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PAMELA HANRAHAN:

Hello. Chief Justice, distinguished guests, colleagues, welcome. Welcome to the 11th Annual Bannerman Lecture. My name is Pamela Hanrahan and I'm Chair of the Business Law Section of the Law Council of Australia. I begin by acknowledging the Gadigal people of the Eora Nation, the traditional custodians of this magnificent country that we meet on here in Sydney today. I extend my respects to elders past, present, and emerging, and to Aboriginal and Torres Strait Islander people here with us today. I'm delighted to invite Craig Madden of the Metropolitan Local Aboriginal Land Council to welcome us generously to Country.

CRAIG MADDEN:

Thank you very much, Pamela. Warami. Bujari Gammarruwa. I must say I'm a bit nervous today, but my name is Craig Madden and I'd like to start by thanking the Law Council of Australia, King & Wood Mallesons and the ����ԭ�� for inviting me here today to welcome you to Country. I'm a proud Bundjalung Gadigal man from the Eora Nation. Gadigal land is the land on which we are gathered here today. Jinura Gadigal. This land is Gadigal. It is our customary as we invite people or guests onto our country that we offer you safe passage as you pass through our land. So as a proud Gadigal man and also as a representative of Metropolitan Local Aboriginal Land Council. I'd like to welcome you all to Gadigal Land Aboriginal land.

I'd like to pay my respects to our elders past and present and honour the stories and traditions of our Aboriginal people from this land. I'd also like to acknowledge the ancestors who watch over us all as we walk on these sacred lands. To any aboriginal brothers and sisters, and if we have any brothers and sisters from the Torres Strait Islands, welcome. To all our non-aboriginal brothers and sisters here today, a warm and sincere welcome to Gadigal Land, Aboriginal land. Our Gadigal clan is one of the 29 clans which make up the Eora Nation. That's a nation that's bound by three distinct landmarks. So we've got the Hawkesbury River up to the north, the Nepean River out to the west, and the Georges River to the south.

Within the boundaries of those mighty rivers lie our Eora Nation, the land that we stand on of our Gadigal people, one of the many clans of that nation. To any guests from across the seas, all those of you who have travelled from across our great country, great states, this beautiful city which is going to rain for the next five days, but we're not worried about that. Welcome to Gadigal Land because we stand on the shores of our beautiful Harbour at a place that our people call Warrang, and it was a place where our people would walk from the hills down and they would hunt and camp by the shores down here. You know it better as Sydney Cove and Bennelong Point. And not only was it a place that connected our people, but it was also a place where all the clans from all over the Sydney nation connected from the Wallumedegul people to the Gamaragal people across the bridge and the Wangal people just next door and the Bidjigal people along the East Coast. All those clans connected through these waterways.

My uncle said it, better than the Parramatta Road or the M5, but it was a place that connected all our people and it's something that we've been doing for tens of thousands of years. So on behalf of the Metropolitan Local Aboriginal Land Council, its members, our Gadigal mob, enjoy the lecture today and once again, welcome, welcome, welcome. Thank you very much.

PAMELA HANRAHAN:

Thank you so much, Craig. Now I might start by saying something about the Bannerman Competition Lecture and then of course introduce our very distinguished lecturer, the Honourable Justice Stephen Gageler AC, Chief Justice of the High Court of Australia. The Annual Bannerman Lecture is convened by the Business Law Section of the Law Council of Australia and the Australian Competition and Consumer Commission.

The ����ԭ�� is represented here today by its Chair, Deputy Chair, Commissioners and senior officers. Welcome. The BLS comprises about 1,000 of Australia's most senior commercial lawyers. We come from private practice, in-house legal departments, the bar, and the academy. Our members are organised into 14 specialist committees and that includes of course, the Competition Committee. A big part of our work is making submissions on law reform and policy proposals. Last year, we made over 80 major submissions on business law reform and a number of those related to the new merger arrangements that I'm delighted to say were announced by the Treasurer of Australia, the Honourable Dr. Jim Chalmers at the Bannerman Lecture last year.

This important pro bono work by committee members helps to ensure, we hope, the quality and efficacy of business law in Australia. The mission of the BLS also includes providing a forum for the discussion of timely issues in business law through a program of regular conferences, workshops, and seminars. The Bannerman lecture is a highlight of that program every year. The Bannerman Competition Lecture was instigated in 2015 to honour the contribution of Mr. Ron Bannerman AO, the first Chair of the ����ԭ��'s predecessor body, the Trade Practices Commission. His work established a solid foundation in Australia for modern competition, fair trading, and consumer protection law. The BLS is honoured as always to have members of the Bannerman family here with us today. Thank you so much for coming.

So the format this evening is that we will hear from our distinguished lecturer and then from the chair of the ����ԭ��, Gina Cass-Gottlieb. After the events, our very generous hosts, King & Wood Mallesons have offered to provide some refreshments, so I know you'll be looking forward to those.

Now, let me introduce the Bannerman lecturer for 2025. Of course, the Bannerman Lecture is the highlight of the competition law year and it has always attracted very distinguished speakers including two other Justices of the High Court of Australia, the heads of the competition authorities in the United States, the United Kingdom and France, and a number of prominent economists. This year we are delighted to welcome back Chief Justice Gageler to deliver his second Bannerman lecture. His Honour, as you know, was appointed to the High Court of Australia in October of 2012 and became Chief Justice in November of 2023.

He is a graduate of the Australian National University and has postgraduate qualifications from Harvard University. He was admitted as the barrister of the Supreme Court of New South Wales in 1989 and was appointed Senior Counsel in 2000, became Solicitor General of Australia in 2008. His Honour's practice at the bar was principally in the areas of constitutional law, administrative law and commercial law. So his Honour will now present his lecture and for those of you who are wondering what it's on, the title is “Growing Up Competitive, the Influences of Barwick and Murphy on Australian Competition Regulation.” Please welcome the Chief Justice.

CHIEF JUSTICE STEPHEN GAGELER:

Well, it really is a great pleasure for me to be here giving the second Bannerman Lecture that I will have given when this is over. I'm a Bannerman recidivist. It makes me especially happy to be giving a lecture on competition law because I don't get to see it very much anymore and as I get older, I get nostalgic, the times passed and as I look around the room there are a lot of, dare I say it, old faces that I remember from my happy days at the bar, the happiest of them was doing competition cases. I don't know why. I suspect it is because I am at heart a frustrated economist rather than a lawyer, but here we go.

One of the constraints of my office is although I get asked to give profound lectures all the time, I can't talk about anything particularly profound. I certainly can't talk about anything current. I can't talk about anything that is controversial. So I talk about history and I talk about personalities and sometimes I tell stories that have a strong element of truth to them and so that's what I'm doing today. I am going to talk about two personalities, two very, very strong personalities and their influence on the area of law and regulation that I assume everyone in the room is really familiar with. So that's the ambition and let's see how I go on the delivery.

So if Ron Bannerman was the regulatory pioneer of modern Australian trade practices legislation, Chief Justice Robert French noted in his inaugural Bannerman Lecture in 2015 that the political pioneers of that legislation were the two individuals who I am going to talk about, Garfield Barwick and Lionel Murphy. Barwick and Murphy both served as Attorney-General of the Commonwealth. Both were senators from New South Wales, both were senior members, practicing members of the New South Wales Bar and both would go on to be appointed to the High Court. There, with few exceptions, the similarities ended. Barwick and Murphy did not, to put it lightly, agree on very much. When Murphy was proposed to be appointed as a Justice of the High Court, Barwick, as Chief Justice informed the Prime Minister of Whitlam that Murphy was, and I quote, neither competent nor suitable for the position.

Their time on the court together would prove fractious with Barwick refusing to speak to Murphy and the two of them taking opposing sides in the outcomes of most cases that came before the court. On the issue of trade practices however, Barwick and Murphy agreed that national regulatory intervention was necessary in an Australian economy that had too long been equipped with cartels and other anti-competitive practices. Their agreement on that issue was one that certainly did nothing to lessen the competition between its parties whose rivalry amounted to ingrained and sustained antagonism.

So the subject of this lecture is the roles and influences of Barwick and Murphy mainly as politicians, but partly as judges in the development of Australian trade practices legislation. That history as I hope to show lets us see some important commonalities and convergences of view between these two men. The views of Barwick and Murphy converged in recognising the importance of tackling monopolistic and anti-competitive conduct, albeit that they saw the problem from really quite different perspectives.

In September, 1961, Chief Justice Earl Warren of the United States Supreme Court wrote to Barwick on the topic of trade practices. He said, "I do not know how Australia is going to grow up without antitrust legislation." He would have said antitrust legislation and Barwick agreed with that sentiment. Barwick had long been of the view that markets had to be fair and free so that individuals could compete in those markets and reap their own rewards. Murphy on the other hand, saw restrictive trade practices as a vice that enabled the accumulation of corporate power to the detriment of consumers.

Each of Barwick and Murphy was also focused on using international approaches and international practice to inform the Australian approach to regulating anti-competitive conduct whilst maintaining a distinctively Australian character to that regulation, both to conform with our complex constitutional limits on the legislative power and to manage the translation of economic concepts to legal and legislative expression. Having regard to our slightly more formal approach to interpretation in our court system than might be found in some other systems.

The challenge of judicial interpretation of trade practices legislation would be one that both would feel keenly as politicians when designing that legislation and then again in their later judicial offices on the High Court where it was responsible for considering the constitutionality of and other issues relating to such legislation. In the face of manifold political and judicial challenges to the development of effective trade practices legislation in Australia, this is the story of how Barwick and Murphy in their own ways and without much regard for each other, shepherded Australia to its adoption of the robust Trade Practices Act of 1974.

So let me start by going back to the turn of the 20th century when cartels, monopolies and restrictive trade practices more broadly were well entrenched in Australia as they were in most of the rest of the world. The antitrust movement which had swept the United States, reached Australian shores in 1905 when the second Deakin government enacted the Australian Industries Preservation Act of 1906 legislation that was spearheaded by Isaac Isaacs as Attorney-General and which was modelled very much on the Sherman Act of 1890 an Act of the Congress of the United States.

The Australian Act of 1906 took aim particularly at foreign anti-competitive practices which impacted on domestic Australian firms, but the 1906 Act was left largely a paper tiger following two decisions of, dare I say the High Court of Australia. One was the decision in Huddart Parker and Moorehead, which restricted the reach of the corporation's power in Section 51(20) of the Constitution. On the other hand was the decision of the Full Court of the High Court overturning the first instance decision of Justice Isaacs in the Coal Vend case, which was actually the subject of my first Bannerman Lecture where the point that I made was that it was probably close to at least the worst decision ever made by the Full Court of the High Court, a decision that was upheld on appeal to the Privy Council in probably the worst decision of its history.

The reasoning first of the Full Court of the High Court and then of the Privy Council denied the relevance of the jurisprudence that had been developed by the Supreme Court of the United States in relation to the Sherman Act and declared that an agreement to raise the price of a commodity was not necessarily to be regarded as being to the detriment of the public as the legislative expression because the public it was said, had to be understood, not limited to consumers, but also to include the producers who were entering into the agreement to raise the price. Anyway, that was the gist of the reasoning.

So a series of proposed laws for the alteration of the Constitution to enhance Commonwealth power over corporations and to give it specific power over monopolies, trusts, and combinations were put to electors, believe it or not, in referenda in 1911, again in 1913 and in 1919 and again in 1926 on each occasion only to fail to get the required majority for the constitutional amendment and there pretty much by the mid-1920s lay a dead 1906 Act and not much stirring on the competition law front politically.

So it was not until 1960, in fact early 1960 that Barwick as then Attorney-General in the Menzies Government persuaded Menzies that something had to be done about this phenomenon. David Marr, whose biography of Barwick is still a very, very good read, notes that by this time that is by 1960 there were about 400 trade associations in the country who all devoted in their mysterious and special ways to restricting areas of competition. Barwick negotiated directly with Menzies about including a reference in the Governor General's speech at the opening of Parliament at the beginning of 1960 where the Governor General referred to the government and I quote, “giving consideration to legislation to protect and strengthen free enterprise against monopoly and restrictive practices.”

The rest of the cabinet wasn't aware that this was on the agenda, but Barwick forged ahead despite the misgivings in Cabinet. He was driven by the clarity of his conception of a fair economy drawn, at least in large part according to David Marr, from Barwick's experiences at the Sydney Bar where he had confronted what was in his language the “closed club of Phillip Street” and where he had excelled and become a leader of that bar. The marketplace Barwick believed was where one had to test oneself to get ahead and to ensure that success was a virtue worth pursuing, the marketplace itself had to be free and fair in his philosophy. The Barwick free enterprise was the singular virtue, the moral force which the market ought to give effect. To him, the moral force was focused on the individual. In his words, the “little man.”

He was acutely aware of the societal problem that arises out of the, again, his words, “the trend for small businesses to disappear and to be replaced by businesses owned by large scale organisations.” Menzies went on to announce that a restrictive trade practices bill would be before Parliament in the same year, 1960, but Barwick was not one to rush into such a topic. He wanted to study international approaches to trade practices regulation. He travelled to North America where he met with the United States Attorney-General. He met with leading American antitrust lawyers. He went to Canada where he met with the Canadian Minister of Justice, all to discuss the topic.

Those discussions illuminated to Barwick the magnitude of the task. He remarked that “the further one goes, the more complex the problem is and the more difficult it is to fasten on the right criteria so that free enterprise can be assured.” Contributing to the complexity was the constitutional landscape as Barwick wanted to cover the whole range of trade and commerce in Australia. To achieve that result would not only involve significant intellectual creativity in undertaking the legislative design, it would also involve navigating a political thicket planted over a constitutional minefield.

Barwick was intent on comparative international study being an integral part of this process that following his own return from Canada and the United States, he sent the Secretary of the

Attorney-General's department, Sir Kenneth Bailey, to travel to speak to his equivalents in the United Kingdom, the United States, Canada, and New Zealand. Then evidently not satisfied with what Bailey had come back with, he sent an officer of the Attorney-General's department to go on to be the distinguished Professor of Law at ANU and also Australia's first Ombudsman, Jack Richardson.

He sent Jack Richardson over pretty much to the same places to examine the topic in even more detail. So what he had gained then from his own, these are days before internet searches were available of course, what he gained from his own research and from the research that Richardson and Bailey had surveyed was a number of options as to how the Australian legislation might be designed. So, there was the British approach. The British approach was enshrined at that time in the Restrictive Trade Practices Act of 1956. That Act established the Office of the Registrar of Restrictive Trading Agreements who was responsible for maintaining a public register.

Now, on that public register was to be registered agreements to fix prices, to fix quantities, to divide markets or to set terms of supply. The Registrar could require a person with respect to whom the Registrar had reasonable cause to believe was party to such an agreement to provide information to allow its registration. Failure to provide the information when asked was a criminal offence. Registered agreements could be removed from the register if the Registrar came to regard them as being of no substantial economic significance.

The 1956 Act also established a Restrictive Practices Court, which was a superior court of record. Of course, they have a much more flexible constitutional system in the United Kingdom. They can call anything a superior court of record, which had jurisdiction to declare any registered restrictive trade practice to be contrary to the public interest with the result that upon such a declaration being made, the agreement would be rendered void. The focus on the public interest rather than on competition as such was the defining feature of the British models. The only restrictive practice that was deemed to be outright unlawful was resale price maintenance.

The Americans had taken a different approach. By 1960, the legislative response to restrictive trade practices in the United States spanned the Sherman Act of 1890, the Clayton Act and the Federal Trade Commission Act both of 1914 and the Robinson-Patman Act of 1936. All of that legislation was supplemented by a long and rich judicial interpretation of those statutes, most notably through the judicially led development of per se contributions and the more general rule of reason analysis. Unlike the United Kingdom, which had only made resale price maintenance unlawful, the American statutes as interpreted by the courts made horizontal agreements between unrelated firms such as for price fixing, output restrictions and boycotts illegal per se and subject to both civil and criminal sanctions.

The statutes also subjected unilateral conduct like predatory pricing and vertical agreements such as resale price maintenance and exclusive dealing to rule of reason analysis which involved a judicial balancing exercise between anti-competitive effects and pro-competitive justifications such as efficiency. They subjected mergers to the similar rule of reason analysis involving the weighing of anti-competitive concerns such as the creation of unilateral market power against offsetting factors such as efficiencies. The focus of American antitrust was therefore squarely on the effect of restrictive trade practices on competition rather than the general public interest as in the United Kingdom.

Relatedly, the American approach featured a keen incorporation into the required analysis of the application of the statutes of economic theory. The United States had also by then set up the Federal Trade Commission as the agency charged with preventing unfair methods of competition including by investigating and bringing civil enforcement against entities engaging in various forms of restrictive trade practices. Finally, there was the Canadian approach, which interestingly featured the Anti-Combines Act of 1889, which was the first trade practices legislation anywhere in the world and which had inspired the Sherman Act in the United States the following year.

The Canadian legislation criminalised arrangements amongst suppliers to eliminate competition over a substantial part of any market by price-fixing, output restrictions or distribution restrictions. The difficulty with the Canadian legislation really lay in its criminal sanctions which had led or which contributed to Canadian courts interpreting its provisions rather narrowly and leaving it largely ineffective in practice. But back in Australia, while Barwick undertook his study of antitrust legislation, opposition was fermenting in the Menzies Cabinet spearheaded by John McEwen, who was the Minister for Trade.

Over the next couple of years in the early 1960s, opposition to Barwick's attempt at reining in restrictive trade practices continued to build within the coalition parties. But in Barwick's corner were Harold Holt and Billy Snedden and so his work continued. By 1962, about two years since the international survey had gotten underway, Barwick was still uncertain whether to follow the American approach of a hard stick in the form of absolute prohibitions on certain anti-competitive practices which could be backed up by criminal sanctions or the British approach of setting up a public register for such practices and evaluating them in the light of the perceived public interest.

Finally, in November 1962, after an intense period of work in which he was directly involved, Barwick had formulated what he regarded as a sensible and workable scheme to regulate harmful restrictive practices. Rather than presenting that scheme in the text of a bill, Barwick instead tabled for discussion of White Paper that outlined what a legislation would look like in broad compass. The White Paper which was tabled in December 1962 envisaged a path between the American and the British approaches. Four practices were to be prohibited outright, collusive marketing, collusive, tendering, predatory pricing and misuse of monopoly power echoing very much the American approach.

Other horizontal and vertical arrangements and practices such as resale, price maintenance, discriminatory dealing, and certain mergers were to be required under threat of criminal sanction to be registered on a private register. Registered practices were to be allowed to continue but could be challenged by a member of the public or the Attorney-General in which case certain defences would be available, one of them being where the practice could be said to have worked no public detriment or to be otherwise justified echoing in this respect the British public interest test, but with just a little hint of American rule of reason-style analysis.

The Labor opposition including one Lionel Murphy was impressed, but this moment of success for Barwick would prove fleeting. In the new year of 1963, Barwick's opponents within government seized on the paper mountain that would attend the proposed register with every business in Australia being expected to reduce their anti-competitive practices and arrangements to writing and to have that writing filed on the register. Barwick remained obdurate in the face of such criticism which was mounting by the day as although the proposal was there to see in the White Paper, no draught legislation was forthcoming. In fact, Barwick did not give any formal direction for the preparation of any bill.

An editorial in the Sydney Morning Herald remarked that "at present there is a massive confused promises with no leads on what actually will appear in the legislation when it makes its long delayed appearance." A stalemate had resulted. The tide was turning against Barwick, yet he continued to fight for his trade practices reforms, campaigning for his original White Paper proposals during the 1963 election campaign. When the Menzies government was re-elected however, Menzies was no longer willing to have Barwick as Attorney-General.

Confronted by continued opposition within the coalition parties to Barwick's proposals and powerful lobbying by trade associations, yet simultaneously pressured by the public's expectation of some trade practices legislation coming into existence, Menzies elevated Billy Snedden to be Attorney-General. In April 1964, Barwick was appointed Chief Justice of the High Court and so we have a little interlude here between Barwick and Murphy where Billy Snedden takes the stage. The political drama around restrictive trade practices legislation then moves to Snedden. He was tasked with getting the legislation drafted and ready to present to the House of Representatives. This was no mean feat.

Snedden himself was sympathetic to legislating to curb restrictive trade practices as I mentioned earlier, and he was confronted with growing hostility to the idea within cabinet and with the growing increasingly antagonistic chorus of the trade associations opposed to the measure. When in May 1965 the Trade Practices Bill was finally prepared, it reflected how far Snedden had to walk back from Barwick's early proposals in capitulation to the political pressures that he was facing from within and without. A few aspects of the 1965 Bill were mentioned. First and most immediately, the 1965 Bill only created offences for collusive tendering and collusive bidding rather than for monopolisation and predatory pricing as well, all for having been suggested to be outlawed by Barwick.

Next, the 1965 Bill established a private register of trade agreements. Similar to what Barwick had suggested in his White Paper were examinable agreements was agreements between competitors which imposed cartelising restrictions involved price discrimination or third-line forcing refusal to deal or monopolisation and the like had to be registered after any agreement was made. Failure to register such agreements was to be an offence. Resale price maintenance did not feature expressly among restrictions which were to be registered running against what Barwick had earlier proposed, but Snedden edged this by asserting that some resale price maintenance agreements would be examinable agreements. Anyway, that's what he said and he stuck to it.

The 1965 Bill also created the Office of the Commissioner of Trade Practices, which of course would come to be occupied with the greatest of distinction by Ron Bannerman. The Commissioner was to be responsible for bringing restrictive practices and agreements whether registered or not for the Trade Practices Tribunal. If the Commissioner considered the practice or agreement to be contrary to public interest and had undertaken consultations with the respective parties, the Tribunal would then be required to determine if the restrictive practice or agreement was contrary to the public interest echoing the British registration model.

The consequence of the Tribunal determining that a restrictive practice or agreement was contrary to the public interest was that the relevant restriction was to be unenforceable, but only on and from the date the Tribunal so determined. Other relief was also available such as an order to restrain a person from giving effect to impugn agreement or from further engaging in an impugned practice. Those who suffered loss or damage from the contravention of orders of the Tribunal declaring a restrictive practice or agreement to be contrary to the public interest could recover that amount of loss or damage and the Commissioner could also provide negative clearance to a restrictive practice or agreement if the Commissioner was satisfied that the practice or agreement was not contrary to the public interest.

In his second reading speech, Snedden said that the legislative purpose was to preserve competition in Australian trade and commerce to the extent required by the public interest and he said that competition is an essential ingredient for a free enterprise economy. Snedden paid homage to Barwick's White Paper presented in 1962 and went on to say that the Bill contained a number of changes from Barwick's proposals to ensure that the legislation would be effective without constituting any unnecessary interference to business.

Snedden acknowledged that the Bill did not have any provisions about mergers or takeovers describing the issue as one of great complexity. He did not mention the Clayton Act in the United States, which was directed to mergers which could substantially lessen competition. Indeed, the turn away from Barwick's contemplation of the American model in that respect was marked. Subsequent debate on Snedden's Bill resumed in November 1965. The leader of the opposition Gough Whitlam with customary colour remarked that its “period of gestation had been so excessive that the father of the legislation had left the house to become Chief Justice of Australia” and that the “foster father” said the present Attorney-General Mr. Snedden has “had to accept responsibility for a much more puny child than numerous progress bulletins had led members of the Parliament and the community to expect.”

While the opposition highlighted the deficiencies of the Bill, it agreed that some legislative action was necessary. The legislation was passed in December of 1965 and the 1906 Act, which you pretty much read on the books, was thereby repealed. The Australian Trade Practices Regulation was then in 1965 firmly in the mode of emulating the United Kingdom, though in a distinctively Australian way. Despite the 1965 Act shying away from Barwick's vision, it was still bold in one aspect. That aspect was how the 1965 Act represented the first attempt to use the corporation's power in Section 51(20) of the Constitution as one of the supports for this kind of legislation since the decision of the High Court in Huddart Parker.

But the manner of the taking of that one bold step would prove to be the unravelling of the 1965 Act, that modest piece of legislation. The unravelling came six years later in 1971 at the hands of the Barwick High Court in a case of Strickland and Rocla Concrete Pipes Proprietary Limited. The Concrete Pipes case involved a defendant who had been charged with offences against the 1965 Act having not furnished necessary particulars relating to an agreement concerning the supply of concrete pipes within Queensland. A majority of the High Court, including Chief Justice Barwick, contemplated a wider vision of Section 51(20) of the Constitution than had been accepted in Huddart Parker and considered that Huddart Parker as a precedent of the High Court was wrongly decided and should be overruled.

Majority nonetheless held that the 1965 Act was incapable of being supported by the corporation's power because of a glitch in the drafting. Writing alone, as was his characteristic, Chief Justice Barwick said that he was clearly of opinion that the Parliament could have made a valid law in the terms of the Act, but that because of the manner in which the Parliament expressed its enactment, the Parliament had not done so. Barwick was no doubt convinced that had he drafted the Bill for the 1965 Act, the outcome would have been different as it was the 1965 Act was gutted by a return to the role of the Barwick Court on trade practices law in Australia, but the 1965 Act having been so gutted in 1971, the scene then turned back momentarily from Billy Snedden to Lionel Murphy.

Even before assuming the Office of Attorney-General upon the election of the Whitlam government in 1972, Murphy said in an interview that he intended to tackle the fact that the government had no effective trade practices laws and that it had never coped with the problems of monopolisation. Murphy considered that meaningful action on the restrictive trade practices was part of the law and order mandate in what he described as the economic field. To add economic heft to his own vision of doing more against restrictive trade practices, Murphy enlisted the assistance of Ted Wheelwright, one of the pioneers of the Australian political economy.

Wheelwright worked as a consultant for Murphy in early April 1973 and in that capacity he prepared what would become an influential memorandum entitled, “A new province for law and order – a possible rationale.” The Wheelwright memorandum outlined that the public interest is reflected in the fact that every person is a consumer and that the main function of all economic activity is to provide the community with the goods and services it requires at the lowest possible cost. This rationale marked a reinvigoration of Australian restrictive trade practices regulation according strongly to the American antitrust approach.

The Whitlam government rewrote its version of trade practices legislation in the form of the bill for what would become the 1974 Act to include much tougher economic controls modelled on the old Act of 1906 and influenced not only by the Sherman Act but also by the Clayton Act and the Robinson-Patman Act. Its regulation of restrictive trade practices was to be contained in a set of seven provisions within part four involving the simplicity of sections one and two of the Sherman Act. Those provisions encompass prohibitions of not criminal offences as in the United States on non-price fixing contracts, arrangements and understandings which involve restraints of trades, monopolisation practices such as taking advantage of market power to eliminate or substantially damage a competitor, exclusive dealing and resale price maintenance.

It prohibited price discrimination and mergers if it would substantially lessen competition in the market and it prohibited price fixing contracts, arrangements and understandings and restraint of trade if they had or were likely to have a significant effect on competition. Pecuniary penalties could be ordered by a court for each contravening act or omission among other remedies such as detailed for contraventions or for the anti-competitive merger prohibition. Akin to the United States Federal Trade Commission, a new Trade Practices Commission was to be set up instead of the single Commissioner of Trade Practices under the 1965 Act.

The Commission was to be responsible for granting any authorisations for contracts, arrangements and understandings in restraint of trade and clearances for contracts, arrangements and understandings. Any proposed exclusive dealing or merger of such authorisation and clearance would result in substantial benefits to the public as well as instituting proceedings against contraventions of the Act. The Commission was also to have responsibility to make information available about the Commission and information and relevant matters to consumers, conduct research into matters affecting the interests of consumers and publicise the rights and obligations of persons under trade practices legislation to guide consumers. In all of this, the role of the Commission, the Trade Practices Commission was to mirror the public-facing role of the Federal Trade Commission in the United States.

In a second reading speech, with more than a hint of gloating, Murphy said this, "The purpose of the Bill is to control restrictive trade practices and monopolisation and to protect consumers from unfair commercial practices. The Bill will replace the existing 1965 Act, which has proved to be one of the most ineffectual pieces of legislation ever passed by this parliament. The Bill will also provide on a national basis long overdue protection for consumers against a wide range of unfair practices." Murphy went on in the same speech to say this, "Legislation of this kind is concerned with economic considerations. There is a limit to the extent to which such considerations can be treated in legislation as legal concepts capable of being expressed with absolute precision. Such an approach leads to provisions which are complex in the extreme and give rise to more problems than they remove.

The present Bill recognises the futility of such drafting. Many matters have of course had to be stated in detail, but other provisions, particularly those describing the prohibited restrictive trade practices have been drafted along general lines using wherever possible well understood expressions. I am confident that this will be more satisfactory. The courts will be afforded an opportunity to apply the law in a realistic manner in the exercise of their traditional judicial role."

Unsurprisingly, given its scope and potency, the Bill faced strenuous opposition and difficulties in mustering sufficient votes to pass. When the Labor Party was returned to government following the double dissolution, debate on the proposed legislation resumed and finally on the 23 August 1974, following a special sitting, the Trade Practices Act of 1974 passed. The Attorney-General's Department placed print advertisements and cartoons in various newspapers around the country to inform the public about this new piece of legislation. One of the advertisements gave tips to the reader on how to find the answers to questions they might have about the 1974 Act. The first tip was this: “purchase a copy of the Act and study it.”

Though notable for its strong turn to the American antitrust approach, which involved judicial interpretation and application of otherwise brief and flexible statutory text, the 1974 Act adopted a distinctively Australian approach to the problem of restrictive trade practices. It was in that way, hope I get this word correct, it was coined by Bob Baxton and Maureen Brunt, but it was in that way “Austerican.” At least, that's how they described it at the time. They were of course, Baxt and Brunt, luminaries of Australian competition law and they were keenly attuned to the possible influence of American antitrust law and economics in Australia having both undertaken postgraduate study in the United States, one in law and the other in economics.

Baxt and Brunt observed that the statutory text of the 1974 Act was pitched at a somewhat lower level of generality than the American legislation, perhaps precisely because a different body of law was desired from the government, but that it remained the case that some knowledge of American interpretation was essential background. A few years later following a visit to Australia, Stephen Breyer, who was then a professor at Harvard Law School, squarely considered the question of how American antitrust principles and law might be relevant in Australia.

Breyer acknowledged that there were differences between the Australian and American antitrust systems, yet Breyer considered that the virtually identical objectives of Australian and American antitrust law meant that economically oriented analysis in interpreting antitrust laws would be useful for Australian judges to adopt as American judges had. He highlighted various aspects of the 1974 Act, which called for considered reflection including how to interpret significant effect on competition, the issue of market definition, the scope of the prohibition on price discrimination and how to discern anti-competitive agreements from interdependent parallel conduct. The quest goes on.

The success of the 1974 Act is said to have rankled Barwick in illustrating what he had failed to produce a decade before. With the appointment of Murphy to the High Court in February 1975, the two political antagonists who sit became judicial antagonists. It is the lives of Barwick and Murphy in their judicial capacities sitting together on the High Court to which I turn finally,  considering how the two engaged with cases arising from the 1974 Act in light of their shared political commitment to legislating against the evil that they sought to confront.

So Barwick and Murphy on the High Court, during the six years of overlap with Barwick and Murphy on the bench, the court heard 11 cases raising issues about the 1974 Act. As had become the practice in the Barwick court, judgements were largely authored individually though Barwick and Murphy agreed with each other in the outcome in all but three of those 11 cases, Barwick never concurred with the reasons of Murphy and Murphy never concurred with the reasons of Barwick.

The difference lay not in their appreciations of the substantive area of restrictive trade practices or in different approaches to the constitutional underpinning of the 1974 Act. The differences between them rather lay in the legal method which each adopted. Indeed, one of the key commonalities between Barwick and Murphy was on the scope of Section 51(20) of the Constitution of the corporation's power, which Barwick had contributed to broadening the Concrete Pipes case and upon which Murphy had relied in crafting the 1974 Act.

So the first of the trade practices cases which came before them, a case called Quadromain heralded the first sign of this methodological rather than substantive difference between the two judges. At issue in Quadromian was a restrictive covenant that ran with a lot of land and required that the land would not be subject or be the subject of an application for a liquor licence in circumstances where the adjoining lot was used as a hotel. Barwick, who was in the majority, held that a restrictive covenant running with land did not constitute a restraint of trade. Murphy in dissent agreed with Justice Jacobs who considered that the restrictive covenant there at issue had the purpose and effect of the protection of the business of the covenantee from competition.

Quadromain illustrated that Barwick preferred what we would label legalism while Murphy tended to what we would label legal realism being influenced in this area in particular by the jurisprudence of William O. Douglas on the United States Supreme Court. The difference in legal method was shown even more starkly a few years later in a case called Interstate Parcel Express, which was a parallel importing case involving the bookseller Angus & Robertson. In that case, Barwick agreed entirely with the reasons of Justice Stephen who had said that any undesirable economic or cultural effects which some may discern as flowing from this aspect of copyright protection are a matter for the legislature.

Murphy, though agreeing in the dispositive copyright issue that there was no requisite licence to sell imported books said that once the facts of a case disclose the reasonable possibility of a serious breach of the Trade Practices Act or injury to the public interest by a party, the court can and should require the party to negate this before exercising discretion to grant relief in its favour. Murphy thus sought in effect to set up the 1974 Act as a condition precedent to any sanction the court might otherwise give conduct that is otherwise made lawful for other legislation.

In the vein of legal realism, Murphy sometimes invoked what Parliament had done in legislating the 1974 Act implicitly bringing to bear his close political experience with the legislation. He noted for instance how Parliament had not legislated comprehensively or exhaustively for consumer protection but had rather adopted selective regulatory measures, which therefore allowed for other protective state legislation as well as how the words trade or commerce in Section 52 in Part 5 of 1974 Act being part of the consumer protection provisions of which Murphy was especially proud as a politician were extremely wide in their scope and were not to be limited or qualified by the heading of the part which was consumer protection.

I'm not going to go in any more detail through the case law. You'll be spared that. There are a few footnotes in what I hope will be the published version of this paper that will go into it a little more. So the story I have told I think can be described as one of rivalrous behaviour undertaken by protagonist of different motivations, but which has mysteriously contributed to the common good. I've sung the praises of Barwick who built political momentum for the trade practices legislation in Australia and who embarked on a thorough and worldly approach to its design and I have sung praises of Murphy who was instrumental in crafting and in successfully enacting legislation which responded to the harms which had been identified by Barwick. With that legislation, the essentials of which have now stood for more than half a century. To return to the words of Earl Warren in his letter to Barwick in 1961, Australia has indeed grown up. Thank you for listening to me.

GINA CASS-GOTTLIEB:

Good evening. It is a great pleasure to be here together with all of my colleagues from the ����ԭ�� and to be joining with the Law Council in yet again holding this wonderful event. I thank you Chief Justice Gageler for delivering this striking and insightful lecture this evening, which is indeed a fine testament to the times and the life work of Ron Bannerman. Your Honour's long-standing contribution to the development of competition law, many of us were really privileged to work with you and instruct you in a number of cases, both as a leading counsel and as a Justice of the High Court, reflects a deep understanding of the balance between legal principle, economic reality and the history and purpose of this key legislation.

It's a particular privilege to hear your reflections on the development of Australia's competition law and the influence of its early architects, Garfield Barwick and Lionel Murphy. I believe your lecture engrossed us in an exciting history and as an economic historian at heart, it is truly a great history which weaves together the economic, political and personal experience and motivations which formed the Trade Practices Act. As you described, despite their political differences and contests, Barwick and Murphy played complementary roles in shaping the legislative foundation of competition law in Australia.

As you really beautifully described, Barwick was driven to remove the barriers and burdens. He, in fact, had himself personally faced of restrictive practices to achieve free and fair markets in which businesses including small businesses can compete on their merits. Murphy placing the consumer at heart enshrining an American antitrust approach to the consumer welfare benefits of effective competition and incorporating fundamental consumer protection measures as well. Thus, we had the creation of a virtuous fusing of the promotion of competition and fair trade with the protection and empowerment of consumers and the very inspiration of our competition law, indeed, thereby creating at that time in 1974, one of the world's most comprehensive pieces of consumer protection.

During both their tenures, Ron Bannerman served as a steward of the law. He is a true model of the value of stewardship for current and future generations. That is a key duty of public service. Really appropriately, his family who are here with us are duly proud of that significant contribution that he made. Appointed in 1966, he's the first and sole Commissioner of Trade Practices, Ron was charged with implementing, before it became defunct in 1971, the New Trade Practices Act 1965. Recognising both the limitations and potential of the Act, Ron contributed to shaping the imperative and the foundation for further reform.

Ron's determination and experience as commissioner contributed to and supported passage of the more far-reaching Trade Practices Act in 1974, under which he was appointed Chair of the newly created Trade Practices Commission. For more than two decades at the helm of the TPC through education, advocacy and enforcement action, Ron helped bring competition regulation from its policy inception by these two warring fathers really to the centre of economic governance.

Professor Maureen Brunt, whose research and advocacy supported the case for the law as a foundation member of the Australian Trade Practices Tribunal, reflected that one of the striking things was first of all how novel the Act was, but secondly, how it made an immediate impact, absolutely immediate impact so that after only 20 years, the economy was transformed. It's an extraordinary thing. Together, Barwick, Murphy, Bannerman and Brunt made Australian competition law not only politically possible, but technically sound, economically informed, socially relevant and anchored in public purpose. Their legacy is the Competition and Consumer Act as we know it today, a law that treats competition not as an end in itself but as a means to support consumer welfare, promote economic efficiency and foster innovation.

When giving this lecture last year as in fact was referred to earlier at the beginning, Treasurer Jim Chalmers announced plan reforms to merger laws, the most significant change to this Act in over half a century. Quite miraculously, really those reforms were passed before the end of the same year in November and will come into effect from January 2026. The new merger regime reflects the principles identified by its founders that competition policy must be credible, evidence-based and aligned with the broader goals of economic and social policy. Successful implementation, which we are all working very hard on in this room of the new merger regime is critical.

As Ron himself observed, it's a fundamental mistake to regard the near passage of law as curing problems. Law gathers respect only through the acceptance or enforcement of it. It's a task for public administration in a new field to build support for the law and to develop acceptance of it from those directly affected. In this new chapter as we transition to the new merger regime, we at the ����ԭ�� are dedicated to and will work with the community of competition lawyers to achieve the objectives of this reform.

I want to thank the Law Council for continuing to host and support this important event each year. I also join in warmly acknowledging the members of the Bannerman family who are with us today. It is a true joy to share this celebration of Ron's work with you and to contribute to the enduring legacy of Ron Bannerman in the work that we at the ����ԭ�� do.

This evening I'd also like to take this opportunity to acknowledge Commissioner Liza Carver for her significant contribution to the ����ԭ�� and to the broader field of competition and consumer law. Liza has played a key guiding role in the ����ԭ��'s enforcement and litigation work in recent years. She has brought her formidable intellect and clarity to our merger reform program, chaired key committees and has been a strategic advisor across the breadth of our functions. Her contributions have shaped not only outcomes, but how we think about our role as regulator.

I particularly want to note that Liza was the first regulator and the first woman to deliver the Bathurst Lecture last year. In her address, she noted the changing role of competition and consumer law in controlling and influencing commercial behaviour has been driven by changes in community values and expectations for over a century. While this is true for all areas of law, it is particularly the case in this field.

In the 1984 TPC Annual Report, Ron reflected on the vital contribution of lawyers to the Trade Practices Act, noting that they have always taken part in the administration of the trade practices law, whether for companies or the TPC. As Liza prepares to return to private practice, we thank you for your extraordinary service and wish you the very best for what comes next.

At the start of his lecture, your Honour, you referred to the many challenges in trade practices regulation at the time in its design and in its realisation. I recognise these challenges. I have confidence we are well positioned to go forward. My confidence is based on four foundations. First, as demonstrated by the passage of the merger reform last year, we continue to have bipartisan political support for the critical importance of competition and consumer regulation. Second, that our law is strong because it is a fusion of law and economics. Thirdly, that we are benefited by the richness of judicial deliberations in our jurisprudence and finally because as Ron observed, the law cannot itself produce the competition. You need people with the will for competition. Barwick and Murphy lived that will. We in this room and many across the community have the will and spirit for competition and all the benefits it brings. We go forth with strength. Thank you.

PETA STEPHENSON:

Thank you, and it's my great pleasure to be offering a very short note of thanks to our speakers this evening. We are deeply grateful to Chief Justice Gageler for his insightful address or story and to the Chair for her considered comments. He Honour spoke of the similarities of Justice Barwick and Justice Murphy and it is striking to observe the similarities between our speakers tonight and their experience. Both have pursued studies in law and economics equipping them with a dual perspective that is really invaluable in the field of competition and consumer law. Each has also undertaken advanced legal studies in the United States, and as we all watch the turbulence that is taking place across the Pacific in antitrust policy and enforcement, we may seek their insights over a refreshment shortly. Bearing in mind his Honour's nothing controversial rider, of course.

Their similar paths marked by academic excellence and international perspective has led them to the positions they are in today and it is fitting that tonight we have heard from these two people who exemplify the intersection of rigorous legal analysis and a deep understanding of economic principles, qualities that are at the heart of effective competition and consumer law. On behalf of everyone present, I thank you both for your insightful observations tonight and for your ongoing contribution to the development of competition law and policy in Australia. And now on behalf of King & Wood Mallesons, I welcome you all to join us outside for refreshments. Thank you.