Access to essential facilities under section 36 of the Commerce Act 1986: lessons from Australian competition law

Brenda Marshall, University of Queensland
Rachael Mulheron, University of Warwick, England

Abstract

[extract] The experience in New Zealand is that access seekers have met with very little success in disputes with facility owners determined under s 36 Commerce Act. The practical difficulty of satisfying the terms of s 36 has acted as a significant constraint on the usefulness of the provision as a means of regulating access to the country’s essential facilities. This unsatisfactory situation is largely the legacy of the Privy Council’s decision in the much-cited Telecom Corp of New Zealand Ltd v Clear Communications Ltd. Such is the perceived difficulty that New Zealand access seekers have preferred to base recent claims, albeit with no greater degree of success, on the common law doctrine of prime necessity.

Australian competition law appears to offer a solution, however. Drawing on Australian jurisprudence and academic commentary in respect of s 46 Trade Practices Act, this article sets out an approach to the interpretation of s 36 Commerce Act that will enable New Zealand’s misuse of market power provision to operate more effectively in the access context.