Wayne is a partner in the Competition and Regulatory Group in our Sydney office. Wayne regularly advises on the competition law issues associated with mergers, joint ventures, industry collaborations, access to essential infrastructure and regulatory investigations in Australia and the Asia-Pacific region.
Where did your interest in agribusiness first come from?
My parents and grandparents grew up on farms – a wheat farm outside Swan Hill and an orchard in the Yarra Valley – so I spent a lot of my childhood visiting country towns and listening to extended family talk about local issues.
As a lawyer I have also been fortunate to work with a number of clients in the agricultural sector, each of them operating market leading businesses. I get a lot of satisfaction working with companies that are investing in Australia’s agricultural industry, in rural communities and in “feeding the world”.
What are some typical issues that you might advise your clients on in the agribusiness space?
The agribusiness space is an “issues rich” environment. It’s very important both to Australia’s economy and to individual’s livelihoods. Accordingly, there are a wide range of interests, perspectives and voices that raise diverse issues.
I have spent a lot of time over the past 7–8 years advising on issues relating to access to infrastructure and the interaction with supply chains. I have also advised on a number of regulatory investigations and reviews, including those conducted by the Productivity Commission, the Australian Competition and Consumer Commission (ACCC), foreign regulators and industry-specific bodies that have a quasi-regulatory role.
With significant and continuing consolidation in the agricultural sector over the past 10 years, there is also a frequent need to advise Australian and overseas companies on the competition law issues raised by merger and joint venture proposals.
There is also a lot of history that attaches to the regulatory and industry environment in which many agricultural companies operate. This arises from the continuing evolution from State-based cooperatives and marketing boards into fully commercial enterprises. This history raises some complex interactions between regulation, policy and commercial objectives.
The ACCC has recently appointed a new Agricultural Commissioner. Do you think this will have significant implications for agri-businesses in Australia?
Mick Keogh was only appointed in February this year, so I think it’s a bit early to predict precisely how the new role will develop. However, Mr Keogh is only one of several ACCC Commissioners, so I don’t think that the creation of a new Agricultural Commissioner role signals any fundamental change to the way that the ACCC administers and enforces the Act.
The Agriculture Minister has indicated that the appointment will strengthen the ACCC's ability to recognise and deal with competition issues in the agricultural sector. I think that Mr Keogh’s experience will undoubtedly add to the ACCC’s capability. However, it would be a mistake to assume that the new Commissioner’s role is to protect the agricultural sector, or even that there is a single interest within that sector that needs protecting.
The Act is focused on promoting competition, not individual industry interests. For this reason, there has been a long trend away from industry-specific regulation. There is also a very diverse range of interests within the agricultural community. The industry encompasses small family businesses, large corporate farms, commodity marketing companies, infrastructure providers with billions of dollars invested in supply chains, logistics companies, and large-scale investment from both Australian and foreign companies.
I think that the new Commissioner will, however, play an important role in understanding how these participants interact, and in assisting the ACCC in communicating its role, powers and priorities to participants in the agricultural sector.
The ACCC has recently announced a market study in relation to cattle and beef. Is this likely to be an increasing feature in the agricultural space?
In short, yes. The ACCC has indicated that there are a number of supply chains that are likely to be the focus of potential market studies. Some of these may be in depth investigations, while others may be smaller in scope.
The ACCC decided to commence a cattle and beef market study in response to significant feedback received from market participants, and the focus of the review will be to determine the extent to which there are any problems that should be addressed or improvements that should be made. The outcome of the review could range from the provision of more detailed information to the industry, to recommendations about future change, or enforcement action if the ACCC finds evidence of potential breaches of the Act.
The market review process does not involve any mandatory information gathering powers for the ACCC (unless it considers there may be a possible breach of the Act). Accordingly, it will be interesting to see how the various participants choose to engage with the review and which issues become the focus of any debate.