THE WATCHDOGa??S LAST BITE

TOWARDS the end of a long interview last year Graeme Samuel mused about the prospect of turning 65. It was an age where you no longer plan five years ahead, he said, because you know too many people who have lost someone close to them. Life, he said, has ways of reminding you of its limits.

Samuel's announcement to his staff on Tuesday this week, that he would not seek reappointment as chairman of the Australian Competition and Consumer Commission when his term ended on July 31, ended speculation that the chief regulator was seeking a third term.

Those close to him, however, say a third term was never in prospect. While Samuel guessed last year that he had "another five to 10 years of useful mental ability" it was unlikely they would be expended in his current position.

The former merchant banker, corporate strategist, government fixer, chief of Opera Australian and AFL commissioner-cum-regulator has a way of finding new paths to engage him.

"He has been there long enough. He has made his mark," says Neville Norman, associate professor of economics at Melbourne University, who worked alongside Samuel as a consultant in the 1980s defending BHP against corporate raider the late Robert Holmes a Court.

"Graeme comes from a well-to-do background. He has been associated with wealthy institutions and worked mainly with big companies and I think that was part of the reason the Labor Party wasn't happy with him being chairman. They thought he would be a soft option for big companies. Well, achievement number one: he has proved he is a fearlessly independent regulator despite his background in working with big companies."

Supporters such as Norman also praise Samuel for his determined pursuit of price-fixing cartels, famously typified by fines imposed on packaging firms Amcor and the late Richard Pratt's Visy group. The corporate and consumer watchdog's pursuit of the companies was one thing; the subsequent attempt to prosecute Pratt, for having allegedly perjured himself in evidence to ACCC investigators, still resonates. Indeed, the affair divided the Jewish and business communities, and alienated Samuel from old friends. Many saw it as trophy-hunting.

"He had a very significant victory in the Visy matter," says lawyer and academic Professor Bob Baxt, a man Samuel regards as a mentor.

"Unfortunately, there was the prosecution of the late Richard Pratt which never got resolved a?? that was a little bit sad. It takes away from the success the commission had [in the cartels matter]. It was a stunning result which sent a very clear message to the community that cartels would not be tolerated."

Baxt says the time was right for a new ACCC chief. "I believe it's very important we have turnover and I think five years is an appropriate term. He's had eight [years], which is very generous. It's good we get a changeover a?? new ideas, new blood and new views in running such an important agency."

Baxt adds that under Samuel the ACCC has improved its oversight of mergers. "[It] has done some terrific things in the area of mergers by making it more transparent and publishing more information.

"We know a little bit better how the commission thinks about these mergers, but they still have a long way to go."

The ACCC publishes public competition assessments after mergers, but even the commission admits they have little value as guides to future cases. "The precedent value of some of these publications is not strong and that's not much value to people who are advising," says Baxt.

Critics argue that under Samuel the commission was too sensitive to government leanings, and failed to push criminal sanctions for cartel activity under the Howard government, only taking it up under the Rudd government.

They also cite the ACCC's inconsistent approach to finance industry mergers a?? permitting Westpac to take over St George Building Society, the Commonwealth to absorb BankWest a?? and yet, inexplicably, blocking the NAB's move on AXA Asia Pacific.

Baxt says: "You need to know that I acted for NAB and, yes, we were very puzzled there. There are inconsistencies. We believe that mergers are becoming more difficult and some of the guidelines in these earlier mergers don't appear to be being followed.

"We argue there are inconsistencies. Graeme would disagree."

The ACCC's eventual accession to Patrick Stevedores' takeover of Toll Holdings is another decision that had observers shaking their heads. "He has a strong wheeler-dealer instinct," one observer says of Samuel, "whereas for that job you want a straight-down-the-line policeman who is concerned with application of the law."

Neville Norman says a failing under Samuel was in the commission's case preparation, notably in its unsuccessful 2006 price-fixing prosecution of petrol distributor Apco.

"Some of the cases were poorly prepared a?? one that comes to mind is the Apco case a?? where I think on any analysis they made the wrong pleadings," says Norman. "[But] he has done more good than bad a?? I had to struggle for the bad points."

Had his term at the ACCC not expired, his position in public office may have become impossibly difficult later this year. Samuel is embroiled in the collapse of the DFO group in which he had substantial investments via a blind trust adopted when he took the ACCC job in 2003.

Samuel, who has dismissed as media speculation reports that his losses in the collapse amount to around $50 million, is defending claims that he gave a multimillion-dollar indemnity to DFO founders David Wieland and David Goldberger to enable them to expand the business.

"I don't talk about that whole episode. It was an episode that should never have become public, I won't go into how it did . . . [It] had nothing to do with my ACCC responsibilities," he protested last year.

"It was all nonsense . . . it was not a matter of public interest, nor should it have been a matter of public commentary. In a sense I am a bit annoyed, a bit resentful in how it became public because it should not have been, and it put some pressures on my family, my children in particular, that should never have occurred. And that's also a result of some misunderstandings as to what had been lost.

"It was a private affair and that's the way it should remain."

The courts, however, may ensure otherwise.

What next for Graeme Samuel? He has never lacked confidence, shrewdness or direction. Those close to him expect he would be looking for corporate directorships to shape the next stage of an extraordinary career. But the fallout from both the DFO collapse and continuing resentment about his pursuit of Pratt may define his options.

Certainly, the next step will test his belief that enemies are rarely forever. "You leave enemies behind. Are they inevitable consequences of getting things done? Look they are, but except in some very rare circumstances you don't remain enemies for long."

EVEN supporters suggest that considerable hostility towards him remains in the business community. Samuel spoke last year of being ostracised by sections of Melbourne's Jewish community.

His view of the Pratt affair is that he was doomed whichever way he moved. If he did not pursue Pratt, his failure would have been seen as the Melbourne Jewish establishment protecting its own.

Samuel has spoken of being approached after the event by a senior politician who told him he had acted properly and that his own reputation also would have been irreparably damaged had he not taken action against Pratt. In short, he could have damaged his community and himself. Samuel argues that the integrity of the ACCC required that the case be referred for possible prosecution.

Critics also point to little activity in consumer protection under Samuel's watch. "There just have not been any high-profile cases of consumer protection. They have not been innovative or path-breaking. They are the national consumer protection agency. They employ about 800 people and you just don't see them out there, in the media," says one observer who does not wish to be identified.

Campaign director for consumer advocate group CHOICE, Christopher Zinn says the ACCC has recently won significant advances in consumer law relating to unfair contracts and product guarantees, but it remained to be seen how well they are enforced.

"We felt that sometimes the ACCC did not lean hard enough into consumer issues," says Zinn.

"There were a lot of little [prosecutions] but they did not get any big heads on a pole."

Zinn said he had seen Samuel very impressive "on his hind legs" dealing with industry figures in private and he would like to have seen the same in the public domain.

"Credit where it's due," says Zinn. "Graeme has done this role at huge personal cost. There has been a terrific level of public service."

Sources close to Samuel say he announced his departure four months before his term expired to dampen any speculation about his intentions. Samuel, who was refusing interview requests yesterday, has privately indicated health and family underlie his decision.

As ACCC chief, his evenings are reputedly spent waiting for his BlackBerry to ring. And he has been recently telling colleagues of his doctor's advice that age and stress have only one point of inevitable convergence a?? death.

NEXT IN LINE?

Potential candidates for Samuela??s job

ROSS JONES is the deputy chairman of the countrya??s bank regulator, the Australian Prudential Regulation Authority, where he is responsible for superannuation. Jones, once an associate professor of fi nance economics at the University of Technology Sydney, has previously served as a commissioner at the Australian Competition and Consumer Commission.

PETER KELL is now Graham Samuela??s deputy at the competition watchdog, with a work history spanning consumer affairs and regulation. Before joining the ACCC, Kell was chief executive at the consumer group and held senior roles at the Australian Securities and Investments Commission.

LUKE WOODWARD

leads the competition and regulation practice at the law firm Gilbert Tobin, and he previously ran the enforcement and compliance division at the ACCC. Woodwarda??s potential appointment has support from the Council of Small Business, which says the ACCC has failed to rein in big companiesa?? market power under Samuel.

ROD SIMS, a director at the economic consultancy Port Jackson Partners, has worked in a broad range of senior government roles. He also chairs the body that approves electricity price changes Independent Pricing and Regulatory Tribunal, and was previously a deputy secretary at the Department of Prime Minister and Cabinet.

- CLANCY YEATES