This Fireside Chat is a tale of two prohibited forms of conduct- exclusionary provisions and price-fixing- and why and how these prohibitions arise. A CAU containing or giving effect to the former (which is defined in s4D) or the latter-as defined in s45A, must be authorised to avoid offending the TPA. It is suggested the per se prohibitions of forms of conduct that is almost always anti-competitive in purpose and/or effect is an efficiency enhancing approach that side-steps the need for a detailed market analysis.

In both cases any CAU must include at least two parties who are competitors with each other and must, in the case of exclusionary provisions, be entered into for a prohibited purpose and, in the case of price-fixing, have either the purpose or effect or likely effect of Substantially lessening competition via the deeming provisions of s45A. The terms “competitor” and “purpose” receive detailed discussion and this overview concludes with a discussion of the role of prohibited purposes in Part IV of the TPA.

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In this session we discuss the important role of section 45 of the TPA. I mention that we devote three of our e-tutorials to this section which alone is indicative of it significance.

The section operates to both ban (unless authorised) exclusionary provisions and horizontal price-fixing. We discuss the breadth of the term CAU as extending well beyond contracts (see British Slag) and indicate that an old friend from contract days, the Rose and Frank* “binding in honour only” case, would have qualified as a CAU under the TPA.

We note that s45 defers to those arrangements better dealt with under ss 47,48 and 50 respectively. Thus the general provisions of s45 operate in a somewhat residual fashion and only if the purpose or effect (actual or likely) is to substantially lessen competition. This brings in the importance of correct market definition-including in cases such as Rural Press, appreciating the restricted regional nature of some markets. Our survey concludes with an emphasis on the fact that some agreements or failures to agree can have “pro-competitive synergies” (.Tyree Transformers), legitimate purposes (Dowling v Dalgetty), whereas others are unduly self-protective (ASX v Pont Data) or lurk behind ethical rhetoric (Media council and Engineering cases mentioned and the position of AMA and Pharmacists discussed).

* Rose & Frank Co v Crompton Bros Ltd [1925] AC 445

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