Trade Practices Act 1974 (Cth)
Section 4D
Exclusionary Provisions
The provision
(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:
(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and
(b) the provision has the purpose of preventing, restricting or limiting:
(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or
(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;
by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.
(2) A person shall be deemed to be competitive
with another person for the purposes of subsection (1) if, and only if,
the
first‑mentioned person or a body corporate that is related to that person
is, or is likely to be, or, but for the provision of any contract, arrangement
or understanding or of any proposed contract, arrangement or understanding,
would be, or would be likely to be, in competition with the other person, or
with a body corporate that is related to the other person, in relation to the
supply or acquisition of all or any of the goods or services to which the
relevant provision of the contract, arrangement or understanding or of the
proposed contract, arrangement or understanding relates.
Legislative history
Inserted by Trade Practices Amendment Act 1977 (Act 81 of 1977)
Amended by Trade Practices Amendment Act 1978 (Act 206 of 1978)
Amended by Trade Practices Revision Act 1986 (Act 17 of 1986)
Commentary
Exclusionary provisions are prohibited by s 45.
The prohibition was inserted following recommendations of the Swanson Committee.
