Following the amendments to the Competition and Consumer Act 2010 (Cth) (CCA) that came into effect on 6 November 2017 (amendment), the prohibition in s 45 on a corporation making and giving effect to contracts, arrangements or understandings with competitors which contain an exclusionary provision was repealed. Such conduct was also referred to as a primary boycott.

Conduct which would have fallen under exclusionary provisions is not exempt under the CCA. This conduct is now dealt with in the extended cartel provisions which came into effect as a result of the amendment. See s 45AA(b) of the Act and Output restrictions .

Prior to the amendments, s 45 of the Competition and Consumer Act 2010 (Cth) (CCA) prohibited a corporation from making and giving effect to contracts, arrangements or understandings with competitors which contain an exclusionary provision.

Section 4D of the CCA (now repealed) defined an exclusionary provision as one which:

• was made between parties any two or more of which are competitive with each other; and

• had the purpose or preventing, restricting or limiting:

by any or all of the parties to the contract, arrangement or understanding or their related bodies corporate.

Such conduct is also referred to as a primary boycott and is absolutely prohibited.

It was unlawful, therefore, for competitors to enter into or give effect to a contract, arrangement or understanding which contained a provision allowing one or all of the competitors to blacklist a particular person or class of persons. There was no need for the person to have been identified by name. It was enough if the class of persons can be identified, eg, suppliers of extension ladders.

A primary boycott would therefore exist where, for example, a corporation and one of its competitors agreed not to acquire certain ingredients from a particular supplier, or only to do so on certain terms and conditions.

The purpose of a primary boycott may be to share a market or to apply pressure to a customer or supplier. In the former case, the conduct would also breach the cartel conduct provisions. It was important to bear in mind that the primary boycott prohibition was broader in its application than the cartel conduct provisions. See Cartel conduct.

See Primary boycotts.

The CCA also prohibits the following other forms of boycotts:

• secondary boycotts which have the purpose of causing substantial loss or damage (s 45D , CCA) ;

• secondary boycotts which have the purpose of causing substantial lessening of competition (s 45DA , CCA); and

• boycotts affecting trade or commerce involving the movement of goods to and from Australia:s 45DB , CCA.

A secondary boycott is one where a person acts in concert with a second person so as to prevent a third person from supplying goods or services to, or acquiring goods or services from, a fourth person.

As a result of the operation of s 45DC of the CCA, trade unions and employee organisations can be found to have acted in concert with other persons, for the purposes of ss 45D , 45DA and 45DB . Specific exemption exists in s 45DD where the dominant purpose of the conduct is related to conditions of employments (including remuneration) or environmental or consumer protection which is not conduct in the form of industrial action.

Under s 88(1) of the CCA, conduct which could be considered in breach of ss 45D , 45DA or 45DB can be authorised by the ACCC. The penalty provisions under s 45D of Pt IV is $750,000 for corporations and $500,000 for individuals.

See Other forms of boycotts.