Public Benefit in Mergers: A View on Authorisation 50 Years On
Deborah Healey and Rhonda L Smith
Australian Business Law Review
Deborah Healey and Rhonda L Smith, ‘Public Benefit in Mergers: A View on Authorisation 50 Years On’ (2025) 52(6) Australian Business Law Review 375
Abstract
The Australian competition law has always allowed specific exemptions for particular conduct and nominated parties based on tests around public benefit under its authorisation process. This process has stood the test of time and has been expanded in more recent years till it covers all Pt IV conduct. This recognises that competition is a means to an end and may need to be modified in some particular cases where public policy demands a different market solution. This article considers the history of authorisation through the lens of mergers on the 50th anniversary of competition law in Australia. It is also a time when the merger process has been under review. It examines the impact of public benefit considerations in the Australian merger authorisation process to determine whether the process has been effective and how public benefit should be interpreted going forward. It reflects on how past experience might inform any new approach to public benefit in mergers. It concludes that there is little evidence that consideration of public benefits to date has been superfluous, flawed or should be abolished. It finds that public benefit analysis is, however, subject to the issue common to all competition law analysis – the determination of the “future with and without” and likely public benefit arising – with any degree of certainty. It considers whether further guidance should be included in the CCA in the new merger provisions about the ambit of public benefit. It also finds that the positives of the authorisation process far outweigh the negatives and confirms that authorisation provides an unusual though really useful tool for strengthening markets under Australian competition law both in respect of mergers and other conduct.