Air New Zealand Ltd v Australian Competition and Consumer Commission

Question: Discuss about the Air New Zealand Ltd v Australian Competition and Consumer Commission[2017] HCA 21. Answer: The company was accused of having fuel fixed according to certain surcharges. The trial judge dismissed the case citing that there was no market in Australia. The Australian Competition and Consumer Commission (ACCC) appealed against the trial judge's decision. The appellant brought charges against the airlines claiming that they were involved in collusive behavior; which involved fixing fees on airlines flying to Singapore and Hong Kong. The airlines' claims were that the provisions of the Act did not apply because the market of the cargo was in the nations of departure[1]. The litigations were triggered by ACCC accusing the corporations involved, of being in contravention of section 45 of the Trade Practices Act (TPA), which provides that; arrangements should not be put in place to lessen competition or put restrictive trade practices in the market. It was not disputed, whether the parties had entered into agreements that were in contravention of section 45 (2) of TPA. The bone of contention was whether the conduct occurring was within the Australian market. Section 4E of the Act describes a market as a market in Australia used regarding goods and services. Section 3(5) of TPA, on the other hand, describes that competition means competition in any market[2]. The trial judge, therefore, held that none of the markets were relevant according to the Australian legislations. The appellant judge upheld the trial's judge decision by majority. The remedies that were being sought by ACCC were that the agreements which restricted trade practices should be held in contravention of TPA and be fined as provided and also fined for the surcharges accordingly. The outcome was that the ACCC failed to demonstrate that the two Airline Companies involved were in collusive conduct in respect to fuel surcharges in Singapore, despite the fact that they were engaged in the fixing of prices. The action was dismissed because the conduct involved affected flights which operated outside Australia hence Australian Market was not involved. If ACCC had analyzed its market and stuck to the provision of TPA Act in bringing an action to court, the case would have been avoided. If the Airlines were an individual instead of a corporation, the facts and the case would have been dealt with in the same way. The sections of the Act would have been construed in the same way, and anti-competitive laws apply whether in a capacity as an individual or corporation. Therefore, nothing much would have changed. In this case, the medium and long-term consequences are that restrictive trade practices will continue to occur, as much as its outside Australia's territory. This might affect the competition by other players in the market in Hong Kong and Singapore. The airlines may not have restrictive trade practices affecting the Australian market, but the trade practices affect the other countries involved. If appropriate measures are not taken, completion will continue to be lessened, negatively affecting the market, while only a few player s benefit. Bibliography Australian Competion Law, ACCC v Air New Zealand Limited;ACCC v PT Garuda Indonesia Chapman, Simon, and Becky Freeman.Removing the emperor's clothes: Australia and tobacco plain packaging. Sydney University Press, 2013. Air New Zealand Ltd v Australian Competition and Consumer Commission[2017] HCA 21 Australian Trade Practices Act and Law(1975)