Competition and Consumer Act 2010 (Cth)
Section 45AU
Collective acquisition of goods or services by the parties to a contract, arrangement or understanding
Note: The Harper Reforms came into operation on 6 November 2017. This section has been modified and re-numbered. It was originally numbered section 44ZZRV. This page reflects the changes brought about by the passage of the Competition and Consumer Amendment (Competition Policy Reform) Act 2017. Please visit section 44ZZRV for the provision immediately prior to the commencement of the Harper Reforms.
The provision
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:
(a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); and
(b) either:
(i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or
(ii) the cartel provision is for the joint advertising of the price for the resupply of goods or services so acquired.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.
Legislative history
Amended Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)
The content of this provision did not change - it was simply renumbered
Introduced by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009
Operative: 24 July 2009
Relevant cases
ACCC v Olex Australia Pty Ltd [2017] FCA 222
Case dismissed - cartel allegations
Commentary
Background to introduction
The insertion of this provision was part of the package of reforms introducing criminal penalties for cartel conduct. The reforms also created a parallel civil cartel prohibition, replacing the former s 45A which dealt directly with price-fixing.
The reforms were initially recommend by the Dawson Committee as part of its 2002-2003 inquiry into the Competition Law provisions of the Trade Practices Act.
Cases
In ACCC v Olex Australia Pty Ltd [2017] FCA 222, one of the defendants, Rexel, argued that this defence applied. Justice Beach observed:
[664] Rexel asserts that the cutting fee provision relates to the price of cutting services (assuming for the moment that they can be conceptualised separately) to be collectively acquired by the Wholesalers from Olex. Rexel asserts that by reason of s 44ZZRV(1)(b)(i), ss 44ZZRJ and 44ZZRK do not apply to that provision.
[665] But the cutting fee provision did not involve the collective acquisition of cutting services by the Wholesalers. The Wholesalers were not a buying group (unlike Gemcell). Each acquired cutting services from Olex separately under their own supply arrangements with Olex. The ACCC does not allege that the Wholesalers collectively acquired or negotiated to collectively acquire cutting services (or indeed any other good or service) and there is no evidence of such collective acquisition. In my view, the cutting fee provision does not relate to the price for cutting services to be “collectively acquired” by the Wholesalers. The contended application of the defence in s 44ZZRV(1)(b)(i) therefore fails.
More information
See further information and resources on the cartel page.
