The Cartel Bill incorporates new exemptions to the
prohibition on cartel conduct to ensure consistent treatment under
the new provisions of currently exempt conduct.
The Trade Practices Amendment (Cartel Conduct and Other
Measures) Bill 2008 was introduced into Parliament on 3 December
2008 after 12 months of Government consultation and the release of
two Exposure Draft Bills (which we discussed
The Cartel Bill contains all of the provisions in the second
Exposure Draft Bill released in October 2008.
In addition, the Bill introduced to Parliament includes
exceptions found in the existing civil provision which arguably
should have been included, but were not, in either of the previous
Exposure Draft Bills.
The inclusion of these exceptions provides welcome certainty for
businesses which currently rely on these exceptions to ensure the
legality of their vertical distribution or collective acquisition
The Six Exceptions
The six new exceptions to the civil and criminal cartel
provisions have been included to ensure that the new cartel
provisions will operate consistently with the structure of the
Five of the six new exceptions are anti-overlap provisions, all
of which exist under the current law:
Agreements for the acquisition of shares or
assets will continue to be considered under section 50 of
the Trade Practices Act 1974 (TPA), rather than the cartel
Dual listed company arrangements (where two
publicly listed companies take steps to align the strategic
directions and economic interests of their respective shareholders)
will continue to be considered under section 49 of the TPA, rather
than the cartel provisions.
Exclusive arrangements, such as vertical
distribution or franchise agreements, will continue to be
considered under section 47 of the TPA, rather than the cartel
Covenants made in real estate transactions
will continue to be considered under section 45B of the TPA, rather
than the cartel provisions.
Resale price maintenance will continue to be
considered under section 48 of the TPA, rather than the cartel
An exception for goods or services "collectively
acquired" will also be included to replicate the exception
currently in section 45A(4) of the TPA.
collective bargaining by small business, if the ACCC is
arrangements which have been formally authorised by the ACCC by
reason of overriding public benefit
joint ventures for the production and/or supply of goods and
contracts, arrangements or understandings between related
The introduction of the Cartel Bill into Parliament signifies
the end of the 12 month process of public consultation and
extensive revision of the Government's cartel laws.
We expect that the final changes to Bill as introduced are a
welcome clarification of the exceptions to the criminal and civil
provisions and will ensure that, once enacted, Australia's new
cartel provisions will operate consistently with the current
structure of the TPA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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