Introduction – the pivotal element of a provision
The cartel offences and civil prohibitions on cartel conduct under the TPA are directed at conduct involving a contract, arrangement or understanding between competitors that contains a particular type of provision. The element of contract, arrangement or understanding is the subject of Chapter 3. This chapter focuses on the pivotal element of a provision.
As outlined in Chapter 2, in 2009 the CC&OM Act introduced a set of cartel offences and parallel civil per se prohibitions into Div 1 of Pt IV. The amendments repealed the pre-existing per se prohibition relating to price-fixing provisions and, while retaining the per se prohibitions relating to exclusionary provisions in s 45(2)(a)(i) and (b)(i), introduced per se offences and prohibitions directed at various types of provision, collectively falling within the definition of a ‘cartel provision’. The s 45(2)(a)(ii) and (b)(ii) prohibitions relating to provisions that have the purpose, effect or likely effect of substantially lessening competition were unaffected by the CC&OM Act.
Reading the Div 1 offences and prohibitions together with the prohibitions in s 45(2), the relevant provisions may be referred to as:
output restriction provisions
market allocation provisions
All except the last of these provisions are subject to per se liability. In the case of each of the per se offences and prohibitions, the definition of the relevant provision is found in a section of the TPA separate from the offences and prohibitions themselves.