Authorisation and Public Benefit - Playing with Categories of Meaningless Reference?

Justice Robert French
4th Annual University of South Australia Trade Practices Workshop, 20-21 October 2006, Barossa Valley Resort (SA)

Abstract

His Honour explores use of terms like 'public benefit' in various contexts. He then discusses it in the context of the TPA, including an interesting exploration of the development of the public benefit test under the TPA. His Honour noted (at para 13):

'Under the Trade Practices Act 1974, as originally enacted, certain conduct, which might otherwise be prohibited under Pt IV, could be authorised if it were likely to result in a ‘substantial’ benefit to the public which would not ‘otherwise be available’. When the Act was reviewed in 1976 the Swanson Committee recommended that the test be made less onerous. The Committee said that competitive behaviour is to be valued for the benefits that it brings to the community at large. It went on:

‘However, if in a given case it can be shown that public benefits, ie,not merely benefits to the parties to the restrictive conduct, are available, and that those benefits outweigh the benefits to the public foregone by the absence or restriction of competition, then that conduct should be permitted to continue. In other words, we still favour the maintenance of the primary position that competitive behaviour is to be preferred, but that many who engage in restrictions of competition should be able to obtain an authorisation if they can show that on balance there are public benefits that outweigh the effects on the public of the restrictions on competition.’

Following the 1977 amendments the public benefit tests under the authorisation provisions of the Act entered what is substantially their present form.

His Honour goes on to discuss various aspects of the authorisation process, including the nature and breadth of 'public benefit', the concept of 'public detriment', the discretion of the ACCC, authorisation as an administrative function, the assessment of the 'likelihood' of public benefits being produce dby the proposed conduct and whether or not a quantitative or qualitative approach (or combination) should be taken to the assessment.

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