Swan under fire over price-signalling 'fix'
Treasurer Wayne Swan's attempt to fix the troubled price-signalling laws appears to be rebounding, with critics saying the changes underscore the fact the system will be unworkable.It was confirmed yesterday that Treasury is planning a new notification system to ease the planned laws' effect on activities such as loan syndications and company workouts. It is also planning a "legitimate business exception".Both the Australian Bankers Association (ABA) and the Law Council of Australia said they had been told the Government was planning to introduce the changes. The Government did not comment and it is not yet clear what arrangements the legitimate business exception or the notification system will cover.Under the notification system, banks could seek approval from the Australian Competition and Consumer Commission (ACCC) to communicate prices privately to competitors. The ACCC would have two weeks to object, and, if it did not, communication would be allowed.The current draft laws ban such private communication, a sanction that has been heavily criticised as a bar to normal and necessary commercial behaviour.The notification system raises new issues for the planned price-signalling regime by imposing a potential two-week waiting period on any banking activity where two or more banks co-operate.Competition lawyer Brent Fisse, who is among the planned laws' sternest critics, yesterday called the notification system "a very bureaucratic and unnecessary approach to the issues" and said it would probably not be workable. No other country has such a system, he noted.Depending on the eventual scope of the notification system, he said, "requiring banks to notify the ACCC will be unrealistic in situations where banks have to act quickly." "This is all law-making on the run," he added.The ABA's CEO, Steven Münchenberg, said the ABA remained concerned about the planned law's extension of the ACCC's power; at the impracticality of applying it to arrangements like syndicated loans, and at the potential new uncertainties the changes would introduce. "They don't solve the problem," he said.Angela Flannery, a partner in Allen & Overy's banking section, argued that a notification system would put on the public record deals which borrowers would want to remain confidential.And, Flannery noted, speed was often the key to arranging syndicated financing in situations such as a business sale. The two-week period would disadvantage some potential purchasers in such a sale, she said.The price-signalling laws became part of the Government's December package of banking reforms after Opposition treasury spokesman Joe Hockey made them the first of his nine suggestions for banking reform. They have the strong backing of ACCC chairman Graeme Samuel.They are expected to be introduced into Federal Parliament before the end of the current parliamentary session on 24 March. They are then likely to be referred to a parliamentary committee.