Proof of Purpose

Julie Clarke

Competition Law Conference, Sydney, 6 May 2023

Julie Clarke, ‘Proof of Purpose’ (Competition Law Conference, Sydney, 6 May 2023)

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Abstract

Purpose has a special role in Australian competition law. With limited exceptions, the key Australian competition law provisions can be contravened based on subjective purpose alone, without the need to establish an effect or likely effect on competition. A series of Federal Court decisions have, however, highlighted the challenges of purpose-based competition cases. They suggest that proof of purpose is becoming more challenging, fuelled by the courts' increased willingness to prefer witness testimony of ‘legitimate business justifications’ over documentary evidence suggesting anti-competitive intent.

This paper considers the role of purpose in Australian competition law and identifies and critiques the principles that have been developed to guide its interpretation. It then examines the evidentiary questions that have arisen in applying these principles before examining more closely a series of recent cases in which the Australian Competition and Consumer Commission has failed to establish purpose. It concludes by examining the implications of the findings in those cases.