Australian Competition and Consumer Commission

The competition regulator’s hobby horse

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Rod Sims, ACCC chairman, outlining the ACCC’s priorities for 2016 ($):

What we are trying to do is to get higher penalties awarded from the courts in competition cases because our concern is the penalties just aren’t high enough to grab the attention of company boards.

Sims, outlining the ACCC’s priorities for 2015:

The difference between a $10 million fine and a $100 million fine is quite profound. People will sit up and take notice, because it starts to show up in the profit and loss statement and it will grab attention, which is what we are trying to do with our deterrence messages.

It seems nothing has changed in the past year. The ACCC’s attempts to increase penalties which ‘grab attention’ are misguided.

Grabbing attention is what children do to their parents in toy stores. It is certainly not an appropriate enforcement objective for a regulator to pursue.

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Mandatory data retention is about corporate regulation, not national security

The IPA’s Chris Berg has written an excellent piece, which appears in the Australian Financial Review today, on the political economy of the Abbott government’s proposed mandatory data retention regime:

Terrorism is a very real problem. The existence of the Islamic State in Iraq and Syria has heightened the terror threat. If there are serious gaps in our anti-terror law framework, they should be filled. The government has spent the past six months doing so.

However, the data retention bill the government has put forward – which requires telecommunications providers to store masses of data on their customers for no other purpose than if a law enforcement agency or regulator wants to have a look at it in the future – is not a targeted anti-terror law.

If data retention is just for terrorism, the government could legislate to ensure it was just for terrorism. But from what we know, both the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission are likely to get access to the new data.

Read the full piece here.

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Here’s why data retention is not about national security

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As my colleague Morgan Begg has already noted, the Parliamentary Joint Committee on Intelligence and Security released its inquiry into mandatory data retention last week. The government says it accepts all the committee’s recommendations.

The inquiry demonstrates clearly the sort of mission creep for data retention that we’ve long warned about. The committee recommended that the Australian Securities and Investment Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC) be listed in the revised legislation as agencies able to access stored data without a warrant.

The IPA has been warning for years that some of the most virulent supporters of data retention aren’t  security and law enforcement agencies, but economic regulators. (As we said in this press release from September 2012, “ASIC push for surveillance powers goes too far”.) But if the scope of data retention wasn’t clear before, it ought to be now. This is not a targeted national security measure, and it appears the government has no intention of ensuring that it is one.

Some of the committee’s recommendations are welcome – particularly the recommendation to define the data that will be required to be retained in legislation, rather than allowing the government to implement it via regulation.

Nevertheless, these recommendations do little to resolve the very real privacy, efficacy, regulatory, and of course liberty problems with data retention that I outlined in the IPA’s submission to the committee.

The government now wants to push the bill through parliament as soon as possible. But it is only once the legislation is amended to list the data that we will actually, finally, after so many years of debate, discover exactly what data retention is supposed to do – and be able to make some guesses as to how much it might cost.

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ASIC push for surveillance powers goes too far

 

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“The Australian Securities and Investments Commission’s push to access the personal data of all Australian web users shows exactly why the government’s proposed mandatory data retention regime should not go ahead,” said Simon Breheny, Director of the Rule of Law Project at free market think tank the Institute of Public Affairs.

In evidence given to the National Security Inquiry in Sydney today, ASIC stated that the content of online communications was needed to investigate insider trading and Ponzi schemes.

“The IPA predicted that power-hungry regulators would make a concerted effort to get hold of any information retained under a data retention regime. The fact that ASIC has demanded this and more before the laws have even passed is a stark warning to all Australians.

“The Australian people have been told we need new mandatory data retention laws to fight terrorism. ASIC’s push to access this data, and to make it even more comprehensive, completely undermines all assurances we’ve heard from the federal government.” said Mr Breheny.

ASIC is just the latest in a fast growing list of government agencies that have demanded the use of communications data. The Australian Competition and Consumer Commission and Australian Customs and Border Protection Service made similar claims earlier this month.

“The IPA remains unconvinced that police need these new laws. The case has not been made and studies have shown data retention to be completely ineffective in fighting crime. But the idea that any agency of government could access this data is even more frightening. The only way to ensure that doesn’t happen is to stop these laws being passed in the first place,” said Mr Breheny.

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