Phone users have a reason to cheer ACCC's black eye

How much do you pay for your mobile phone contract – a lot or a little? Do you wish there was more price competition in a market dominated by three big companies, Telstra, Optus and Vodafone?

The Australian Competition and Consumer Commission has been stymied in its efforts to make that possibility more likely.

Last year the competition commission blocked a plan for Vodafone (one of the world’s biggest mobile phone companies) to "merge" with TPG (a mainly fixed-line phone and internet service provider) on the grounds that it could substantially lessen competition in the mobiles market.

Earlier this month the Federal Court overturned the commission’s ruling and allowed the merger to proceed – to much cheering from big business, which loves seeing the interfering competition regulator get a poke in the eye.

But phone users have nothing to cheer about. A chance to get more effective competition in the mobile phone market has been lost. Any threat of disruption to the comfortable life of the three-firm oligopoly – which already controls almost 90 per cent of the market – has been removed.

The competition commission thought the merger would do little to increase competition in the mobiles market, whereas allowing the smallest of the big-three oligopolists to take out the one outsider that could have threatened their cosy oligopoly – TPG – made it unlikely their cosy arrangement would ever be disrupted.

It thought this because, under the leadership of its swashbuckling chairman, David Teoh, TPG had turned itself into a company big enough to challenge Telstra and Optus in the internet provider market by acquiring various smaller providers and offering more competitive prices. And it had already spent $1.26 billion preparing to build a mobile network, before the government refused to let it partner with the Chinese-owned leader in 5G technology, Huawei.

Were the merger to be prevented, the commission believed, there was a good chance that TPG, with its record as a disrupter of markets, would revert to its plan to break into the mobile market, and do so by undercutting the incumbents’ prices.

The court rejected the competition regulator’s argument, primarily because it accepted Teoh’s assurance that he’d abandoned his plan to break into the mobiles market and wouldn’t return to it.

The court ruled that “it is not necessarily the number of competitors that are in the relevant market, but the quality of the competition that must be assessed. Further, it is not for the ACCC or this court to engineer a competitive outcome”.

Sorry, your honour, not sure what you mean. It’s certainly true that assessing the competitiveness of an oligopolistic market is more complicated than counting the number of dominant firms. The complexity comes in assessing the nature of the competition.

But what does it mean to “engineer” a competitive outcome? If it means the competition regulator and the court can’t do anything that would increase the likelihood of an industry being disrupted by a new and aggressive entrant, it’s telling us the law is biased in favour of maintaining the status quo and thus protecting the comfortable lives of the incumbents.

Does it mean the only views the authorities may hold about how the future may unfold for the industry must come from what the companies seeking permission to merge say about their intentions, not from the evidence economists have gathered about how oligopolists seek to compete in ways that maximise their profits and limit the benefit to their customers?

One of the main ways the rich countries have become rich is by firms’ continuous pursuit of economies of scale. The inevitable consequence, however, is that most of our markets have become dominated by a small number of huge firms with considerable power to influence the prices charged – especially if they reach an unspoken agreement to avoid competing on price.

The big question for public policy is how to ensure the gains from scale economies flow through to customers in lower prices and better service, rather than being retained as “super profit” in excess of the “normal profit” needed to cover the firm’s cost of capital and the risks it’s run. This is why economists have built up a great body of empirical knowledge about how oligopolists behave.

The court found that increasing the number of big players in the mobiles market from three to four (should the merger be blocked and TPG resume its plan to enter the market) would do little to increase competition, whereas allowing Vodafone to buy out the potential entrant and so become closer in size to its two rivals would improve competition.

Sorry, both conclusions run contrary to what the empirical evidence tells us was likely to happen. Remember, the chief tactic the world's digital megafirms have used to protect their pricing power is buying out small outfits looking like they could become a disrupter.

Read more >>

Aged Care: the crappy end of the Smaller Government mentality

What do you get when politicians and econocrats go for decades trying to foist Smaller Government  on an unwilling public? Bad government. And the delivery of crappy services – often literally in the case of aged care.

The interim report of the royal commission into aged care is absolutely scathing about the appalling state the system has been allowed to fall into. Its summary is headed: 'A Shocking Tale of Neglect'.

Aged care services are “fragmented, unsupported and underfunded. With some admirable exceptions, they are poorly managed. All too often, they are unsafe and seemingly uncaring.”

“We have uncovered an aged care system that is characterised by an absence of innovation and by rigid conformity. The system lacks transparency in communication, reporting and accountability. It is not built around the people it is supposed to help and support, but around funding mechanisms, processes and procedures,” the report says.

“Many of the cases of deficiencies or outright failings in aged care were known to both the providers concerned and the regulators before coming to public attention. Why has so little been done to address these deficiencies?”

“We have heard evidence which suggests that the regulatory regime that is intended to ensure safety and quality of services . . . does not adequately deter poor practices. Indeed, it often fails to detect them. When it does so, remedial action is frequently ineffective. The regulatory regime appears to do little to encourage better practice beyond a minimum standard.”

Here’s where you see the fingerprints of the econocrats and accountants: “the aged care sector prides itself in being an ‘industry’ and it behaves like one. This masks the fact that 80 per cent of its funding comes directly from government coffers. Australian taxpayers have every right to expect that a sector so heavily funded by them should be open and fully accountable to the public and seen as a ‘service’ to them.”

Get it? Don’t ask us to publish performance indicators. They’re “commercial-in-confidence” – especially because many providers are for-profit providers. Why don’t the regulators insist? Because, like so many regulators, they’ve been “captured” by the providers, which have Canberra-based lobbyists, are generous wine-and-diners and employers of retired ministers and senior bureaucrats, and could make a lot more trouble for the government than a thousand mistreated mums aka silent Australians (whose vote for the Coalition is rusted-on).

The obvious reason the Smaller Government brigade has to shoulder the blame for the appalling treatment of so many (but not all) people in aged care – and many of the overworked and underpaid nurses working in it – is that, as part of the eternal crusade to keep government smaller, aged care is, as the commission finds, seriously underfunded.

But it’s worse than that. Part of the Smaller Government mentality is having aged care provided by someone other than the government – including for-profit providers which, as every Smaller Government crusader knows, are far more efficient than the public service.

Except that, as the commission’s report demonstrates yet again, they’re not. And when they can’t use greater efficiency to cover their profit margin, they extract it by cutting quality. The report doesn’t say so, but it’s a safe bet the for-profits are at the forefront of the “poor continence management,” “dreadful food, nutrition and hydration,” and “common use of physical restraint” and “overprescribing of drugs which sedate residents” to make them easier to manage, it uncovered.

Trouble is, so long as so much of the “industry” is profit-maximising, no amount of increased funding will be sufficient to stop residents being mistreated.

The more fundamental problem is that the Smaller Government zealots have never persuaded voters that less is more. Almost all of us think more is more. That’s what we want and what even conservative politicians promise us at every election.

So they have no mandate for Smaller Government and, since the disastrous 2014 budget, lack the political courage of their convictions. But they persist with their efforts to keep the lid on government spending, continually cutting away at the people they consider to be political weak and enemies of the Coalition: the ABC, people on welfare, and the deeply despised public service - particularly those bureaucrats offering policy advice (who needs it?) and those regulating and policing the public funding received by the party’s generous business donors.

In practice, Smaller Government means underspending on essentials such as aged care until the neglect is no longer tolerable politically, feigning shock and promising to spend big and crackdown on miscreants when voters react with horror to the revelations of the inevitable royal commission then, once the media circus has moved on, quietly welching on much of what you promised to do.

Read more >>

Bank royal commission the start of re-regulation

If you think the banking royal commission’s damning report means you’ll never again be overcharged or otherwise mistreated by a bank, you’re being a bit naive. If you’re hoping to witness leading bankers being dragged off to chokey, you’ll be waiting a while.

But if you think that, once the dust has settled, we’ll find little has changed, you haven’t been paying attention.

I think we’ll look back on this week and see it as the start of the era of re-regulation of the economy. The time it became clear our politicians were no longer willing to give big business an easy ride, to assume it would only ever act in the best interests of its customers and that nothing should ever be done to displease the big end of town, for fear this would damage the economy.

And I’m talking about a lot more than banking, superannuation and insurance. Many other industries have been treating their customers or employees badly, and they too will find governments getting tough with wrongdoers.

Why the change of heart? Because, in so many cases, the 30-year experiment with deregulation, privatisation and outsourcing is now seen to have ended badly.

Recent years have revealed many businesses breaking the law while government regulatory bodies fail to bring them to justice: firms paying their employees less than their legal entitlements, firms taking advantage of foreign students and others on temporary work visas, private providers of vocational education inducing youngsters to sign up for inappropriate courses, irrigators illegally extracting water from the Murray-Darling river system, private inspectors certifying high-rise apartment blocks later found to be seriously defective, and many more.

Big business may have power and money, but customers and employees have votes. And when voters experience mistreatment at the hand of business – or just read about the mistreatment of others – they tend to blame the politicians, who were supposed to ensure such things happened only rarely.

Commissioner Kenneth Hayne has found that almost all the misbehaviour by banks and other institutions he uncovered was already illegal.

He makes the point that “the primary responsibility for misconduct in the financial services industry lies with the entities concerned and those who managed and controlled those entities”.

But, he adds, “too often, financial services entities that broke the law were not properly held to account.

“The Australian community expects, and is entitled to expect, that if an entity breaks the law and causes damage to customers, it will compensate those affected customers. But the community also expects that financial services entities that break the law will be held to account.”

And when the Australian community realises this hasn’t happened, who does it blame? Who does it seek most to punish? The government of the day. Even though the genesis of the policy problem lies in decisions made by governments long gone.

Do you see now why the worm has turned on deregulation?

Former Labor and Coalition governments’ naive faith that “market forces” would oblige businesses to do the right thing has proved badly misplaced. In their scramble for higher profits and pay, seemingly respectable businesses have taken advantage of their greater freedom, knowingly breaking the law whenever they thought they wouldn’t be caught.

And now the chickens have come home, who’s most at risk of losing their jobs? Not the bosses of offending businesses, not the regulators asleep at the wheel, but the government of the day. That’s the rough justice of democracies. Voters hit out at those they have the power to hit – those they elect.

It was business that had the fun, but it’s politicians in most immediate danger of paying the price. Do you really think they’ll be going easy on their former business mates who’ve been dudding them behind their backs?

But what’s a threat to the government is an opportunity for the opposition. Competition between the two parties will ensure the Hayne commission’s recommendations are acted on.

And, whichever side wins the election, the next term will see a tightening of the regulation of many industries beside financial services.

Commissioner Hayne was highly critical of the two main financial regulators, the Australian Securities and Investment Commission and the Australian Prudential Regulation Authority. Why did they allow so much wrongdoing to get past them?

Partly because they succumbed to the ailment threatening all regulators: “capture” by the industry they were supposed to be regulating. They allowed themselves to become too matey with the industry, seeing its point of view more clearly than the interests of its customers.

But there’s more to it. During the decades in which politicians and some economists convinced themselves that the more lightly businesses were regulated the better they’d serve the rest of us, the regulatory authorities were left intact more for appearances than function.

They soon got the message that their political masters – from either side of politics – wanted them to go easy on business. Both sides went for years reinforcing the message by repeatedly cutting the regulators’ funding.

But all that’s changed. The politicians, claiming to be shocked by the regulators’ dereliction, are now pumping in taxpayers’ money as fast as they can go. Life won’t be the same for big business.

Read more >>

ACCC wins watchdog of the year, as others lick their wounds

It’s been an infamous year for Australia’s economic regulators. Most ended it with their lack of vigilance exposed, their reputations battered and their ears stinging from judicial rebuke.

The biggest loser is the Australian Securities and Investments Commission, followed by the Australian Prudential Regulation Authority. But the mismanagement of the national electricity market became more apparent. And neither the Reserve Bank nor Treasury emerged unscathed.

Just one regulator had a good year, the Australian Competition and Consumer Commission. It worked hard, discharging its duties with vigour and initiative, taking on powerful business interests, seeking and being granted hugely increased maximum penalties, and fighting to make up for the negligence of its fellow regulators.

As the others have been found wanting, its role has been expanded. And as next year we see the government’s response to this year’s seemingly endless revelations of regulatory failure, it’s role may well be further widened. That’s what tends to happen when rival regulators’ failures become apparent.

It’s been a watershed year. From now on, life will never be the same for regulators found wanting under the microscope of public scrutiny.

Much of that scrutiny came from the banking royal commission, of course. Its interim report in September criticised ASIC for "rarely" going to court "to seek public denunciation of and punishment for misconduct," and being too accommodative when negotiating penalties with the companies it polices.

APRA faced criticism for a "lack of action" in response to widespread misbehaviour in superannuation, including cases where thousands of members were kept in higher fee accounts, rather than being moved into no-frills MySuper products.

But the royal commission wasn’t the only critic of economic regulators this year. I’ve said plenty elsewhere about the failure of the national electricity market’s three (and now four) official operators and regulators to prevent the massive blowout in retail power prices.

One of the many things the Turnbull government did in its vain attempt to fend off pressure for a royal commission was to get the Productivity Commission to report on competition in the financial sector.

The commission confirmed competition in banking was weak and made one eye-opening revelation: part of the problem was that, in their concern to ensure the stability of the banking system, APRA and the Reserve Bank weren’t too worried about ensuring this did as little as possible to inhibit price competition between the big banks.

The commission noted that when APRA had imposed limits on new interest-only lending, it and the Reserve had looked the other way while all four big banks used this as an excuse to jack up interest rates on new and existing interest-only loans.

It recommended that a “consumer champion” be appointed to join APRA, ASIC, Treasury and the Reserve on the co-ordinating Council of Financial Regulators. No prize for guessing the ACCC was the champion the commission had in mind. Nor for reading between the lines that the commission suspected the Reserve and Treasury had been “captured” by the bankers they were supposed to be regulating.

The ACCC has done what little it could over the years to oppose the misregulation and oligopolisation of the national electricity market, and its reports this year revealed what went wrong.

Last week it acted on three fronts. Its preliminary report on digital platforms took on Google and Facebook, greatly expanding our understanding of the questionable ways they operate and working on ways they could be regulated.

ACCC boss Rod Sims has long worried publicly about the state governments privatising their electricity businesses and ports in ways that maximised their sale price by inhibiting price competition. The banker-led Baird-Berejiklian government in NSW is the worst offender.

Last week Sims announced the ACCC was taking the Botany port operator to court, alleging its agreement with the NSW government is anti-competitive and illegal.

And last week the ACCC released its final report on factors influencing residential mortgage prices, commissioned at a time when the banks were threatening to pass the new “major bank levy” straight on to their customers.

The report covered similar territory to the earlier Productivity Commission report, noting again the way the banks had used APRA’s move on interest-only loans as an opportunity for “synchronised pricing”.

But the ACCC’s analysis of pricing dynamics in an oligopolistic market like banking revealed far more realism (and advanced economics) than the Productivity Commission’s trademark introductory textbook neo-classicism. The more I see, the more I like.

Read more >>

How a better business culture is within reach

Last week must have been a terrifying wake-up call for Australia’s ruling class – not just our politicians, but also the chief executives and directors of our big corporations, both publicly and privately owned.

If they’re half as smart as they’re supposed to be – after all, we’re told they got their jobs on merit – their performance of their duties will be much improved “going forward”.

The problems at the ABC – managing director sacked and chairman resigned in the same week – and the problem behaviour of our banks are very different, but they have one thing in common.

Members of the ABC board were made aware, if they hadn’t already known, of the chairman’s alleged interference in the day-to-day running of the corporation in a way that endangered its independence from the elected government, but chose to do nothing. Until that knowledge became public and the public’s horrified reaction obliged them to act.

The directors of our big banks presided for many years over a system of remuneration incentives – from the chief executive down – that rewarded staff for putting profit before people.

If the directors didn’t know this was leading to bank customers being mistreated, regulators misled and laws broken, it can only be because they didn’t want to know.

Well now, thanks to the royal commission’s shocking revelations, all of us know the extent of the banks’ misconduct. And the directors have nowhere to hide.

See the link between the two cases? When you’re on a board, it’s easy to see how things look from the viewpoint of the insiders – the people in the room, and on the floors below. What’s harder to see, and give adequate weight to, is the viewpoint of outsiders.

But that’s the board members’ duty, statutory and moral: to represent the interests of outsiders, including the shareholders, but also other “stakeholders”. To view things more objectively than management does. To avoid falling into groupthink. To rock the boat if it needs rocking.

A good question is: how would it look if what’s now private became public? Because that’s what happened last week. And now a lot of executives and directors are viewing the consequences of their acquiescence with fresh eyes and are not proud of what they see.

The ABC’s governance problems, we must hope, will be fixed relatively quickly. The misconduct of the banks is a much tougher problem.

The interim report of the banking royal commission carried a wake-up call also for the financial regulators – particularly the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority, but also the Reserve Bank and Treasury.

Allow yourself to be captured by the people you’re supposed to be regulating, and one day your failure to do your duty according to law will be exposed for all to see. How good will you feel?

Get too cosy and obliging, and the banks take advantage of you behind your back. Conclude from things they say - and the way they keep cutting your funding – that your political masters want you to go easy on their generous-donor mates in banking and, when the balloon goes up, the pollies will step aside and point at you.

Since you did neglect your duty to protect the public’s interests, you won’t have a leg to stand on.

Some people were disappointed the interim report contained no recommendations – no tougher legislation, no referrals to the legal authorities – but I was heartened by Commissioner Kenneth Hayne’s grasp of the root cause of the problem and the smart way to tackle it.

Too often, he found, the misconduct was motivated by “greed - the pursuit of short-term profit at the expense of basic standards of honesty . . . From the executive suite to the front line, staff were measured and rewarded by reference to profit and sales”.

Just so. But what induces seemingly decent people to put (personal) profit before people? That’s a question for psychologists, not lawyers. We’re social animals with an unconscious, almost irresistible urge to fit in with the group. A tribal urge.

Most of us get our sense of what’s ethical behaviour from the people around us in our group. If what I’m doing is no worse than what they’re doing, that’s ethical. Few of us have an inner moral compass (set by our membership of other tribes – religious or familial) strong enough to override the pressure we feel under from what our bosses and workmates are saying and doing.

Sociologists call this “norms of acceptable behaviour” within the group. When regulators first said that banks had an unhealthy corporate “culture”, business leaders dismissed this as soft-headed nonsense. Now, no one’s arguing.

But, we’re told, how can you legislate to change culture? Passing laws won’t eliminate dishonesty.

Fortunately, that’s only half true. Rationality tells us people’s behaviour flows from their beliefs, but psychologists tell us it’s the other way round: if you can change people’s behaviour, they’ll change their beliefs to fit (so as to reduce their “cognitive dissonance”).

Hayne says “much more often than not, the conduct now condemned was contrary to law”, which leads him to doubt that passing new laws is the answer.

So what is? His hints make it pretty clear, and I think he’s right. Make sure everyone in banking knows what’s illegal, then police the law vigorously with meaningful penalties. Fear of getting caught will override greed, and a change in behaviour will be reinforced by an improvement in the banking culture.

Read more >>

Punishing wrongdoers won’t fix our problem with banking

The other day I noticed a column I’d written in 1990 saying the banks’ abuse of their customers’ trust was getting them a bad name, so they should desist.

That was almost 30 years ago. It tells you the banks started playing up not long after the Hawke-Keating government deregulated them in the mid-1980s.

I was complaining about the way they’d offer new customers a better deal than their existing customers, then make no effort to tell their unsuspecting suckers they should change.

They’re still doing it, of course. But as the banking royal commission has informed us in the most gruesome detail, they’ve graduated to much worse than exploiting their customers’ loyalty and inertia.

Their policy of buying into every dimension of “financial services”, particularly “wealth management” – running superannuation funds, and giving people advice on where to invest their retirement savings – has opened an Aladdin’s cave of opportunities to charge fees and commissions, plus temptations to exploit the conflict been their interests and their customers’.

“Why don’t I get you to agree to put your money into an investment that pays me a higher commission, or that’s offered by another part of my bank, even though it wouldn’t be the right thing for you?”

Financial services are particularly susceptible to overcharging, not just because the sellers know so much more than we do, but because ordinary mortals find financial details extraordinarily dull and have great trouble making themselves spend their precious leisure time examining statements, closing old accounts and checking up on businesses they should be able to trust.

And now, of course, we’ve had Westpac making an “out-of-cycle” increase in mortgage interest rates, and are waiting to see whether the other big banks will use the chance to raise their own rates.

Will they be game to add further offence while they’re at the height of their unpopularity? I fear they will.

If I’m right, this will tell us a lot about how banking got to be in its present sorry state and how likely the royal commission’s proposals for reform are to change the banks’ bad behaviour.

The commission’s inquiry is nearing its end. Its interim report is due by the end of this month, with its final report due by February 1. So we’re likely to know its recommendations – and what each side proposes to do about them – before the federal election.

Is it reasonable to hope it won’t be too long before the banks' bad behaviour is a thing of the past? Yes and no.

The commission's being conducted by a former High Court judge and a lot of barristers. If these lawyers interpret “misconduct” to mean breaking the law, they’ll be focused on referring suspect banks and individuals for further investigation, tightening up the law and making sure the bodies supposed to be regulating the banks, particularly the Australian Securities and Investments Commission, get more resources and try a mighty lot harder than they have been.

If this is the way things shape - and provided punishments extend to fining or jailing individuals, not just imposing fines on businesses with the deepest pockets in the land – I think we can hope for a marked reduction in rule-bending and outright lawbreaking.

The problem is that the big four banks have been so focused on the game they’re playing that they’ve lost touch with reality – with how many customers’ lives they’ve been ruining; with the way the rest us have come to despise them.

When the spouses of bank chief executives and board members realise their other half risks a trip to the slammer, just watch them pull their heads in.

Trouble is, most of us haven’t been victims of illegal behaviour. It’s no offence to take advantage of customers who aren’t paying attention. It’s not against the law to raise interest rates out-of-cycle.

In other words, there’s a big economic dimension to the banks’ misconduct. Neglect that and we’ll still have much to complain of.

The strange thing about banking is that it’s ruthlessly competitive and uncompetitive at the same time. The banks’ bosses are obsessed by a game in which they compete to achieve the highest percentage increase in their profits and share prices.

It’s this competition that’s kept bankers in their bubble of unreality, urging their minions on with KPIs and commissions and bonuses, and turning a blind eye to the rule-bending they lead to.

This is why Westpac has moved to protect its profit margin by passing a small increase in its costs on to customers, even though our banks are already among the most profitable in the world. And this is why its competitors are likely to follow suit, whatever their customers think.

It’s the lack of price competition at the retail level that makes it possible for the banks as a group to raise their prices whenever they see fit. The others could hang Westpac out to dry, but it’s a safe bet they won’t.

It’s only effective measures to increase price competition that will stop the banks overcharging us. There are no easy answers. But the banks are so influential that, to date, neither the two parties nor their bureaucratic advisers in Treasury, the Reserve Bank and the Australian Prudential Regulation Authority have shown much enthusiasm for the challenge.

That’s what we must hope all the voter anger generated by the royal commission is about to change.

Read more >>

Corporate crime is far too common

If we’re to believe what we see in the media, we’re being engulfed by a corporate crime wave. An outbreak of business lawlessness that engages in “wage theft”, mistreatment of franchisees, abuse of workers on temporary visas, and much else.

But should we believe it? Regrettably, my years as a journalist have taught me not to believe everything I read in the paper (this august organ excepted, naturally).

News gathering is a process of what when I was an accountant I would have called “exception reporting”. That’s because people find the exceptions more interesting than the ordinary, everyday occurrences.

When the exceptions pile up, however, the risk is that they’re taken by readers to be representative of the wider reality.

So, in the case of businesses behaving badly, how exceptional are the exceptions? The answer from Rod Sims, chairman of the Australian Competition and Consumer Commission, in a speech he gave last Friday night, is not as exceptional as you’d hope.

To prove his point, Sims offered an extraordinary list of the commission’s enforcement activity, just in the month of April this year.

Ford was ordered to pay $10 million in penalties after it admitted that it had engaged in unconscionable conduct in the way it dealt with complaints about PowerShift transmission cars, sometimes telling customers that shuddering was the result of the customer’s driving style despite knowing the problems with these cars.

Telstra was ordered to pay penalties of $10 million in relation to its third-party billing service known as “premium direct billing” under which it exposed thousands of its own mobile phone customers to unauthorised charges.

Thermomix paid penalties of more than $4.5 million for making false or misleading representations to certain customers through its silence about a safety issue affecting one of its products which the company knew about from a point in time.

Flight Centre was ordered to pay $12.5 million in penalties for attempting to induce three international airlines to enter into price-fixing agreements.

K-Line, a Japanese shipping company, pleaded guilty to criminal cartel conduct concerning the international shipping of cars, trucks and busses to Australia.

Woolworths had proceedings instituted against it alleging that the environmental representations made about some of its Homebrand picnic products were false, misleading and deceptive.

Phew. Surely that was an exceptional month. But Sims has more cases to list.

Earlier this year, the Federal Court found that the food manufacturer Heinz had made misleading claims that its Little Kids Shredz products were beneficial for young children, when they contained about two-thirds sugar.

Who could forget the case of four Nurofen specific pain products? Their packaging claimed that each was specifically formulated to treat a particular type of pain when, in fact, each product contained the same active ingredient and was no more effective at treating that type of pain than any of the others. “The key difference was that the specific pain products were near double the price of the standard Nurofen product,” Sims says.

Hotel giant Meriton was caught taking deliberate steps to prevent guests it suspected would give an unfavourable review from receiving TripAdvisor’s “review express” prompt email, including by inserting additional letters into guests’ email addresses.

The court found this to be a deliberate strategy by Meriton to minimise the number of negative reviews its guests posted on TripAdvisor.

Optus Internet recently admitted to making misleading representations to about 14,000 customers about their transition to the national broadband network, including stating that their services would be disconnected if they didn’t move to the NBN, when under its contracts it could not force disconnection within the timeframe claimed.

Pental has admitted that it made misleading claims about its White King “flushable” cleaning wipes, saying they would disintegrate in the sewerage system when flushed, just like toilet paper, when our wastewater authorities are having big problems because the wipes can cause blockages in their systems.

Shocking. But, you may object, isn’t this just more anecdotes? How representative are they? Sims acknowledges that not all companies behave poorly.

He says that “poor behaviour usually occurs on a spectrum, with few companies behaving badly often, but rather many engaging in occasional significant instances of bad behaviour” – which, he insists, remains unacceptable.

So what can the commission and the government do to reduce the incidence of unacceptable behaviour?

Since businesses commit these excesses in their completely legitimate pursuit of higher profits, the key is to increase the cost to them of bad behaviour.

Many firms invest heavily in their brand reputation, which is a signal that they can be trusted. “The greater the likelihood that bad behaviour will be exposed and made public [see above], the more companies will do to guard against such behaviours.”

In their amoral, dollar-obsessed way, economists assess the attractions of law breaking by weighing the benefit to be gained against the cost of being caught multiplied by the probability of being caught.

Leaving aside the cost of reputational damage (just ask AMP if it knows about that), if you can’t do as much as you should to increase the chance of being caught, you should at least wack up the fines.

Sims says that “the penalties for misconduct, given the likelihood of detection, are comparatively weak”. He believes he’s had some success in persuading the Turnbull government to increase them.

“Just imagine if the penalties I mentioned [see above] were 10 to 20 times higher,” he concludes.

Read more >>

Sensible communities set boundaries for business

A highlight of our trip to New York after Christmas was a visit to the Tenement Museum down on the lower east side, where the movie Gangs of New York was set. It was the area where successive waves of Irish, German and Russian immigrants first settled, crowded into tenements.

We were taken around the corner to see inside a tenement building restored to its original condition.

As we climbed the back stairs, we were shown a row of dunnies and a water tap in the backyard. This, we were told, was one of the first tenements required to have outside toilets and running water under a new city ordinance.

Can you imagine any developer today thinking they could get away with building multi-storey units without adequate (indoor) toilets and plumbing? Unthinkable.

But I can imagine the fuss the developers of that time would have made when the city government – no doubt acting under pressure from citizens worried about the spread of disease – was passing the new ordinance.

These excessively luxurious requirements would be hugely expensive and could send some tenement owners bankrupt – owners who had families and elderly parents to support. The additional cost would have to be passed on to tenants, of course, making rents prohibitive. Some families would be forced onto the street.

I bet few of those dire predictions came to pass. Why? Because business people still play this game and once the bitterly opposed legislation goes through and the new status quo is accepted, the exaggerated forebodings are soon forgotten.

Another highlight was a tour of Carnegie Hall. Once, when it fell on hard times, someone acquired it with a view to tearing it down and building high-rise apartments. A public outcry stopped it.

Then, our guide reminded us, there was the time Jacqueline Kennedy Onassis led the fight to stop Grand Central Station being replaced by an office block.

It reminded me of how that ratbag commo Jack Mundey – being quietly urged on by respectable National Trust-types – was frustrating go-ahead developers all over Sydney.

Just think how better off we’d be today had those those pillars of industry not been prevented from doing away with the crumbling old Queen Victoria Building – with its verdigris domes and rickety lifts – and building a shiny new office block.

Gosh, by now we’d be ready to tear it down and build a taller one. And just think how many jobs that would create.

Do you see where this travelogue is heading? I’m an unfailing believer in the capitalist system. We’d all be much poorer than we are were it not for those ambitious, hard-working, enterprising, optimistic souls who set out to make themselves rich by engaging in some business.

But that doesn’t stop them being thoroughly self-interested and often short-sighted. Whatever new project it is they’ve decided will make them more money, they want to get started yesterday and get terribly angry with those who won’t step out of their way and let them get on with it.

My point is, it was ever thus. Market economies work best – and all the people within them do best – when governments act on behalf of the community in setting boundaries within which entrepreneurs are free to be entrepreneurial.

It’s the community’s economy, and it’s the community that decides the rules that ensure businesses make their profits – good luck to them – in ways that do more good than harm to the rest of us.

The huge hurt and cost of the global financial crisis – from which the world is still recovering, 10 years later – is but the latest reminder of something we should have known: how easily an economy can run off the track when we fall for the line that self-interested, short-sighted business people should be free to do as they please.

I remind you of all this because we’re just emerging from a period of more than 30 years in which the Western world flirted with the notion that economies work best when businesses are given as free a hand as possible.

The present royal commission into the misbehaviour of the banks is just one response to the consequences of that ill-considered notion.

You have to be at least in your 50s to remember the world as it was before then, when governments felt free to limit businesses’ freedom of action in respects they judged necessary and to impose obligations on them.

Where do you think the minimum wage, four weeks annual leave, long service leave, sick leave and many other employee benefits came from? Governments decided to impose them on business so as to ensure workers got their share of the benefits of capitalism.

Many of our young people are deeply pessimistic about the working world they’re inheriting – the “gig economy” where most employment is “precarious” – because they’ve grown up in a world where businesses seemed to be free to do whatever suited them.

They think the gig economy would be a terrible world to live in. They’re right, it would. Which is why I’m sure it won’t be allowed to happen. Governments will stop it happening.

Why will they? Because workers have infinitely more votes than business people do. In the end, the economy is moulded to serve the interests of the many, not the few. Governments keep getting thrown out until they get that message.

Read more >>

Who's ripping it off? Competition theory and reality

Puzzling over the rich economies' poor productivity improvement and weak wage growth (but healthy profits), American economists are pointing the finger at reduced competition between firms. But can this explain Australia's similar story?

Jim Minifie, of the Grattan Institute, set out to answer this in his report, Competition in Australia.

Economists regard strong competition between businesses as essential to ensuring market economies function well, to the benefit of consumers and workers.

Competition is what economic theory says stops us being ripped off by the capitalists. Firms that overcharge for their products lose business to firms that undercut them.

So competition pushes prices down towards costs (which economists – but not accountants – define as including the "cost of capital", or "normal profit", the minimum rate of profit needed to induce firms to stay in the market).

Competition helps ensure that economic resources - land, labour and (physical) capital – move to the uses most valued by consumers.

Competition also encourages firms to come up with new or better products – or less costly ways of producing a product – in the hope of higher profits. But those that succeed in this soon find their competitors copying their ideas, and bidding down the price to get a bigger slice of the action.

The innovations improve the economy's productivity (output per unit of input), but competition soon takes away the higher profits, delivering them into the hands of consumers, who often get better products for lower prices.

That's the theory. Question is, to what extent does it hold in practice? And does it hold less in recent years than it used to?

The simple theory assumes any market has a large number of sellers, each too small to be able to influence the market price. In practice, however, many of our markets are dominated by two, three or four big firms.

Why? Mainly because of the presence of economies of scale. It's very common that the more you produce of something – up to a point – the less each unit costs.

So, it makes great sense to have a small number of big firms doing much of the production – provided competition ensures most of the cost saving is passed on to customers in lower prices. Which, as a general rule, it has been over the decades.

Trouble is, big firms do have some degree of control over prices. And it's common for the few big firms in an industry to come to an unspoken agreement to compete using advertising or product differentiation, but not price.

Firms can increase their pricing power by taking over their competitors to get a bigger share of the market. It's the role of "competition policy" – run in our case by the Australian Competition and Consumer Commission – to prevent overt collusion between firms, and takeovers intended to increase market power. But how well is that working?

"Natural monopolies" – where it simply wouldn't make economic sense for more than one firm to serve a particular market, such as rival sets of power lines running down a street, or two service stations in a small town - are another common departure from the theoretical model.

So, what did Minifie find in his study of competition in practice? He found evidence it had lessened in the United States, but not here.

He found plenty of markets where a few firms did most of the business. But "the market shares of large firms in concentrated sectors are not much higher in Australia than in other countries [of comparable size], and they have not grown much lately," he says.

Nor have their revenues (sales) grown faster than gross domestic product. The profitability of firms – profits relative to funds invested - hasn't risen much since 2000.

Minifie identifies eight industries characterised by natural monopoly (in descending order of size): electricity transmission and distribution, wired telecom, rail freight, airports, toll roads, water transport terminals, ports and pipelines.

Then there are nine industries where large economies of scale mean they're dominated by a few firms: supermarkets, wireless telecom, domestic airlines, then (of roughly equal size) internet service providers, pathology services, newspapers, petrol retailing, liquor retailing and diagnostic imaging.

Next are eight industries subject to heavy regulation by government: banks, residential aged care, general insurance, life insurance, taxis, pharmacies, health insurance and casinos.

(Often, these industries are heavily regulated for sound public policy reasons, but the regulation often acts as a barrier to new firms entering the market, thus allowing them to be dominated by a few firms.)

But note this: by Minifie's calculations, natural monopolies account for only about 3 per cent of "gross value added" (a variant of GDP), while high scale-economies industries account for 5 per cent and heavily regulated industries for 7 per cent.

So that means the parts of the economy where "barriers to entry" limit competitive pressure make up about 15 per cent of the economy. Then there are 29 industries with low barriers to entry making up the rest of the "non-tradables" private sector, and about half the whole economy.

That leaves the tradables sector (export and import-competing industries) accounting for 14 per cent of the economy and the public sector making up the last 20 per cent.

Even so, Minifie confirms that, in industries dominated by a few firms, many firms make "super-normal" profits – those in excess of what's needed to keep them in the industry.

By his estimates, up to half the total profits in the supermarket industry are super-normal. In banking it's about 17 per cent.

Other companies and sectors with substantial super profits include Telstra, some big-city airports, liquor retailers, internet service providers, sports betting agencies and private health insurers.

Comparing this last list with the lists of natural monopolies and heavily regulated industries suggests governments could be doing a much better job of ensuring the regulators haven't been captured by the companies being regulated.

Read more >>

It's business that has the greatest sense of entitlement

How the worm – and the world – turns. When the Abbott government came to power just four years ago, it claimed its arrival signalled the "end of the age of entitlement". Don't laugh, it's happening – but in the opposite way to what treasurer Joe Hockey had in mind.

As Hockey saw it, the sense of entitlement we'd acquired, but which could no long be afforded, applied to the social needs of individuals and families.

We saw the results of this attitude in Tony Abbott and Hockey's first budget of 2014, which got an enormous thumbs-down from the public and the Senate, so that pretty much all that remains of the attack on unwarranted entitlement is the unending crusade by the government's Don Quixote, Christian Porter, and his loyal Sancho, Alan Tudge, to root out the last welfare cheat.

Not content with the grand stuff-up that was the "robodebt" use of unguided computers to collect amounts that may or may not have been overpaid, the pair are now hot on the trail of drug-taking welfare recipients.

Drug testing isn't cheap, so it's likely the exercise will cost the taxpayer more than it saves. And drug care experts – who weren't consulted - say addicts can't be successfully coerced into treatment.

Trouble is, successive governments have been cracking down on the crackdown on welfare cheats every year for decades, so there can't be all that many of 'em left.

Why do I get the feeling that cracking down on welfare cheating is, at best, what governments do when they want to be seen to be cutting their spending but aren't game to.

Or, at worst, when they want to exploit the popular delusion that we could all be paying less tax if it weren't for the massive sums being siphoned off by dole bludgers and the like.

Sorry, the people doing by far the most to keep welfare spending high and rising are known as age pensioners. And no one has a stronger sense of entitlement than an oldie fighting for the pension. "I've paid taxes all my life . . ."

But though one of Aussies' less attractive traits has been our proneness to "downwards envy" – the delusion that people worse-off than us are doing it easy – polling by the Essential organisation suggests it may be wearing off, replaced by disapproval of wealthier tax dodgers.

Essential finds only 12 per cent of respondents (including 14 per cent of Coalition voters) are "bothered a lot" by "the feeling that some poor people don't pay their fair share", whereas 53 per cent (40 per cent of Coalition voters) are bothered a lot by "the feeling that some wealthy people don't pay their fair share".

Ask whether they're bothered a lot by the feeling that "some corporations" don't pay their fair share, and disapproval shoots up to 60 per cent, including 51 per cent of Coalition voters.

It's a sign of the times. It has finally dawned on us that the people with the overweening sense of entitlement are our business people.

They used not to be so arrogant, but more than three decades of neoliberal ideology – under which governments should do as little as possible to burden the private sector or restrict its freedom – have left business people convinced they're demi-gods, the source of all goodness and justly entitled to our approbation and genuflection.

They're the source of all jobs, and thus entitled to have their every demand satisfied.

Why should chief executives earn up to 300 times what their workers earn? Isn't it obvious?

Why should the chief executive's package rise by 8 per cent while his workers' wage rise is held down to 2 per cent because times are tough? Because I've just realised that Joe Blow over at XYZ Corp is getting more than me, and I'm better than him.

Why should companies doing legal contortions to minimise the tax they pay, hesitate to demand a cut in the rate of company tax in the name of creating jobs?

The developed world is still recovering from the carnage of the global financial crisis, caused by letting American banks do hugely risky things in the pursuit of higher profits and bonuses, confident in the knowledge that, should things come unstuck, the government would bail them out.

We weren't so silly as to let our own banks behave like that, but the years since then have seen a litany of banks mistreating their customers, as their managers put bonuses ahead of service and the four big banks compete single-mindedly for the highest rate of profit.

Meanwhile, journalists are uncovering a remarkable degree of lawlessness by other businesses: young people paid less than their legal entitlement, exploitation of foreign workers on visas, employers failing to pay in their workers' super contributions.

It's as though business people see themselves as so economically virtuous as to be above the law. Just a bit of red tape those gutless pollies have yet to clear away.

What's changed with the end of the era of neoliberalism, however, is the willingness of politicians on both sides to toughen up on the banks and other businesses.

They'll be paying more rather than less tax in future, and governments are already far less hesitant to regulate them more closely.

I see a lot more coming. Why? Because voters have got jack of arrogant business people.

Read more >>

Econocrats’ job to minimise damage from lurch to populism

With the collapse of the "neoliberal consensus" between both sides of politics, which is reversing politicians' attitudes to intervention in markets, we're in danger of lurching from one extreme to the other.

My Financial Review colleague Alan Mitchell likes to say that one of the econocrats' primary contributions to good government is to "keep the crazy decisions to a minimum". Never was that truer.

The challenge for Treasury, the Productivity Commission and the rest is to be less doctrinal – less true to the one true economic rationalist faith - and more practical in giving advice that satisfies the pollies' ever-present need to "do something" without the something they do causing a lot of harm, maybe even some good.

To put that into econospeak: econocrats should stop proposing first-best solutions and propose more politically palatable second- or even third-best solutions than have been properly thought through.

Why should they compromise? Because if they go on strike, get the sulks or just let themselves be dealt out of the policy decision process, we'll all be lumbered with a lot of decisions that make things worse rather than better.

That's particularly so now ministers' offices are loaded with pushy young punks at the start of their lifetime careers in politics, who think they know a lot about what's good for the minister and the government but, unfortunately, haven't had the time or inclination to learn much about policy: what works and what doesn't.

Leave a policy vacuum and these chancers will happily fill it. They'll fill it with whatever will get a cheer from the all-indignation-and-no-responsibility radio shock jocks and tabloid loudmouths.

Those reptiles will cheer for what's showy and prejudice-satisfying, not for less spectacular policies the experts know are more likely actually to improve things.

The point is that with the populist reaction against what it's now fashionable for the often-uncomprehending left to call "neoliberalism", we're moving from 30 years of presumption against intervention in markets to a new era of presumption in favour of intervention.

That presumption against intervention came from the 1980s shift to a more fundamentalist approach to neo-classical economics, with its confidence that markets are essentially self-correcting, so intervening in them is more likely to derail this process than assist it.

This involved playing down the significance of "market failure" – factors that stop real-world markets from acting in the perfect way economics textbooks predict they will – or arguing that government interventions to correct market failure usually result in "government failure" – they make the problem worse rather than better.

The rationalists were wrong to play down market failure – it's ubiquitous – and wrong to denigrate government rule-setting for markets as "intervention", as though it's some kind of unnatural act. But they were on to far more than they realised in worrying about government failure.

What ended up discrediting their program of "micro-economic reform" was the way so many privatisations and attempts to make the provision of government services "contestable" were utterly stuffed up by governments that didn't know what they were doing, or were swinging one for their business mates.

Though it's true people have traded with each other since primitive times, it's historical ignorance to imagine that markets in the modern economy are anything other than the creation of governments, regulated and policed under laws of private property, contract, bankruptcy, limited liability, accounting standards and a host of other "interventions" and "regulations".

So there isn't and never has been such an animal as a "free market". What's in question is the degree of regulation and the specifics of what's regulated and how. Presuming against regulation (further or existing) was always an arbitrary and extreme position that would end in tears.

The era of deregulation has discredited itself, with inadequately regulated American and European banks causing the pain and destruction of the global financial crisis, declining standards of business behaviour much in evidence among our own banks, and mounting evidence of business lawlessness.

But for politicians to react to all this with a massive increase in ill-considered regulation would hardly be an improvement.

The real point is regulation is neither intrinsically good nor bad. What it is is very, very tricky. Very hard to get right; easy to get wrong. Bedevilled by "unintended consequences".

Why? Because of the terrible power of "market forces" – actually, profit-seeking firms and self-interested consumers.

There are two mistakes you can make when it comes to regulation: one is to believe market forces are infallible, the other is to believe they're of little consequence and incapable of utterly frustrating the regulators' good intentions.

Read more >>

We're a long way from getting bank regulation right

The movie version of The Big Short is so good you probably don't need to read the best-selling book by my far-and-away favourite finance writer, Michael Lewis.

If you want to go deeper than the events culminating in the global financial crisis of 2008 to a more systemic analysis of why we've had so much trouble with the financial system and will continue to unless we change the rules more radically than we have, I recommend you read Other People's Money, by a leading British economist, Professor John Kay.

It's required reading for the nation's economists but, although it's very thorough, it's eminently readable by ordinary mortals. Similarly, although it doesn't deal specifically with Australia's financial system, its analysis is more readily applied to Oz than a book more focused on Wall Street.

Kay was in Australia this week, and when I spoke to him he left me in little doubt that he wasn't wildly impressed by our financial system inquiry, conducted by a panel dominated by people from the industry and led by former Commonwealth Bank boss, David Murray.

Not much there to ruffle the industry's feathers.

The Murray report does little to contradict the conventional wisdom that the huge expansion of the "financial services" industry over the past 30 years has been a great boon to the wider economy.

We've benefited from much financial innovation, deeper financial markets and a revolution in the management of financial risks.

But have we? We've certainly enjoyed much greater access to credit and much more convenient banking thanks to automatic tellers, direct debits and credits, and bill-paying on the internet.

But much of this is owed to advances in information processing and telecommunications rather than banking expertise.

Much of the "innovation" in the development of new financial products has been motivated by a desire to get around government taxes and regulations.

We're often told that all the trading of financial claims the banks and other market participants do between each other has made financial markets deeper and more liquid, thus making it possible for bank customers – individuals or businesses – to buy or sell a large block of shares or currencies without their transaction having a big, adverse effect on the market price.

Kay counters that all the trading of claims between financial institutions has, in fact, made financial markets far deeper than is required by users from the "real economy". Their need to buy and sell securities without moving the price could be met by opening the markets for a quarter of an hour a week.

But surely all that trading – in conventional securities, but also in ever-more exotic "derivatives" that get ever-more removed from the physical assets they are supposedly derived from – is aimed at helping customers manage the financial risks they face.

Well, that's what bank bosses and economists told us for years. Kay recalled the now-infamous incident in 2005, where a young Indian upstart from the International Monetary Fund attending the US Federal Reserve's annual conference at Jackson Hole, Wyoming, queried the value of recent innovation in financial markets and warned of troubles ahead.

The young fool was quickly put back in his box. One heavy defended the innovations, claiming that "by allowing institutions to diversify risk, to choose their risk profiles more precisely, and to improve the management of the risks they take on, they have made institutions more robust".

"These developments have also made the financial system more resilient and flexible – better able to absorb shocks without increasing the effects of such shocks on the real economy," he went on.

Later, another heavy agreed: "Financial institutions are able to measure and manage risk much more effectively. Risks are spread more widely, across a more diverse group of financial intermediaries, within and across countries."

You've guessed how this story ends. Within two or three years, the global financial crisis revealed all that as the opposite of the truth – to the great cost of taxpayers who had to bail out banks in the US and Europe and all the people in the real economy who lost their jobs or businesses.

It turns out the financial markets weren't managing risk by spreading it thinly across many people – as happens with an insurance policy, for instance – but were multiplying it (by gearing up and by creating derivatives of derivatives) and concentrating it in the hands of a relatively small number of big banks. Nobody knew how much risk particular banks had taken on.

The other way to "manage" risk is to find someone whose particular circumstances give them the opposite "risk profile" to yours. Do a deal and the problem is solved at each end.

In practice, however, such perfect matches are very hard to find. The best you can do is find a partner who's "risk seeking" – they want to take on the risk because there's a chance they'll clean up if you've jumped the wrong way.

In other words, they're willing to speculate. Turns out that's the main thing our bigger financial system is doing: not managing risk in any genuine sense, just making bets with each other.

These days, no central banker makes speeches extolling our bigger financial sector and much better ability to handle risk.

Trouble is, Kay says, all the tightening of regulation – including the requirement for banks to hold higher levels of capital, which the Murray report so strongly supported – hasn't done enough to ensure we don't have another crisis.

We have loads of regulation, all of it acceptable to the banks, whatever their grumbles. We could have less regulation if we regulated the right things the right way.

We could leave speculative trading between financial institutions largely unregulated provided it was separated from the normal banking activity than must always be effectively government-guaranteed. But the banks mightn't like that.

Read more >>

The best economists know the market is flawed

As almost every economist will tell you, the market economy – the capitalist system, if you prefer – works in a way that's almost miraculous. All of us owe our present prosperity to it.

Think of it: each of us in the marketplace – whether we're buyers or sellers, consumers or producers – is acting in our own interests. A butcher sells us meat not to do us a favour, but to make a living. We, in turn, buy our meat from him not to do him a favour, but to feed ourselves.

That's how market economies work: everyone seeks to advance their own interests without regard for the interests of others. It ought to produce chaos, but doesn't.

Somehow the market's "invisible hand" has taken all our selfish motivations and transformed them into an orderly, smooth-working system from which we all benefit. The butcher makes her living; we get the meat we need.

Heard that story before? It contains much truth. But not the whole truth. Business people, economists and politicians often use it to imply that everything that happens in a market economy is wonderful.

Or they use it to argue that the best way to get the most out of a market economy is to keep it as free as possible from intervention by meddling governments. We should keep government as small as possible and taxes as low as possible.

But market economies aren't always orderly and smooth working. They move through cycles of wonderful booms but terrible busts.

And it's not true that "all things work together for good". A fair bit of the self-seeking behaviour of producers isn't miraculously converted into consumer benefit.

I've been reading a book called Phishing for Phools, a play on the online practice of phishing: posing as a reputable company to trick people into disclosing personal information.

The authors say that "if business people behave in the purely selfish and self-serving way that economic theory assumes, our free-market system tends to spawn manipulation and deception.

"The problem is not that there are a lot of evil people. Most people play by the rules and are just trying to make a good living. But, inevitably, the competitive pressures for businessmen to practice deception and manipulation in free markets lead us to buy, and pay too much for, products that we do not need; to work at jobs that give us little purpose; and to wonder why our lives have gone amiss."

You're probably not terribly surprised to read such sentiments. The surprise is that they're being expressed by two economics professors, George Akerlof, of the University of California, Berkeley (and husband of the chair of the US Federal Reserve), and Robert Shiller, of Yale University, who are held in such high regard by their peers that they're separate winners of the Nobel prize in economics.

They say they wrote the book as admirers of the free-market system, but hoping to help people better find their way in it.

If competition between business people too often induces them to manipulate their customers, why do we so often fall for it? Because though economists assume we always act in our own best interest, psychologists have convincingly demonstrated that people frequently make decisions that aren't in their best interest.

The market often gives people what they think they want rather what they really want. The authors point to common market outcomes that can't possibly be wanted.

One is a high degree of personal financial insecurity. "Most adults, even in rich countries, go to bed at night worried about how to pay the bills," they say. Too many people find it too hard to always resist the blandishments of marketers so as to live easily within their budgets.

It was all the phishing for phools in financial markets – people were sold houses they couldn't afford; people sold securities that weren't as safe as they were professed to be – that led to the global financial crisis and the Great Recession that hurt so many.

Then there's the way processed foods from supermarkets and food sold by fast-food outlets and restaurants come laced with the health-harming things they know we love: salt, fat and sugar.

The authors say a great deal of phishing comes from supplying us with misleading or erroneous information. "There are two ways to make money. The first is the honest way: give customers something they value at $1; produce it for less.

"But another way is to give customers false information or induce them to reach a false conclusion so they think that what they are getting for $1 is worth that, even though it is actually worth less."

Another class of phishing involves playing psychological tricks on us. According to the research of the American psychologist Robert Cialdini, we're phishable because we want to reciprocate gifts and favours, because we want to be nice to people we like, because we don't want to disobey authority, because we tend to follow others in deciding how to behave, because we want our decisions to be internally consistent, and because we are averse to taking losses.

There's no better way to organise an economy than by using markets. But market outcomes are often far from perfect and we need governments to regulate them as well as offset some of their worst effects.

Read more >>

Micro reform: what Treasury wants to change

Under its newish secretary, John Fraser, Treasury has a new slogan. It is proud to be "fiscally conservative, market-oriented and reform-driven". So just what reform does Treasury advocate?

Well, in a speech last week Fraser spelt it out. But first he noted that the key element of market-oriented reform is that it almost always involves heightening competition. He illustrated the point by summarising what happened during the golden age of micro-economic reform in the 1980s and '90s.

When business speaks of the need for Australian firms to be more competitive, it usually means  the government should do something that makes it easier for firms to compete with their foreign rivals.

But this is the opposite of what economists mean when they see heightened competition as the key driver of improved economic performance. They mean Australian firms should be forced to improve their own performance by exposing them to greater competition with other Aussie firms and by making it easier for foreign firms to compete with them.

As Fraser explains, competition is at the heart of how market economies are organised. "Competitive markets generally deliver benefits for all Australians in a way that sheltered markets fail to do so," he says.

"Effective competition in our economy is a key part of its strength and dynamism. Competitive markets benefit consumers by putting downward pressure on prices.

"And over time, competitive pressures drive innovation and investment in new technologies and the development of new products and quality services that meet the needs of consumers. This process of innovation is what drives economic growth and improvements in living standards in the long term."

The modern era of opening Australia to greater pressure from the world economy began when Gough Whitlam cut import tariffs in 1973, he says.

Successive tariff cuts in the '80s and '90s "put Australian manufacturing under increased competitive pressure but, behind the border, changes gave manufacturers flexibility to respond".

Significant among these changes were financial market deregulation and the move to enterprise bargaining, as well as the oft-forgotten reductions to the top personal marginal tax rate from a 60 per cent in 1985-86, to 47 per cent in 1990-91, Fraser says.

The process of reform culminated with the agreement across all levels of government to form the "national competition policy" that began in 1995 and ran through to 2005.

Government businesses were restructured to make them more commercially focused. The electricity, gas, water and rail sectors were transformed.

Legislation was reviewed so it enhanced rather than restricted competition. And a national access regime was established for essential infrastructure. That is, the public or private owners of monopoly networks were obliged to make them available to competitors at reasonable prices.

"Where creativity was once stifled by regulation, competition in product and service markets drove management to change work practices. A liberalised financial sector and a sound macro-economic environment supported strong investment."

Fraser says this era of huge changes offers three lessons on how to get policy reforms accepted.

"First, it was a holistic set of structural reforms. This is important because winners and losers differed and all Australians benefited from at least some of these reforms.

Second, in order to achieve reform we built a political consensus and, more importantly, a community consensus that things had to change and that a delay would make matters worse.

Third, the business community – both large and small – was a big part of this changing culture.
"Managers, no longer distracted by currying [for] government protection, were better able to focus outwards on new markets and inwards on cost savings."

So what's on Treasury's latest reform to-do list? Tax reform, for one. Then there's the financial system. Australia's banking system is relatively concentrated by international standards and the Murray financial system inquiry recommended that regulators increase the emphasis on competition relative to their other objectives.

Then, labour market reform. "I am heartened by Peter Harris and the Productivity Commission's report on workplace relations. Genuine reform  ... can be expected to have positive effects on employment and productivity and to reduce business compliance costs."

Next, competition laws. "It is important that firms that have market power are not able to use that position to exclude competitors and potential competitors. This is why we have competition laws."

The review of competition  by Professor Ian Harper found that current  laws need to be overhauled to make them fit for purpose.

"There remain substantial restrictions on who can supply goods and services, including: professional licensing requirements, liquor and gambling regulation, media and broadcasting restrictions , and the well-known issues of pharmacies and taxis," Fraser says.

"There are restrictions on what can be supplied through product standards, agricultural marketing boards, parallel import restrictions and intellectual property protections. And restrictions on where and when supply can occur: air service agreements, retail trading hours restrictions, and planning and zoning rules."

Fraser concedes that the goal here should not always be deregulation. Regulations are often justified to pursue social goals. "But these goals should be approached through better regulation that doesn't have the side effect of curtailing competition.

"To my mind, foremost among this list, for immediate economic bang for the buck, is planning and zoning."

Planning and zoning systems may create excessive barriers to the entry of new businesses  by limiting  number and size of outlets and  types of business models permissible.

"In other areas, the challenge for governments is not so much to reform regulation as to make way for 'digital disruption'. Uber  connects passengers with drivers and AirBnB  connects travellers with spaces.

"We should welcome competition here too – governments should not be too quick to assume they will always be better regulators than the private sector."

Clearly, Fraser has an ambitious agenda. It's different to mine, but sometimes my duty is to make sure you know what the econocrats are thinking.

Read more >>

A rational analysis of Hockey's 'asset recycling'

I'm never sure who annoy me more, the business types who are certain every business is better run if privately owned, or the lefties who oppose every sale of government-owned businesses on principle.

On the question of privatisation, mindless prejudice is no substitute for rational analysis of the pros and cons. On the tricky question of the "asset recycling" being promoted by Joe Hockey to all state governments with businesses left to sell, careful analysis is essential.

Premier Mike Baird's hugely controversial proposal to sell most of NSW's electricity transmission and distribution network businesses – the "poles and wires" – and use the proceeds to finance $20 billion worth of public transport, road and other infrastructure is a classic example of asset recycling.

It offers a good case study in thinking through the issues, even to people who won't be voting in Saturday's state election.

You must cover all the relevant major considerations for and against, ignoring considerations that aren't relevant (or are common to both alternatives). You have to remember to take account of opportunity costs as well as actual costs and to avoid any double counting.

It will avoid confusion if we consider the two sides of the proposition separately. First, is it a good idea to sell the poles-and-wires businesses to private owners? Second, assuming the planned infrastructure projects are worthwhile, is privatising businesses the only way available to finance them?

The obvious starting point for consumers is: would selling the businesses lead to electricity prices being higher than they would be under continued public ownership? Or would there be a decline in the quality of service, such as blackouts?

In this particular case, the answers are more certain than usual: no and no. That's because, the networks being natural monopolies, the prices they charge are controlled by the Australian Energy Regulator, which believes they're already too high. Service quality is also tightly regulated.

The regulator's determination to get efficiency up and prices down suggests there will be job losses – in other states as well as NSW – whether or not the businesses are privatised.

This being so, the main issues of contention concern state government finances. The critics of privatisation stress that it's no magic pudding: sell these profitable businesses and you lose the dividends they were paying the government, along with the equivalent of the company tax they were paying to the state (because state-owned businesses don't pay tax to the federal government).

That's obviously true. But remember that, according to economic theory, the sale price of any business should be the "present value" of the stream of income it's expected to earn in coming years.

If so, the seller is perfectly compensated in the sale price for the loss of future dividends. Why else would they sell?

But does the theory work in practice? Not perfectly. For one thing, who can be sure what income will be earned in the future? The seller ought to have a better idea than the buyer, but if there aren't many potential buyers and the seller is anxious to sell, they may settle for less than they should.

Alternatively, if there are a lot of potential buyers, the seller may get more than the business is worth. Almost all buyers of established businesses are confident they can run it more profitably than the present owner.

Point is, provided the sale price is adequate, there's no financial reason to regret the loss of dividends. A complication is that a fair price would not compensate the state government for its loss of tax equivalent payments.

That's because a new private owner would be liable to pay real company tax to the federal government. This is part of the rationale for Hockey's scheme to give federal grants – $2 billion, in this case – to states that take part in his asset-recycling incentive scheme.

A factor having a bigger (downward) influence on the amount of the fair sale price is that the flow of annual profits from the network business in coming years is likely to be much lower than the recent $1.7 billion a year that Labor's Luke Foley keeps quoting.

That's partly because the regulator has signalled its intention to crack down on the excessive profits being earned by the nation's electricity network businesses, but also because the demand for electricity from the grid is falling and will fall further as people move to solar and the introduction of smart meters helps homes and businesses limit their demand for power.

(This demonstrates the economic truth that natural monopolies are a product of the existing technology. The network businesses' monopoly is being eroded by climate-change-driven technological advance.)

Some critics argue that selling profit-making assets and replacing them with roads and loss-making public transport reduces the state government's "net worth" and weakens its balance sheet.

This is true arithmetically, but is a strange argument. Governments aren't profit-seeking businesses. Their job is to meet the social and economic needs of their community by, among other things, ensuring the provision of adequate infrastructure – directly profitable or otherwise.

Turning to the predicated link between the sale of network businesses and the spending on needed infrastructure, it rests on an assumption it would be unthinkable for the state government to lose its AAA credit rating, which would happen if it simply borrowed another $20 billion.

For decades, federal and state treasuries have used credit ratings to beat off unworthy proposals for vote-buying capital works. But I think we have little to lose by causing the discredited rating agencies to lower our rating by a notch or two.

But though their limit on our debt level may be too low, there does have to be some safe limit. And the doctrine that state governments may acquire assets but, once acquired, they may never ever be sold off, strikes me as weird.

Read more >>

Economists face criticism over poor ethics

Are economists ethical? Short answer: no more than most. Long answer: well, it's not something they think about much.

The question of ethics is starting to raise its head among economists, both overseas and in Australia, particularly in NSW. It's an issue the Sydney branch of the Economic Society is likely to start debating in the next few months.

The issue is arising as more economists find ways to sell their services to big business for big bucks. Business is attracted by the status, expertise and authority economists bring, and is willing to pay for it.

Various aspects of conventional economics make economists susceptible to such transactions. Almost all economists believe in the market system and believe that the bigger the economy grows the better off we are. So they have an inbuilt sympathy with business and its objectives.

They believe self-interest is a good thing because it's what motivates a market economy. It should never be a bad thing because it's held in check by countervailing market forces.

And there's a belief among economists that their discipline is "positive" rather than "normative". It's a "value-free" description of how the economy actually works, not a statement of opinion about how it should work.

It's because of this belief that, for example, many economists take no account of the implications of their recommendations for the way income is distributed between rich and poor. That's a "value" question they aren't qualified to comment on and so leave to others, such as politicians.

That's what they say when challenged. When they're not challenged they usually give the impression that distributional issues don't arise and economic efficiency is the only issue worth considering.

In truth, the neo-classical model is loaded with values, the most important being that individualism is superior to communitarianism.

So you see why ethics isn't something economists think much about. And this is reinforced by the profession's lack of organisation. Economics is unregulated; anyone can call themselves an economist (I don't, by the way).

Economics has no true professional body. The Economic Society is the closest they come, but it's essentially a discussion group that anyone can join. Its other function is to sponsor the academic economists' annual conference and the main Australian economic journal (which the academics don't rate highly because it's only Australian).

Without a proper professional association you could argue economists aren't a profession, just an occupation. Most are employed by governments and, these days, by banks and other financial services firms, which means they're not free to express opinions at variance with those of their employer. Academic economists are free, but often don't bother.

The question of economists' ethical standards arose in the US after the global financial crisis, when impertinent journalists pointed out that academic economists were writing articles posing as independent experts, without disclosing the financial firms they were affiliated with or for whom they had done consultancy work.

In Australia the spur is the rise of the new breed of economic consultancy firms, which are paid to provide allegedly independent modelling to private interests seeking to lobby governments. Sometimes even governments commission private modelling to provide evidence supporting some policy the pollies are pursuing.

For some reason, when the independent consultants run their models they invariably reach conclusions that support their paying customer's proposal. Remarkable.

These carefully contrived conclusions are then used to bamboozle the public, politicians and even judges who don't know enough economics to know how dodgy many modelling exercises are and how easily models can be tweaked to produce whatever answer you're seeking.

The issue has reached a head in NSW, where Dr Richard Denniss, of the Australia Institute, has appeared as an expert witness in a couple of court cases disputing the "independent" modelling being used to claim the development of a new mine will bring huge economic benefits to the district.

One judge was scathing in his condemnation of the use of an "input/output model" to exaggerate the indirect job creation from a project. A report by the independent Planning Assessment Commission on another project criticised the NSW Department of Planning for its uncritical acceptance of estimates of the project's economic benefits that had been challenged and were "not credible".

Last week the department's new minister, Pru Goward, announced that it would commission separate expert economic analysis of all future major mining projects. Good luck.

Issues of independence and conduct will be discussed during the NSW Economic Society's forum on cost-benefit analysis on July 18. And a later meeting of the society is expected to debate whether economists need a code of ethics. I'd start with an ethical code for modellers.

Read more >>

Your guide to business entitlement

With the Abbott government's close relations with big business, we're still to see whether its reign will be one of greater or less rent-seeking by particular industries. So far we have evidence going both ways.

We've seen knockbacks for the car makers, fruit canners and Qantas, but wins for farmers opposing the foreign takeover of GrainCorp and seeking more drought assistance, as well as a stay on the big banks' attempt to water down consumer protection on financial advice.

The next test will be the budget. Will the end of the Age of Entitlement apply just to welfare recipients (especially the politically weak, e.g. the unemployed and sole parents, rather than politically powerful age pensioners) or will it extend to "business welfare"?

With Joe Hockey searching for all the budget savings he can find, there's a lot of business welfare or, euphemistically, "industry assistance" to look at. The Productivity Commission measures it every year in its Trade and Assistance Review.

Government assistance to industry is provided in four main ways: through tariffs (restrictions on imports), government spending, tax concessions and regulatory restrictions on competition. Although much rent-seeking takes the form of persuading governments to regulate markets in ways that advantage your industry, the benefit you gain is hard to measure, so it's not included in the commission's figuring.

Assistance through tariffs is far less than in the bad old days before micro-economic reform, but there's still some left. However, its cost is borne directly by consumers in the form of higher prices. So it's not relevant to Hockey's search for budget savings. Even so, I'll give you a quick tour.

The commission estimates that, in 2011-12, tariffs allowed manufacturing industries (plus the odd rural industry) to sell their goods for $7.9 billion a year more than they otherwise would have.

In the process, however, this forced up the cost of goods used by manufacturers and other industries as inputs to their production of goods and services by $6.8 billion a year. About 30 per cent of this cost to inputs was borne by the manufacturers themselves, leaving about 70 per cent borne by other industries, largely the service industries.

(This, by the way, shows why import protection doesn't help employment as non-economists imagine it does. It may prop up manufacturing jobs, but it's at the expense of jobs everywhere else in the economy.)

So now we get to budgetary assistance to industry. On the spending side of the budget it can take the form of direct subsidies, grants, bounties, loans at concessional interest rates, loan guarantees, insurance arrangements or even equity (capital) injections.

On the revenue side of the budget it can take the form of concessional tax deductions, rebates or exemptions, preferential tax rates or the deferral of taxation. In 2011-12, the total value of budgetary assistance was $9.4 billion, with just over half that coming from spending and the rest from tax concessions.

Often people will virtuously assure you their outfit doesn't receive a cent of subsidy from the government, but omit to mention the special tax breaks they're entitled to. Think-tanks that rail against government intervention and the Nanny State, hate admitting they're sucking at the teat because the donations they receive are tax deductible (causing them to be higher than otherwise, but at a cost to other taxpayers).

This is why economists call tax concessions "tax expenditures" - to recognise that, from the perspective of the budget balance and of other taxpayers, it doesn't matter much whether the assistance comes via a cheque from the government or via the right to pay less tax than you otherwise would.

Of the total budgetary assistance in 2011-12 of $9.4 billion, 15 per cent went to agriculture, 7 per cent to mining, 19 per cent to manufacturing and 45 per cent to the services sector (leaving 14 per cent that can't be allocated to particular industries).

To put that in context, remember that agriculture's share of gross domestic product (value-added) is about 3 per cent, mining's is 10 per cent and manufacturing's is 8 per cent, leaving services contributing about 79 per cent.

Within manufacturing, the recipients of the most business welfare are motor vehicles and parts, $620 million, metal and metal fabrication, $270 million, petroleum and chemicals, $220 million, and food and beverage processors, $110 million.

Within services, the big ones are finance and insurance, $910 million, property and professional services, $610 million, and arts and recreation, $350 million.

But if you combine tariff and budgetary assistance, then compare it with the industry's value-added (share of GDP), you get a different perspective on which industries' snouts are deepest in the trough. The "effective rate of combined assistance" is 9.4 per cent for motor vehicles and parts, 7.3 per cent for textiles, clothing and footwear, and 4.7 per cent for metal and metal fabrication.

Get this: outside manufacturing, the most heavily assisted goods industry relative to the size of its contribution to the economy is forestry and logging on 7.2 per cent. We pay a huge price to destroy our native forests.

Within services, the most heavily assisted industry is the one where incomes are so much higher than anywhere else: financial services. Virtually all the assistance picked up in the commission's calculations comes via special tax breaks, such as the tax concession for offshore banking units and the reduced withholding tax on foreigners receiving distributions from managed investment trusts.

But that ain't the half of it. These calculations don't pick up two big free kicks: the benefit to the industry because the government forces almost all workers to hand over 9.25 per cent of their pay to be "managed" by it, and the benefit it gains from having one of its main products, superannuation, so heavily subsidised by other taxpayers.

Cut these fat cats? Naah, screwing people on the dole would be much easier.

Read more >>

Abbott's red tape play-acting hides rent-seeking

The world of politicians gets deeper and deeper into spin, and so far no production of the Abbott government rates higher on the spin cycle than last week's Repeal Day.

Hands up if you believe in red tape? No, I thought not. So how about we package up a huge pile of window dressing with some worthwhile but minor measures, slip in a few favours for our big business supporters and generous donors, and call it the most vigorous attack on red tape ever? This will give a veneer of credibility to our claim it will do wonders for the economy.

In the process, of course, we'll have changed the meaning of "red tape". It's meant to mean bureaucratic requirements that waste people's time without delivering any public benefit. In the hands of the spin doctors, however, it's being used to encompass everything from removing dead statutes to the supposed deregulation of industries.

Repealing redundant laws and regulations dating back as far as 1900 is mere window dressing. By definition they don't waste anyone's time - if they did they'd have been repealed long ago. Their primary purpose is to allow Tony Abbott to quote huge numbers: today I announce the abolition of more than 1000 acts of Parliament and the repeal of more than 9500 regulations. A trick you can pull only once.

Somewhere in there is some genuine, time-wasting red tape we're better off without, but it doesn't add up to much - hence the need for so much padding. Governments of both colours are always promising to roll back red tape, mainly because it gives people such an emotional charge.

But while it's true there are examples of mindless, unreasonable bureaucratic rules and requirements that could be eliminated or greatly simplified at no loss to anyone, much alleged red tape is in the mind of the beholder: it's red tape if you don't like it and good governance if you do.

There are plenty of small business people who'd try telling you supplying information to the Bureau of Statistics was "pointless red tape", maybe even filling out tax returns. In an era when big business is going overboard on "metrics", it's whingeing about the "reporting burden" the government imposes so it - and the rest of us - can know what's going on in the economy.

When business isn't complaining about "compliance costs" it's demanding greater transparency and accountability from governments. Guess what? They're opposite sides of the same coin. The world is and always will be full of compliance costs. The sensible questions are whether they're higher than they need to be and whether the benefits of compliance outweigh the costs.

The notion that all so-called red tape comes from power-crazed bureaucrats is a delusion. Most excessive regulation comes from politicians. Sometimes they act at the behest of lobbyists for particular industries, sometimes they're merely trying to create the appearance of action (an old favourite is laws to make illegal something that's already against the law) and sometimes they pass an act to impress the punters while carefully leaving loopholes and escape hatches for the industry pros.

But the most objectionable feature of the whole red tape Repeal Day charade is the way it has been used as cover for rent-seeking by the Coalition's industry backers. It's an open secret the protections for investors provided by the Future of Financial Advice legislation are being watered down at the behest of the big banks, which want to be freer to incentivise unqualified sales people to sell inappropriate investment products to mug punters.

Then there's the strange case of the Charity Commission,which was set up only recently to reduce inefficient regulation and red tape. It's to be abolished despite the objections of most charities, presumably because the Catholic Church doesn't like it.

It's being claimed all these dubious doings will "drive productivity, innovation and employment opportunities", not to mention "creating the right environment for businesses of all sizes to thrive and prosper and to drive investment and jobs growth".

Yeah sure. The claimed savings of $700 million a year (don't ask how that figure was arrived at) are equivalent to 0.04 per cent of GDP, and yet they'll work wonders. Must be an incredible multiplier effect.

We're told we'll be getting at least two Repeal Days a year, with the goal of achieving savings worth $1 billion a year. Really, a minimum of six Repeal Days in Abbott's first term? What's the bet that promise will be quietly buried?

But for as long as this pseudo reform lasts it seems it's intended as a substitute for genuine deregulation.

Read more >>