Competition Law

The Australian market thrives on the free and uninhibited flow of goods and services, whether they derive from a small, family business or a large corporate conglomerate. To ensure that every business has an equal opportunity to compete, most jurisdictions around the world have enacted laws which prevent people from deliberately setting out to injure another’s business.

mdp McDonald Partners can provide advice when competition issues arise in commercial business dealings and transactions.

Competition law issues typically arise in connection with conduct by business which has the effect of impermissibly lessening the ability of one’s competitors to operate in the market. Each jurisdiction has extensive legislation in place which regulates anti-competitive conduct. Without careful planning and consideration, it is easy to unintentionally fall foul of these broad restrictions. We are able to identify, assess and reach a workable commercial solution in connection with any competition issues that might arise in your commercial transaction.

The central piece of legislation in regulating competition law is the Trade Practices Act 1974 (Cth) (“TPA”). The TPA prohibits:

·         Collusive conduct – price fixing, agreeing to exclude a competitor or other conduct which reduces competition

·         Misuse of market power – using your market dominance to eliminate a competitor or to deter them from entering the market to compete

·         Exclusive dealings – supplying or acquiring goods or services on the condition that the recipient or supplier wont deal with your competitors and other anti-competitive restrictions on dealings

·         Third line forcing – supplying goods or services on the condition that the customer must acquire goods or services of a particular type from someone else

·         Resale price maintenance – refusing to supply goods to an acquirer unless they agree not to re-sell them below a certain price

Issues of competition law can also arise in an international context. For example, there it is an offence to engage in ‘price dumping’ in Australia; that is, to export goods to Australia and sell them below the normal value of the goods in the country.

Also, an important aspect of many service contracts are clauses relating to restraint of trade; that is, clauses which prevent a person from competing against you for a certain period of time. We have extensive experience in drafting enforceable restraint of trade clauses and also in litigating these clauses in court, either seeking to enforce or remove clauses of this kind.

Consumer Law

The Australian Competition and Consumer Commission (“ACCC”) regulates corporations in relation to anti-competitive behaviour, but also in dealings with consumers at a national level. By far the biggest obligation that corporations have in relation to consumers is not to engage in misleading or deceptive conduct. There are also various State bodies that regulate similar consumer protection provisions at State level.

Companies and businesses need to be aware of their obligations and ensure that:

• their advertising is not likely to be considered misleading or deceptive;
• their policies are not likely to contravene State or Commonwealth consumer laws.

mdp McDonald Partners can assist by:

• Conducting trade practices audits of your company’s policies to identify trade practices issues and concerns. Trade practices audits are often conducted in conjunction with intellectual property audits, which look at whether intellectual property assets are being identified and protected, as well as identifying an areas of concern such as intellectual property infringement.
• Providing trade practices training and workshops for management and other.
• Review marketing campaigns and packaging to ensure that it does not contravene consumer laws.

Trade Practices and Competition Law Publications

• Case Study: Rinnai Australia Pty Ltd v Minister of Customs
• Case Study: Ecology Homeware Packaging – Green Marketing
• Environmental Marketing: Your Legal Obligations

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For more information please call us on +61 3 9620 9660 or send us an e-mail at info@mdplaw.com.au. We are here to help.