Spotlight on the ACCC: Are there lessons ASIC and APRA could learn?

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Over the past two years, the Australian Securities and Investments Commission (“ASIC”) and the Australian Prudential Regulation Authority (“APRA”) have been increasingly under the spotlight. The recent Royal Commission into Misconduct into the Banking, Superannuation and Financial Services Industry (“Hayne Royal Commission”) exposed both regulators to particularly intense criticism as to how they had responded (both in a proactive and reactive sense) to issues confronting Australia’s financial institutions. A consistent message from the Hayne Royal Commission and various capability reviews and reports has been that these regulators need to be ‘tougher enforcers’ of the law. At the same time, the Australian Competition and Consumer Commission (“ACCC”) has gone from strength to strength. In February 2019, the ACCC was awarded the 2019 “Government Agency of the Year” award at the Global Competition Review’s Annual Awards Ceremony hosted in Washington D.C. The Award acknowledges a single “competition enforcer anywhere in the world whose work in 2018 was particularly effective, strategic or innovative”. The comparison amongst these three regulators has played out in the media, where ASIC and APRA have been publicly (and unfavourably) compared to the ACCC, which has been described as the “can-do” regulator. While this comparison is somewhat unfair - the ACCC has not been subjected to anywhere near the same level of public scrutiny as ASIC and APRA – should we nevertheless expect ASIC and APRA to follow the ACCC’s playbook? We’ve identified four reasons that we think will limit the extent to which ASIC and APRA could (or should) emulate the ACCC’s approach.