Recent amendments to the Competition and Consumer Act 2010 (CCA) update the rules that apply to the University’s commercial activities with competitors, suppliers, retailers and consumers.
The CCA supports fairness and healthy competition in the market and prohibits a range of anti-competitive conduct. As a provider of education, research and other services, it governs almost every aspect of the University of Adelaide’s operations. It applies to our actions, behaviour, publications, conversations and communications.
Changes to the CCA came into effect in late 2017 via two amending Acts, the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 and Competition and Consumer Amendment (Competition Policy Review) Act 2017.
Key changes include:
Definition of anti-competitive conduct
The Misuse of Market Power Act introduced an “effects test” for anti-competitive conduct that substantially lessens competition in the market. The emphasis is now on whether competition is reduced in the particular market effected, rather than how it impacts on competitors. The ACCC (Australian Competition and Consumer Commission) has issued interim guidelines on misuse of market power to explain how the effects test will be administered.
Anti-competitive conduct can include just about any type of co-operation that prevents, restricts or distorts competition, even when it falls short of a formal contract or agreement. These less formal arrangements are identified as “concerted practice”. In some circumstances, even a one-way communication may be considered a concerted practice.
Third line forcing
The scope of what is considered third line forcing has been reduced. It is now only illegal to require consumers to purchase goods or services from a third party if would substantially lessen competition (the “effects test” is applied to determine whether the conduct is anti-competitive).
Notification process for resale price maintenance
The resale price for on-selling or licensing goods or services cannot be obligatory unless is it pro-competitive. A simpler notification process has been introduced to allow companies to engage in resale price maintenance if it is pro-competitive. For guidance in the legal requirements for selling or licensing University goods, services or curricula, please contact the Legal and Risk Branch.
The Competition and Consumer Law Compliance Manual and the Competition and Consumer Act Legislative Summary have been updated to reflect these changes. These resources will help guide your dealings with other universities and with suppliers, distributors, wholesalers, retailers and students.
Any specific queries can be directed to the Legal and Risk Branch.