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Competition Law Reading Room

Third Line Forcing: Has the Problem Gone Away?

Deborah Healey
[2009] UNSWLawJl 15; (2009) 32(1) University of New South Wales Law Journal 249

 

From Introduction to article

'Third line forcing is one area of the TPA which has been the subject of review and recommendation for amendment to include a competition test on more than one occasion. There has been government commitment to amend. However, substantive amendment has not eventuated although some procedural ‘tinkering’ has occurred. The issue of amendment to include a competition test seems to have dropped off the current amendment agenda in the face of significant lobbying and discussion about other more contentious areas of the TPA.

This brief paper will argue that there is no justification for imposing a per se test on third line forcing; that the continuing failure to introduce a competition test is a mistake; and that the current position of the Australian Competition and Consumer Commission (‘ACCC’) as ‘gatekeeper’ in the process is unjustified in competition terms and terms of cost. It is argued that the ACCC has better things to do than to review numerous third line forcing notifications annually, when most are in relation to conduct which is unobjectionable in competition terms, and few revocations, in fact, occur.'

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