Emerson's much ado about nothing

Will the adoption of Dr Emerson's recommendations drive prices down at the checkout? Unlikely, despite claims to the contrary.

Will mandating the existing voluntary code of conduct (with a few tweaks and changes) detailing how suppliers should be treated by the big supermarkets put more money in the pockets of primary producers? It's hard to see how given that none of the six disputes taken to arbitration since the code was introduced almost a decade ago have been upheld.

And will the proposed massive fines, which could be as high as four billion dollars in the case of a Woolworths or a Coles, ever be imposed? That's extremely unlikely. In the improbable event one of the big two ever did engage in conduct so blatantly heinous and unbecoming it constituted a "major" breach of the code and they were prosecuted they wouldn't just roll over.

With the stakes that high they would have no choice but to fight tooth and nail. The government (or actually the taxpayers) would end up underwriting an apocalyptic legal battle with a commercial giant with very deep pockets.

This is why the Australian Competition and Consumer Commission has often preferred to favour negotiating court-enforceable undertakings with errant corporates, even though it has had some notable legal battles.

So what's all the fuss about? And what, if anything, does this have to do with an entirely separate debate over whether or not Australia should have divestiture laws that could be used to break up monopolies that abuse their market position to rip-off consumers in the same way as anti-trust laws in the US and in the UK?

The answer to the first question is obvious. Australians are grappling with the worst cost-of-living crisis in decades. The government has come under a lot of fire for its refusal to offer more in the way of direct assistance to those who have been hardest hit. The major supermarkets, in the meantime, have logged big profits which many see as the result of taking advantage of their customers.

Opportunity, motive and method. It's a perfect storm. By putting the heat on Coles, Woolies, Aldi et al - which are all under scrutiny from at least six inquiries into or including grocery price setting - Mr Albanese and his colleagues hope to create the illusion they are actually doing something to ease the burden on struggling families.

This is much easier than tackling the very vexed question of how to introduce more competition into the supermarket sector through the introduction of additional players head on. That is one tough nut to crack.

Meanwhile, by dismissing talk of divestiture laws as "populist", "Soviet" and "Stalinist", the government is stifling a conversation this nation desperately needs to have. That is the issue of how to redress the power imbalance between tens of millions of consumers and a handful of massive corporate conglomerates that dominate the energy, finance, resource, grocery and even health and aged care sectors.

Assistant Competition Minister Andrew Leigh, who says divestiture laws aren't "a significant tool" in the fight against market concentration in jurisdictions where they exist, is missing the point.

They are rarely used because they are the ultimate sanction. The threat of being broken up in the event they overstep the mark concentrates the minds of the CEOs of the big corporates in much the same way as the prospect of jail time does for those thinking of colluding with competitors.

It is the ultimate in big sticks.