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Cartel output restrictions - construction and common sense collide and particularity problems with 'persons' under the Trade Practices Act 1974

Ian Wylie
(2010) 38 Australian Business Law Review 23

 

Abstract

This article examines parallel civil and criminal prohibitions on output restrictions which came into force on 24 July 2009, extending the previous law in ss 45, 4D and 45A of the Trade Practices Act 1974. As the new cartel prohibitions are untested, the relevant principles of construction are first noted, followed by analysis and construction of the relevant parts of s 44ZZRD and following sections in the Act. Reference is made to the extent to which conduct must be directed towards particular persons to give rise to other per se contraventions of the Act to inform that construction exercise. Finally, the scope of potential overreach of the output restriction cartel prohibitions to proscribe legitimate commercial activity, and the position in other jurisdictions, is considered.

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