Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd
Court	High Court of Australia
Full case name	Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited & Ors
Decided	29 August 2007
Citations	[2007] HCA 38, (2007) 232 CLR 1
Transcript	[2007] HCATrans 202 (15 May 2007)
Case history
Prior actions	ACCC v Baxter Healthcare [2005] FCA 581; ACCC v Baxter Healthcare [2006] FCAFC 128
Subsequent action	ACCC v Baxter Healthcare [2008] FCAFC 141
Court membership
Judges sitting	Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ
Case opinions
(5:1:1) The immunity of governments from the restrictive trade practices provisions of the Trade Practices Act 1974 does not extend to trading corporations that provide goods or services to the government (per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Callinan J dissenting and Kirby J deciding on different grounds) (5:1:1) Derivative governmental immunity covers persons other than the government where applying the statute to those persons would have the effect of divesting the government of proprietary, contractual, or other legal rights or interests (per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Callinan J dissenting and Kirby J deciding on different grounds)

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd,^[1] (Baxter) was a decision of the High Court of Australia, which ruled on 29 August 2007 that Baxter Healthcare Proprietary Limited, a tenderer for various government contracts, was bound by the Trade Practices Act 1974 (TPA, Australian legislation governing anti-competitive behaviour) in its trade and commerce in tendering for government contracts. More generally, the case concerned the principles of derivative governmental immunity:^[2] whether the immunity of a government from a statute extends to third parties that conduct business with the government.

The High Court's judgment marked a successful appeal for the Australian Competition & Consumer Commission, the Australian regulator of anti-competitive conduct, having lost at first instance and on appeal in the Federal Court of Australia. The ACCC was again successful when the case was remitted to the Federal Court for reconsideration, ending eight years of litigation between the parties. The High Court's judgment was received as a significant precedent in the law of derivative governmental immunity in Australia.