Competition and regulation law - written by esha serai, INterviewed by Jesse prior and Ryan matthews

Competition law concerns the unfair commercial practices of corporations within a market, governed by the Competition and Consumer Act 2010 (Cth) (the CCA). In terms of the interaction of companies and consumers, this area is primarily governed by Schedule 2 of the CCA, known as the Australian Consumer Law. The CCA aims to enhance consumer protection, and can concern a plethora of consumer-facing industries.

Regulation, within the context of the Gilbert + Tobin (G+T) team, deals with the compliance of companies with government requirements. The work in regulation can involve the provision of advice with regard to legislative reform.

Combined, the Competition + Regulation team at G+T deals with front-end issues, such as merger clearances, and also back-end issues, such as misuse of market power.

Kelvin Ng is a lawyer in the Competition + Regulation team at Gilbert + Tobin. Prior to joining Gilbert + Tobin, Kelvin was a Monash student studying completed a Bachelor of Laws and Bachelor of Commerce (majoring in Finance), at Monash University and progressed to a role as a market graduate at Norton Rose Fulbright, specialising in regulatory investigations and disputes in its litigation team. Kelvin is also passionate about supporting emerging and current Asian-Australian lawyers, highlighted by his role as the Victorian President of the Asian Australian Lawyers Association. Jesse and Ryan asked Kelvin a range of questions on the complex nature of his work, and his experience as a junior lawyer in the legal industry.

Interview

How would you describe Competition Law to somebody unfamiliar with the area? What is unique about Competition Law to other areas?

Competition law at the end of the day is about fairness. It really comes down to pretty simple precepts, like “Don't cheat”. Competition law is effectively applied economics. If you think about it, economics is effectively applied psychology, which is something I find endlessly fascinating. It's about what drives people to make the decisions they make. So whether these be consumers or producers, its about how they interact when you put them all together in the context of a market. You can view it as being ‘Ex-ante’, before the fact, these are things which you would conceive of as being on the front end, like merger clearances or authorisations. It can be more after the fact from an enforcement perspective. Of course, there's a grey area in between. “After the fact” can be broken down into coordinated conduct, so things like cartels, price fixing, but also unilateral stuff, such as misuse of market power being when large corporations throw their weight around a bit.  

Could you give us an overview of a day in your life as a Competition + Regulation lawyer?

It really depends on the area of law you're working in. For each area, you'd have a specific regulator. With competition and consumer being the core, you'd primarily be dealing with the Australian Competition and Consumer Commission, the ACCC, but also other regulators, such as ASIC, which have some overlapping responsibilities. ASIC is primarily focused on financial services providers, under the Corporations Act.

Consumer law can overlap with privacy, in which case, you may be dealing with the Office of the Australian Information Commissioner (OAIC). When you get down to the nitty gritty of highly technical areas, which are the subject of regulation, generally in infrastructure, for example, then you'll be dealing with specific regulators there as well.

In the energy space, you'd be dealing with, for instance, the Australian energy regulator, or in the Telco space, you'd be dealing with the Australian Communications Media Authority.

What do you see as the current trends in Competition Law?

Merger clearance is always a highly topical area and it's currently the subject of a number of government reviews. They’re looking at proposed reform of the merger review process in Australia. This was first started under Rod Sims towards the end of his tenure and Gina Cass-Gottlieb has continued with some slight nuances and departures but for the most part, down the same track. There’s also been a broader review of competition policy and frameworks that's been announced by the federal government which will incorporate, amongst others, Rod Sims as part of the advisory body that will inform the scope.

Dealing with digital platforms is a perennial issue, given that many of them are quite large and hence have quite a lot of market power. Regulators around the world are trying to figure out how to prevent them from engaging in self-preferencing conduct and wiping out its competition.

In the ESG (Environment, Social and Governance) space, greenwashing has been a particular concern to a number of regulators. Not only the ACCC, but also ASIC and APRA (the Australian Prudential Regulation Authority) from a prudential perspective. That canvasses a number of things from recyclability to emissions reduction types. That’s in the broader context of the move towards a circular economy and one in which we're moving towards net zero.

As a student, were you certain that Competition Law was the area you wanted to practise in? If so, how did those aspirations originate? If not, what led you to this area?

Coming out of law school, I didn't really have any fixed idea of what it was that I wanted to do. I really admire those who have clear vision and managed to achieve that. It is often very difficult to know what you'll enjoy until you've tried it for yourself, in that theory differs greatly from practice. I kind of fell into it by accident, specifically in the litigation space. I never saw myself as a litigator, didn't see myself as particularly argumentative or confrontational. One of the partners who interviewed me when I started with Norton Rose Fulbright as a graduate was actually the head of the litigation team. He asked me if I had any interest in doing a turn through litigation. I told him, there was no chance. I’d rather be on the front end where it was deals and handshakes.

My first rotation was through environment and planning, but then I thought I would make use of those extra years of uni, (however, many thousands of dollars of HECS debt), and try my hand at corporate finance. The team itself was lovely, but I just found the work wasn't my cup of tea. That’s the thing - it can often be a process of elimination. Back in the day, when everything was still primarily done in person, they needed some hands to push trolleys down the court. I happened to be available. So I helped out with that. I then graduated to tidying up footnotes in submissions and then got substantively involved in a matter. The people that I worked with were great. It did coincide with some of that interest in economics that had come from debating and my commerce degree, such that by the end of my rotations, it was a natural progression.

You discover the path as you're walking along. It's not necessarily something that you need to have predetermined in advance.

Given your experience in advising both corporate clients and government agencies, how does the nature of your work and approach differ when working with these two types of clients?

It’s primarily either front end or back end. Advisory work tends to be more once off and sporadic. When I was at Norton Rose Fulbright, we actually tended to act for the regulators. So it's got a bit of a niche, despite being a corporate and commercial firm, it does quite a lot of work for say the ACCC, OAIC and ASIC. Having experienced that for four years, and it was a great experience, I thought I'd like to see what life was like on the other side of the fence in acting for the corporate. At G+T, notwithstanding the chair of the ACCC is an ex-G+T partner, we do tend to act more for corporate clients such as private equity firms, investment banks, and all the big companies. There's certainly merit in understanding how both regulators and companies operate and what it is that drives their decision-making. Regulators are probably driven more by public policy considerations whereas companies would be more commercial. But I also think it's invaluable to have experience across both the front and back end. If you end up working in backend, familiarity with frontend means you know how transactions are structured, how things are done in a commercial context, and conversely, if you end up working in frontend, then you know what not to do because you know how badly things can go wrong.

What is your favourite part of working in Competition Law?

I think I've got a strong sense of fairness, as do many lawyers, and that, at the end of the day, is what competition consumer regulation is about: ensuring a level playing field, ensuring that big companies aren't colluding with one another so as to screw over consumers. Also in the consumer law context, it's about correcting paths for that asymmetry of bargaining power and information that can exist.

Apart from that, one thing I really enjoy about competition and consumer law is it's not industry-specific. You’ll work across a whole range of different industries and in that way develop a broad range of experience. It keeps things interesting. You'll learn about niche topics like towage and pilotage or the nuances of telco infrastructure and SMS regulation. It certainly helps to spice things up.

What skills/work experience/opportunities do you think students should acquire to help them enter the Competition Law field?

Debating for that economics context and also geopolitics more broadly, in addition to the critical thinking and advocacy skills are all really useful. I highly recommend it.

The commerce degree was something that I perhaps underestimated in that when I came out of law school I thought, ‘I have spent all this time and racked up a whole lot of HECS debt, and to what end?’ At the end of the day I'm just a lawyer: I'm not breaking out DCF models using my finance degree. Notwithstanding my comments about it not being a prerequisite, being able to learn on the job, having some knowledge of those commercial concepts, and having taken commercial law electives or commerce subjects, can give you a bit of a leg up when you're grappling with a specific subject matter.

One of the cases I worked on involved retail over-the-counter derivative trading platforms where high-risk, highly leveraged, securities were flogged to mom-and-dad retail investors who were pressed into and investing in and inevitably losing their life savings. This was not good - highly unconscionable and resulted in a $75 million penalty. Because I studied finance, I was familiar with these instruments. Hence, I didn't need to spend as much time getting up the curve and could kick off by immediately engaging with the legal meat of the matter, whereas those who didn't have the benefit of that commercial context needed to spend a bit more time getting their heads around it.

Getting hands-on experience is always invaluable. I know it's not easy getting work experience as a student, but to the extent you're able to demonstrate interest and capability by having worked in an area previously, and that'll serve you well as a springboard into those areas of law. Even taking units that are directed to that practice area, can serve as a signalling mechanism that this is something that you're genuinely interested in and care about.

How do you maintain a work-life balance?

Honestly, the work-life balance in corporate and commercial law is a lot better than I thought it would be going in. I landed a role as a market grad in Norton Rose Fulbright without having done a clerkship and I thought “You know what, I will do whatever it takes, happy to be worked to the bone.” Fortunately, that actually didn't end up being the case. Likewise, in moving over to G+&T, I thought it might be a bit of a step up, being a top-tier corporate and commercial firm, with that real challenger mindset. It once again hasn't been anywhere near as bad as I initially expected. I guess there will be late nights. The work is, it was once described to me as “lumpy.” When it rains, it pours. Then there'll also be times when it's deathly quiet. During those times it might, if anything, be more challenging because you're twiddling your thumbs and being like, “Am I earning my keep here?”

An important part of work-life balance is being able to draw a line in the sand between your work and personal life. At the end of the day, there's always more work to be done, and you work to live, not live to work. That's actually one difference I found, compared to uni. Yes, you may work hard, but when you're done, you're done – you can switch off, and you can watch Netflix guilt-free. You don't have the looming spectre of studying or assignments. For me, it's about being able to draw that line in the sand, although I am conscious that it's been blurred a bit by working from home such that the physical separation of home and the office is no longer quite as hard and fast.

What tips do you have for students applying for clerkships and graduate positions?

So resilience is key in that you're putting out all these applications - when they get knocked back, you get this crushing feeling of despair and rejection, like you're not good enough.

There are so many things that go into that, it's not a reflection of who you are as a person.

The other thing to note is that it's about more than just your capability. A lot of it comes down to this rather nebulous notion of “cultural fit”. Malcolm Turnbull once said there are far too many law students - there are more than enough who could actually do the job. Yes, it requires a certain level of attention to detail and analytical rigour, but let's not kid ourselves - this is something that many law students could and do end up doing. What it ultimately comes down to is, are you the person that partners or supervising lawyers would want to spend 40+ hours a week working alongside, whether in the office or from home? That is a really hard thing to nail down. A lot of it comes down to clicking with people being on the same wavelength. That's something you can only really learn by a process of osmosis.

Your role as the Victorian President of the Asian Australian Lawyers Association highlights your commitment to diversity and community engagement. How do these experiences intersect with your legal career and influence your perspective?

It’s pretty fundamental to my experience in the legal profession. I'm the first lawyer in my family, immediate family at least. This meant that I was flying blind. I didn't have anyone to clue me into the subtle ins and outs and that meant the application process was probably rougher than it needed to be. A lot of trial and error was involved. That’s what motivates me to do the work I do through the Asian Australian Lawyers Association to make it easier for those coming up behind.

Could you share one or more significant highlights from your career thus far? / What is the most exciting project or memorable case you have worked on?

I have to say a couple of matters. Back when I was at Norton Rose Fulbright, we sued Google on behalf of the ACCC in relation to their collection and use of location data. This ultimately resulted in a pecuniary penalty of roughly $60 million. Apart from that, I was involved in a test case in relation to the revised misuse of market power provision, section 46, ACCC and TasPorts, which resulted in the first finding of contravention under the amended regime.

Since moving to G+T, I've had the opportunity to work on some really cool matters as well, and advise in relation to some ongoing greenwashing investigations.

Suggested Electives/experience

Electives:

• Competition and consumer law (LAW4702)

• Commercial transactions (LAW4701)

• Private investment law (LAW4671)

Experience:

• Legal research and writing skills

• Mooting

• Debating

learn more about Competition/regulation law

Australian competition law

See the this website for all the latest updates on competition law in Australia.

Link to website

IN THE NEWS

Gilbert + Tobin: Treasury consults on unfair trading practices in Australia (6 September 2023)

“On 31 August 2023, Treasury released its Consultation Regulation Impact Statement on proposed reforms to regulate unfair trading practices in Australia.”

“The outcome of the consultation may be new reforms that seek to cover a broader range of conduct that currently does not reach the legal thresholds of the existing prohibitions.”

“Treasury proposes four distinct policy options to address unfair trading practices in Australia; status quo(no change), amend statutory unconscionable conduct, general prohibition or a combination of general and specific prohibitions.”

Link to article

ACCC: Reform of merger laws critical for Australia's economic transition

“Australia’s merger laws are no longer fit for purpose and tilted too much towards allowing potentially anti-competitive mergers to proceed.”

“I am concerned that consumers and the Australian economy are particularly exposed in the current environment of uncertainty and vulnerability from supply chain pressures, geopolitical issues and the climate change transition.”

“Australia’s current laws prohibit mergers that are likely to result in a substantial lessening of competition.” 

“The ACCC needs to have the tools necessary to be able to properly scrutinise and, if necessary, prevent mergers that are likely to substantially lessen competition.” 

Link to article

Allens: Unfair contract terms subject to penalties: is your organisation ready?

“From 9 November 2023, UCTs will be illegal and can attract significant penalties under the CCA.”

“The reforms also apply the UCT regime to a significantly expanded class of 'small businesses', and provide further detail regarding what is a 'standard form' contract.”

“Companies will need to ensure compliance processes properly capture small business counterparties, which will depend on those counterparties' employee count or revenue.”

“The ACCC and ASIC are prioritising enforcement of UCTs and are expected to seek penalties for their use after the reforms commence.”

Link to article