The Purpose of Substantially Lessening Competition: The Divergence of New Zealand and Australian Law

(2011) 19 Waikato Law Rev 168.

26 Pages Posted: 24 Oct 2014

See all articles by Paul Scott

Paul Scott

Victoria University of Wellington - Faculty of Law

Date Written: October 15, 2010

Abstract

Section 27 of New Zealand’s Commerce Act is based on section 45 of Australia’s Consumer and Competition Act. Both sections proscribe (inter alia) contracts, arrangements and understandings that have the purpose of substantially lessening competition. New Zealand courts initially emphasised that the two countries’ law should be the same. However, with the purpose of substantially lessening competition New Zealand and Australia’s law has diverged. This is in two main areas. First, whether purpose is objective, subjective or both are relevant. Second, whether the purpose limb can be satisfied if achieving an anticompetitive effect is impossible. This article discusses the leading cases and argues the Australian law is preferable.

Keywords: competition law, substantial lessening of competition ,purpose

JEL Classification: K21

Suggested Citation

Scott, Paul, The Purpose of Substantially Lessening Competition: The Divergence of New Zealand and Australian Law (October 15, 2010). (2011) 19 Waikato Law Rev 168., Available at SSRN: https://ssrn.com/abstract=2513561

Paul Scott (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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