Section 33(4) of the Competition Act ("Act") provides that the Act shall not apply to any activity carried on by, any agreement entered into or any conduct on part of (a) Government; (b) statutory body; or (c) any person acting on behalf of the Government or that statutory body, as the case may be, in relation to the activity, agreement or conduct.
Accordingly, the activities, agreements and conduct of the Government and statutory bodies are generally excluded from the Act. The reason for the exclusion is because the intent of competition law is to regulate conduct of market players, and not the Government and statutory bodies that perform public and statutory functions.
In relation to whether a person is acting on behalf of the Government or a statutory body so as to fall within the exclusion of section 33(4)(c), a case-by-case assessment would have to be made based on the facts of the case. It should be noted that a mere approval by a public authority is insufficient for this purpose. Notwithstanding the above, CCCS encourages government agencies to carefully assess the competition impact of their policies or initiatives on the affected markets as part of their policy formulation process. CCCS provides assistance to government agencies in this regard. (Please see Q16.1 - provide link)