Gina Cass-Gottlieb, the ACCC chair, wants higher penalties for businesses that breach competition or consumer laws. After securing a $120 million penalty against Qantas. Credit: Nick Moir
Gina Cass-Gottlieb isn’t what most Australians would envisage when asked to describe an “enforcer”. She is slight in stature, with thick, long black hair, and a calm, watchful demeanour. However, the 63-year-old Cass-Gottlieb commands one of the most important roles in the nation, a role that has earned her some enemies, but an even bigger group of admirers.
Cass-Gottlieb’s job, as chair of the Australian Competition and Consumer Commission, is to balance the competing interests of business and consumers. Those interests have become opposed amid a cost-of-living crisis as consumers have become acutely sensitive to price hikes on everyday goods and services, with businesses under pressure to justify them.
The recent feisty federal Senate inquiry examining the market power of Coles and Woolworths was evidence of such angst.
For our breakfast interview, Cass-Gottlieb has picked bills cafe in the inner-city Sydney suburb of Darlinghurst.
We’re here to discuss her extraordinary career, which diverged from early plans of becoming a doctor, like her father, into becoming the country’s leading competition lawyer. All stories have turning points, and we’ll come to Cass-Gottlieb’s. Although I’m fascinated to learn that she did have an early apprenticeship in medicine, of sorts, with her father, Cecil Cass, who was an orthopaedic surgeon.
Cecil would often ask Gina, his eldest child, to attend his surgeries and photograph the wounds he was operating on so that he could use the slides later to teach students. There would also be the occasional slideshow at the family dinner table. Medicine ran in the family. Cecil’s brother, Moss Cass, was also a doctor, and later became a Whitlam government minister.
When I arrive at bills, Cass-Gottlieb is already seated on a tobacco-coloured banquette. This light-filled and airy cafe, which opened three decades ago, is a Sydney institution, which is why Cass-Gottlieb has chosen it. “Bills is a quintessential part of Sydney. When I have family or friends visiting I make sure they have breakfast here. They always remember it.”
Cass-Gottlieb is a fan of the late Bill Granger’s recipes too, which she describes as simple to make and always filled with terrific, fresh produce.
Cass-Gottlieb learnt to cook from an early age, when she was sometimes responsible for family dinners when both her parents worked late. Her mother Bettina Cass, a sociology professor, helped shape social security policy during the Hawke government, and was later a dean of arts at the University of Sydney.
‘It was just really clear that if you didn’t understand economics, you didn’t understand politics and the world.’
Our conversation turns to competition law, specifically around mergers. Cass-Gottlieb admits competition law is a little nerdy, but her interest in it grew from a desire to practise at the intersection of economics and law. It was Dame Roma Mitchell, Australia’s first female Supreme Court justice, who planted the seed of Cass-Gottlieb becoming a lawyer. Mitchell made this suggestion when awarding Cass-Gottlieb a prize at an Australian High Schools Debating championship.
When Cass-Gottlieb applied to university in the 1970s she decided to combine law with economics. “It was just really clear that if you didn’t understand economics, you didn’t understand politics and the world.” After completing her economics law degree, she became an associate to Justice McHugh, then on the NSW Court of Appeal. McHugh would later go on to join the High Court.
It was McHugh who suggested Cass-Gottlieb continue her studies in the United States. She won a Fulbright scholarship to University of California Berkeley to do a masters in competition law and financial system and services regulation.
She completed two theses during her studies: the first on the history of workers compensation in NSW; the other compared the federalist systems of the US and Australia.
Cass-Gottlieb’s career would include an early stint working for Blake Dawson Waldron (now Ashurst), and later in the 1990s, she joined Gilbert + Tobin, founding the firm’s competition and regulation group. There she often acted for big business that found itself in conflict with the ACCC – the very regulator she now leads.
While competition can be nerdy, Cass-Gottlieb at times has attempted to introduce some levity. While working at Gilbert + Tobin, she appeared before the ACCC in an online hearing wearing her son’s Liverpool football jersey, drawing some bemused glances. Gilbert + Tobin was having a “jersday Thursday”.
In private practice Cass-Gottlieb acted in competition cases and in other matters, including for billionaire Lachlan Murdoch.Credit: The New York Times
In private practice, Cass-Gottlieb not only represented clients in competition cases but other matters, including acting on behalf of Lachlan Murdoch in the trust that managed the Murdoch’s family’s multibillion-dollar shareholdings in Fox and News Corp.
Cass-Gottlieb made the transition from the private to the public sector two years ago when she became chair of the ACCC. The thread of “service” that runs through her extended family partly helps explain that transition.
It’s not her only public service role. She’s also serving a third term as member on the Reserve Bank’s Payments Systems board. The board’s role is to control risk in Australia’s financial system, and ensure its competitiveness and efficiency.
Cass-Gottlieb says her current roles have her “working harder than I’ve ever worked”, to which she quickly adds: “I’m very happy to be doing so. It’s necessary.”
Scoreboard
Last month, the federal government announced the most important changes in 50 years to how mergers can occur in Australia. The changes provide a more stringent check on big companies seeking to swallow rivals and thus get bigger and more powerful.
The reforms give Cass-Gottlieb, who’s the first female chair of the ACCC, and a mother of two and grandmother, an even bigger stick to wield in enforcing the law.
“We think the package as a whole, particularly where we get those two test clarifications in relation to market power and serial acquisitions, will allow us to do the job that the Australian public wants us to do and needs us to do.
‘We now need to do the work to seek higher penalties.’
Gina Cass-Gottlieb, ACCC chair
“We’re vigilantly acting in the community’s interests, and that requires moving at pace and strongly.”
The first change, which is expected to come into effect in early 2026, means that mergers above a certain value, and which would significantly strengthen or entrench market power, will need to be notified to the ACCC and require approval before proceeding.
Currently, businesses don’t have to notify the ACCC or wait for the regulator’s view before completing a merger, which made Australia an outlier among developed nations.
The next significant change was that the ACCC can consider serial acquisitions when reviewing deals, and consider them together in determining a notification threshold.
It allows for a crackdown on companies that have been swallowing up smaller rivals under the radar, and which later emerge with a powerful market position, such as what occurred when Petstock became the second-largest pet retailer in the country, after gobbling up numerous independent pet stores.
Greater concentration among companies can lead to higher prices and less choice for consumers, as well as job losses. For the economy, it can mean lower growth if companies, as a result, become less innovative and competitive.
The changes to merger law were a win for consumers, but not business. Federal Treasurer Jim Chalmers, when announcing the changes, credited Cass-Gottlieb’s role in getting merger reform on the national agenda.
Federal Treasurer Jim Chalmers credited Cass-Gottlieb’s role in getting merger reform on the national agenda.Credit: Alex Ellinghausen
While the strengthening of rules around mergers was a win for Cass-Gottlieb and her team of nearly 1350 staff, it was the victory against Qantas this past week that got more attention. The ACCC had earned itself a spot on Qantas’ enemies list after it accused the national carrier of engaging in misleading conduct.
The regulator had accused Qantas of selling tickets to customers on tens of thousands flights that were already cancelled. Qantas settled the case and agreed to pay $120 million in compensation and penalties, subject to court approval.
There are also losses on the ACCC scoreboard. The ACCC opposed ANZ’s $4.9 billion takeover of Suncorp’s bank but lost that case earlier this year. Cass-Gottlieb recused herself in that matter because of previous work in the private sector.
The win against Qantas and the amount in compensation and penalties is a change in direction for the ACCC under Cass-Gottlieb’s leadership.
In the year to June 30, 2023, court agreed fines of only $5.78 million were handed out for competition matters, according to the ACCC’s annual report. For breaches of consumer and fair trading matters, there were $136.5 million in fines.
The historical fines for breaches of Australian consumer and competition law have been tiny compared with the billions in fines meted out by the ACCC’s peers in Europe and the US.
Cass-Gottlieb expects this to change, especially because larger fines were mandated for breaches of consumer and competition law but only came into effect from last July.
“We now need to do the work to seek higher penalties,” she says. “And to over time get our courts comfortable to see that serious conduct needs much higher levels of penalties.”
There’s still much to do in her term. Cass-Gottlieb is working with state and federal governments to strengthen laws governing unfair trading practices to protect consumers and small businesses, and is focused alongside her overseas peers on regulating the role of big tech in the financial payment systems, while also providing advice to the federal government on Meta’s refusal to remunerate Australian news media outlets for news content used on its platforms.
“Frequently, what we’re talking about [with international regulators] is digital platform regulation,” says Cass-Gottlieb. “Europe has already introduced the Digital Markets Act, which has taken effect and has made some big changes.”
The act seeks to create a more equitable and competitive digital economy. Apple has already made an offer to regulators to allow European banking apps to make payments with iPhones without sending them through Apple’s digital wallet. The UK’s Digital Markets, Competition and Consumers Bill, if passed, will also take steps in this direction.
“Australian banks have been pushing for some time to be able to have a tap and go [payments] on an iPhone. While Apple has offered it in Europe, they have to date made clear that they will not offer it in jurisdictions that don’t oblige it to offer it.”
In March, Commonwealth Bank chief executive Matt Comyn attacked the lack of scrutiny of the market power of the large tech companies in Australia. Credit: Oscar Colman
In March, Commonwealth Bank chief executive Matt Comyn attacked the market power of the large tech companies in Australia.
“One of the things that I find extraordinary is the lack of scrutiny, across some of the tech companies, in particular, which have large businesses in Australia,” Comyn said.
Cass-Gottlieb said the ACCC was working with the federal government on proposed regulatory reforms and legislative obligations, which would address concerns about the use of power by the largest digital intermediaries and their gatekeeper platforms, such as Apple’s tap and go mobile payments system.
Laws are only as strong as the people who implement them, which Cass-Gottlieb well knows. She has achieved plenty inside two years, and is racing against the clock in this term to achieve more reform. Watch that scoreboard.
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