Agents as Competitors? The Implications of ACCC v Flight Centre for Dual Distribution

Andrew McClenahan

Australian Journal of Competition and Consumer Law

Andrew McClenehan, ‘Agents as Competitors? The Implications of ACCC v Flight Centre for Dual Distribution’ (2019) 27(4) Australian Journal of Competition and Consumer Law 235

Abstract

In Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd, a majority of the High Court held for the first time that an agent could be a competitor of its principal under Australia's cartel laws. French CJ prudently observed in his dissenting judgment that the approach of the majority "opens the door to an operation of the Act which would seem to have little to do with the protection of competition". This article expands upon the Chief Justice's concerns by analysing how the decision has fundamentally redefined the way in which agency law interacts with competition law in the context of dual distribution arrangements. The article concludes that legislative reform is warranted to attenuate the serious risk of characterising dual distribution arrangements as cartel conduct, given such arrangements are commonly pro-competitive.