There are several forms of exclusive dealing which are prohibited under the CCA. They are:

• the supply of, or the offer to supply, goods or services or the offer of a discount, rebate, credit or allowance in respect of those goods or services on condition that:

• the acquisition of goods or services on condition that the supplier will not, or will not to a limited extent supply goods or services to particular persons or classes of persons (s 47(4) );

• the refusal to supply goods or services, or to give a discount, rebate, credit or allowance in respect of those goods or services because:

• the refusal to acquire goods or services because the supplier has supplied or has not agreed not to supply goods or services to particular persons or classes of persons (s 47(5) );

• conduct which amounts to third line forcing (s 47(6) and 47(7) — see Third line forcing);

• the grant of, or renewal of a lease or licence in respect of real property, or making it known that the right to terminate will not be exercised on condition that:

• the refusal to grant or renew a lease or licence in respect of real property, or the termination of such lease or licence because:

Examples of exclusive dealing include:

• a manufacturer signing a contract with one of its suppliers on the condition that its supplier agrees not to supply products to the manufacturer’s competitors;

• a supplier refusing to supply products to a retailer as that retailer has been selling the products to one of the supplier’s competitors; and

• terminating a contract with a distributor because that distributor refuses to stop dealing in a competitor’s products or services.

Exclusive dealing (with the exception of third line forcing, a type of exclusive dealing which is absolutely prohibited) will only be prohibited if the purpose, effect or likely effect of the conduct is to substantially lessen competition in a market: s 47(10) . It does not apply where the supplier and the third party are related bodies corporate: s 47(12) . The restrictions on leasing or licensing contained in s 47(8) and (9) do not apply where the conduct is engaged in by a trustee for a religious, charitable or public benevolent institution, provided that the conduct is done in accordance with the purposes or objects of the institution: s 47 (11).

See What is exclusive dealing?

The key indicium of exclusive dealing is the supply or acquisition or refusal to supply or acquire on condition. Conditionality also involves an assessment of the temporal elements of the conduct. For example, an offer to supply goods or services to someone who has previously acquired goods or services of a third party, because they have those goods or services, will not amount to exclusive dealing.

A party wishing to engage in exclusive dealing can obtain immunity from prosecution by the Australian Competition and Consumer Commission (ACCC) by notifying the proposed conduct under s 93 of the CCA. Unless the ACCC decides to oppose the notification, immunity will be obtained from the date of lodgment (or 14 days after the date the notification is lodged in the case of third line forcing notifications).

Authorisation for exclusive dealing conduct is also available under s 88 of the CCA. As the notification procedure is much shorter the authorisation procedure is rarely used for exclusive dealing.

See Notification of exclusive dealing.