The Trade Practices Act provides a system under which businesses can obtain access to essential facilities that cannot be economically duplicated, but to which access is necessary in order to compete. It does this by setting up a mechanism under which:
services provided by essential facilities can be 'declared';
businesses can obtain access to 'declared' services; and
owners or those in control of a facility can give the ACCC access undertakings.
The Trade Practices Act contains a telecommunications specific access regime which requires network operators to offer 'declared services' (such as interconnection and local loop access) to their rivals. The ACCC has the power, under some circumstances, to arbitrate access disputes and will do so using a long run incremental cost approach.
BREACHING THE TRADE PRACTICES ACT
The penalties for breaching the Trade Practices Act are substantial. The maximum penalty for a corporation breaching the competition provisions of the Act is $AUD10 million and the consumer protection provisions, $AUD500,000. Individuals can also incur penalties for breach of the competition provisions of up to $AUD200,000 and the consumer protection provisions of up to $AUD40,000. In addition, damages and other remedies may be awarded.
The Trade Practices Act implications of business conduct and transactions can often be complex. It is for this reason that it is advisable to seek professional advice on the issue before carrying on business in Australia or entering into a transaction which may affect a market in Australia.
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The information contained in this article has been prepared by the Minter Ellison Legal Group. Professional advice should be sought before applying the information to particular circumstances.
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