Competition and Consumer Amendment (Competition Policy Review) Act 2017

The Competition and Consumer Amendment (Competition Policy Review) Act 2017 is an amending Act. Its job is to change the Competition and Consumer Act 2010 and related provisions, rather than operate as a complete standalone code. That matters because a business looking for the current legal rule will usually need to read the Competition and Consumer Act 2010 as amended.

The Act covers a wide spread of competition law topics. Its schedules deal with the definition of competition, cartels, price signalling and concerted practices, exclusionary provisions, covenants affecting competition, third line forcing, resale price maintenance, authorisations, notifications and class exemptions, admissions of fact, powers to obtain information, documents and evidence, access to services, application and transitional provisions, and other machinery amendments.

For business owners and managers, the practical message is that this was a major update to Australia’s competition framework. It changed both substantive conduct rules and the surrounding procedural framework. It also included renumbering and reference-updating provisions, which means older precedents and internal manuals can become misleading if they still cite superseded section numbers.

Commencement was staged. Sections 1 to 3 and anything not otherwise covered commenced on Royal Assent, which was 27 October 2017. Schedule 14 commenced the day after Royal Assent, on 28 October 2017. Most of the substantive schedules then commenced on 6 November 2017.

The commencement table is important because several parts were linked to other legislation. Schedule 1 did not commence unless the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 received Royal Assent. The table records that Schedule 1 commenced on 6 November 2017 by proclamation. A number of other schedules commenced at the same time as Schedule 1, including the main cartel amendments, the price signalling and concerted practices amendments, third line forcing, resale price maintenance, authorisations and notifications changes, information gathering changes, access to services changes, and the application and transitional provisions.

There was also a contingent split in Schedule 12 Part 4. Division 1 commenced on 6 November 2017, but only because the relevant Public Governance amendments had already commenced. Division 2 never commenced because its alternative trigger did not occur. If your business is dealing with technical access regime questions or older legislative references, that detail can matter.

One of the clearest practical changes is that the Act rewrote section 45 of the Competition and Consumer Act 2010. The amended provision prohibits making a contract or arrangement, or arriving at an understanding, if a provision has the purpose, or would have or be likely to have the effect, of substantially lessening competition. It also prohibits giving effect to such a provision. In addition, it prohibits engaging with one or more persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.

The Act also repealed the former Division 1A dealing with price signalling and replaced that framework with the broader section 45 approach. In practical terms, businesses should not assume that conduct is safe merely because there is no final agreement. Information sharing, coordinated conduct, or other forms of cooperation can still create risk if they amount to a concerted practice and substantially lessen competition.

The amended section 45 also sets out some important limits. It does not apply in certain ways to acquisitions of shares or assets, and it does not apply where the only parties are or would be related bodies corporate. Those carve-outs are specific and should be checked carefully rather than assumed.

Another important change is the definition of competition. The amended definition expressly includes competition from goods that are, or are capable of being, imported into Australia, and from services rendered, or capable of being rendered, in Australia by persons not resident or not carrying on business in Australia. For businesses in import-exposed sectors or digital and cross-border service markets, that can affect how market competition is assessed.

The cartel amendments are technical but commercially important. Among other things, the Act expanded the cartel provision framework to cover preventing, restricting or limiting the acquisition, or likely acquisition, of goods or services from persons or classes of persons by any or all parties to the contract, arrangement or understanding. It also inserted references to acquisition in trade or commerce in several places.

The joint venture defence was also reshaped. The amended text applies to a contract, arrangement or understanding containing a cartel provision if the defendant proves the relevant matters. The provision must be for the purposes of a joint venture and reasonably necessary for undertaking the joint venture. The joint venture must be for production of goods, supply of goods or services, or acquisition of goods or services, and it must not be carried on for the purpose of substantially lessening competition.

The Act also states that a defendant who wishes to rely on the joint venture defence must prove that matter on the balance of probabilities. That means businesses should not treat the words 'joint venture' in a document as enough. The structure, purpose and necessity of the arrangement need to be supportable.

There was also a renumbering exercise for the cartel provisions, moving the former 44ZZR series into the 45A series. This is easy to overlook, but it matters when reviewing older contracts, compliance manuals, board papers and template advice notes that still use the old numbering.

The Act also amended the rules on third line forcing and resale price maintenance, and overhauled parts of the authorisation, notification and class exemption framework. The schedule list confirms that these topics were specifically addressed in Schedules 7, 8 and 9.

For businesses, the practical point is that supply arrangements, distribution models and pricing controls should be reviewed as a package rather than in isolation. If your business requires customers to deal with a nominated third party, restricts discounting, or wants to engage in conduct that may otherwise raise competition concerns, the amended authorisation and notification framework may be relevant.

The Act also made related amendments touching the Radiocommunications Act 1992 through Schedule 9, and included changes about admissions of fact and powers to obtain information, documents and evidence. That means the reforms were not only about what conduct is prohibited, but also about how the regulatory system operates around that conduct.

Because the legislation itself is highly technical, businesses should verify the current operative provisions in the Competition and Consumer Act 2010 when checking the current position. This is especially important where a business is considering collective conduct, industry coordination, or a distribution model that depends on restrictive conditions.

The Act contains a dedicated Schedule 13 for application and transitional provisions, and Schedule 14 also includes a Part 9 dealing with application and transitional provisions. That is a strong signal that businesses should not assume every issue is governed only by the new wording from the commencement date onward.

One transitional point appears directly in the amended section 45 text. The prohibition on giving effect to a provision applies to contracts or arrangements made, or understandings arrived at, before or after commencement. So an older agreement can still need review if the business continues to act on it after the amendments started.

The Act also includes rules about how references in other Acts, instruments or documents are to be construed after renumbering, unless the reference is expressly to a provision as in force before commencement. This matters for older contracts, constitutions, compliance policies, procurement templates and legal opinions that cite pre-amendment section numbers.

If your business has long-running arrangements, legacy distribution agreements, or internal policies drafted before November 2017, those materials should be checked for both substance and citations. A document can be outdated even if the commercial conduct has not changed.

This page is a practical explainer only. The operative legal position sits in the Competition and Consumer Act 2010 as amended, together with any current ACCC guidance and later legislative changes. If a proposed arrangement involves competitors, coordinated conduct, restrictive supply terms or a possible exemption pathway, a tailored legal review is sensible before implementation.

This explainer is based on the Federal Register of Legislation version of the Competition and Consumer Amendment (Competition Policy Review) Act 2017. The Act states that it amends the Competition and Consumer Act 2010 and related legislation. The commencement table records Royal Assent on 27 October 2017, commencement of most substantive schedules on 6 November 2017, commencement of Schedule 14 on 28 October 2017, and that one contingent division in Schedule 12 never commenced.

The legislation text also shows the amended definition of competition, the rewritten section 45 framework including concerted practices, the repeal of the former price signalling division, the cartel and joint venture amendments, the renumbering of cartel provisions, and the presence of application and transitional schedules. For the full text and current status, businesses should check the official legislation page.