Philip Williams, a director of Frontier (Melbourne) has co-authored with Andrew Harpham and Donald Robertson a paper entitled The Competition Law Analysis of Collaborative Structures (Andrew Harpham, Donald Robertson and Philip Williams, Australian Business Law Review, Vol 34, December 2006, 399-427).
The paper argues that collaborative activity is ubiquitous, and many forms of collaborative activity involve arrangements to do with prices or arrangements that may contain exclusionary provisions. For many of these arrangements, it is not clear whether they fall within the relevant per se contraventions of the Trade Practices Act 1974. When confronted by these difficult cases, the courts should first examine the conduct at issue to discover what is really going on. The case of Radio 2UE provides a lead. If the conduct is of a kind that is obviously monopolistic, it should be characterized as falling within the per se prohibition. If it is not of that kind it should not be so characterized, and in this case should be condemned only if it substantially lessens competition.
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