Fran O'Sullivan: Rebstock's scalp won't be enough

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Paula Rebstock's "decision" to step down as competition tsar was a fait accompli once the stalking horses for fed-up Kiwi blue chips began ganging up on her.

Even before John Key's party swept to power at the November election, protagonists in the commercial community were letting it be known that the Commerce Commission's approach to stamping down on corporate malfeasance was too "Paula driven", "too lacking common sense" and even "dangerously interfering with the very survival of NZ companies".

As a textbook example of how to leverage an international financial crisis to settle some scores (or achieve a palatable outcome), the behind-scenes campaign to make Rebstock's position untenable ticks all the boxes.

No fingerprints left at the scene. Just lots of shroud-waving over the deleterious impact of leaving an "activist" regulator in charge and a government statement "regretting" her decision to leave the commission.

Rebstock's opponents will not be satisfied with her scalp.

At issue now is the regulator's raison d'etre with some critics claiming its time has passed.

The commission's standing has not been helped by the fact that its former deputy chairman, Donal Curtin, had to stand down over disclosure issues, its Telecommunications Commissioner, Ross Patterson, has been off work for five months and Electricity Commissioner David Caygill's handling of his role has been under scrutiny from Business New Zealand.

The Rebstock resignation does provide an opportunity for reform. But it is important to make sure it is soundly based. Not simply to suit the commercial objectives of individual companies.

Chapman Tripp partner Grant David - who says he is not acting on behalf of his legal firm's clients like Telecom which has frequently been in the commission's sights - issued a telling podcast last month.

"The question in the current environment is whether we can afford a great big watchdog that's costing us almost $40 million a year," he told Chapman Tripp's in-house PR consultant Linda Clark.

"That's an interesting point, when it was originally conceived the claim was it would be self-funding," was Clark's soft-pedal response.

To which David responded the original concept was it would be self-policing.

"The legislation was there for firms who were engaged in rivalrous conduct to take up the cudgels against one another and for the court to determine. It wasn't the intention that it (the commission) would take on a substantial litigation function."

He claimed the producers now seemed to be in greater need of protection than consumers (handily over-looking the fact that many consumers are in fact businesses which also produce and sell things).

It was time for a back-to-basics approach and a regime appropriate for the times, not that of 25 years ago, David said. With the expiry of Rebstock's term fast-approaching (the podcast was dated February 9) it would be the natural time for a review.

And so it went on: the $40 million of government money spent last year was not money well spent. While Rebstock had done a grand job and had grand qualities, the regime had run its course. Her replacement should be a person for the times, David said.

In fact, just $10.5 million of the $42.765 million budget (expenditure) for 2008-2009 was earmarked for litigation. The major dollop - $15.495 million - was for general market regulation - the rest for energy, telecommunications and dairy sector regulatory oversight functions - all of which related to policing new markets which had arisen in the past 25 years.

Intriguingly, Grant was not questioned over Rebstock's wins, such as the $1.9 million penalties awarded against the three Nufram companies which operated the Fernz Timber Protection brand for price fixing and market sharing with its competitor Koppers Arch, which had $3.6 million awarded against it. In these - and other instances - the commission recovered its legal costs. Such questions need to be put.

Rebstock stood on plenty of powerful toes during her five years as chairwoman of the New Zealand Commerce Commission. When she started going after the cartels, she found plenty of evidence of deliberate anti-competitive behaviour by companies that should have known better.

Mutterings around town about "that woman" increasingly got louder as boards and management of the misbehaving firms used the jawbone to try and deflect attention away from their own errant behaviour.

As a strong executive chairwoman - rather simply chairing a board of commissioners who empowered a CEO to run operations - decision-making may have become concentrated at her level.

She appears not to have heeded the Kiwi survival motto - "rotate your victims" - essential to staying alive in any role that requires frequent recourse to combat mode in an urban village of a mere four million people.

But Rebstock was not alone in her focus on cartels.

The Commerce Commission's programme grew out of moves implemented by the Australian Competition and Consumer Commission to stamp out anti-competitive behaviour across the Tasman.

It is now an integral part of the single Australasian economic market concept - with competition regulators on both sides of the Tasman alert to the dangers of cross-border market rigging.

She has crossed swords with Telecom, Vector, Transpower, Fonterra and Air New Zealand - to name just a few.

And she has recently been putting the finishing touches on the "electricity investigation report" which probes the pricing policies of the power generators, including those owned by the state.

The report produced by Stanford University professor Frank Wolnak was expected last month. But yesterday the commission could not even say whether it would be released before Rebstock's departure on March 31.

The commission should get this out asap.

If there are delays until after Rebstock's departure, it will play into concerns that she has also come under pressure at government level over her intended approach to the generators.

Right now there are concerns as to how the Government's intention to maximise returns from the generators will sit if the upcoming report points to price gouging.

Rebstock is not the only business person moving off-stage (for now).

Commerce Minister Simon Power indicates he is talking to Rebstock about how her experience will continue to be put to use.

But he is also readying himself to make changes at the top of some state-owned enterprises under his SOEs portfolio hat. The terms of nine SOE chairs will expire this year - but Power (so far) says just two are ear-marked for replacement.

The SOE portfolio has posted an abysmal return. On a portfolio-wide basis (including KiwiRail and Ontrack), the SOEs returned just 1.5 per cent return on equity in the 12 months to December 31, 2008.

Given that portfolio now makes up 20 per cent of the Crown's balance sheet it is important to get it right.

Roll on the changes.

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