It was really encouraging to get this news today from the Australian site Brews News. The TLDR is that a Melbourne
law firm is enlisting breweries that want to be part of a class action against
Australia’s corporate brewers for breaching competition law by using tap
contracts.
I’m in no position to tell whether the law firm, Adley Burstyner,
have the ability to succeed, but even if they don’t it’s keeping the issue
alive, while Australia’s ACCC take a long time with their investigation into
the same practice.
Now, speaking as a legal lay person, the Australian
Competition and Consumer Act 2010 and the New Zealand Commerce Act 1986 are
probably intended to do the same thing. But it looks like the Australian law
might have more to say about anti-competitive behaviour. I say that because
Part 2, Section 27 of the NZ Act says only “No person shall enter into a contract or arrangement,
or arrive at an understanding, containing a provision that has the purpose, or
has or is likely to have the effect, of substantially lessening competition in
a market.” Now the Australian Act says something similar about entering into a
contract that is “likely to have the effect of substantially lessening
competition”, but it also outlaws “exclusionary provisions”.
My lay opinion has always been that New Zealand tap
contracts breach the spirit of the Commerce Act, but might stay within the
letter of it, because it takes thousands of them to collectively “substantially
lessen competition”, while it could be argued that one on its own can’t substantially
lessen competition. But that clause about “exclusionary provisions” might give
the Australian Act more teeth.
So it’s conceivable that the corporate brewers in Australia are
destined to be forced to stop this practice and maybe pony up a lot in fines or
compensation for having done it all this time. But at the same time the
Commerce Commission in NZ have already seen fit to deem the practice legal. They
have their version of competition law and we have ours, and that’s the
prerogative of nation states. Or is it?
The Trans Pacific Partnership, and potentially other future free
trade agreements, has a little bit to say about competition law. What I saw
when I looked into it seemed pretty vague. It basically says that members should
have some competition law to eliminate anti-competitive behaviour.
But what if producers and manufacturers in one country,
hoping to export to another that they’re in FTA negotiations with, raise the
stakes? It would be highly fanciful to think that Australia’s smaller brewers,
fresh from a legal triumph over that country’s mega breweries, might get
involved in FTA negotiations with New Zealand or other TPP nations over the
competitiveness of their beer markets. But what about free trade negotiations
with Europe?
Is it treason to hope that a foreign power will bully us into getting our anticompetitive house in order?
