In this session I refer to a recent purchase of a book bought at a higher price than that available from a free-rider. We then proceed to a discussion of the pro-and con arguments in relation to vertical restraints and how these are
reflected in the TPA. We see that these arguments are especially finely balanced in relation to the exclusive dealing provisions, although the law relating to third line forcing seems destined to remain somewhat anomalous.

As regards the section 48 per se prohibition of resale price maintenance, this reflects a view that this particular form of vertical restraint is inherently anti-competitive and, were it not illegal, could be used to disguise horizontal price-fixing agreements between cartel members.

We conclude this conversation by applying competition law principles to explain the cost, scarcity and service standards of Melbourne’s taxis and why it sometimes seems to require the powers of a Harry Potter to get one.

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In Fireside Chat No 10 I discuss the relevance to competition law of recent discussions concerning the regulation of Telstra and, more briefly, the preliminary skirmishes of the action brought by Channel 7 in the Federal Court against News, PBL and Telstra et al alleging anti-competitive breaches of the TPA that ensured the demise of C7, the Pay TV Sports broadcaster owned by Channel 7, an action in which damages of some $1 billion are reportedly being sought.

Students who would like to access the text of the Deakin Oration given by Graeme Samuel (Cartels, media and telecommunications - the rapidly changing face of Australian competition regulation or other key speeches given by ACCC personnel on telecommunications are referred to the ACCC website­, and in particular the links under related topics to telecommunications speeches and publications.

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This Fireside Chat is a tale of two prohibited forms of conduct- exclusionary provisions and price-fixing- and why and how these prohibitions arise. A CAU containing or giving effect to the former (which is defined in s4D) or the latter-as defined in s45A, must be authorised to avoid offending the TPA. It is suggested the per se prohibitions of forms of conduct that is almost always anti-competitive in purpose and/or effect is an efficiency enhancing approach that side-steps the need for a detailed market analysis.

In both cases any CAU must include at least two parties who are competitors with each other and must, in the case of exclusionary provisions, be entered into for a prohibited purpose and, in the case of price-fixing, have either the purpose or effect or likely effect of Substantially lessening competition via the deeming provisions of s45A. The terms “competitor” and “purpose” receive detailed discussion and this overview concludes with a discussion of the role of prohibited purposes in Part IV of the TPA.

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In this session we discuss the important role of section 45 of the TPA. I mention that we devote three of our e-tutorials to this section which alone is indicative of it significance.

The section operates to both ban (unless authorised) exclusionary provisions and horizontal price-fixing. We discuss the breadth of the term CAU as extending well beyond contracts (see British Slag) and indicate that an old friend from contract days, the Rose and Frank* “binding in honour only” case, would have qualified as a CAU under the TPA.

We note that s45 defers to those arrangements better dealt with under ss 47,48 and 50 respectively. Thus the general provisions of s45 operate in a somewhat residual fashion and only if the purpose or effect (actual or likely) is to substantially lessen competition. This brings in the importance of correct market definition-including in cases such as Rural Press, appreciating the restricted regional nature of some markets. Our survey concludes with an emphasis on the fact that some agreements or failures to agree can have “pro-competitive synergies” (.Tyree Transformers), legitimate purposes (Dowling v Dalgetty), whereas others are unduly self-protective (ASX v Pont Data) or lurk behind ethical rhetoric (Media council and Engineering cases mentioned and the position of AMA and Pharmacists discussed).

* Rose & Frank Co v Crompton Bros Ltd [1925] AC 445

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In this very brief chat I consider the goals of Australian competition law in the context of our previous discussion of the views of Chicago School and Harvard School theorists. I suggest that the essence eof the Hilmer reforms that were largely implemented in the 1995 Competition Policy Reform Act can be summarised as Entity Neutrality, Competitive Neutrality, Contestability (including Access issues) and transparency. I draw particular attention to the summary of the Hilmer Report on pp 119-121 of the Casebook and the chart headed Six Elements of a National Competition Policy on p.122.

The discussion concludes with a discussion of barriers to entry in relation to the launch of a new radio station, Vega, targeted at baby boomers, and the adjustment strategies required to restore equilibrium to the market for fine wool production in Australia.

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This special Fireside Chat has been recorded to accompany the launch on to DSO of the Economics Toolkit. That Toolkit has been prepared by Dr Phil Hellier, a senior lecturer at Deakin in the School of Accounting, Economics and Finance. It consists of some 50 power-point slides, arranged in a Roadmap to enable users to “drill down” to particular points of interest. Guidance in converting the slides to the Roadmap presentation was provided by Dr Rodney Carr, the Associate Dean of Teaching and Learning in the Faculty of Business and Law.

The School of Law is grateful to both these colleagues, and to John Wiley and Sons, the publishers of M.Browning & M. Zupan’s Microeconomics: Theory and Applications, 8th edition, from whose text Phil has adapted, with the publisher’s permission, the slides in the Toolkit. These slides are restricted to students in MLL 409, Competition Law and Policy, so this Fireside Chat may not be suited to external listeners.

This special Fireside Chat highlights some of the slides of particular relevance to our subject, and, in doing so, refers to a number of cases included in the Clarke and Corones Casebook. These cases are:

Tru Tone v Festival Records
TPC v Arnotts
News v ARL (judgement of Burchett J at first instance with reference to market
definition issues-see paras 75-167. This aspect was not challenged on appeal).
TPC v AMH
TPC v Ansett
TPC v Email
TPC v David Jones.

My apologies that the Toolkit is somewhat large to access on DSO and that this chat is some 5 minutes longer than normal. I am investigating solutions to the former problem.

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In this fireside chat I initially discuss the technical aspects about how the key competition provisions of the Trade Practices Act have been enacted as state and territory laws without sacrificing the principle of parliamentary
sovereignty. The result is that there is now a unified, nationally based competition law regime.

The question then becomes what are the goals of this regime? To answer this, and with the particular assistance of the topic cartoon on the CD ROM, we turn to consider the differences in emphasis between Chicago and Harvard school
theorists in the United States and note that the Chicago emphasis on efficiency, first, last and in-between as the goal of competition law is currently in the ascendency.

In the interest of brevity and recognising that this topic is a little dry for some tastes, there is no discussion of current developments on this occasion.

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In this session I discuss the operation of severance in the doctrine of restraint of trade, and , in particular, problems encountered by the use of mechanically generated ladder clauses. The courts have complained this leaves them in the position of being asked to issue advisory opinions and determining what , if anything, the parties have agreed to. This practice arguably reached reached its apogee in Austra Tanks Pty Ltd v Running 1982 NSWLR 840 in which the 80,000 plus permutations before the court were condemned as a “malevolent covenant.” This case was referred to in the 1984 British Columbia Law Reform Commission Report on Covenants in Restraint of Trade. (LRC 74 April 1984)
See http://www.bcli.org/pages/publications/lrcreports/reports(html)/Lrc74text.html

We then turn to an overview of the competition provisions of the TPA. Our discussion here is concerned to explain the pattern of constitutional interpretation that delayed the establishment of effective competition law statutes in Australia, and how changes in constitutional interpretation, combined with a degree of constitutional overkill, have ensured that the TPA has survived.

Finally, we discuss the concerns of civil celebrants that there will be an oversupply in that industry if “character” and territorial considerations are discarded in a foreshadowed de-regulation of requirements to become a celebrant.

Brief comparisons are suggested with the position of newsagents and pharmacists.

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In this third fireside chat I discuss the topic of restraint of trade. Our cartoon reminds us that the doctrine can apply to those who earn money from sport, especially when any restriction is imposed upon players rather than negotiated with them. We review the doctrine from a time when all restraints were void, through to the recognition that this should be only a presumption, and that reasonable restraints should be enforced. We note the TPA preserves a concurrent if limited role for the doctrine, but that at least one member of our current High Court believes the doctrines days’ should be numbered. (See Callinhan J at paras 90-97 in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 )

This fireside chat concludes by discussing the contrasting fortunes of Shane Warne and an elite Australian netballer, Natalie Avellino, and the successful challenge of a restraint of trade by the latter leading to a continuation of her career with the Adelaide Thunderbirds.

Listeners are left to make their own enquires concerning Shane Warne.

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In this second podcast I review Topic 1 in MLL 409-Competition Law and Policy, concentrating particulalry on historical factors leading to a comprehensive statutory regime in the USA and the reasons for the slow arrival of competition law in Australia.

I also discuss both the central cartoon for this unit and the cartoon for topic 1 and the concept of barriers to entry in relation to the EFTPOS payment system.

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