Anti-Monopoly & Anti-Competitive Behaviour Laws: Australian Compliance Guide

Competing hard is good business. Crossing the line into anti-competitive behaviour can lead to heavy penalties, reputational damage and costly investigations by the ACCC.

If you run or are starting a business in Australia, it’s important to understand how competition law applies to everyday decisions - from pricing and promotions to supplier deals and collaborations with competitors.

In this guide, we’ll explain the key rules under Australia’s competition law, common risk areas for small and growing businesses, and practical steps to build a simple compliance program. The goal is to help you compete confidently while staying on the right side of the law.

What Do Anti-Monopoly And Anti-Competitive Laws Cover In Australia?

Australia’s competition rules sit mainly in the Competition and Consumer Act 2010 (CCA), which is enforced by the Australian Competition and Consumer Commission (ACCC). These laws aim to keep markets fair and competitive so consumers have real choice and businesses can innovate and grow.

The headline prohibitions cover:

• Cartel conduct (e.g. price fixing, market sharing, bid rigging)
• Anti-competitive “concerted practices” (co-ordination that substantially lessens competition)
• Misuse of market power by businesses with substantial market power
• Exclusive dealing and other vertical restrictions where they substantially lessen competition
• Resale price maintenance (forcing a minimum price on downstream sellers)
• Anti-competitive mergers or acquisitions

Alongside these rules, the Australian Consumer Law (ACL) continues to apply to your advertising, product claims and customer relationships (for example, avoiding misleading or deceptive conduct and ensuring your standard form contracts don’t contain unfair terms).

Common Risks For Small Businesses (And How To Stay Compliant)

You don’t need to be a large company to face competition law risks. Many investigations start with everyday conversations or commercial arrangements that seemed harmless at the time. Here are the hotspots we see most often.

Talking Price Or Strategy With Competitors

Any agreement or understanding with a competitor about prices, discounts, customers, territories, tenders or output is high risk. Even swapping sensitive information (future pricing, costs, capacity, strategy) can create a “concerted practice” that harms competition.

Safer approach: Keep competitor interactions strictly limited (e.g., industry events) and avoid discussing anything commercially sensitive. If a competitor raises pricing or market strategy, shut it down and document that you did so.

Coordinating Tenders Or Bids

Bid rigging (agreeing who will win, submitting cover bids, taking turns) is a serious cartel offence. Sub-contracting or joint bidding can be legitimate, but it must serve a real efficiency and be structured carefully.

Safer approach: If joint bids or consortia are necessary, make sure they’re designed for genuine capability or efficiency reasons and not to weaken competition.

Exclusive Deals With Suppliers Or Customers

Exclusivity can be legal - but if it substantially lessens competition, it may breach the CCA. Think about market share, contract duration, lock-in effects, and whether rivals are foreclosed from key inputs or customers. If you need exclusivity, ensure it’s no broader or longer than necessary, and consider pro‑competitive justifications.

If you’re planning to include exclusivity in a contract, it’s worth sense‑checking the arrangement and, where relevant, documenting your pro‑competitive rationale. We also suggest reviewing the form and scope of any exclusivity agreement before you sign.

Resale Price Maintenance (RPM)

RPM means a supplier trying to control the minimum price at which a reseller sells products (for example, preventing discounting). RPM is generally prohibited per se in Australia. There are lawful ways to recommend a price (RRPs) and to set maximum prices, but you can’t force a minimum selling price, threaten penalties for discounting, or cut off supply because a reseller sold below your preferred price.

Safer approach: Use recommended (not mandatory) pricing and avoid enforcement language around discounting. If you need more control over brand positioning, consider non-price quality standards (applied fairly and consistently) rather than price restrictions.

Unfair Contract Terms And Misleading Conduct

Competition issues often overlap with consumer law. In particular, avoid misleading statements in your marketing and sales processes, and make sure your standard form terms don’t unfairly tilt the playing field.

• Be clear and truthful in advertising to comply with misleading or deceptive conduct rules (ACL s18).
• Watch specific claim types (e.g. “Australian made”, “environmentally friendly”) that can trigger false or misleading representations (ACL s29).
• Ensure your standard form contracts don’t include unfair terms, especially when contracting with small businesses. A UCT review can help identify and fix risky clauses.

Putting simple, clear Terms of Trade in place can reduce disputes and align your sales practices with ACL obligations.

Are Exclusive Deals, Discounts Or RRP Policies Allowed?

Many normal commercial strategies are allowed if they don’t harm competition. The trick is understanding where the boundaries are and taking proportionate steps to manage risk.

Exclusive Dealing And Supplier Agreements

Exclusive dealing occurs when a supplier limits who you can buy from or sell to (or when you require a customer to deal with you alone). It’s not automatically illegal; the key test is whether the arrangement has the purpose, effect or likely effect of substantially lessening competition (SLC).

Practical tips:

• Keep exclusivity narrowly tailored in scope and duration.
• Avoid market‑wide lock‑ups or clauses that shut out rivals without clear efficiency justifications.
• Use a well‑drafted Distribution Agreement that focuses on service standards, brand protection and performance, not pricing restrictions or broad restraints.

Recommended Retail Pricing (RRP) And Discounting

It’s legal to provide an RRP as a guide and to set a maximum resale price. It’s not legal to prevent discounting. Avoid any language that “requires,” “enforces,” or “penalises” resellers who discount. Bonuses and rebates should not be structured to punish lawful discounting.

Volume Discounts, Loyalty Programs And Bundling

Volume discounts, loyalty incentives and product bundles are common and can be pro‑competitive. The risk increases if you have significant market power or if the incentives effectively lock customers away from rivals.

Ask: Could smaller rivals realistically compete for these customers given the structure of your program? If the answer is “probably not,” consider redesigning the program or seeking legal advice.

Mergers, Joint Ventures And Collaboration: What’s Allowed?

Growing businesses often explore partnerships, acquisitions and joint projects. These arrangements can be good for innovation and efficiency, but they can raise competition issues if they reduce meaningful rivalry in a market.

Mergers And Acquisitions

The CCA prohibits mergers that have the effect or likely effect of substantially lessening competition. This applies to share or asset deals, regardless of size. Even small acquisitions can be problematic in niche markets.

Before you proceed, map the market, consider overlaps and potential barriers to entry, and think about how customers might be affected. Where risks exist, consider engaging with the ACCC or adjusting the deal structure or remedies.

Joint Ventures And Collaboration With Competitors

Joint ventures can deliver real efficiencies (sharing risk, capability or R&D). However, information sharing, pricing alignment, or customer allocations within a JV can cross into cartel or concerted practice territory if not tightly managed.

Practical safeguards:

• Limit information exchange to what’s genuinely necessary for the collaboration.
• Use clean teams or firewalls if sensitive data is involved.
• Document the pro‑competitive purpose and governance protocols.

Depending on the arrangement, you may consider ACCC authorisation processes if public benefits outweigh competitive detriments.

Competition Law And The ACL: How They Work Together

Competition law focuses on market structure and behaviour between businesses. The ACL focuses on fair dealings with consumers and businesses.

In practice, both sets of rules often apply at the same time. For example, if your sales team uses hard‑to‑cancel subscriptions, the structure might raise competition issues if it locks up a critical customer segment, and your marketing may be reviewed under s18 (misleading) or s29 (false representations). Conduct that pressures vulnerable customers may also be scrutinised under unconscionable conduct (ACL s21).

If you’d like support aligning your consumer‑facing processes with competition law principles, our team can help via our ACL consultation package.

How To Build A Competition Compliance Program

You don’t need a huge legal budget to reduce competition law risk. A simple, practical compliance program goes a long way - and the ACCC looks favourably on businesses that take compliance seriously.

1) Appoint A Compliance Lead

Nominate someone to coordinate training, policies and escalation. In a small business, this might be a founder or operations manager.

2) Map Your Risk Areas

Identify where competition risks could arise in your business. Start with:

• Sales and pricing practices
• Competitor interactions (industry associations, joint bids, collaborations)
• Supplier and distributor contracts (exclusivity, rebates, MFN clauses)
• Marketing claims and campaign approvals
• M&A or partnership discussions

3) Introduce Practical Policies And Guardrails

Keep it short and usable. Examples include:

• Competitor Contact Protocol (what’s off‑limits to discuss; when to leave a meeting)
• Pricing & Discounting Guidelines (who approves, what can be offered)
• Contracting Checklist (spotting risky clauses like minimum resale price obligations)
• Marketing & Claims Checklist (evidence for claims, review for ACL risks)

At a contract level, using clear customer‑facing Terms of Trade and reviewing standard forms for unfair terms (using a UCT review) will help keep ACL and competition risks under control.

4) Train Your Team

Brief your sales, procurement and leadership teams on the red flags - especially around competitor contact, information sharing, and pricing discussions. Short scenario‑based refreshers every 6-12 months are ideal.

5) Tidy Up Your Contracts

Review templates and key supplier/customer contracts for:

• Unnecessary or broad exclusivity
• Clauses that could be read as RPM (e.g., “must not discount below RRP”)
• Most‑favoured‑nation (MFN) terms that could lessen competition
• Opaque rebates that might penalise lawful discounting

When distributing through third parties, ensure your Distribution Agreement focuses on quality standards, territories and brand usage rather than dictating resale prices.

6) Set An Escalation Path

Create a simple process to escalate questions before decisions are made - e.g., a quick internal check if someone is approached about a joint tender or information exchange with a competitor. Early advice is almost always cheaper than remediation.

7) Keep Records

Record training, policy acknowledgements and decisions, especially when you decline inappropriate competitor contact or adjust terms to reduce risk. Good records can be very helpful if questions arise later.

Practical Scenarios And Safe Alternatives

“A Competitor Wants To Catch Up For A Coffee To Talk ‘Market Conditions’.”

Politely decline, or limit the meeting to non‑sensitive topics with a clear agenda. If the discussion drifts into prices, customers, discounts, strategy or tenders, stop the conversation and leave. Follow up in writing to confirm you won’t discuss competitively sensitive topics.

“A Retail Partner Keeps Discounting Below Our Preferred Price.”

You can’t enforce a minimum resale price. Instead, focus on non‑price levers: brand guidelines, merchandising standards, service levels and training. Consider performance‑based incentives that reward value‑adding activities, not the absence of discounting.

“We’re Considering Acquiring A Small Rival.”

Even small acquisitions can raise issues in niche markets. Assess the overlap, customer alternatives and potential barriers to entry. If your growth strategy includes acquisitions, it helps to understand deal structures early - for instance, the differences between a share sale vs asset sale - and be ready to adjust timing, scope or remedies if needed.

“We Need Alignment With A Competitor To Deliver A Big Project.”

Consider a properly structured collaboration with clear guardrails. Share only the minimum data necessary, use clean teams if needed, and document the pro‑competitive purpose. If risk remains, get advice on whether ACCC authorisation makes sense in your circumstances.

Key Takeaways

• Australia’s competition laws prohibit cartels, anti‑competitive coordination, misuse of market power, certain exclusive dealing, RPM and anti‑competitive mergers.
• Everyday risks for small businesses include discussing prices or strategy with competitors, enforcing minimum resale prices, and using broad exclusivity without a clear need.
• Keep RRPs as recommendations only, tailor exclusivity narrowly, and structure discounts or loyalty programs so they don’t lock out rivals.
• Your consumer law obligations run in parallel - watch for misleading claims (ACL s18/s29) and remove unfair terms from standard form contracts.
• Build a lightweight compliance program: map risks, train your team, tidy up contracts, set escalation paths and keep records.
• Use clear, fair customer documents (such as Terms of Trade) and review exclusivity or pricing‑related clauses in supplier and distribution contracts before you sign.
• When in doubt - especially for collaborations, major promotions or acquisitions - get advice early. It’s faster, cheaper and safer than fixing issues later.

If you’d like a consultation about competition and consumer law compliance for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.