The Legislative Framework and Competition Policy in Australia

This article reviews the legislative framework which underlies Australian competition law and policy. First, the Australian Constitution plays a key although often unrecognized role in preventing interstate restrictions on competition.  Second, Australia’s famed National Competition Policy which comprehensively reviewed and removed unnecessary legislative and other government restrictions on competition over a ten-year period from the mid-1990s is now largely dormant.  Third, Australia’s Competition and Consumer Act 2010 continues to provide a sound framework for the application of competition and consumer law but requires improvement including the introduction of a divestiture power, greater simplicity, the introduction of compulsory pre-merger notification and, in light of court interpretations of the merger law, a refinement of its statutory provisions.

By Allan Fels AO^[1]

I. INTRODUCTION

This article briefly analyzes, mainly from an economics perspective, the legislative framework governing competition law and policy in Australia. Competition policy is not just about antitrust or competition law. Competition policy covers every aspect of policy that affects the state of competition whether positively or negatively. For the purposes of this article, I briefly review “meta law” matters; government laws and regulations of any kind affecting competition; and some economic questions about the nature of the competition statute, the Australian Co