Granting Immunity: Authorisation and “Public Benefit”

Abstract

This chapter analyses the authorisation mechanism—a demanding cost-benefit test for those applicants who seek advance approval of their potentially contravening conduct. The “public benefits” and detriments the Commission can assess under this test are very broad. The potentially relevant matters go well beyond economic efficiencies to intangible and unquantified gains or harms. A thorny issue has been the distributional question. Does the Act have an implicit bias in favour of consumers when it comes to weighing benefits and detriments? Must benefits be passed on to consumers? The Chicagoan thinking came to dominate and the Commission pronounced it was “neutral” regarding wealth transfers from consumers to producers. The 2001 Amendment, which altered the purpose of the Act to clarify that competition operated for the long-term benefit of New Zealand consumers, did not initially alter the Chicagoan stance. Over time, however, the purely neutral stance towards wealth transfers has been eroded. The Court of Appeal decided that private gains, redounding solely to the companies alone, were not sufficient. “Modified total welfare” arrived as a new term in the New Zealand antitrust lexicon. The chapter also analyses the non-neutral stance where the benefits go to foreign owners of local companies.