Competition law, adjudication and the High Court

Melbourne University Law Review, Dec, 2006 by Kathryn McMahon

The majority joint judgment argued that to adopt the horizontal/vertical classification:

   confuses the task of construing the Act's provisions. It is
   necessary to pay attention to the text of applicable statutes
   in preference to judicial or other glosses on that language.
   Not only does adopting these terms distract attention from the
   language of the Act, it does so by introducing terms which are,
   so it seems, intended to convey value or other judgments about
   the social or economic consequences that are assumed or
   expected to follow from the making of or giving effect to the
   arrangement to which one of these descriptions is applied. (33)

Gleeson CJ, McHugh, Gummow and Hayne JJ added that to invoke the horizontal/vertical classification was to invite the adoption of such terms from the 'wholly different statutory context of United States antitrust law', (34) where they are 'jargon' with no agreed or fixed meaning. (35)

The debate in Visy cannot simply be characterised as one between 'literal' versus 'purposive' interpretations. Instead, it raises more complex ideas about the role of the judiciary and the intention of the legislature in competition law cases. In the Parts that follow, the implications of these ideas for competition law will be examined, drawing on other recent High Court decisions.

III THE LITERAL INTERPRETATION OF COMPETITION STATUTES

A 'Textualism' and Competition Statutes

The literal interpretation by the majority in Visy corresponds to a 'textualist' approach to statutory interpretation which has been prominent in the US, particularly in the case of constitutional interpretation. Proponents aim to construe words in their ordinary sense, (36) taking account of specialised conventions of statutory interpretation, semantic contexts and linguistic practices pertaining to law. (37) They believe that the text is the best evidence of what is enacted, rather than notions of legislative intent or history which may be unreliable or conflicting and ultimately undemocratic, in that they may not represent the views of the entire legislature. (38) As one of the chief proponents of textualism, Scalia J states that '[t]he text is the law, and it is the text that must be observed.' (39) Another leading textualist, Easterbrook J, stated that '[s]tatues are law, not evidence of law'. (40) Textualism is also linked to self-understandings of the legal profession--namely, that legal reasoning is a craft and a distinct discipline. (41)

The primary difficulty with the textual/literalist approach adopted in the majority joint judgment in Visy is that, in competition law, rarely can the proscribed conduct be discerned from a literal interpretation of the statutory words. In identifying the operation to be given to TPA s 45(6), the majority joint judgment stated that it was not useful to adopt the description, favoured by Kirby J, of the relevant arrangement as 'horizontal' or 'vertical'. (42) What the majority joint judgment failed to recognise is that the statutory words they construed--in TPA ss 4D, 47 and 45(6)--can be said to offer no greater 'agreed or fixed meanings' than the words they rejected.