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Competition Law Reading Room

What is an exclusionary provision? Newspapers, rugby league, liquor and beyond

I S Wylie
(2007) 35 Australian Business Law Review 33

 

Abstract

Practitioners have long struggled to identify whether and when their clients entering into joint ventures or other pro-competitive arrangements might inadvertently fall foul of the per se proscription of exclusionary provisions in ss 4D and 45(2) of the Trade Practices Act 1974 (Cth). Proposed amendments following the Dawson Review in 2004 partially addressed this issue by providing for common treatment of price fixing and exclusionary provisions with the introduction of a broader joint venture defence with a competition test. The resulting Dawson Bill finally passed in the Senate on 19 October 2006. At the time of writing, it is relevantly anticipated to commence on 1 January 2007, but it does not make any change for non-joint venture arrangements. The current legislation was the subject of two High Court decisions in 2003, South Sydney and Rural Press. Most recently, the first instance judgment in Woolworths, which considered in some detail and sought to apply those cases, was delivered on 30 June 2006. This article accordingly explores the current state of the Australian case law and legislation, how effectively it is being applied and whether there is room or need for change.

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