The Challenge of Applying s 47 of the Competition and Consumer Act in Cases Based on Purpose

Justin Oliver

Australian Journal of Competition and Consumer Law

Justin Oliver, ‘The Challenge of Applying s 47 of the Competition and Consumer Act in Cases Based on Purpose’ (2019) 27(4) Australian Journal of Competition and Consumer Law 252

Abstract

Recent amendments have highlighted the importance of understanding both the purpose and the effect of conduct in order to assess compliance with the Competition and Consumer Act 2010 (Cth). In particular, the analysis of purpose, independently of effect, may play an increasingly important role. Cases since the turn of the century demonstrate that conduct can have the purpose of substantially lessening competition, even in markets that show signs of workable competition. This article analyses the principles from such cases, and considers the challenges that emerge when they are applied to certain conditions, caught by s 47 of that Act, which necessarily restrict competition between the person imposing the condition and the person upon whom it is imposed. While such conditions are not necessarily unlawful, a careful study of their purpose, before they are imposed, is necessary, and parties should consider notification under Pt VII of the Act if a proscribed purpose might be inferred.