Horizontal Arrangements: From Price-Fixing and Boycotts to Cartel Conduct

Abstract

Horizontal anticompetitive arrangements law has been marked by major legislative turning points. The prohibition upon group boycotts was first weakened and then abolished. Having been amended on two occasions (1990 and 2001) to restrict its field of operation, the coup de grace was administered in 2017 when s 29 was repealed outright. More regulation of other horizontal anticompetitive arrangements followed Australia’s lead in the steady stream of cases involving collusive understandings that have the purpose, effect, or likely effect of substantially lessening or hindering competition in terms of the key prohibition in s 27. The task of separating collusion by consensus from “conscious parallelism” has not proved easy. Cases involving joint ventures and information sharing have seldom come before the courts. In 2017 the law was remodelled so that “price-fixing” was re-cast as “cartel” activity. The substance did not change for cartels of the price-setting variety; bid rigging, market division, and output restriction arrangements had also been caught under the original 1986 wording. Very recently, cartel conduct has been criminalized.