Sol Trujillo and Graeme Samuel have had and continue to have their differences, but Samuel has never branded Sol as a “maverick” who would force major changes to the takeover system because he was “subverting” it. No, it seems to be another ambitious and highly paid American who really annoys the ACCC – Alinta CEO Bob Browning.

Samuel doesn’t name Browning in an exclusive dropped on the AFR this morning about toughening up aspects of the horse trading the ACCC conducts with predators, but his presence is writ large between the lines. The Fin story by Joanne Gray mentions Alinta but puts more effort into pointing a finger at Toll’s Paul Little for allegedly dragging the chain over undertakings given to get the Patrick Corp takeover approved.

It’s hard though to think of any company that has been more brazen in its contempt for the spirit of the undertakings system than Alinta. Frithy goes through the dodgy business whereby Browning gave the ACCC an undertaking to sell AGL’s 30 per cent stake in Australian Pipeline Trust but then immediately went about trying to circumvent the agreement.

The response is that Samuel now wants to introduce an independent administrator to take immediate control of any assets a company agrees to divest – a significant but probably overdue toughening up of the ACCC’s dealings in contentious takeovers. Samuel is quoted in the Fin as saying:

The problem is that you never know beforehand who you can’t trust. And a regulator can’t operate on the basis of saying ‘I can look them in the eye and I can trust them.’ Nine-nine point nine per cent of the people in the business community that I deal with, I trust. But it’s that 0.1 per cent that cause a problem…. When you get one or two mavericks who seek to subvert the intent, then unfortunately you have to deal with that….

This is not just an arbitrary act on the part of the commission just to demonstrate how tough we are. Don’t vent your spleen on me. Vent it against those in the business community who for their own short-term gains tried to take advantage of situations and tried to read down or manipulate down undertakings, because unfortunately everyone suffers as a result. I can’t help it.

Which sounds a bit like one of those teachers who puts the whole class on detention because one boy down the back was firing spit balls.

Peter Fray

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