Exclusive dealing
47 Exclusive dealing
Subject to this section, a person shall not, in trade or commerce, engage in the practice of exclusive dealing.
A person (the first person) engages in the practice of exclusive dealing if the first person:
supplies, or offers to supply, goods or services;
supplies, or offers to supply, goods or services at a particular price; or
gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;
on the condition that the person (the second person) to whom the first person supplies, or offers or proposes to supply, the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate:
will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
will not, or will not except to a limited extent, re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
in the case where the first person supplies or would supply goods or services, will not re‑supply the goods or services to any person, or will not, or will not except to a limited extent, re‑supply the goods or services:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places.
A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
to supply goods or services to a second person;
to supply goods or services to a second person at a particular price; or
to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:
has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person to any person, or has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places.
A person (the first person) also engages in the practice of exclusive dealing if the first person:
acquires, or offers to acquire, goods or services; or
acquires, or offers to acquire, goods or services at a particular price;
on the condition that the person (the second person) from whom the first person acquires or offers to acquire the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places.
A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
to acquire goods or services from a second person; or
to acquire goods or services at a particular price from a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places.
A person (the first person) also engages in the practice of exclusive dealing if the first person:
supplies, or offers to supply, goods or services;
supplies, or offers to supply, goods or services at a particular price; or
gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;
on the condition that the person (the second person) to whom the first person supplies or offers or proposes to supply the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person.
A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
to supply goods or services to a second person;
to supply goods or services at a particular price to a second person; or
to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person.
A person (the first person) also engages in the practice of exclusive dealing if the first person grants or renews, or makes it known that the first person will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:
will not, or will not except to a limited extent:
acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places; or
will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
A person (the first person) also engages in the practice of exclusive dealing if the first person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:
has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
has re-supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
has supplied goods or services, or goods or services of a particular kind or description:
to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
in particular places or classes of places or in places other than particular places or classes of places; or
has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
Subsection (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless:
the engaging by the person in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or
the engaging by the person in that conduct, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.
Subsection (1) does not apply to a person engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:
the person has given the Commission a notice under subsection 93(1) describing the conduct; and
the notice is in force under section 93.
Subsections (8) and (9) do not apply with respect to:
conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.
In this section:
a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;
a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which:
the person engaging in the conduct or any body corporate related to that person; or
any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate;
supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and
a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the person engaging in the conduct or any other person whose business dealings are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those persons, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.
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