Competition Law Reading Room
Belling the CAU: Finding a substitute for "understandings" about Price
Ian Tonking SC
(2008) 16 Competition and Consumer Law Journal 46
'The ACCC has expressed misgivings about recent judicial interpretation of the expression ‘contract, arrangement or understanding’ in s 45 of the Trade Practices Act in the context of establishing breaches for price fixing, with particular reference to the retail petrol market. This article suggests the court has not changed its approach, but the cases the ACCC is dissatisfied with turned on their facts. Nonetheless, the ACCC’s proposed amendment would not necessarily make the task any more certain, and it may be time to adopt a radically different approach. ‘Belling the cat’ involves ‘undertaking a dangerous enterprise for the common good’, and the author offers his suggestion in order to stimulate debate about what conduct ought to be prohibited.'