Australia: Early Warning Of Likely Legal Change For Global Distribution Businesses Operating In Australia And New Zealand

Last Updated: 30 January 2014
Article by Nicolas Taylor and Jason A. Beer

No one finds the law in relation to monopolization or abuse of dominance in Australia and New Zealand (ANZ) to be very satisfactory.  Global businesses often have to adapt their practices specifically for their ANZ operations especially in relation to product distribution.

Enforcement officials (the ACCC and NZCC) are frustrated too: although many private cases succeed, cases selected by them for public enforcement of the monopolization standard generally fail. Despite the policy intention that the law should protect the competitive process, the way it is drafted makes it easier for individual competitors to establish they, rather than the market as a whole, was harmed. 

There are several important features of the ANZ law that do not work as well as international counterparts.  Reform now can be expected due to a recent judgment against the ACCC in a predatory buy-side case, ACCC v Cement Australia, and the new Government's so-called "Root and Branch Review" of competition law. 

Background to the ACCC v Cement Australia case 

Buy-side cases are unusual in the competition law world.  This case concerned the purchase by a cement company of fly-ash from power stations. A certain amount of fly-ash can be used as a cheap 'extender' in the construction industry when mixed with cement. The allegation was that a cement company with market power was too generous to sellers when it purchased all the readily available sources of fly-ash, thus preventing a smaller competitor from establishing its business. When the judge's full reasoned decision is released, this will be one of the few precedents concerning how to 'invert' standard monopoly concepts (here, predatory under-pricing) into monopsony concepts (predatory over-pricing). 

ANZ approach to misuse of market power cases 

The first difference between the ANZ and other standards that tends to frustrate companies is that, in Europe and the U.S., the focus is on what are the effects of conduct engaged in by large firms.  By contrast, the ANZ standard focuses on what was the purpose of the conduct.  This puts the internal emails and business documents at the center of court cases where they are only indirectly relevant in other jurisdictions.  Internal documents are at risk of creating exposure for large companies when transactions are being negotiated and when rights under pre-existing contracts are being exercised.

A difference that frustrates regulators is the requirement that the plaintiff prove not only that a company had market power and that it was used for an anticompetitive purpose but also that the alleged conduct really did constitute a "taking advantage" of market power. In other words, it is possible to mount a defense that a non-dominant company somewhere else in the world has engaged in similar conduct (for example that a non-dominant firm in the same industry has a distribution network with absolute territorial exclusivity). The implication that can be made by the defendant is that, even if it has market power and even if its internal documents show that the conduct was for an anticompetitive purpose, the conduct engaged in was not done so as a "taking advantage" of market power, but merely an initiative that a non-dominant company might do. 

A difference that frustrates clients and embarrasses the Australian authority is that, in Australia predatory pricing cases, the plaintiff does not need to establish that the defendant has a substantial market degree of market power.  Instead any company with a substantial share (15%+) is at risk of breaching the law if it prices below cost for an anticompetitive purpose. 

The judge in ACCC v Cement Australia has yet to publish his reasoned decision, but he has released orders that already make it clear the ACCC probably failed to prove the 'taking advantage' or purpose elements of the prohibition. Meanwhile, the ACCC was successful on the lesser charge that contracts in question had the effect or likely effect of substantially lessening competition, highlighting the problem with the ANZ law. The misuse of market power prohibition is assessed according to a standard that is quite different from whether or not the conduct actually results in anticompetitive effects. 

Future reforms

This case comes at a time when a new Federal Government has been elected promising a legislative review designed to strengthen the law's ability to protect small business, and it has stated that the law concerning the misuse of market power will be a key topic for review. Under the Australia-New Zealand pact for Closer Economic Relations, any Australian competition law change triggers an obligation upon the New Zealand government to consider making the same change.  Clients entering into long term contracts, or who are making long term decisions about how their products are distributed in ANZ, must both comply with the current law and anticipate the changes that may result from the reform that may be implemented arising from consideration by the legislative review committee of the decision in ACCC v Cement Australia.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jason A. Beer
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.