The Paradox of Australian Competition Policy: Contextualising the Coexistence of Economic Efficiency and Public Benefit

Vijaya L. Nagarajan, Macquarie University explains The Paradox of Australian Competition Policy: Contextualising the Coexistence of Economic Efficiency and Public Benefit

ABSTRACT: Although competition law is viewed as being focussed on fostering competition, there is more depth to it. Australian competition policy has been designed to provide space for public benefits, whereby prima facie anticompetitive conducts that eventually result in a public benefit can continue. This is a unique feature which reveals the importance of having flexibility in legislative design and the benefits of case by case approach.

The objective of this article is to identify the types of public benefits that have been recognised through the authorisation process in Australian competition law. The article uses an innovative methodology to study 244 authorisation determinations made between 1976 and 2010 and analyses them in their economic and social context. This study demonstrates that the authorisation process has been a valuable one which has allowed competition policy to operate effectively while accommodating many wider concerns. Conducts that promote competition or encourage cost savings have been recognised alongside those which enhance product safety or encourages environmental protection, demonstrating the complexity and breadth of competition law in practice. This type of decision making can be explained as a triumph of practice.