Commentary

Resale price maintenance is defined in s 4 as the practice referred to in Part VIII of the Act (currently comprising sections 96-100).

RPM in Part VIII captures various forms of minimum RPM, both in relation to goods and services (including withholding supply as a result of failure to agree to or adhere to a RPM requirement). Maximum RPM is not prohibited (even if it substantially lessens competition). Section 97 provides that a person does not engage in RPM merely by providing a statement of recommended prices.

It is possible to apply for authorisation for RPM conduct. Despite the availability for this option since 1995, the first authorisation application for RPM was not made until 2014 and it was successful - see Tooltechnic Systems (Aust) Pty Ltd - Authorisation - A91433. See also Sar Katdare, 'Landmark decision by ACCC to authorise resale price maintenance on public benefit grounds - will this open the floodgates?' (Johnson Winter & Slattery, February 2015)

In 2017 the Harper Reforms also introduced a notification option for RPM. This involves a reversal of onus, so that a company may notify the ACCC in advance of the intended conduct and the ACCC can only revoke the notification if it considers anti-competitive harm will outweigh any public benefit.

Reading

Warren Pengilley, 'Resale price maintenance: An overview of the per se ban in light of recent court observations' (2008) 16 Competition and Consumer Law Journal 1-45 (includes an extensive bibliography of RPM articles and books)

Julie Brebner, 'Resale Price Maintenance - The Need for Further Reform' (2001) 9 Trade Practices Law Journal 18