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We work collaboratively with our clients to build strong, sustainable relationships. Our team is committed to delivering consistent high standards of service, and we understand the importance of accessibility. Working with us, you'll enjoy open communication, meaning well scoped, properly resourced and effectively managed matters.

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Latest Case

Providing innovative procurement solutions for local government projects April 20, 2018

We advised City of Casey on the procurement process of the Bunjil Place Project. Bunjil Place is a $125 million civic and cultural precinct for the City of Casey, encompassing an 800-seat theatre and 200-seat … Continued

Latest News

In good hands: Maddocks advises on physio business acquisition April 11, 2018

Wednesday 11 April 2018 Maddocks has advised Zenitas Healthcare Limited on its acquisition of the Agewell Physiotherapy business. Agewell is a mobile physiotherapy provider servicing residential aged care facilities, retirement villages and communities in New … Continued

Latest Article

The right to use plans prepared by a design consultant: the devil is in the detail April 11, 2018

When a design consultant (such as an architect or engineer) brings their plans or designs into material form, copyright will usually subsist in those documents as an artistic work. The designer owns that copyright unless … Continued

Competition and Consumer Amendment (Competition Policy Review) Bill 2017 passed by Parliament – Third line forcing no longer prohibited per se

On 18 October 2017, the Government secured the necessary support in the Senate to pass the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (the Bill). The new legislation will commence from a day to be fixed by Proclamation or, if no earlier day is fixed by Proclamation, the day after 6 months from the date the Bill receives Royal Assent. The Australian Competition and Consumer Commission (ACCC) has indicated that the Bill is scheduled to come into effect in the coming weeks.

The Bill amends the Competition and Consumer Act 2010 (the Act) to prohibit third line forcing only where it has the purpose, effect or likely effect of substantially lessening competition. That is, once the amendments come into effect, third line forcing will no longer be a per se prohibition, but will only contravene the Act if it has the purpose or likely effect of substantially lessening competition, as with the other forms of exclusive dealing prohibited in section 47.

The amendments to the Act followed the Harper Review, which noted that ‘third line forcing is similar to second line forcing, in which a corporation supplies a product on the condition that the purchaser acquires another product from the same corporation (or a related corporation)’. Second line forcing is also known as ‘bundling’ or ‘tying’, and is not prohibited on a per se basis. Rather, it is prohibited where the conduct has the purpose, effect or likely effect of substantially lessening competition.

Further, whilst the Harper Review acknowledged that an exemption was available to corporations engaging in the conduct through the notification process, it found that it was unnecessary, because in most cases the notification will be allowed.

The most immediate implication of the amendments to the Act is that third line forcing conduct which has had to be notified to the ACCC until now to receive legal protection under the Act, will no longer require notification.

Other changes made to the Act include:

  • clarifying that ‘competition’ includes competition from goods and services that are capable of importation, in addition to those actually imported
  • confining the application of cartel conduct provisions to conduct affecting competition in Australian markets
  • changing the scope of the joint venture exceptions
  • removing provisions relating to the anti-competitive disclosure of pricing and other information (known as price signaling)
  • prohibiting a corporation from engaging in a concerted practice that has the purpose, effect or likely effect of substantially lessening competition
  • increasing the maximum penalty applying to breaches of the secondary boycott provisions
  • enabling a corporation or person to notify the ACCC of resale price maintenance conduct, as an alternative to seeking authorisation from the commission for such conduct
  • providing an exemption from the resale price maintenance prohibition for conduct between related bodies corporate
  • extending the ACCC’s power to obtain information, documents and evidence regarding investigations of alleged contraventions or court enforceable undertakings and merger authorisation determinations
  • introducing a ‘reasonable search’ defence regarding the failure or refusal to comply with a notice to produce such documents.

We will continue to keep our clients informed on these amendments and will issue an update when the Bill comes into effect.

On 18 October 2017, the Government secured the necessary support in the Senate to pass the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (the Bill). The new legislation will commence from a day to be fixed by Proclamation or, if no earlier day is fixed by Proclamation, the day after 6 months from the date the Bill receives Royal Assent. The Australian Competition and Consumer Commission (ACCC) has indicated that the Bill is scheduled to come into effect in the coming weeks.

The Bill amends the Competition and Consumer Act 2010 (the Act) to prohibit third line forcing only where it has the purpose, effect or likely effect of substantially lessening competition. That is, once the amendments come into effect, third line forcing will no longer be a per se prohibition, but will only contravene the Act if it has the purpose or likely effect of substantially lessening competition, as with the other forms of exclusive dealing prohibited in section 47.

The amendments to the Act followed the Harper Review, which noted that ‘third line forcing is similar to second line forcing, in which a corporation supplies a product on the condition that the purchaser acquires another product from the same corporation (or a related corporation)’. Second line forcing is also known as ‘bundling’ or ‘tying’, and is not prohibited on a per se basis. Rather, it is prohibited where the conduct has the purpose, effect or likely effect of substantially lessening competition.

Further, whilst the Harper Review acknowledged that an exemption was available to corporations engaging in the conduct through the notification process, it found that it was unnecessary, because in most cases the notification will be allowed.

The most immediate implication of the amendments to the Act is that third line forcing conduct which has had to be notified to the ACCC until now to receive legal protection under the Act, will no longer require notification.

Other changes made to the Act include:

  • clarifying that ‘competition’ includes competition from goods and services that are capable of importation, in addition to those actually imported
  • confining the application of cartel conduct provisions to conduct affecting competition in Australian markets
  • changing the scope of the joint venture exceptions
  • removing provisions relating to the anti-competitive disclosure of pricing and other information (known as price signaling)
  • prohibiting a corporation from engaging in a concerted practice that has the purpose, effect or likely effect of substantially lessening competition
  • increasing the maximum penalty applying to breaches of the secondary boycott provisions
  • enabling a corporation or person to notify the ACCC of resale price maintenance conduct, as an alternative to seeking authorisation from the commission for such conduct
  • providing an exemption from the resale price maintenance prohibition for conduct between related bodies corporate
  • extending the ACCC’s power to obtain information, documents and evidence regarding investigations of alleged contraventions or court enforceable undertakings and merger authorisation determinations
  • introducing a ‘reasonable search’ defence regarding the failure or refusal to comply with a notice to produce such documents.

We will continue to keep our clients informed on these amendments and will issue an update when the Bill comes into effect.