Now that the price signalling laws have been passed by Parliament, the next significant steps in the introduction of these laws will be the release of the regulations which will define the scope of the ‘banking sector’ to which these laws will initially apply, and the release by the Australian Competition and Consumer Commission of a statement about how it will deal with notifications and applications for authorisation of proposed price signalling.
Given the breadth of the new laws, corporations in the banking sector should review all of their current practices regarding the disclosure of pricing information, to assess compliance with the new laws.
The new laws prohibit two types of price signalling:
The new laws also include various anti-avoidance provisions, which provide that a private disclosure of pricing information can contravene the new prohibitions even if it occurs via an intermediary, or is made to both competitors and non-competitors, and regardless of whether the information disclosed is (or becomes) publicly available.
The new laws will only apply to the types of goods and services prescribed by regulation. The Government has stated that the price signalling prohibitions will initially apply only to the banking sector, though the Government is yet to release the regulations that will define the banking sector. Accordingly, the initial scope of the prohibitions is not yet certain.
The operation of the price signalling prohibitions may be extended to other industries or sectors. The regulations will set out a process to be followed before additional goods or services (or sectors) will be subject to the prohibitions on price signalling. The Government has indicated that it will only apply the price signalling prohibitions to additional sectors after “further detailed consideration”.
The prohibition upon private disclosures of pricing information will not apply to disclosures that occur ‘in the ordinary course of business’. Although this may seem to exclude a wide variety of conduct, it is not clear how this phrase will be interpreted by the Courts (or the Australian Competition and Consumer Commission).
There is an existing exemption in the Competition and Consumer Act 2010 for assets acquired in “the ordinary course of business” which has been considered by the Federal Court of Australia on at least one occasion.
On that occasion, the Court observed that “the exclusion does not refer to the ordinary course of … [a particular person’s] particular business - it refers to the ordinary course of business”, indicating that the test for whether a disclosure occurs in “ordinary course of business” has an objective element to it and may depend upon the usual practice in a particular industry.1
On this basis, we believe the exclusion is likely to operate where:
Due to the broad language in which the new prohibitions are framed, the new laws provide a number of exceptions to the prohibitions. These include:
In addition to the general exceptions outlined above, the new laws also provide a number of specific exceptions from the prohibition on private disclosures of pricing information. These include:
 See Burchett J in Trade Practices Commission v Gillette Company (No 1.) (1993) ATPR 41-267, at 41, 610.