Submission regarding the Commonwealth Government Consultation Paper, “The Meaning of ‘Understanding’ in the Trade Practices Act 1974”

The BCA commends the government for its consultation on the issue of the meaning of ‘understanding’ in relation to the prohibitions against collusive conduct under the Trade Practices Act (TPA).

In general, our view is that the existing legislation promotes robust competition while ensuring that business is also provided with a regime that is workable and certain.

Any amendment to the TPA should be considered with caution, taking into account the costs and benefits of such a change.

The term ‘understanding’ (as it currently appears in the TPA) is underpinned by a substantial body of case law. It also allows courts sufficient flexibility to consider and make a determination based on the individual facts and circumstances of each case.

The current legislation is preferable to amending the TPA in relation to this issue, especially given the risk of undue prescription and reduction in flexibility that may follow.