the conference with a debate on the topical issue of whether market power can in fact exist in fast-moving technology markets. The debate will ask participants to address issues such as, whether and why competition agencies should be fighting the FAANGs, whether dominant technology companies can be displaced, whether these companies have any guarantees as to future success, or whether these markets are in such a constant state of disruption that a hands-off approach should be taken to intervention.