Chapter 12
Competition Principles

The Competition and Consumer Act 2010 (Cth) (CCA) regulates competition in Australia. It prohibits a range of anti-competitive behaviour, governs merger activity and regulates companies’ dealings with customers under the Australian Consumer Law.
The CCA provides for authorisation and notification processes to permit behaviour otherwise prohibited by the legislation, such as mergers, resale price maintenance (RPM), misuse of market power, cartel conduct and exclusive dealing. Significant reforms to Australia’s competition laws came into effect in 2017, and included the introduction of a prohibition on concerted practices and a lessening of competition test for the prohibition on misuse of market power (i.e. expanding Australia's competition laws to better capture information sharing and unilateral conduct). The Federal Court considered the new misuse of market power test for the first time in 2021, making its first declaration of contravention of the new provision against Tasmanian Ports.
Contravention of the CCA carries significant penalties, with the Australian Competition and Consumer Commission (ACCC), the body responsible for enforcing the CCA, increasingly pursuing criminal prosecution of companies and individuals for cartel conduct. Between 2017 and 2021 the Federal Court ordered penalties totalling over A$150 million against companies for cartel conduct, including in relation to an international shipping cartel and coordination over the supply of car manufacturing materials. The first contested criminal cartel trial in Australia was held in June 2021, with the jury ultimately acquitting the accused of all cartel charges; and in February 2022 the prosecution dropped all remaining charges in a long-running criminal cartel case against Citigroup Global Markets Australia, Deutsche Bank and several of their senior executives. Despite these setbacks, the ACCC in 2022 continues to pursue a number of criminal cartel matters and to push for the award of higher penalties in relation to breaches of the CCA. In September 2022 the first individuals were sentenced for criminal cartel conduct receiving suspended prison terms. The period from late 2020 through 2022 has also been marked by a renewed enforcement emphasis on vertical arrangements, specifically exclusive dealing and RPM. During this time the ACCC commenced five RPM and exclusive dealing proceedings.
The ACCC’s enforcement priorities for 2022/23 include digital platforms and manipulative advertising practices in the digital economy, competition issues in global and domestic supply chains (particularly those disrupted by the pandemic), pricing and selling of essential services (focusing on energy and telecommunications) and anti-competitive conduct in the financial services sector (focusing on payment services). In the product safety space, the ACCC has indicated its intention to prioritise compliance with button battery safety standards and product safety issues for young children.
Key contacts

Linda Evans
Regional Head of Practice – Competition, Regulation and Trade, Australia
+61 2 9322 4719
Sydney