Exclusionary Provisions (boycotts)

About exclusionary provisions

Boycotts Exclusionary provisions (boycotts) between competitors are prohibited per se by section 45 of the Act, and are defined in section 4D. This operates in addition to the cartel conduct provisions which might also capture many forms of exclusionary provisions caught by the definition in s 4D.

Section 45 prohibits making or entering into an agreement containing an exclusionary provision; 'exclusionary provision' is defined in section 4D.

Section 4D defines exclusionary provisions as occurring when parties (two ore more of whom are in competition) make a contract, arrangement or understanding in which the relevant 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.

It is a defence to the exclusionary provision prohibition to demonstrate that the provision was entered into for the purpose of a joint venture and it does not have the purpose, effect or likely effect of substantially lessening competition (s 76C).

Certain secondary boycotts are also prohibited (sections 45D-45DD).