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Unjustified Per Se Criminal and Civil Liability under the Trade Practices Act 1974 (Cth) for Supply Agreements Between Competitors

Brent Fisse
(2007) 32(1) University of New South Wales Law Journal 239

 

First paragraph of article

'Supply agreements between competitors are part of the life-blood of commerce. The competition laws in most countries do not subject such agreements to per se liability for price fixing or other cartel conduct, except for some rare and controversial exceptions.1 That is not the position in Australia. Under the Trade Practices Act 1974 (Cth) (‘TPA’) and the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth) (‘Bill’), procompetitive or harmless supply agreements between competitors may often involve a breach of the per se prohibitions against price fixing and other cartel conduct. The introduction of criminal liability for price fixing and other cartel conduct under the Bill accentuates the significance of this flaw in the legislation. Exposure to the risk of criminal liability for pro-competitive or harmless commercial conduct is doubly absurd and repugnant.'

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