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Ray Borradale's picture

Competition Chief Explains Tough Love On exit

Graeme Samual, Australian Competition and Consumer Commission chair, wasn't going anywhere until he was told he was an embarrassment. On his way out the door he wants his performance to look better than he ever performed. Here he is clearly including Australian franchising;

He said the ACCC should not exercise any of its powers in an anti-competitive fashion – that is, assist any sector of business, be it big or small business, to avoid the disciplines of competition.

Mr Samuel said the ACCC did not subscribe to calls to include in the Competition and Consumer Act provisions designed to protect some business sectors from the sometimes hard disciplines of competition in a market economy.  ACCC

The fact is that no one going into business should be given a free pass to avoid the ‘disciplines of competition’ or the ‘hard disciplines of competition in a market economy.’

But the reality is that Samuel never got that franchising had become a warped business model full of undeniable abuses that manipulated competition principles and would, left unheeded, ultimately diminish franchising's contribution to the economy with aligned growth in social consequences.

The ACCC under Graeme Samuel saw market power easily shifted to the few as seen where Woolworths and Coles dominate Australian food supply chains, fuel and whatever else they’ve taken a hankering for – hardware is just beginning - and they flaunt the abuse of that dominance. There were more in the Samuel's privelged set. Through his term he went for high profile media and got at least enough to maintain the ACCC propaganda machine.

"That's the 'tough love' the ACCC is charged with applying to the Australian economy, for the benefit of the Australian community as a whole," Mr Samuel said, in his last major speech before he leaves the competition and consumer regulator on 31 July. 

Most Australians will look forward to August 1. He has been an autocratic Chairman working behind closed doors.  He has done well to mostly protect his growing interests during his term and I’d suggest most Australian small business people were a little happy to see him caught out in the end with the DFO embarrassment and multi-million dollar loss. But on Samuel's record that will be remembered as peanuts.

Ray Borradale's picture

Court told ACCC chief received DFO briefings

It seems to be of no interest that DLA Piper, the ACCC’s external lawyers, are also representing Graeme Samuel in what amounts to be a personal matter. While there is nothing wrong with such choices many might like to know whether Mr Samuel’s personal billing by DLA Piper reflects the relationship DLA Piper has enjoyed with the ACCC.

Mr Samuel’s DFO case at hand will clearly be costing someone a small fortune in legal fees once the air clears and at this stage Mr Samuel’s opposing partners appear confident they will win the day on the indemnity Samuel admits to giving on a $46M loan with unpaid interest of $7.7M.

Mr Samuel’s term at the ACCC has long been dogged by criticism of decisions considered to promote anti-competitive practices or at least not in the best interests of Australian consumers across both big and small business.

Many have alleged at least some of those decisions reek of corruption and that any personal gain directed to Mr Samuel has been hidden from scrutiny by high ranking political friends. Mr Samuel has reportedly stated that all ACCC decisions are made from his office and not simply those relating to franchising.

Perhaps it is time to have a federal inquiry into the performance of the ACCC under Mr Samuel as possibly allowing for 'a new era of transparency' or perhaps it is the Australian government’s intention to see the head of the ACCC and any political embarrassment set adrift when his term ends.

To put it bluntly, Samuel was not worth the risk, and that's before any consideration of a clear case for renewal after almost eight years in office.

Also of note is the mass exodus of DLA Piper partners at their Canberra office with many going over to HWL Ebsworth apparently leaving DLA Piper with a mere two partners in their Canberra office. It seems likely we are going to soon see a change to the ACCC’s preferred external Law firm. Any outstanding favors need to be finalized. 

While clearly there can be no concern that such a move has any relevance to the current matters of ACCC/Samuel credibility some may question whether HWL Ebsworth’s virtual monopoly of federal government’s legal business is such a good idea and what implications can be taken from such a shakeup seemingly going hand in hand with the chief watchdog’s departure.

Regulators; cannot live with them, cannot live without them but it would be foolish to give automatic trust to anyone with that level of influence over personal gain from public office. A shot of transparency is in order.

Ray Borradale's picture

Franchising regulator and blind trust

The director of the ‘blind trust’ held by outgoing franchising regulator Graeme Samuel, which has been at the centre of allegations of impropriety, has quit.

As DFO's predicament has worsened, Lyngrae and Samfa company officers have been turned over a number of times.  The Australian

Last August;

…. with the discount shopping centre empire on the brink, Mr Samuel publicly lamented the loss of his family fortune, saying it was "distressing indeed" for his children and grandchildren as beneficiaries of his estate.

Also last year; in a meeting with an inquisitive federal politician, an arrogant Samuel made it clear that every decision on whether to pursue any investigation of any franchising complaint was his decision alone. He also inferred that the lack of franchise investigations was at least partly due to consideration of his dollar-poor budgetary allocation for franchising.

In 2009 and during a review of recommendations coming from the federal inquiry into franchising, I reported on the ACCC’s weekend jaunt with the Franchise Council of Australia. I can now report that virtually the only attendees at the 4 day weekend ‘seminar’ at the remote tropical resort were the elite of the ACCC and the FCA.

Let us trust Rod Sims does a better job at the ACCC and keeps his eyes and ears open for all franchising stakeholders and particularly those franchisees whose investments make the industry function.

Ray Borradale's picture

Jury out on new ACCC boss

While Sims does not appear to have direct small business experience, he does have an impressive background in both the public and private sectors.  SmartCompany

But the high point for small business is that Graeme Samuel is gone – at last.

The announcement of Swan's support of Sims – the economist will still need to be approved by the states before he formally takes the job in a few months time – ends months of speculation about Samuel's intentions.

Australian small business was screwed under Samuel.  Franchisees did not exist. Competition was something to be manipulated to produce profits for big business and not something to be nurtured in the best interests for the standard of living and future for all Australians.

Rod Sims has no small business background and from that perspective an initial consideration suggests he might not be that different to Samuel.  Early days yet but there appears to be no reason to be confident. The party is on hold.

If Graeme Samuel gets back into any power position within Australian public service I'm afraid I'll have no option but to formally request the SEALs tap him twice.

Ray Borradale's picture

Samuel wrong on competition

This is exactly what he did;

There is tension between Reitzer and Australian Competition and Consumer Commission chairman Graeme Samuel that dates back to 2008, when Metcash emerged as the regulator's whipping boy in its six-month inquiry into the $80 billion grocery industry.

The Metcash chief complained at the time that the ACCC had finally recognised there was an unhealthy level of concentration in the industry, only to target the number three player.  The Australia

Third place getter is arguing to be allowed the same level of market manipulation as 1 and 2.  Coles/Woollies have virtually been given a free pass to manipulate pricing to remove small business competitors and gain far greater control over consumers, labour markets and suppliers into the future.  The losers are everyone except the big operators. 

A Franklins acquisition might remove Metcash's only true competitor in the wholesale grocery market, but that overlooks the fact that the independents are butting heads every day against the big chains, which dominate the market with a 76 per cent share.

Metcash’s primary food retailer is the IGA franchise network.

Graeme Samuel is right in rejecting Metcash’s acquisition of Franklin’s but he isn’t consistent. If Samuel gave a damn about consumers, as is the role of the regulator, he would apply the same level of interpretation to regulation of all big business coming under the Trade Practice Act.

Metcash argue that the acquisition is fair play because the big boys get relaxed regulation. They mention the usual ‘it’s good for consumers, competition and small business’. But that is far from the truth and even further from Metcash’s motivation.

Even reliance on the concept of free markets [as opposed to a distorted concept of distorted free markets] does not dismiss the primary and legislated obligation of regulators to protect todays and future populations from peasantry. Where regulatory failures are heading is a very ugly place.

On a totally unrelated topic; I read recently that Michael Moore had stated that 400 Americans have the combined wealth equal to the combined wealth of 160 million Americans.   Now that’s a gap.

Ray Borradale's picture

ACCC boss wants change to suit

Only when it applies to his personal wealth Graeme Samuel is up for changes to agreements after the fact.

Mr Goldberger and Mr Wieland assert that Mr Samuel asked to be kept abreast of DFO issues during a discussion at Mr Goldberger's house about DFO expansion and the proposed indemnity on October 4, 2003.

The allegation raises the issue of Mr Samuel's blind trust arrangements, which he has said were put in place to protect the integrity of ACCC decision-making.  The Australian March 5, 2011

That Samuel wants to re-interpret the indemnity he gave in 2004 is one thing but to use that little feud to distract from his abuse of his position at the ACCC is another matter that won’t go away.

Samuel had set up a blind trust to distance his decisions as regulator from his business interests. It was a matter of making an appearance of building a barrier to accusations that decisions by the ACCC would or could benefit his investments. He has maintained that the blind trust excluded him from knowledge of the workings of the DFO business. But then we found out he had access to DFO’s financial situation through the family member controlling his blind trust and at a time when the regulator was heavily involved to influence the future of his DFO investment.

The real question is; why would the public expect anything different from this regulator? His track record in franchising suggests he has always been up for a bit of misrepresentation and personal benefit.

Ray Borradale's picture

ACCC - the power of one

I’m not suggesting the man has questionable moral character and should be in a criminal Court.  It’s just that when you piece together ACCC action and inaction over a decade and then review the outcomes from poor performance for every average Australians one has to consider ‘Why?’  Who benefited? Someone had to benefit?

ACCC regulatorA one-page letter from Graeme Samuel is at the heart of allegations that the competition tsar provided a multi-million-dollar indemnity to his DFO retail chain business partners, David Goldberger and David Wieland, in 2004.  The Australian

Graeme Samuel has the power to do what he wants and he tells politicians to get stuffed  – he was never interested in franchisee peasants.

Ray Borradale's picture

ACCC boss on a roll

Competition and franchising regulator Graeme Samuel seems to object to the big grocery duopoly receiving any real competition. Of course there is nothing much in the regulation of the duopoly over many years to suggest anything improper. 

National’s Senator Ron Boswell, backed by independent Senators Nick Xenophon and Steve Fielding, yesterday pushed through a motion that will force the Australian Competition and Consumer Commission boss to face the Senate's economic references committee.  SMH

Surly tis just a matter of transparency no doubt and Graeme will truly be terribly excited about dat. It does seem to be that having told so many federal politicians to butt out over the years they are keen to find out what they were being told to butt out of.

Ray Borradale's picture

Franchise regulator evidence questioned

SENIOR lawyers have called on competition tsar Graeme Samuel to clarify evidence he gave to Senate estimates last week.

The evidence implied that a key company in his blind trust structure was ‘not involved with the DFO investments at all’.  The Australian

The other day a gentleman suggested that I seemed to believe Mr Samual was corrupt.  I suggested that while he seemed to look stupid he obviously wasn't a total waste of space.

Ray Borradale's picture

Samuel faces questions

Incompetent director or astute businessman? Vindictive bully or uncompromisingly principled? Charming or bloody-minded? They are all descriptions used by the country's elite politicians and businessmen of Graeme Samuel, one of Australia's most powerful regulators.  SMH

The Senate wants to know if he used his position to influence his interests.

A day after Mr Samuel stepped aside, NAB and three other banks rolled over South Wharf's $450 million debt.

Then, on September 9, the ACCC blocked the NAB/Axa deal for a second time. Richard Gluyas

In a random survey at the ACCC a clear majority believed the average Australian would see straight through the regulator.

I became aware (just prior to the weekend of August 15) that my family interests were becoming relevant to discussions that were occurring with the lenders, although they were not, as I understand it, directly involved in those discussions. I acted promptly

Mr Samuel has never in his lifetime come within three suburbs of a ‘social cost.

The competition tsar pointed to an interview with Business Spectator, in which he highlighted the differences between a business plan and social cost-benefit analysis. The latter is a "far more complex exercise" and "goes beyond a business case".  Business Spectator

Again Australian followers of the ACCC performance are convinced that Samuel’s smoke points to fire.

A group of experts wants an overhaul of rules governing conflicts of interest for senior public servants, after the Graeme Samuel case.  Call for new rules

Ray Borradale's picture

Senior MP calls for ACCC’s Samuel inquiry

These serious claims about conflict of interest should be examined by an appropriate authority.   Michael Danby MP

GraemeFor those who have suggested privately that I am ‘enjoying the problems facing Graeme Samuel’ I have this to say; ‘and’.  He has whitewashed franchising complaints in Australia for far too long.

Ray Borradale's picture

Franchise watchdog boss under attack

However, Goldberger and Wieland – who were valued earlier this year at $625 million on BRW’s Rich 200 – have questioned how much Samuel knew of DFO’s woes and how much information was passed to him by the trustees of his blind trust.

According to a report in The Australian, Samuel’s son Warren Samuel is the secretary of the trust.

Goldberger and Wieland, speaking through their lawyer Leon Zwier of high-profiled Melbourne firm Arnold Block Leibler, told The Australian that they want a “full, open and transparent inquiry about DFO” and potential conflicts of interest with Samuel’s role as ACCC chair.  SmartCompany

Samuel’s term at the ACCC is up next year. The question is whether he be reappointed given these terribly disconcerting events where he only suggested he would step aside from the ACCC’s overseeing of the DFO deal once his involvement with DFO was, to his dismay, made public.  Or perhaps he should be booted out for his performance as franchising watchdog and FCA pet.

Isn't this called karma?

Does anybody know if he has any investments in franchise companies?

ACCC love throwing the term 'due diligence' around to put all the blame back on franchise investors when the proverbial hits the fan, thereby kicking them to the curb.

I fail to see the difference here, except I sense we all know that the courts will get to see this one!

Ray Borradale's picture

ACCC Integrity & DFO

It’s the timing of Mr Samuel stepping aside from the $13.3b NAB-AXA bid that is the concern.

The ACCC scrutiny of this bid has been protracted and yet only after the prospect of the Samuel DFO loss and the link became public did Mr Samuel ‘step aside’.

This is not the first time that the ACCC’s integrity has been challenged. The pursuit of  Richard Pratt and the non-pursuit of franchising complaints are just two of many examples.

Now all Australians are entitled to know what other situations have existed where the integrity of the ACCC might have been in the balance.

Mr Samuel has the right to have his reputation maintained while the people of Australia should be assured that this is not the tip of an iceberg.

Besides; does stepping aside really remove influence at the ACCC?

Instead, Samuel stayed in the game, but only as a passive shareholder, getting limited "headline information" because of the blind trust structure.  Feelings of Betrayal

The mix of $50M on the line and theoretical information limitations doesn't offer much confidence.

Ray Borradale's picture

The ethics of Samuel

There is a lot being written about the pure character of the ACCC chairman Graeme Samuel. But that rubbish seems to be mostly written by business journalists fearing a closed door at the ACCC. Not all see it that way;

Samuel did not need to be involved in those discussions to understand that while he was holding significant sway over NAB's $13 billion plans for AXA, the bank was holding significant sway over a multimillion-dollar asset of his extended family.  Elizabeth Sexton

I’m not the only person in Australia that noticed the timing for a show of ethical intent;

But that only occurred after media reports had highlighted the links between the AXA bid and the Austexx debt crisis. The damage in terms of community perceptions had already been done.

I don't think so - now he

I don't think so - now he will know what it's like for the other mums and dads that have lost everything due to the franchisors - waist of time accc and lack of any legal help.
How many people have gone bust and lost everything due to the franchise industry?.
I have no sympathy for him.- Welcome to my world.

Ray Borradale's picture

Kleenmaid

Kleenmaid franchisees have donated $1.37

An anonymous spokesperson for Kleenmaid franchisees wiped out after the ACCC chairman ignored complaints prior to the collapse of their franchisor said;

We can sympathize with Graeme and his family and his dog. Fancy not being in a position to know or do anything about someone else quietly burning your money. He made a silly investment but he could still complain to the equally useless ASIC

Samuel Furious

When contacted Franchise Council of Australia's Stephen Giles would not confirm or deny considering the establishment of a "Save a Samuel' fund through the National Australia Bank. One insider suggested any future FCA donations to Mr Samuel would be considered once past levels had been reviewed but she was confident that someone would put their hand in someone's pocket for Graeme.

Ray Borradale's picture

Know when to hold them

know when to fold them.  Know when to walk away, know when to run.  .. here comes Graeme ….

Once something becomes common knowledge and your can is on the line it’s generally a good time to come clean.

Mr Samuel advised that he considered this course of action necessary to remove any perception of a conflict of interest arising from current issues concerning his family's investment in the DFO shopping centre chain. ACCC Statement

The trust and faith that blindsided Samuel

I Feel A Little Sad

Ray Borradale's picture

Graeme Samuel, old fashioned peeking

Queen's Counsel and former National Crime Authority chairman Peter Faris also said there could be a perception that the Lyngrae trust was "partially sighted" because Mr Samuel's 38 year-old son Warren has held the role of secretary since 2006.  The Australian

One would have to think that absolute transparency for a Competition watchdog is taking accountability too far.

But my argument is that Mr Samuel makes very important commercial decisions as ACCC chairman, he has interests that should be on a public register, and there should be a verification process.

The ACCC has less substantial conflict of interest provisions than local councils in Victoria, and that's a concern. The idea that you can just send a statement off to the minister is very old-fashioned.   David Yarrow

Ray Borradale's picture

Samuel, a Law unto

himself.  He is a sly trick.

The note referred to ‘next steps’, indicating Mr Samuel's desire to ‘get moving on the prosecution’. Leon Zwier,Arnold Bloch Leibler

Nothing moves at the ACCC unless Graeme Samuel can make some personal media points.

I’m known for being a bit of a media junkie.  Graeme Samuel To Federal Parliament

Ain’t that a fact Jack.

Ray Borradale's picture

ACCC chief forced to correct record

Graeme Samuel has been kind enough to fix the record on his disclosure to government.

The error in my statements concerning Warren's position as a secretary of the two companies concerned was entirely inadvertent and the record has been corrected with the responsible minister.  SmartCompany

How appropriate it is that this happened after he was found out.