����ԭ��

SIMON MUYS:

Good evening. Welcome. It's my pleasure to welcome you this evening to the 11th Annual Bannerman Lecture. I'm Simon Muys for those who don't know me, I'm a competition partner here at Gilbert & Tobin, and I'm also deputy chair of the Competition and Consumer Committee of the Business Law section of the Law Council of Australia.

The Law Council is proud to join with the commission every year to host this very important event. I'm welcoming you on behalf of also our committee chair, Peter Stevenson, who unfortunately can't be with us this evening. She's up in Sydney, caught up fighting the good fight in the Woolworths litigation. I may not be a contestable proposition with this audience.

I'd like to particularly acknowledge that we're joined this evening, it's I think quite unusual to be able to say this, by all seven of our ����ԭ�� commissioners. So welcome to ����ԭ�� Chair Gina Cass-Gottlieb, Deputy Chairs Catriona Lowe and Mick Keogh, and commissioners Anna Brakey, Luke Woodward, Ian Oppermann, and Philip Williams. I'm not sure if we had to speak to the government insurers to get that. We're very, very glad to have you here.

I'm also delighted to say I saw somewhere in the house that we've been joined by Danielle Wood, the chair of the Productivity Commission. So, thanks also to you, Danny, for joining us.

Let me begin by inviting Jayde Richmond, general manager of the National Anti-Scam Centre to deliver an acknowledgement of country.

JAYDE RICHMOND:

Wominjeka. We meet today on the lands of the Wurundjeri and Woi-wurrung people of the Kulin Nation. I pay my response to the traditional owners, the elders past and present, and I acknowledge and celebrate their enduring connection to land, waters, and community. I acknowledge my own ancestors and extend my deepest respect to all Aboriginal and Torres Strait Islander people here today.

Giving an acknowledgement is a privilege and an honour to me. There has been recent criticisms of acknowledgements and welcomes to country, suggestions that they are symbolic, unnecessary, or at worst, divisive. For me, an acknowledgement is about connections between people, between cultures, and with history. Acknowledgements are not about personal beliefs or morality. They recognise an important truth that this is and always will be Aboriginal land. Sovereignty was never seeded. And by acknowledging that, comes a continuing responsibility to work alongside First Nations people in ways that are empowering, respectful, and inclusive.

For those of us who work in the law, context matters. Our legal system does not emerge in a vacuum. It sits atop much older systems of law, governance, and connection to country. Acknowledgements of country are an important part of our institutional integrity. Public trust depends on whether institutions are seen to understand the communities that they serve, particularly those who have experienced exclusion or harm.

Acknowledgements are not easy, and they may not be universally agreed. But I do it because it is true and it reflects the standards of the institutions I represent. So, when I give this acknowledgement, I do so with intent and with an understanding about why it matters.

Today, I hope you accept this invitation to walk together, acknowledge truths, and listen deeply to the voices of First Nations people in all that we do. At the heart of this place, right behind me, is the Birrarung, the Yarra River. For the Wurundjeri people, the Birrarung is a living entity. It's a creator that holds stories, memory, and law. It reminds us that everything is connected.

For Aboriginal people, country is not just land. It is a living system of people, water, sky, culture, and law. It teaches responsibility. We don't own country, country owns us. And our role is to care for country, and it cares for us.

Country for First Nations people is alive and timeless. It is us. We talk about country like we would a person. It encompasses everything. I like to read the words of a Larrakia woman and activist, Mililma May, called ‍‍Gulumoerrgin | My country. "Gulumoerrgin is the trees, the red dirt, and blue seas. Gulumoerrgin is the sun, the moon, and the stars that infinitely surrounds me. Gulumoerrgin is my family, my people, and my community. Gulumoerrgin is me."

Narrm is a place of deep cultural, spiritual, and historical significance. It holds a story that predates the city and structures around us and is part of the stories of Aboriginal people going back over 30,000 years. While we celebrate these stories, we must also grieve for those cultural practices, languages, and communities that did not survive colonisation.

The nearby river, the Birrarung, was never just water. It is a sacred living entity formed by the creator spirit Bunjil. It was a living system of knowledge. It taught Aboriginal people when to move and when to rest. It shaped how people related to each other and to country.

Narrm was a place of gathering where different mobs come together to trade, to share knowledge, to resolve disputes and maintain relationships. For thousands of years, knowledge here was not rushed. It was listened to and carried carefully, passed on with the understanding that what you do today shapes tomorrow.

For thousands of years, this land has been cared for and sustained through sophisticated systems of law, culture, and responsibility. But many of the systems that exist today have excluded, enabled harm and eroded trust. When country is healthy, people are healthy. When country is disrupted, people feel that too, culturally, spiritually, and socially.

Truth telling is not just about acknowledging this history. It recognises that history shapes outcomes today. It explains why trust in institutions is not evenly held, and that designing a system without First Nations voices will often fail First Nations people. So, as we gather here today, we have a responsibility to reflect and ask ourselves, who are our systems designed for? Who do they protect well and who do they leave behind?

Competition law matters because it helps ensure that markets like all systems are not dominated by the powerful, but remain open, fair, and capable of serving everyone, including First Nations people. When competition works, it reduces exploitation and creates space for self-determination through economic participation.

Without competition, disadvantaged compounds. Competition law cannot on its own resolve structural inequality, but it determines whether markets entrench it or help to dismantle it. True empowerment requires dadirri, in the words of Auntie Miriam-Rose, that is inner deep listening and quiet still awareness. It requires understanding. It means taking the time to hear the experiences of those who are most impacted and allowing that to shape the systems that we build.

I stand here today not only in my professional role, committed to positive consumer outcomes, but as a First Nations person. For me, this acknowledgement is not routine or just a moment to reflect at the beginning of an event. It is a reminder of the responsibility we all carry, and more importantly, the opportunity for change.

Like many Aboriginal people, generations of my family learned to distrust authorities and were isolated or removed from their community, family, and culture. A very significant tragedy was imposed on First Nations people. And while this is an uncomfortable truth to acknowledge, by continuing to do this, we can celebrate the generosity and incredible resilience of First Nations people.

So, thank you for giving me this time today. My hope is that this is not just an acknowledgement, that it is a call to action, and it inspires all of us to strive to be in a better world that often tries to bring people down. Let us commit to truth telling, not just in words, but through our actions. And let us practice dadirri. Let us listen deeply, patiently, and with intent so that systems we build can truly protect. By doing this, we honour the ancient stewardship of this place Narrm, and leave things better than we found them for people, for communities, and for country. And not just for some people, but for everyone. Thank you.

SIMON MUYS:

Thank you, Jayde. That was beautifully and importantly shared. I was actually reflecting last time I was in the Northern Territory on. And we've heard it again tonight, how one of the great cultural strengths I think of our First Nations people is the way they draw from and deeply respect and revere their elders and their history. And in a kind of way, that's what we're doing here this evening in the sense that we are gathering once again to reflect upon and remember the legacy of Ron Bannerman, who was, in some respects, one of Australia's great competition law elders.

Ron was appointed as the inaugural Commissioner for Trade Practices in 1966 and tasked with the difficult job of implementing and shaping the then contentious Trade Practices Act of 1965, the first version.

Those who attended last year's lecture will recall the excellent address of his honour, Chief Justice Gageler, who traced the history of our competition law through those at times quite troubled waters. Through this period, which included some important and foundational litigation, important given the speaker we're going to hear from shortly, Ron established both the public legitimacy and the legal constitutionality of our competitional law. Through that early and challenging period, he made the case for a modern and effective competition law in Australia as was subsequently passed with the 1974 Trade Practices Act.

Ron was perhaps unsurprisingly then appointed as the first chair of the Trade Practices Commission where he served with distinction for a decade through to his retirement in 1984. Ron was appointed an officer of the Order of Australia the following year.

For the Competition Committee, this lecture has remained one of the highlights of our annual calendar since it was first launched by Rod Sims back in 2015. That's not just because it looks backward to celebrate and recognise the contribution of Ron and his legacy, but it's also because it looks forward. It seeks to engage with the contemporary challenges and debates that face us here today. And in the 25 years that I've practiced in this area, I can say I've not seen competition and consumer law pulled in as many directions. I see firsthand, as the deputy chair, the number and the breadth of the policy consultations and law reform proposals that we are asked to contribute to. Some of these are driven by deep principle, most of them perhaps. Increasingly, I wonder whether some are also flavoured by a little populism.

You, the ����ԭ��, are being asked to manage or soon will be the price of my breakfast cereal, reduce my energy bills, mitigate the domestic impact of global conflagrations in the Middle East on my cost of living. Or you are asked to help protect me from the constantly evolving consumer challenges of digital innovation and the AI on my life. You're being asked to do all this at the same time as the agency is delivering a complete rip and replace of a 50-year-old merger review process. As my teenage daughters would say, "It's just a lot, dad."

And so tonight, I can think of no one who's better place to speak to this dynamic and contentious moment than Luke Woodward. Luke needs no introduction, but I'm going to give him one. He has been a terrific friend of the BLS for a very long time, many years. And as you know, he joined the commission last year and he both chairs the enforcement committee and as deputy chair of the merger committee.

This is Luke's second stint at the commission. He served seven years from 1993 to 2000, spending much of that time as general counsel. In 2000, he left to join Gina Cass-Gottlieb, once again, here at Gilbert + Tobin, where he was a senior partner of ours for over two decades and spending much of that time as the head of our group.

In fairness to Peter and KWM, I should acknowledge that toward the end of his time in private practice, Luke spent a few unfortunate years somewhere else. Personally, Luke has also been a great friend and mentor. I've said many times that I rate him as one of the finest and most strategic competition litigators in the country. There have been many times as a junior partner on a difficult, complex enforcement matter where I would find myself asking the question, "What would Luke do?" And these days, in similarly complex moments on enforcement matters, I find myself asking, "What will Luke do?" Which it turns out is a different, but no less unpredictable question.

Look, tonight after Luke's addressed, Gina will offer some concluding remarks before we then have a panel session responding to his observations from a number of those here who worked closely with Ron or have been guided and shaped by his legacy. That panel will be moderated by my partner and the head of our group here at G+T, Elizabeth Avery.

Following formalities, and as you can see, we like to make this very obvious. Please stay back and enjoy a drink and some counterpoise with friends and colleagues. But with all that said, please join me in welcoming to deliver the 11th Annual Bannerman Lecture, Commissioner Luke Woodward.

LUKE WOODWARD:

Hello, everybody. Thank you, Simon, for that reflective introduction. Thank you, Jayde, for your acknowledgement and call to action.

What Simon didn't say to you was that he asked the question of me, "What should I do?" but he never listened.

Thank you also to the Law Council for partnering with us to host this lecture here today on Wurundjeri, Wurrung Country. I also pay my respects to elders, past, and present and to Aboriginal and Torres Strait Islander people who are joining us today. It's a pleasure to see many familiar faces in the room, many of whom have shaped competition law. In fact, probably everyone here in this room has been part of shaping competition law in Australia.

I'm delighted to have the opportunity to make these remarks ahead of the panel discussion with Dr. Rhonda Smith, Richard St John, Roger Featherston, and Hank Spier led by Elizabeth Avery. Each of our panellists have special insight into the establishment and work of the Trade Practices Commission under Ron Bannerman's leadership.

Each year, this lecture provides an opportunity for a lesson in history and a reflection on Ron Bannerman's legacy and the standards he set. It also provides an opportunity to revisit a question that Ron had to answer, and which is just as important now. How do we make competition law work?

Prior to the establishment of the Office of the Commissioner of Trade Practices in 1966, collusive and restrictive conduct between and by Australian business proliferated, largely unchecked and below the surface. It is not an overstatement to say it was an Australian business norm. Ron called this the web of anti-competitive conduct that lay across Australian industry.

The establishment of the Office of Trade Practices Commissioner and later... The Trade Practices Commission and Ron's appointment to lead those agencies reflected an emerging recognition that these widespread practices were stifling economic growth, contributing to higher cost of business and consumer prices, and delivering poor quality products and services. Mergers of a pro competition policy both anticipated and drove a fundamental shift to pro-competitive business norms. Over time, of course, this didn't happen overnight.

Today, restrictive trade practices are no longer an acceptable business norm, but that does not mean they no longer exist and don't have the real capacity to act as a dead weight on the economy. And in other respects, we have today challenges like those facing Australia in the '70s and '80s. We have sustained cost of living pressures, declining real living standards. We have geopolitical instability and declining public trust that markets will deliver outcomes that consumers and the community expect. We have increased costs and uncertainty for business. Paradoxically, we see remarkable innovation and the potential for fundamental technological disruption hand in hand with enduring or even enhanced market power.

The Australian government has a policy focus on lifting productivity and promoting growth, identifying the need to reduce regulatory costs and impulse on business investment and innovation. It will be obvious to this audience that removing restrictive business practices through enhanced competition law, compliance, and reducing the burden of inappropriate government regulatory costs and impose on competitive markets go hand in hand.

The OECD's most recent economic survey of Australia concludes the competition has waned across the Australian economy over the past two decades. The OECD framed the concern that our economy is not becoming more dynamic, but less so while market concentration and profit margins have risen.

I am sure we all want an economy that is inclusive, full of opportunity, and affordable, one that is dynamic and productive and delivers the outcomes that matter most to the community, including business. It is also the case that we continue to fall short of that ambition. The OECD is clear that to address this challenge, we must continue to promote strong, proportionate competition regulatory settings, and we must continue to invest in vigorous enforcement.

Research backs this point. For example, academic research of DOJ antitrust enforcement shows strong competition enforcement is positively correlated with enhanced business formation and employment, ensure promoting the conditions for stronger economic activity across markets.

Of course, competition law does not operate automatically. It does not deliver outcomes simply because it exists, which brings me back to the question that Ron Bannerman faced and that we continue to face today. What does it take to make competition law work? Well, we have the benefit of Ron's legacy to be able to answer this question. First, building a deep understanding of commercial practice and what is actually happening in our markets. That is understanding what is going on. Second, applying the law with clarity and authority through enforcement that understands and can explain the harm to competition from restrictive trade practices, and that constructively contributes to the development of the law and builds a framework of pro competitive business norms. Third, investing in the resources, capability and skills, that is investing in the people who do the work to bring competition law to life. And it's these that I will explore in this elective today.

Let me take you back to beginnings. Ron was, as Simon noted, first appointed commissioner of trade practices in 1966 under the then Trade Practices Act. Under that act, restrictive trade practices were not presumptively unlawful. Rather than prohibiting anti-competitive conduct outright, the act relied on a process of registration and potential disallowment based on a public interest test.

From the perspective of clearing up an economy riddled with restrictive trade practices, it was not particularly ambitious or effective, but in its own way, it was revolutionary. Through registration, investigation and review, the commission gained unprecedented visibility into Australian markets and business practice, and for the first time, was able to bring to the surface the depth and breadth of restrictive trade practices in the economy.

As this audience will know well, the Trade Practices Act 1974 marked a decisive shift from a system that provided a degree of transparency of business practice to one that was actually capable of shaping the conditions for effective competition. For the first time Australia had a prohibition-based competition regime, national consumer protection laws, merger control, and an administrative exemption process in cases of public benefit, all administered by a new independent commission. Ron was called on again to lead as chair this new commission.

At the heart of this change was the important role of law enforcement to sanction anti-competitive business practices. However, this law was never anti-business. Properly understood it is fundamentally a pro business law, as Ron deeply understood. At the time he wrote, "Looking at the act in broad, it is not anti-business, although it falls hard on particular companies who engage in anti-competitive behaviour or unfair practices." There is large, not complete of course, but large, common interest between business and the community in the private enterprise system if it works well. Business prosperity through efficiency and competition furthers not only the gains of private business, but also, above all, the interests of the community. Continuing improvement in industry efficiency is necessary to maintain or raise the standard of living. It's not just a matter of cutting the cake fairly, but of increasing the size of the cake there is to cut.

From the outset, the commission adopted an activist mindset. It moved firmly and relatively swiftly against blatant breaches of the law, including resale price maintenance, price fixing, and exclusive dealing, while also taking on a large volume of consumer protection matters. Early merger work was a steady stream. You'd be glad to hear, Simon. Under Bannerman's leadership, the commission became a place where deep market knowledge and investigative rigour coexisted and reinforced each other.

With the benefit of hindsight, it may be noted that Ron's frugal and cautious management meant that the TPC remained a relatively modest operation under his tenure. But over time, his legacy of integrity and transparency helped build political and public acceptance of the need for a permanent well-resourced competition regulator.

Early enforcement was not straightforward. The law was new. The court's cautious, and the commission was still learning-

LUKE WOODWARD:

The law was new, the court's cautious, and the commission was still learning how to translate market insight into coherent cases, case theories capable of enforceable legal proof. Early losses, particularly in conduct that was exclusionary in nature, exposed the challenges of taking cases in the context of developing Australian law. Over time, however, investigative techniques improved. The integration of economics and law became more sophisticated and case selection became more targeted. The commission staff actively engaged with the business world and developed a granular understanding of business in practice.

Through cases in the courts and tribunals, and as articulated in Ron's annual reports, the concept of competitive markets and what it meant for that competition to be lessened or hindered was articulated and became clearer. As many will be familiar, in an early merger review matter involving rival proposals to acquire a competing flour milling business, the tribunal articulated for the first time a framework for thinking about competition as a process of rivalry, shaped by market structure and constrained not only by existing competitors, but by the threat of entry. It also clarified the central role of the market as the field of that rivalry, defined by the extent to which customers could switch between products or suppliers and business was free to meet those demands. Subsequent tribunal and court cases applied and tested this framework of competitive analysis in real world settings.

By the early 1980s, a shared understanding over the law began to translate into results. In a major case involving competing flour and stock feed businesses run by my former colleague, Bob Alexander, the commission secured its first significant court victory under the restrictive trade practices provisions, along with the first degree penalty in a cartel matter. An approach emerged that focused on the impact of the conduct on the process of competition. The question was less about whether firms were damaging each other, and more about how their conduct was restricting or impeding the competitive process. That is, whether it weakened the rivalry essential for markets to work well. As Ron noted, the antithesis of competition is undue market power. The power to raise price and exclude entry, where firms are sufficiently free from market pressures to administer their own production and selling policies at their discretion.

At the centre of the law was the concept of a likely effective substantial lessening of competition. That is fundamentally a preventative standard. It does not ask, at least not as the critical question, whether there has been actual harm caused to a competitor or potential competitors. It asks whether the conduct has materially diminished or will likely diminish the process of competition itself. Has the conduct reduced the capacity for competition to drive market participants to innovate, to operate more efficiently, to produce better quality products and services, and to lower their prices? Addressing this question did not and does not require a complex process of predicting various future competitive market outcomes and comparing them, but simply of considering whether the conduct will harm the competitive process that would otherwise exist in a real and meaningful way.

And it recognises that this can happen in different ways. By business conduct that reduces rivalry amongst competitors to conduct that outright excludes them, or that meaningfully hinders or restricts their competitive freedom. It also recognises that structural impediments can impede competition, including conduct that consolidates, strengthens or entrenches market power, or raises barriers to competition, including the potential for entry.

While the size of the agency and overall portfolio of competition cases taken under Ron's chairmanship were limited, the groundwork had been laid, and we are the beneficiaries of that legacy today. In the late 1980s and into the early 1990s, the commission began to take on more and more complex cases, including misuse of market power, exclusionary conduct in cartel and merger matters across a range of industries, from petrol to building and construction materials, to transport and logistics to consumer grocery products. Over that period, the law continued to develop through its application as the commission took on matters in areas where the boundaries were not always settled and where the substantial listening of competition standard had to be given practical meaning.

The caseload deepened in the 1990s, and has continued to build over many years, with many competition enforcement matters involving a wide range of conduct across a wide range of markets. We need only look at the commission's work in recent years to see this breadth and depth reflected. Through cartel proceedings, the commission has worked to address coordination and pricing and conduct across sectors ranging from fresh fruit to construction, logistics and services sectors. At the same time, exclusionary conduct matters have engaged with issues imports, telecommunications, payment systems, distribution networks, and increasingly in digital and data-driven and dependent markets.

Right from the earliest enforcement matters, most cases have been difficult, many contested and not all a success. But each has contributed to a clearer understanding of how competition operates in practice and how its loss can be identified and addressed. This same task continues today. Deep market insight remains critical. Through investigations, studies, and broader market inquiries, the commission examines how markets are operating in practice, identifying patterns of conduct, structural features, and incentives that may limit competition or harm consumers. This work increasingly involves new forms of conduct, evolving market structures and complex economic questions.

And the effects of the commission's interventions can often take some time to play out. The OECD's recent Australian survey pointed to the very important role of market inquiries as a source of insight and intelligence, important to effective competition, enforcement, and policy. The ����ԭ��'s work in the supermarket sector is one example amongst many.

The first inquiry of the commission in 2008 identified barriers to competition including, amongst other things, planning and zoning, and the use of restrictive covenants in retailers. Over time, these insights helped to change our decisions in the sector were scrutinised by governments, by business, and by the ����ԭ�� itself. In the years since, Aldi has expanded to hundreds of stores across Australia and to catchments that have previously been dominated by the two major incumbents and has become a meaningful source of price constraint for the products that it sells.

On the other end of the spectrum, the commission has secured more immediate outcomes through targeted interventions. In some cases, this has been achieved through court enforceable undertakings that quickly move to remove restrictions and open access. In the digital services sector, the importance and benefits of being able to establish bespoke competition and fair-trading rules upfront has been recognised.

But as Ron rightly called out at the earliest opportunity, court enforcement is the cornerstone of competition law and remains so today. The commission continues to bring important cases to the courts where it sees collusive or exclusionary conduct that materially weakens competition. I think your daughter might be calling you. Or maybe yours, Jayde, I'm not sure.

These cases don't simply address the specific harmful conduct, but ensure that the law remains up to date and responsive to current business practices, and is firmly in the minds of business as a critical set of rules the community expects them to operate by. Taken together, this work shows an agency applying market insight to identify harm, using enforcement where it's necessary, non-litigated tools where they achieve timely outcomes, and investing consistently in the capability required to do both well.

With that, I come back to the question we began with, what does it take to make competition law work? In many respects, we face similar challenges to those facing Ron Bannerman. There is the need to strengthen competition, to help lower the cost of doing business, consumer prices, drive productivity, so the competition laws can play its important part in lifting Australia's economic performance.

Looking back at his legacy, I believe this takes a clear view of how markets are functioning, even if that view is not always complete. It takes a willingness and a clarity of vision to act, even when the outcomes are uncertain. And it takes the resources, institutional settings, and capability to do the work well. At its core, this work depends on people, investigators who understand business, economists who understand market dynamics, and lawyers who can translate and present the evidence in enforceable case theories. And the institutional authority, confidence, and courage for those people to do their job well.

Beyond the lessons of the past, it also requires one more thing. An acceptance that this work is never finished, markets change, business models evolve, power can concentrate in new ways, and restrictions can arise in places we do not previously anticipate. Our task is to not only enforce the law against familiar conduct, but to apply it in new context, through inquiries, advocacy, and engagement, and also enforcement to ensure that competition continues to do its work. Thank you.

Cheers. Good luck.

GINA CASS-GOTTLIEB:

Good evening, friends and colleagues. I want to start by thanking you, Jayde, for your insightful and moving acknowledgement of country, for talking to us about connection to country, connection to communities, and the knowledge that shapes the future. Thanks very much, Jayde.

Now I want to thank Luke, and I'll come back with a reprost for Simon, but I wanted to start with Jayde.

For your thoughtful and deeply considered lecture this evening, which brings many years of your own experience, the issues you have grappled with over time, and the ones you still want to grapple with in the future. It's provided us with a rich account of the development of competition law in Australia, its challenges over time that still face us, and a clear sense of what is required to sustain it over time.

Simon, Luke is not unpredictable. I promise you. Deeply experienced. And he's happy to give clear signposts to the future. In advance, I want to thank each of the members of the panel for giving us your time, so to Rhonda, Richard, Roger, Hank, together with Elizabeth, for the reflections you're going to give us together with your lived perspectives over the years on the themes of this lecture. For all of us here this evening, we share the knowledge that the development in competition law is not simply a matter of legislative design, even if that keeps occurring over time.

It is, in a very real sense, a process of institution building and building respect for our law, and we all share in this important process. It requires technical expertise, the steady accumulation of credibility through decisions, enforcement, and continued engagement with the community, and listening deeply to community.

As we've heard, Ron Bannerman's contribution to this process was seminal. It extended beyond establishing a framework to shaping how the framework was understood, applied, and accepted. In doing so, he established both the institution and an approach to its leadership, an approach grounded in discipline, fundamentally resting upon independence and in a clear sense of public purpose. That approach continues to shape the role and the many roles of the commission today. It's a role that carries a responsibility to maintain confidence in the law, to apply it with consistency and discipline, and ensure it continues to operate as intended in changing conditions. It's an approach I'm very conscious of carrying forward in my role as chair.

One aspect of Ron's work, which is reflected, in fact, in our speakers, in the breadth of our panel, and in the breadth of the audience here, was the way in which Ron engaged with emerging academic thought during this formative period. In the years leading up to the 1974 Act, he maintained a close connection with Professors Maureen Brunt and Bob Baxt at Monash, making guest appearances each year at their courses, engaging with their teaching, and later drawing on their expertise in the commission's work. Including through the very strong engagement of Maureen Brunt, of course, throughout the time. This reflects a broader feature of his approach, a recognition that effective competition law depends on the integration of legal, economic, and academic insight. It's an example of institution building in practice grounded in collaboration and in a willingness to engage deeply with the ideas that underpin the law and sustain the law.

This process of institution building didn't end with the establishment of the Trade Practices Commission. It's continued through successive phases of reform and development from the establishment of the ����ԭ�� in 1995, through to the introduction of criminal cartel provisions, the broadening of misuse of market power laws, the significant expansion of penalties, and now the new merger regime. For only some of those developments, each of them reflects an ongoing effort to refine the framework, strengthen its operation and the outcomes it delivers, and reinforce its credibility. This continuity matters. It reflects a recognition that competition law must not stand still, that its effectiveness depends on sustained attention over time. Attention to business practices, attention to the transformation and disruption of markets, attention to the evolution of the competitive process. Perhaps, and always most importantly, attention to the outcomes for consumers. Within that evolving framework, enforcement remains central.

The ����ԭ�� has a strong record of delivering enforcement outcomes supported and enhanced by legislative reform. Those outcomes play a critical role in maintaining confidence in the law and in shaping and guiding business behaviour. They demonstrate that the law is capable of responding to conduct that undermines competition and that breaches carry meaningful consequences. Which brings me back, and I think for all of us, comes back to the idea of stewardship for the law that Ron exemplified. A responsibility that is ongoing, that is shared across regulators, the legal profession, economists, policymakers, and the broader business community, and the representatives of the consumer movement who keep reminding us of why this matters so much. Each plays a role in how the law is interpreted, applied in practice, and understood in the context of changing market conditions. For the ����ԭ��, this means continuing to invest in the capabilities required to understand increasingly complex markets, to continue to engage closely with participants in markets and broader expertise, to apply the law in a way that is rigorous and proportionate, and to engage clearly with the community about the role we play.

Before I close, I too would like to thank the Law Council for your continued enthusiasm, engagement, and collaboration in working on changes to the law and partnership in hosting this lecture. And I want to acknowledge the wonderful members of the Bannerman family for their ongoing support and stewardship of Ron's legacy. It is a great pleasure for me to reflect on Ron's legacy every year. It is always a grounding experience. And I now am delighted to hand to our distinguished panel for your reflections and contributions. Thank you.

ELIZABETH AVERY:

Thank you very much, Gina, for those thoughtful remarks. And also, to Luke for his very insightful remarks on the life of Ron Bannerman and his legacy. Really appreciate it. And Jayde, I also just wanted to thank you for the beautiful acknowledgement of country, it was really truly something.

For those who don't know me, I'm Elizabeth Avery, and welcome you all here tonight. I'm honoured and very humbled to be facilitating a conversation between such eminent founders/the OG models of what our competition law and policy is today. And all of them had very, very distinguished careers in competition law right at those seminal moments with Ron Bannerman and beyond.

Just introducing in turn, first of all, we have Richard St. John, who worked with Ron, firstly, I think in the Trade Practices office from 1967 to '74, prior to serving as the first assistant secretary of the Department of the Prime Minister and Cabinet, and as deputy secretary of the Attorney General's Department. He was also commissioned by the Australian government to review the future of financial advice reforms in 2010.

We have Hank Spier. After a stint in the Policy Department, Business and Consumer Affairs, Hank moved to the Office of the Commissioner and then the Trade Practices Commission with Ron Bannerman, working for over 30 years with the ����ԭ�� and its predecessor. Having served as general manager and then later named as CEO of the Trade Practices Commission, from '91 to 2000. He was actually the inaugural CEO of the ����ԭ��. Hank, as you would know, continues to contribute to competition and consumer policy through a lot of writing, advocacy, and his consulting, Spear consulting. He's written a very informative article about the contributions of Ron Bannerman, which I commend to you all, which is great background reading for me and preparing for today.

We then have Roger Featherston, who was appointed as an ����ԭ�� commissioner in 2014, and he's more recently chaired the ACCs... While he was there, he chaired the ����ԭ��'s merger review committee until he departed in 2019. Roger, as you would know, has been on both sides of the fence at Mallesons for a long period of time also. And he's been described by one newspaper as one of the godfathers of Australian competition law. Roger has remained active and an influential voice in Australian competition policy.

And finally, on the end, we have Dr. Rhonda Smith. Who, as you would all know, served as a commissioner of the ����ԭ�� from '95 to '98, and was a lay member of the High Court of New Zealand for many years in that interesting role that they have as assisting as the economist. Rhonda is a distinguished academic economist and one of the foremost authorities on competition law and economics, and many of our decisions benefit from Rhonda's great insights.

I appreciate that all of that biography will be known to many of us in the room. But I think it's important as we reflect and consider the history of competition law in Australia to pay our respects, really, to your fabulous contributions. And we thank you for it. And as Rhonda mentioned to me earlier today, it would be fantastic to actually document, perhaps by interview, but a history of all of the people who've worked over the years in competition law and the founding influences of competition law. I don't think she was referring to herself, but I am.

And probably, it's a bit beyond me to write that history, but I would love you all to share your reflections today. That's a good segue into our first topic, which is just really asking for your personal reflections on working with Ron, and if you did work with Ron. And if you didn't work with Ron, what your experience of the influence that he provided to you was. Richard, turning to you.

RICHARD ST JOHN:

Thank you, Elizabeth. It was almost 60 years ago that I attended a professional development meeting. About this time, the early evening at the Law Institute of Victoria, somewhere up the other end of town. And Ron Bannerman spoke to a very crowded room of lawyers who had come to hear more about this very contentious legislation that had eventually been enacted and was about to come into operation.

I remember Ron, who would've been in his early, perhaps mid 40s, slight of stature, was quite steadfast. It wasn't an easy audience. There was a lot of fear and anxiety. Sometimes I think in the profession, as well as on behalf of clients. But by the end of the evening, I thought... Ron was no golden orator, but he held his own. He was very steadfast, clear. And I think he allayed any fears that he was a devil incarnate, and that he was-

... it's a devil incarnate, and that he was a serious player. Anyhow, I had already had an interest in the area, kindled when I did some postgraduate work at the LSE in London with a very fine lawyer economist, Valentine Korah and Basil Yamey. And after that lecture, and within a short time, I left a law firm in Melbourne and began in the very small legal office, supporting Ron.

I stayed there a couple of years and then things were moving low, moving well, sort of slowly. I moved over into the Attorney-General's Department where competition law got me again because legislation, legislative initiatives came alive under a successive attorney's general in coalition governments and then with the Whitlam government, Lionel Murphy.

And it was a very active period of policy development and legislative development. But my first introduction I would say was to see Ron in action as educator. And I think that was one, but one very important part of his influence, he helped, there are others, that he helped bring the great turnaround in the tide between the norms of Australian business and legal framework to a more open, to a more competitive environment.

ELIZABETH AVERY:

Thank you, Richard. I imagine that culturally it was quite a turning point for Australian business norms. Do you think Ron influenced that cultural change?

RICHARD ST JOHN:

It was huge. It's stated that was there. I remember before going to Canberra, advising clients and the network of restrictive arrangements and the activity and strength of various trade associations was really something. And there were private courts and punishments for people who stepped aside and so on, who stepped out of line. It was a real turnaround, but that was ...

Ron played that partly through getting out there and speaking as he did then also in his interactions with business people. And I remember one occasion when early on in a Section 48 consultation in Sydney, I accompanied him and it was a compulsory consultation required before the Commissioner could reach a view and challenge a restrictive agreement or practice in the tribunal. And I don't remember the industry, but I remember the dynamics of the meeting and Ron very patiently, and he was a very reasonable man, a very polite man, and explaining and questioning and engaging the Chief Executive, I guess it was.

And it wasn't getting far. He was trying very hard. But what I noticed and remarked onto Ron later was that the CEO's younger colleagues were just a glimmer coming into their eye, they were getting it and taking some of the bait. Ron was getting out there about the possibilities at a more competitive environment. But I remember being struck by, overall, his patience and steadiness in trying to, not browbeat people, but trying to lead them on a journey.

ELIZABETH AVERY:

So, I imagine it was a very fine balance. Hank, I'd love to hear your reflections.

HANK SPIER:

Can I start back? Again, Richard mentioned it and so did Luke. The office of the Commissioner of Trade Practice, the early office, which was seen as a bit of a joke, which frankly, in hindsight, it wasn't. Bannerman was the Chair by himself, there was two Deputy Commissioners but they had no say, they were consulted but it was Bannerman's decision. And Bannerman, and he goes through the Commission layer. He got a group of staff. Of course, not many in those days, not like now. Sorry, Gina. And trained them. But training them there was this huge, huge register, 20,000 odd agreements.

Most didn't matter, but a lot did, very seriously anti-competitive spider webs through industries. No one could deal with someone else, unless they were mentioned or a member of some trade association or ... However, that register didn't cover ... So Resale Price Maintenance wasn't outlawed nor the merges, of course, yet ... and I'll come back to it in a second. Bannerman made sure that the staff and him, of course, went through that register and educated themselves on structure, on markets, something which Australian bureaucrats didn't really do.

Then bureaucrats either regulated the industry or saw it being regulated by the private sector. Markets didn't work, but Bannerman looked at, "Let's see how we can get these markets to work and see how we can undo some of the bad issues." The register was totally secret. Huge, but secret. Bannerman did not sort of accepted their secrecy, but he didn't like it. And of course, in his annual reports, he wrote, he gave little stories about various industries. He didn't name them, but in concentrated markets it's not too hard to know who he's talking about. And that sort of didn't go down well, but still Bannerman had the strength to do that. And he pushed that on.

The other bugbear he had at the time was mergers, sort of nothing new, I suppose. Because mergers were not caught by the law. But in many cases, once the Commission opened up an agreement and said, "This is something we should look at," the parties suddenly merged. Bannerman, that really upset him. So every annual report, he'd say something about mergers, and of course eventually the merger law was picked up. Bannerman pushed, he set the framework for staff and also for the general picture as to what was happening in the marketplace, particularly educating the bureaucrats and the industry.

The register was secret, but he used it well. And he pushed some of the things, particularly, he had a bugbear about mergers, that was terrible. He hated them being gained. Then when it came to the Commission-

Okay. When it came to the Commission sort of many years later, of course, mergers were suddenly, at least for a while, were totally prohibited almost. Bannerman did a couple of things which are still important. And if you read his Blue Hills, his attachment to his file the annual report he talks about Consumer Protection.

I know this is the Bannerman Competition Lecture, but he talks about Consumer Protection. Now, I'll come to that in a minute. But the other thing Bannerman did, and this comes back to education, public issues, the Commission issued guidelines, still does. That was unheard of in that era. We issued guidelines, particularly on all kinds of subject. They were prolific. They weren't very complicated documents, but they were very simple. And they said, "This is what we think a substantial lesson is. This is what we think misleading advertising is." And it was issued to ...

They were mainly issued to just business, consumers a bit, but mainly business. The other issue was Consumer Protection. And the 74 Act brought in Consumer Protection. Now, initially, I mean, business frankly, as Richard has said to me, was pretty lukewarm about Consumer Protection. They didn't care much, they were concerned about competition. But the States were horrified. They were absolutely horrified and not held by the fact that the then government published cartoon ads in the press showing how consumers could be helped by the Trade Practices Act, by the consumer sections, and taking over consumer complaints, which of course was never, ever thought of.

We were not going to handle consumer complaints. We didn't have the resources. That was no role, but the States thought we would ... Bannerman went to the very first, after he was appointed Chairman to the meeting of Consumer Affairs Commissioners, and he had a bad time. He had a bad time. He did not do well, but he showed his face, and that was important. It wasn't until a bit later that the States realised we weren't going to handle consumer complaints, but they were still very nervous about the Commission. But Bannerman made sure that the consumer side worked.

He pushed it, he let it reap. Well, we took cases, consumer cases. We won most, not all, but the Commission made part five work. And eventually the States, of course, picked up part five in mirror form a bit later. And of course, then you have an Australian consumer law and the whole thing goes different and even more important. But Bannerman was very concerned that the consumer stuff worked, and that it was pushed, and that he wouldn't be held back by the States because they tried to. The other issue I'd like to just mention for that tends to be forgotten a bit in that Bannerman era post 1974 was authorisation. That was a fairly new concept.

You could still have anti-competitive agreements, but they could be authorised on public benefit grounds. The Commission opened up a whole lot of areas early, exclusive agreement in say beer, petrol and a whole lot of other things. They were very important because as an education tool, the industry soon listened, and of course there were public hearings and everything was very public. And a lot of things that used to be outlawed were suddenly not outlawed because they were deemed not to be in the public interest. And Bannerman really pushed those and he also was keen on enforcement, but enforcement was almost for a while secondary.

Enforcement is still important, but that whole authorisation period, which took some years and there were very major cases. And it took a while and had sort of QCS of sort of 10 paces, it was very important. And he pushed that in that era and he pushed Consumer Protection. And of course we see them now and say authorisation is still there, but it's not a big deal as it used to be. Consumer Protection is now a big deal and should be. And that's where you look at where Bannerman in that era where some of these were unusual and were seen to be other people's patch, he made sure that there wasn't a clawback. And of course, the Commission and the whole era has gone haywire since.

ELIZABETH AVERY:

I mean, I think the authorisation approach was probably incredibly innovative and has really stood the test of time. And we see it being really revived and used in a contemporary context to consider issues such as environmental harm and sustainability issues in a way that other jurisdictions just can't have that flexibility.

HANK SPIER:

It was very important. It was a bit harder. Initially, there were public hearings and you had a court type environment and you had Mr. Justice Bannerman and Mr. Justice Pengilley sort of sitting up on a bench and looking at all the barristers, that was taken away after a while and you just had informal discussions all at the same level, but they were very important. I mean, before that, you could only get one brand of beer at a pub or petrol service station. All these things were opened up through the authorisation process.

And unfortunately, it was expensive and it took time, but Bannerman sort of hung in. The governments were not very generous when it comes to the funds, but Bannerman sort of pushed those and then a business got the signal that really a lot of these things shouldn't be happening, they're anti-competitive. Some of the business thought, "Oh, well, it's in the public interest and we'll get that through." And the answer was that they didn't get it through.

ELIZABETH AVERY:

Can I just ask you to draw out for us, Hank, a little bit about what this registration process involved? I'm familiar with it in the shipping part and shipping context where people register agreements and they sit there-

HANK SPIER:

I don't want to get in the shipping.

ELIZABETH AVERY:

But this is a long since past practice. So it'd be quite interesting to understand. It sounds like a great vault for AI to run itself over, but anyway.

HANK SPIER:

It was a huge ... I mean, all restrictive anti-competitive, say agreements, if they were registered they were exempt.

ELIZABETH AVERY:

So you got immunity by registration?

ELIZABETH AVERY:

Yeah.

HANK SPIER:

But what happened, every little change in distributorship, every little change in agreements were registered. So it was a huge register and there was probably document signing every day. It was then up to the Commission, up to Bannerman, to personally look at those, not every document, but look at those sort of areas where he thought there might be serious anti-competitive detriment and go through a process. And as Richard mentioned, there was a process under the then Section 48 where the Chairman would say, "We think that these agreements, whilst they're secret and exempt from challenge are anti-competitive and not in the public interest."

And he would put that to the parties and the parties would sort of, they wouldn't be happy. Bannerman had the option if they weren't prepared to change what they did, he could refer it to the Trade Practice Tribunal who could then order it to be sort of anti-competitive and the tribunal which would ... a court could take action. But the register was very important. And it was the role of staff to assess the registers, the documents and assess whole industries and to see how all the documents worked and how-

ELIZABETH AVERY:

You said there were like 29,000 or something?

HANK SPIER:

It was 20 initially, but then when Bannerman gave them all, the new register after the 1974 Act, that was 29,000.

ELIZABETH AVERY:

Large number of agreements not to use AI over.

HANK SPIER:

A lot did. A lot did. And Bannerman had to focus on the ones that matter. And look, he looked at: it has breweries, which went to the high court, frozen vegetables, concrete pipes which went to the high court and fireboard containers. That were the things that during that short period of the office of the Commissioner, he challenged. Now two of those ended up in the high court. Of course, in one the concrete pipes, the Commonwealth lost. But then the court told the Commonwealth how to redraft. But in the meantime, the Murphy Act came in. And the interesting thing was their register, a lot of the documents also had Resale Price Maintenance in it, which was not an offence or conduct that had been registered, but they did. So eventually when the Commission, now the Trade Practice Commission went through those old documents and once RPM had become unlawful and picked them all off.

ELIZABETH AVERY:

Perilous to notify those agreements. But Roger, were you involved in this registration process or how was your ...

HANK SPIER:

I wasn't.

ELIZABETH AVERY:

No.

ROGER FEATHERSTON:

I first met Ron actually when I interviewed him for the purpose of my honours thesis at university. And I was doing an honours thesis on trade associations and the Bin Bill for the 1974 Act. And Ron was very polite and generous with his time, and he tried to be helpful, but obviously because of the confidentiality of the register, there was a limit to how much help he could give me. Probably fortunate that I didn't have access to the register because there's something like 6, 700 trade association agreements there and I didn't need to get into those for the purposes of my thesis.

But then the following year in the middle of 1975, I actually joined the Crown Solicitor's Trade Practices sub office, as it was called, which was attached to the Commission. And I worked there for four and a half years with regular contact with Ron. And as it's been said, he was very polite, very courteous to staff, and gave great guidance to staff, I think. I mean, as a very junior lawyer, I remember going to Commission meetings and Ron would ask a member of staff on a matter a few questions, and then he'd asked me for my advice.

And he was sitting there thinking that this fellow has been doing this for many years and he's listening carefully to what I have to say. He'd then ask a few polite questions and sometimes he'd scratch his head and he'd say, "Oh, I'm a bit slow. I'm just trying to get my head around this." Or in the terminology that he would use, he said, "Oh, just I'm trying to get my nut around this." And you could be fairly confident at that point that he was going to disagree with what you just said.

But he would do it in a very gentle way and in a polite way. And then he'd go around the room of the Commissioners asking for all their opinions before he would actually express an opinion himself. And I just think that the way that he ran those Commission meetings, and he didn't really enjoy, I don't think, having fellow Commissioners. I think he did hang after the years of when he was sole Commissioner of Trade Practices, but he did adapt to the fact that he had five fellow Commissioners and he would seek all their views and generally get a consensus in terms of any decision.

But what was important in my view was that he was very keen on taking enforcement action. And I suppose I disagree slightly with Hank. I think that there were quite a few actions taken in those early years of the Commission, the Trade Practices Commission. We did have a big burden of authorisation matters; he had something like 21,000 applications for authorisational clearance in the first nine months of the Commission's existence. So a lot of my time was taken up reading agreements and advising on the authorisation aspects of those agreements.

I was involved in some of the public hearings that Hank mentioned. I was also involved in a number of tribunal cases on authorisation matters. And I also ran a number of Section 52 cases mainly, the old Section 52, the mislead and deceptive conduct provision. And I think that Ron did take that very clear view that it was important to have an active enforcement role at the Commission. He believed that that was one way of ensuring that the Commission got respect. He had other ways of getting respect for the committee-

... got respect. He had other ways of getting respect for the commission. He was very strong on the fact that everything had to be done with integrity and that there needed to be clear explanations for the decisions taken by the commission. For example, on authorisations, a clear rationale for selecting particular cases and running those cases. And he, I think, did a very good job having regard to the limited staff he had. The commission had less than 200 staff in those early years. Between '74 and probably the early '80s, there were only 200 staff, or less than 200 staff. I think that included the 12 at the Crown Solicitor's Office. And the telephone directory was on one page. So having regard to the workload that was managed, particularly with the authorisations, I think the commission did achieve a lot in those early years under Ron.

ELIZABETH AVERY:

Incredibly impressive with limited resources what was achieved. Rhonda, how did Ron's legacy and influence influence your role?

RHONDA SMITH:

Well, I'm the outlier in this particular group because I actually only met Ron once. And it was 30 years ago, but it's still very clear in my memory. We had just been appointed to the ����ԭ�� as it had become by that stage. And Russell Miller invited myself, Sitesh Bhojani and David Lieberman to a lunch to meet Ron. And we'd only been there for quite a short time. And Ron came over and he said to me... And there were shades of President Kennedy associated with this where in that first inaugural speech, Kennedy said, "Don't ask your country what it can do for you, ask what you could do for your country." And Ron looked at me and he said, "What do you think you can do for the commission?" And I have to say, I was absolutely flabbergasted. I'd been there for such a short period of time. I hadn't worked out what we were doing or how we were going to do it. And I have no recollection at all, fortunately, of how I answered.

ELIZABETH AVERY:

It turns out you did quite a lot, Rhonda, so you needn't worry about that.

RHONDA SMITH:

I think the interesting part of that anecdote though, is that if you turn it back and ask Ron that question, I think the answer would be very clear. His answer, I think, despite the environment that he was operating from at the time, I think his answer would've been, "To make the law work." And I think that is what he achieved. I think he provided us... By the time we get to the end of his term as chairman, I think he had established a very strong foundation for what came after that, and for what I and others inherited, which made our lives so much easier. The idea of starting with a blank slate, which is effectively what he did in '65. We'd had that long period from Colvin through... Without a competition law. And as Maureen Brunt described it, virtually the Wild West, everything that you could imagine in terms of anticompetitive agreements.

And we pay service to the fact that Ron had changed attitudes by the time he finished up. But I think anybody who has worked in a country where a competition law has just been introduced, will have an inkling of just how very difficult it is. Because first of all, the public are your eyes and ears. And the public at that stage know nothing about what you're doing. You've got opposition. You've got opposition from business, you've got opposition from politicians. And I think it was an incredible job to turn that around within the period that he turned it around.

ELIZABETH AVERY:

We take for granted, I think today, that the rule of competition law is an accepted norm, when in those days it really was quite a lot of work to advocate for it as being an important value. Richard, be interested in your insights on what you think the key achievements of the Bannerman era were and challenges, if you think there were. Resources obviously have been touched on as one of them.

RICHARD ST JOHN:

I think in the very early years, there were the challenges included the trials of secrecy. It was very real. The secrecy provision was something like the Taxation Act provision. And unlike taxation, commissioners who, at least in my view, over the years have hidden behind their secrecy, Ron found a way to tell a story without impinging the... He navigated a way through that. Secondly, he was always working under the threat of constitutional challenge. It was apparent from the beginning that there would be challenges of judicial power and corporation's power. And we used to worry how far trade and commerce would go. We're a bit more comfortable there. But Ron thought ahead. I remembered it would have been 1968, I think, going with Ron to a conference one evening with Solicitor General Tony Mason, later, Chief Justice Mason, and discussing corporations issues. It was not looking for formal advice, but it was Ron thinking ahead, thinking through various scenarios by which matter could arise in litigation. And no immediate plans to do anything, but within two or three years, we had the decision in Rocla Pipes.

So Ron thought ahead. He also worked effectively with me and others on the policy side. And I think it's been remarked elsewhere, he was fairly hands off. He might have been expected to get in there and want to shape the legislation that was coming up, but he wasn't. He was a, and as far as I could see, personally reviewing draughts that were sent to him. He may have had staff work done, but he took a close interest. But question, for example, has been touched on, a move from single commissioner to commission. I don't remember a lot of discussion around that, and certainly not with Ron. I would have guessed he had an interest in things as they were. But also, I think he would have recognised the view that evolved, that the responsibilities were going to be wide and just needed to be broadened.

And we were influenced to some extent by the Federal Trade Commission. I worked very closely early on with Ron Dietrich, who was general counsel of the FTC. And we had the benefit of the way they did things, not that it was a dictated the way we followed. But Ron was also not gung-ho. It's interesting in the whole move to the new prohibition approach, moving away from registration. His activities were very complimentary, paving the way. But he wasn't pushing to go further and further. In fact, I remember a cautionary note he struck very late in the piece and in the discussions with the attorney general. And I was involved raising the question whether we had in Australia sufficient professional resources, lawyers, economists, others, to serve the courts, business community, the regulator. And very good question, of course. I think we proceeded on the basis that the market was already starting to play its part, and a lot of people were coming back from postgraduate schools. A lot of lawyers were coming back, and they were starting to see the economic side activity happening. But Ron was thinking, "Should we just pause and are we ready?"

HANK SPIER:

Can I just pick up something on that? One of the things Ron was prepared to do, and it's still something the commission does, he was prepared to take chances, particularly as Richard said, there's constitutional challenges, all kind of thing, some lack of resources. In many cases, the advice he would get on some things that he was thinking of doing was, "Well, there's a constitutional problem," or "You haven't got the resources." Ron still would say, "Okay. But if it's worth doing, we should do it." And he did, in many cases. And in most cases, it was okay. Of course, many things were settled. I do remember one instance though, early in the days of the Trade Practice Commission, a couple of major cases were on at the same time, Glucose, traded TNT Mark one, and that horrible merger case, which I was doing, which involved the Smallwinds family, the Pratt family, and APM. And of course, it all cost a lot of money. And the budget was normally in May, was fine. In August, we were broke.

Bannerman, who was a very modest man in financial issues, was horrified, absolutely horrified. "How can we be broke? How could we just..." And of course, we said, "Well, these cases cost a lot, and you insisted on taking them," and which was right. What he didn't know, is that we could see this coming, this convergence, and there was a problem. And we could see that we were going to run out of money. But we also was hoping, and it happened, that the government would then increase our base funding, and then be sympathetic when any financial problem came out of litigation. If it came out of more staff, [inaudible 01:24:23], came out of more trips to the OECD, no. But Bannerman was so horrified that we won't have money. But we had looked-

ELIZABETH AVERY:

Did you get paid before May the next day or did you have to wait?

HANK SPIER:

But things like that happened again later. Litigation, as most people around here know, cost a lot of money. Everyone insists on using QCs or KCs now. And that happened. But generally, governments were not sympathetic to funding us, particularly Department of Finance, because often our things were... So, we couldn't plan cases. You couldn't say, "Oh, we're going to have five merger cases, six cartels. I didn't know that. And finance would not accept that. They'd say, "Here's your budget and you can't go outside it." "But look, we may have a case. We may have a merger tomorrow of Coles and Woolworths. What we do?" He'd say, "Oh no, sorry, no money." Finance eventually came to the party on this after some fairly high-level discussions. But Bannerman, that was uncomfortable to him. But almost every government didn't help us on funding, until in more recent years where it's been, I mean, there's talked to very briefly Alan Felds, GST was coming up. And we got a call from Costello's office saying, "Would you like to enforce the GST?" Because tax didn't want it? Tax had other things to do. And we said, "Oh, no, no." So, we went back to Costello's office and said, "What about funding?" He said, "No problem. We'll take it."

Then later we were in cabinet and Howard walked in and Alan was talking about it. Alan had just said the words "10 million." And Howard said, "10 million staff?" "No, no, no, no, $10 million." "Done." Later, the funding was a little bit more flexible, but in the early days, it was absolutely terrible. And Bannerman suffered. He suffered all through his period about funding.

ELIZABETH AVERY:

When you say suffered, hauled over the coals by it or he had to forego his salary, what do you mean?

HANK SPIER:

Everything had to be carefully done. Of course, litigation was... For other things, the officers were basic, everything was... We weren't a comfortable agency. I happened to be involved in the establishment of the Australian Securities Commission because I was in the policy department then, and they had marble offices... Were sort of saying, "Well, okay, we don't have that."

ELIZABETH AVERY:

I don't think that much has changed. I heard earlier this evening that the commissioners still bring their own lunch to meetings.

HANK SPIER:

The other issue that was sensitive on the funding, is that with litigation, we were bound by the Commonwealth rates for barristers. ASIC wasn't. So, we're sitting in the committee, and someone says to ASIC, "What have you paid so-and-so?" "Oh, $10,000 a day." And they asked us and we said, "Well, it's confidential." We were paying $2,000 a day, which meant half the time we couldn't get the barristers we wanted.

ELIZABETH AVERY:

Yeah. Talking of... In those early days, I understand there were some merger cases, some of which were successful, some of which weren't. Of course, QCMA is a seminal case, and it's been pretty foundational still for all of us. Just be interested in your, and maybe Roger's, insights into how you decided to bring that case.

HANK SPIER:

Well, Cushman, I have no idea because-

ELIZABETH AVERY:

Roger, were you involved in it? No. No one here involved in it. Yeah.

HANK SPIER:

Well, I can tell you about one case which changed the attitude of industry to the commission's merger. Because the commission didn't have the greatest reputation in mergers. Then it was the only, I think, only midnight merger. And that was Petersville and IXL. I was at home. I would get a call from Bannerman at 6:00 in the morning on 6th January, "I've just been told about this merger." "Oh." And he says, "You think it's anticompetitive?" "Yes." "Okay. What can we do?" And it was a planned merger. They'd even closed down plant. They had moved staff. It was very, very planned. It was also involving the two most high-profile businessmen or very high-profile business on the day was... So, it was John Spalvins and John Elliot. And it was all planned. But Bannerman, fortunately, he said, "We have to do something." And Bannerman said, "Look, I can't get the commissioners around but bugger it." And the instructions were, "Move."

And we did. We moved immediately. And very fast, wording caught fast at a very bad time of the year to try and get council, et cetera, but still we did. And that was immediately settled with all kinds of divestitures. And that helped the commissioner case because we moved fast and got a decent result. And that didn't cost much either.

ELIZABETH AVERY:

And also, a seminal case and very exciting result for you.

HANK SPIER:

The only thing I would say about that case, is that staff wanted to take on Elliot and also Spalvins and join them in the case. Bannerman wouldn't. He wasn't prepared to take on individuals at that stage. He did later, but not then. But had that been done, that may have changed the history of Australian business. I mean, Elliot and Spalvins being taken to federal court, that would've been something.

ELIZABETH AVERY:

Well, I think between all of you, you actually were very instrumental in changing Australian history and the course of business in our economy. And it's been very interesting hearing all of your reflections today, because that's information and anecdotes that are easily lost if we don't have the opportunities like this to draw them out from you. Thank you very much for all your extremely valuable contributions today. But moreover, through your careers, which have been incredibly informative and contributed so much to the life of competition law. And us practitioners now benefit very greatly from all the work that you did in those days. And I'm very pleased that my compliance training and why competition law matters, doesn't face quite the same uphill battles as you probably faced in your days in explaining that.

And Rhonda, special thanks for all the contribution that you've made to the importance of economics in the competition law. Because it wasn't a given when you're introducing a new statute that it was going to involve so much economics. Of course, it is an economic statute, but you could read it differently. And thank you. So, thank you everybody. Thank-

HANK SPIER:

Can I make a comment about Rhonda's involvement?

ROGER FEATHERSTON:

Positive. In the background, there was always more in Rhonda. And she was advising the commissioners and she had comments and written on that. But until Rhonda was active in the commission, and at the same time also David Round, who you were sort of all over, there wasn't strong economic input. Now that doesn't say much for the ones that were there, but that was always our view. Once Rhonda was there, David, there was real economic input. With Maureen Brunt in the background, but she wasn't at the commission meetings, but Rhonda was.

ELIZABETH AVERY:

No, that is also a given that economists, and we've got Dr. Williams now sitting on the commission and many others who have strong economics records, it is a given and we're very fortunate for the role that you played, Rhonda.

RICHARD ST JOHN:

Had a quick comment. I had been wondering the question of how Ron educated himself. And Gina answered that part before us, talking about more in Brunt and Bob Baxt. But I happened to have him look at the 1970 annual report. And in Ron's accounting for his expenditure that year, he spent only $1,401 fees for economists consulted. And I thought even with the dollar in those days, he wouldn't get much for it. But also, that he accounted for that last dollar.

ELIZABETH AVERY:

Anyway, please join me in thanking...

SIMON MUYS:

Well, that brings us to the end of the formal part of the evening. What a fantastic time to get genuine insights into, to be honest, a period where those of us that practice now, we live in the shadow, or on the shoulders perhaps a better way to think about it, of those that have come before. And that has been really, really deeply impactful. So, thank you, everybody, that's participated. Thank you, Gina Cass-Gottlieb, and Luke as well for your contributions.