Australia: More competition can flow from Tatts/Tabcorp merger, says the Australian Competition Tribunal

Last Updated: 28 November 2017
Article by Michael Corrigan

The decision confirms that a merger in a competitive market can be good for consumers, if there are genuine efficiency savings which are likely to be shared through greater competition.

The latest chapter in the saga of the proposed Tatts/Tabcorp merger has seen the Australian Competition Tribunal again determine that the merger would not lead to a lessening of competition in the Australian wagering market, but is likely to increase competition and have public benefits - a decision that should give some comfort to merger parties in competitive industry sectors that are undergoing digital disruption (Applications by Tabcorp Holdings Limited [2017] ACompT 5 - Clayton Utz acted for Tatts).

The proposed Tatts/Tabcorp merger and its context in the Australian wagering market

Tatts and Tabcorp are two major players in the large Australian wagering market, which is undergoing strong growth and also significant digital disruption from well resourced online competitors. It was a complex and contested merger process; the prospect of the merged firm (which would be valued at around $11 billion) brought out multiple intervenors in opposition, including the ACCC, CrownBet, Racing Victoria and

The opponents' main concerns were:

  • the alleged advantages of the exclusive retail licences held by each of Tabcorp and Tatts;
  • whether Tatts was the only other likely bidder against Tabcorp for a new Victorian wagering licence in 2024;
  • the advantages Tabcorp has through owning the racing vision provider Sky Racing; and
  • whether the future growth of online bookmakers might slow, with speculation about future tax and regulatory changes.

In March 2017, Tabcorp took the merger approval directly to the Tribunal, short-circuiting an application for informal clearance which had been pending before the ACCC since October 2016.

Until recently, under the Competition and Consumer Act 2010, the Tribunal may grant authorisation for a merger or acquisition if satisfied that it will result in sufficient public benefits, including efficiencies. It must weigh the risks of a detrimental loss of competition from the merger against the public benefits and efficiencies from the merger ( the Act has subsequently been amended to change the process, but the test is the same). However future merger authorisations must now be submitted to the ACCC - see below.

The Tribunal approved the merger in June; the ACCC successfully appealed, and the matter remitted to the Tribunal for reconsideration, and it has again authorised it.

The competitive landscape in the Australian wagering market

The Tribunal reaffirmed its earlier market definition finding: Australian punters switch freely between retail outlets and online, so that online forms part of the retail market. Competition in this industry is driven by technology and scale - it considered this merger was consistent with that trend.

Given this background, which means smaller operators may not be able to keep up, the Tribunal found that further consolidation in the Australian wagering industry is likely.

There is another factor: the international interest in the Australian wagering market. This is still an attractive market for the UK operators, despite the tightening of advertising rules and the possible introduction of a point of consumption tax on wagering.

Less competition in Australian wagering - or more?

The Tribunal is required to consider any "lessening" of competition that might arise from the merger, even if it is not a "substantial lessening" (which is the test in our merger law).

The Tribunal was satisfied the merger in fact will drive further competition, given the many corporate bookmakers active in the Australian market, including strong competition from largely UK-based corporate bookmakers who would constrain the merged entity.

It noted the "public benefit" test in the Australian regime has been applied to mean that the merger must be shown to give rise to benefits for a least a section of "the public". Greater weight is given to savings and efficiencies that are shared more widely than just the merger parties and their shareholders.

One intervener argued for a more limited test, that "public benefits" can only be recognised if they are shown to accrue to consumers. The Tribunal did not decide which approach was correct but held that on either interpretation this merger satisfied the public benefit test.

Either way, there were also found to be flow-on benefits for the racing industry (which is funded by the merger parties and by other bookmakers), and will benefit from the synergies that are created by it.

The impact of the Tatts/Tabcorp decision on future merger clearances

The decision confirms that a merger in a competitive market can be good for consumers, if there are genuine efficiency savings which are likely to be shared through greater competition.

Secondly, the decision is another example of how online competition can disrupt traditional retail models and why online providers must be included in the competition assessment.

Thirdly, the decision is a timely reminder that effects of a merger should not be judged against the past or even the status quo - if the market is changing rapidly, the future shape of the market is the relevant matter to consider, not past market shares or possession of a bricks and mortar retail network .

This decision is not only notable for its result. It is also the last Tribunal decision under the previous regime allowing parties to apply directly to the Australian Competition Tribunal, rather than first having to apply to the ACCC. Under amendments which came into effect on November 6, future deals which seek approval on public benefit grounds (such as this case) will have to be submitted first to the ACCC; there will only be a limited appeal to the Tribunal, and restrictions on introducing fresh evidence.

At this time it is not known if any of the parties which opposed approval will seek to appeal the decision. There is a 28-day period for a party to seek a limited judicial review on legal grounds, but no appeal on the merits is open.


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions