ACCC V Baxter Healthcare - Derivative Crown Immunity Confined

Yesterday, the High Court handed down its decision in the case of Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited & Others [2007] HCA 38. The decision is of particular interest to departments and agencies engaged in procurement, and businesses dealing with government. It is a timely reminder about the value of competitive procurement processes.

This special Alert discusses the implications that arise for government and business as a consequence of the Court’s decision to qualify the doctrine of derivative Crown immunity and apply Part IV of the Trade Practices Act 1974 (Cth).

On 29 August 2007, the High Court held that Baxter Healthcare Pty Limited (Baxter) was bound by sections 46 and 47 of the Trade Practices Act - even when dealing with government entities which were not bound by the Act. As a result, the question of breach has been remitted to the Full Federal Court.