eMJA: Medical rosters and the Trade Practices Act

To the Editor: I concluded my recent article with a hope that the "recommendations of the Dawson Committee will provide much needed amendment to the Trade Practices Act".1 In the article, I argued that medical rosters ran the risk of illegality as exclusionary provisions under the Trade Practices Act 1974 (Cwlth) because of either a drafting deficiency in the Act or a policy non-appreciation of what should and what should not be banned under it. I advocated amending the Act in two crucial respects to bring our law into line with that of New Zealand and the United States.

The risk of illegality of medical rosters may be short lived. The Dawson Committee review of the Trade Practices Act has now recommended that it be amended in both these ways.2

In relation to exclusionary provisions, the Dawson Committee has recommended that:

8.1 The Act should be amended so that it is a defence in proceedings based upon the prohibition of an exclusionary provision to prove that the exclusionary provision did not have the purpose, effect or likely effect of substantially lessening competition.

8.2 The Act should also be amended to restrict the persons or classes of persons to which a prohibited exclusionary provision relates, to a competitor or competitors, actual or potential, of one or more of the parties to the exclusionary provision.

The government response to these recommendations is: 3

The Government agrees with these recommendations. Although much of the behaviour covered by the present prohibition may damage competition, there is a risk that the prohibition may also be capturing some behaviour that is not detrimental to competition. To ensure the prohibition only ever stops harmful behaviour, the Government will establish a competition defence, as outlined in Recommendation 8.1. In addition, the prohibition will be confined to those agreements that target competitors, actual or potential, of the parties to the agreement.

Assuming that these recommendations are enacted, medical rosters will clearly be legal, as they are not anticompetitive except in the most unusual circumstances. Sanity has at last prevailed.

Pengilley W. Medical rosters and the Trade Practices Act. Med J Aust 2003; 178: 337-340. <eMJA full text> <PubMed>
Review of the competition provisions of the Trade Practices Act (Daryl Dawson, AC KBE CB, Chairman). 31 January 2003. Available at: http://www.tpareview.treasury.gov.au/content/report.asp (accessed May 2003).
Commonwealth government response to the review of the competition provisions of the Trade Practices Act 1974. Available at: http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp (accessed May 2003).

(Received 1 May 2003, accepted 13 May 2003)

Correspondence: Professor W Pengilley, School of Law, University of Newcastle, Newcastle, NSW 2308, Australia. Warren.PengilleyATnewcastle.edu.au

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