The first woman to head Australia’s competition and consumer watchdog is set to break away from the path set by her predecessor.
After a 25-year career dominated by defending the big end of town from the Australian Competition and Consumer Commission, lawyer Gina Cass-Gottlieb is now its chair.
She has one of the biggest jobs in the country. The ACCC oversees everything from trying to send members of price-fixing cartels to jail to curbing the instincts of business towards monopoly by merging into ever larger companies as well as safety issues such as button batteries that children can swallow or quad bikes that are prone to flipping over.
There is a lot to cover, and the spotlight is relentless: the ACCC’s three previous chairs – Allan Fels, Graeme Samuel and, most recently, its longest-serving, Rod Sims – have been canny in their exploitation of the media, appearing everywhere from breakfast TV to serious broadsheets to drive their messages home.
That’s something Cass-Gottlieb says she will continue – she’ll “come out promptly and urgently” when circumstances demand, she tells Guardian Australia.
And she is also keen to continue pursuing another of Sims’ agendas, the battle against big tech companies such as Google, Facebook and Apple.
But, after a week in the job, she seems a lot less keen on another of Sims’ big ideas: making it harder for big companies to merge in order to bring more competition to a country where oligopolies – four big banks, two big miners, two big airlines – prevail.
In August last year, Sims, who in 11 years atop the ACCC never won a single court case where the regulator challenged a merger, launched detailed proposals to strengthen the regulator’s powers and make it easier to prevail before judges who have historically been happy to let even Australia’s biggest companies walk down the aisle.
Cass-Gottlieb says it’s “an important debate” but won’t give a definitive answer when pressed on whether she agrees with Sims’ proposals.
“I embrace the debate,” she says, pointing out that other countries including the UK and US are also reviewing their merger rules.
She also points out that when we speak on Thursday she’s been chair of the ACCC for a grand total of four days.
“I want to take some time – which doesn’t mean a lot of time – but I want to take some time together with the commissioners,” she says. “Rod kicked off the points, expressed the need, but was very clear that it’s the kicking off of a debate, not detailed proposals, and we now need to do the work.
“It’s an important debate, I’m going to be an active member of the debate.”
It’s not a position Cass-Gottlieb can be shifted from, even when Guardian Australia points out that as one of Australia’s most experienced competition lawyers she must have some view on how the system should operate.
Her reticence is understandable. She doesn’t say so, but it would be difficult to push on with law reform proposals that were slapped down by the treasurer, Josh Frydenberg, almost the moment they came out of Sims’ mouth.
On the other hand, if Labor takes power in an election due in May, as polls predict, the door to reform is not completely closed.
If four days is too soon for Cass-Gottlieb to make up her mind about mergers, it is plenty of time to decide whether to keep going with the ACCC’s campaign to rein in big tech companies such as Google, Facebook and Apple – a campaign that has been good for media companies, including Guardian Australia, tipping an estimated $200m a year into the coffers of Australia’s news providers.
While Sims’ proposals for tougher merger laws had him in the Frydenberg freezer, the attack on tech multinationals was warmly embraced by the treasurer.
After tackling social media platforms on their treatment of news providers, Google and others on the opaque way they sell ads and even reverse engineering the Trivago algorithm to sting the travel booking site for misleading consumers over hotel rates, the ACCC is now tackling big tech over the way it treats small business.
“That is going to be a key piece of work, considering what are the areas that need new regulation and the effective modes of new regulation, given the position and market position of digital platforms,” Cass-Gottlieb says.
She has also committed to continuing to bring criminal cartel cases, despite the collapse in February of a landmark prosecution of bankers over a capital raising by bank ANZ. The case never reached a jury, with the commonwealth director of public Prosecutions withdrawing the charges following a series of legal setbacks that included the judge in the case describing the CDPP’s case as a “complete shemozzle”.
Like every regulator who is speaking on the record, Cass-Gottlieb won’t criticise the CDPP over its poor record in prosecuting complex white-collar crime, which, when regulators are speaking off the record, is an eternal source of frustration.
Laying blame would not be “helpful or appropriate”, she says.
“The ACCC has commenced a consideration of the matter, from the beginning of the investigation through, and we are going to learn the lessons from that.”
She points out the ACCC and the CDPP need to put up criminal cases that “both survive legal challenges before a federal court judge” and “satisfy 12 ordinary people sitting in a jury who need to then look through all that legal complexity of a cartel contravention”.
Asked what her agenda is, she says she is “absolutely committed” to the priorities the ACCC has already put forward for the year.
“Covid-impacted supply chains, the question of the truthfulness of environmental claims and environmental sustainability, claims of greenwashing, the problem of protection of small business, the global supply chain issues,” she says.
“There are immediate as at this point in time issues and then the enduring priorities that we’ve seen in cartel enforcement, consumer law enforcement.”
None of this stuff is new territory for Cass-Gottlieb. For decades, she’s been among Australia’s preeminent competition lawyers, most recently as a partner at big firm Gilbert + Tobin.
But while a star in her field, she’s more or less unknown to the general public – something that’s about to change very quickly.
Especially during the pandemic, it seemed like Sims was on TV or radio or in a newspaper almost every day, either allowing cooperation to keep things like supermarket supply chains going or warning Qantas against feasting on smaller rival airline Virgin, which was on the verge of collapse.
Cass-Gottlieb says that in her early days she may not do as much press as her predecessors, but she will be visible – she’s already been getting media training from her handlers at the ACCC.
“I’m going to pop up regularly and I’m going to do that because it’s a key part of the job of being the chair, and it’s key because the community must have trust that the ACCC is active, a champion for consumers in every respect, and going to maintain competitiveness of markets across the economy,” she says.
She’s conscious that the exposure is beyond her comfort zone.
“But one of the points I have been conscious of is I’m a strong believer in increasing diversity and that if I, as a senior woman, did not say I’m prepared to push outside my comfort zone, there won’t be change,” she says.
She comes from a family with a history of public service in medicine: her father, Cecil Cass, was one of Australia’s most distinguished orthopedic surgeons, her mother, Bettina, a pioneering sociologist and women’s rights activist and her uncle, Moss Cass, who died this month, was also a doctor, although he was better known as the first ever minister for the environment in the Whitlam government, as well as the minister for media.
Given Moss Cass’s criticism of the Murdoch media empire as “paranoid”, it seems odd that his niece ended up as a trustee of the media family’s trust – a role that attracted criticism when Cass-Gottlieb was announced as new ACCC head.
She says she quit the role last year, before being appointed to the ACCC.
“It was a regulatory compliance role, which I was asked to take up after the prior partner of another law firm who was in the role retired,” she says.
“It was not a role where I was advising on the transactions or operations of the business, either locally or globally.”
If the ANZ cartel case went ahead, Cass-Gottlieb would have had to excuse herself from discussing it because she represented one of the banks involved in the case, JP Morgan.
But despite a storied career during which she’s represented everyone from media group Nine Entertainment to French train maker Alstom, she says she has “less than 20” outstanding conflicts of interest registered with the ACCC where she will have to stand out of discussions because she has confidential information.
“There are actually fewer than one would expect, which is because the commission has such a huge slate of matters before it, and I was only one of many advisers,” she says.
“I have left behind every prior client relationship, they are all terminated. I have taken this role, clearly and consciously, to contribute to the benefit of the public, and I’m deeply conscious of those obligations and inspired by them.”
