4475 - S - Competition Review consultation paper on merger reform

The genesis of the test was that the regulator must in those circumstances be satisfied that the public benefit outweighs the detriment, not satisfied that a contravention of the law has or has not occurred. [...] The Dawson Review considered that the weaknesses of the system are evident in the absence of an effective mechanism for review and the absence of reasons for the Commission’s decisions … This Subdivision creates a voluntary formal mergers process that will operate in parallel with the existing informal system, retaining the advantages of the informal system, and overcoming some of its disadvantage. [...] As a decision standard, the test focuses on the ACCC’s state of mind and not compliance with a legal standard based on evidence.15 In the Tribunal application by ANZ and Suncorp, the ACCC further submitted that “satisfaction” is a state of mind that has been formed reasonably and upon a correct understanding of the law’.16 The requirement that the ACCC need only ‘reasonably’ form the view it is no. [...] The High Court has observed that the requirement for a decision-maker to be ‘satisfied’ will often be a matter of subjective judgment:17 Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. [...] The investigative process, the receipt of submissions from interested groups and parties, the evaluation of their roles and interests in the relevant market and the striking of compromises which may be reflected in the conditions attached to authorisations are not within the functions to which courts are confined.