The Politics and Practice of New Zealand Competition Law

Published date01 December 2021
Date01 December 2021
AuthorMatt Sumpter
Symposium: The Evolution of Competition Law and Policy in New Zealand
The Politics and Practice of
New Zealand Competition Law
Matt Sumpter*
There is a wind of change blowing through global competition law and policy. Four or five years ago,
there were signs a front was coming. Progressive commentators were fretting about years of see-
mingly unchecked market concentration. They were asking whether greater antitrust intervention
might soothe rising inequality, prop up wages, and even disband aggregated political power. Some from
the vanguard of this movement now occupy the most influential positions in the global antitrust
endeavor. In this article, I locate New Zealand’s experience within the international normative debate
over the law’s objectives by reference to the country’s modern economic history. And I explain how
policy translates into practice at the enforcement coal face in New Zealand. In doing so, I observe that
the country’s competition agency, the Commerce Commission, is failing in its duty to investigate and
prosecute exclusionary conduct in the jurisdiction.
New Zealand, hipster antitrust, consumer welfare, exclusionary conduct, agency performance
Competition law was born in Washington, DC, in the summer of 1890 as a sociopolitical reaction to
concentrated economic power. For decades, now the United States has exported its antitrust rules,
analysis, and controversies to all corners of the globe.
New Zealand began receiving these exports in the 1980s amid a seismic neoliberal transformation
of the country’s economy. In a recent book on the topic, Professor Rex Ahdar surveys New Zealand’s
experience since its 1986 adoption of competition law from the United States via Australia.
As one might expect, Ahdar’s book contains a chapter on the goals of competition law. In that
chapter, he narrates the Harvard-Chicago polemic, recording the Chicagoans’ profound influence on
New Zealand common law. Ahdar th en speaks to an important 2001 ame ndment to the purpose
statement of the country’s competition statute—the Commerce Act 1986—which marked the begin-
ning of the end for total welfare’s ascendancy as the driving force of antitrust jurisprudence within the
* Chapman Tripp, New Zealand
Corresponding Author:
Matt Sumpter, Chapman Tripp, Level 34, 15 Customs St West, Auckland, New Zealand.
The Antitrust Bulletin
2021, Vol. 66(4) 462–469
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0003603X211044900

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