Lloyd's Maritime and Commercial Law Quarterly
SHIPPING CONFERENCES AND THE AUSTRALIAN TRADE PRACTICES ACT
Warren Pengilley*
1. Introduction
Part X of the Australian Trade Practices Act 1974, prior to its 1989 amendments, was an exhaustive code covering shipping practices and the application of competition law to them. Prior to August 1989, shipping conferences which complied with the provision of Part X were, in effect, totally exempted from the competition provisions of the Trade Practices Act. This is no longer the case.
Most of the technical aspects of the 1989 amendments to Part X are covered in a previous article written by the writer.1 The Act came into force in August 1989 and is referred to in this paper as the Cargo Shipping Act. As is obvious from this paper, many provisions of the Trade Practices Act are now directly relevant to shipping conferences. It is intended here generally to discuss the substantive provisions of the Trade Practices Act which are applicable to shipping conferences rather than to discuss the technicalities of conference registration and the like. Nonetheless, of necessity, the mechanics of the registration of Conference Agreements must be referred to by way of setting the scene. This is, however, done only in general terms. Except where expressly stated to the contrary, the term “Conference Agreement” means an Outwards Conference Agreement. Inwards Conference Agreements, where referred to, are expressly described as such.
2. Outline of mechanics of registration and related matters
Registration of Conference Agreements gives certain exemptions from the Trade Practices Act, as discussed below. The principal advantage of registration is the immunity granted in relation to price agreements entered into between conference carriers. Without registration, such price agreement would be per se illegal under s. 45 of the Trade Practices Act. The purpose of Part X is now expressly stated not to be a total exemption of Conference Agreements from the Trade Practices Act, as was the case under the law prior to August 1989. The purpose of the legislation is
* D.Sc., J.D., FCPA, Trade Practices Divisional Manager Partner, Sly and Weigall, Sydney; former Commissioner of the Australian Trade Practices Commission. This article is a background paper to a lecture given at Sydney on 24 July 1990 to students enrolled in Commercial Shipping Practice (Shipping Law), a subject for the Diploma of Commercial Shipping Practice of the Australian Chamber of Shipping and the Certificate of Commercial Shipping Practice issued by the New South Wales Department of Technical and Further Education.
1. W.J. Pengilley, “A Summary of the Provisions of the Trade Practices Act (International Line Cargo Shipping) Amendment Bill 1989” published in (1989) 6 (2) MLAANZ Journal [The Journal of the Maritime Law Association of Australia and New Zealand], 25–46.
342