Section 4D
Exclusionary Provisions

(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

(b) the provision has the purpose of preventing, restricting or limiting:

(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

(2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first‑mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.

Inserted by Trade Practices Amendment Act 1977 (Act 81 of 1977)

Amended by Trade Practices Amendment Act 1978 (Act 206 of 1978)

Amended by Trade Practices Revision Act 1986 (Act 17 of 1986)

Repealed by Competition and Consumer Amendment (Competition Policy Reform) Act 2017.

Exclusionary provisions are prohibited by s 45.

The prohibition was inserted following recommendations of the Swanson Committee.

The prohibition was repealed as part of the Harper Reforms. Since the introduction of separate cartel laws in 2009 (Division 1) there had been considerable overlap between the s 45 prohibition on exclusionary provisions and cartel conduct (in the form of output restrictions). The definition of cartel conduct in s 45AD was also amended as part of the reforms to account for any gap arising from the repeal of the separate prohibition against exclusionary provisions.