Competition Law FAQ

Part IV contains the core competition prohibitions — cartel conduct, anti-competitive agreements (contracts, arrangements, or understandings), misuse of market power, exclusive dealing, resale price maintenance, and anti-competitive mergers.

Cartel conduct involves competitors agreeing to fix prices, share markets, rig bids, or restrict outputs. It is prohibited as a per se offence (without needing to prove anti-competitive effect) and attracts both criminal penalties and civil pecuniary penalties.

Civil penalties for corporations are the greater of $50 million, three times the benefit, or 30% of adjusted turnover during the breach period. Criminal penalties for individuals include up to 10 years imprisonment and $625,000 per offence, plus debarment.

The ACCC's immunity policy gives the first cartel participant to approach the ACCC and cooperate full civil and criminal immunity, provided specific conditions are met. It is a key tool for detecting cartels and has been used in several significant cases.

Section 46 prohibits a corporation with substantial market power from engaging in conduct that has the purpose, effect, or likely effect of substantially lessening competition in any market in which it supplies or acquires goods or services.

The assessment focuses on whether a corporation is constrained by effective competition, considering factors such as market share, barriers to entry, ability to raise prices profitably, and conduct that would not be sustainable in a competitive market.

SLC is the key test across many competition provisions. It requires consideration of whether the conduct has the purpose, effect, or likely effect of materially reducing the level of competition in a market, compared with what would happen without the conduct.

Exclusive dealing is a range of conduct in which the supply or acquisition of goods is conditioned on restrictions on the counterparty — for example, full-line forcing, third-line forcing, and exclusive purchasing. It is prohibited only where it has the effect of SLC.

Resale price maintenance is when a supplier requires or induces a reseller not to sell below a specified price. It is a per se prohibition under section 48, meaning no SLC test applies. Recommended prices are permitted provided they are not enforced.

Section 50 prohibits acquisitions of shares or assets that would have the effect of substantially lessening competition. Australia has historically had an informal voluntary clearance regime, but formal mandatory merger notification is being introduced from 1 January 2026.

From 1 January 2026, acquisitions meeting monetary thresholds must be notified to the ACCC and cannot be completed without clearance. The regime introduces formal timeframes, merger notification fees, and a limited-merits review pathway to the Competition Tribunal.

An authorisation grants immunity from the competition law for conduct that would otherwise breach Part IV, where the ACCC (or Competition Tribunal on review) is satisfied the public benefits outweigh the public detriments. Notifications give more limited immunity for specified conduct.

The ACCC can use compulsory information-gathering powers under section 155 to require the production of documents, information, and evidence. It can also obtain search warrants. Non-compliance with a section 155 notice is a criminal offence.

Legal professional privilege can be claimed in response to a section 155 notice. Privilege claims must be clearly articulated and supported. The ACCC generally accepts properly made privilege claims but may test them where appropriate.

The ACCC uses a combination of very high penalties, criminal exposure, and a first-in immunity policy to detect cartels. Second and subsequent applicants can obtain cooperation discounts of up to 50% for cooperation. Joint defence agreements must be carefully managed to preserve privilege.

A concerted practice is a form of coordination between competitors falling short of a contract, arrangement, or understanding, but involving cooperation or deliberate practical cooperation instead of independent competition. It is prohibited under section 45 where it has an SLC effect.

Yes. Section 82 gives a private right of action for damages suffered by conduct in contravention of Part IV or Part V. Class actions are increasingly common, particularly following cartel findings. The ACCC cannot settle private claims.

Cartel conduct requires some form of agreement or understanding (or in some provisions, a concerted practice) between competitors. Purely parallel conduct without any form of agreement or coordination is not unlawful, even if markets are concentrated.

Investigations routinely take 12-36 months or more, particularly for complex cartel, merger, or market-study matters. Proceedings after an investigation can add several more years. Early engagement and cooperation can reduce the duration and exposure.

Compliance programs and merger clearances typically cost $20,000-$250,000. Major ACCC investigations and court proceedings commonly run into millions. Given the size of penalties, most large businesses invest in compliance as a standard part of risk management.