Trade Practices Legislation Amendment

Act 1992

No. 222 of 1992

TABLE OF PROVISIONS—continued

SCHEDULE 1

OTHER AMENDMENTS OF THE PRINCIPAL ACT

SCHEDULE 2

AMENDMENTS OF OTHER ACTS

Trade Practices Legislation Amendment Act 1992

No. 222 of 1992

An Act to amend the law relating to trade practices

[Assented to 24 December 1992]

[Date of commencement 21 January 1993]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Trade Practices Legislation Amendment Act 1992.

(2) In this Act, “Principal Act” means the Trade Practices Act 1974¹.

Interpretation

2.  Section 4 of the Principal Act is amended by omitting from paragraph (4)(b) “of a body corporate” and substituting “of a person”.

Contracts, arrangements or understandings that restrict dealings or affect competition

3.  Section 45 of the Principal Act is amended by omitting from subsection (7) “capital, or any assets, of a body corporate” and substituting “capital of a body corporate or any assets of a person”.

Misuse of market power

4.  Section 46 of the Principal Act is amended by inserting after subsection (1) the following subsection:

“(1A) For the purposes of subsection (1):

(a)     the reference in paragraph (1)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

(b)     the reference in paragraphs (1)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.”.

Misuse of market power—corporation with substantial degree of power in trans-Tasman market

5.  Section 46A of the Principal Act is amended by inserting after subsection (2) the following subsection:

“(2A) For the purposes of subsection (2):

(a)    the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

(b)    the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.”.

Prohibition of acquisitions that would result in a substantial lessening of competition

6.  Section 50 of the Principal Act is amended:

(a) by omitting subsections (1) to (3) (inclusive) and substituting the following subsections:

“(1) A corporation must not directly or indirectly:

(a)     acquire shares in the capital of a body corporate; or

(b)    acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.

“(2) A person must not directly or indirectly:

(a)     acquire shares in the capital of a corporation; or

(b)    acquire any assets of a corporation;

if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.

“(3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or

be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:

(a)     the actual and potential level of import competition in the market;

(b)     the height of barriers to entry to the market;

(c)     the level of concentration in the market;

(d)     the degree of countervailing power in the market;

(e)     the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;

(f) the extent to which substitutes are available in the market or are likely to be available in the market;

(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;

(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;

(i) the nature and extent of vertical integration in the market.”;

(b)    by omitting from paragraph (4)(a) “capital, or assets, of a body corporate” and substituting “capital of a body corporate or assets of a person”;

(c)     by adding at the end the following subsection:

“(6) In this section:

‘market’ means a substantial market for goods or services in Australia, in a State or in a Territory.”.

Acquisitions that occur outside Australia

7. Section 50A of the Principal Act is amended:

(a)    by inserting in subsection (1) “(the ‘first controlling interest’)” after “paragraph (8)(b), a controlling interest”;

(b)    by omitting from subsection (1) “the controlling interest” and substituting “the first controlling interest”;

(c)     by inserting in subsection (1) “(the ‘second controlling interest’)” after “obtains a controlling interest”;

(d)    by omitting paragraphs (1)(a) and (b) and substituting the following paragraphs:

“(a) the person’s obtaining the second controlling interest would have the effect, or be likely to have the effect, of substantially lessening competition in a market; and

(b) the person’s obtaining the second controlling interest would not, in all the circumstances, result, or be likely to result, in such a benefit to the public that the obtaining should be disregarded for the purposes of this section;”;

(e)  by inserting after subsection (1) the following subsections:

“(1A) Without limiting the matters that may be taken into account in determining whether the obtaining of the second controlling interest would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the matters mentioned in subsection 50(3) must be taken into account for that purpose.

“(1B) In determining whether the obtaining of the second controlling interest would result, or be likely to result, in such a benefit to the public that it should be disregarded for the purposes of this section:

(a)  the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):

(i) a significant increase in the real value of exports;

(ii) a significant substitution of domestic products for imported goods; and

(b)  without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.”;

(f)      by omitting from subsection (7) “subsection 50(1) or (1A)” and substituting “section 50”;

(g)    by adding at the end the following subsection:

“(9) In this section:

‘market’ means a substantial market for goods or services in Australia, in a State or in a Territory.”.

Unconscionable conduct

8.(1) Section 52A of the Principal Act is amended by adding at the end the following subsection:

“(7) Section 51A applies for the purposes of this section in the same way as it applies for the purposes of Division I of Part V.”.

(2) Section 52A of the Principal Act, as amended by subsection (1) of this section, is renumbered as 51AB and re-located so that it appears after section 51AA in the Part IVA inserted by section 9 of this Act.

Insertion of new Part

9. After Part IV of the Principal Act the following Part is inserted:

“PART IVA—UNCONSCIONABLE CONDUCT

Unconscionable conduct within the meaning of the unwritten law of the States and Territories

“51AA.(1) A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.

“(2) This section does not apply to conduct that is prohibited by section 51AB.”.

Pecuniary penalties

10.(1) Section 76 of the Principal Act is amended:

(a)    by omitting from subsection (1) “(not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies)” and substituting “, in respect of each act or omission by the person to which this section applies,”;

(b)    by inserting after subsection (1) the following subsections:

“(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

(a)     for each act or omission to which this section applies that relates to section 45D or 45E—$250,000; and

(b)    for each other act or omission to which this section applies—$10 million.

“(1B) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $500,000 for each act or omission to which this section applies.”.

(2) The amendments made by this section apply only to acts or omissions that happen after the commencement of this Act.

Offences against Part V

11.  Section 79 of the Principal Act is amended:

(a)    by omitting from paragraph (1)(f) “$20,000” and substituting “$40,000”;

(b)    by omitting from paragraph (1)(g) “$100,000” and substituting “$200,000”.

Divestiture

12.  Section 81 of the Principal Act is amended:

(a)    by omitting from paragraph (1A)(a) “capital, or any assets, of a body corporate” and substituting “capital of a body corporate or any assets of a person”;

(b)    by omitting from subsection (1B) “or (b)”.

Insertion of new section

13.  After section 87A of the Principal Act the following section is inserted:

Enforcement of undertakings

“87B.(1) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Commission has a power or function under this Act (other than Part X).

“(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.

“(3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).

“(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:

(a)     an order directing the person to comply with that term of the undertaking;

(b)     an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c)     any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d)     any other order that the Court considers appropriate.”.

Power of Commission to grant authorisations

14.  Section 88 of the Principal Act is amended:

(a)     by omitting from paragraph (9)(a) “capital, or to acquire assets, of a body corporate” and substituting “capital of a body corporate or to acquire assets of a person”;

(b)     by omitting from paragraph (9)(c) “in the capital, or from acquiring assets, of the body corporate” and substituting “or assets”.

Procedure for applications

15.  Section 89 of the Principal Act is amended by omitting from subparagraph (5A)(a)(ii) “capital, or assets, of a body corporate” and substituting “capital of a body corporate or assets of a person”.

Determination of applications for authorisations

16.(1) Section 90 of the Principal Act is amended:

(a) by omitting from subsection (9) “capital, or of assets, of a body

corporate” and substituting “capital of a body corporate or of assets of a person”;

(b)  by inserting after subsection (9) the following subsection:

“(9A) In determining what amounts to a benefit to the public for the purposes of subsection (9):

(a)  the Commission must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):

(i) a significant increase in the real value of exports;

(ii) a significant substitution of domestic products for imported goods; and

(b)  without limiting the matters that may be taken into account, the Commission must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.”;

(c)     by omitting from paragraphs (11)(a) and (b) “45 days” (wherever occurring) and substituting “30 days”;

(d)    by inserting after subsection (11) the following subsection:

“(11A) The Commission may, within the 30 day period mentioned in subsection (11), notify the applicant in writing that the Commission considers that the period should be extended to 45 days due to the complexity of the issues involved. If the Commission so notifies the applicant, the references in subsection (11) to 30 days are to be treated as references to 45 days.”.

(2) The amendments made by this section apply only to applications made after the commencement of this Act.

Register of notifications

17. Section 95 of the Principal Act is amended by omitting from subparagraph (3)(a)(ii) “capital, or assets, of a body corporate” and substituting “capital of a body corporate or of assets of a person”.

Functions and powers of Tribunal

18.(1) Section 102 of the Principal Act is amended by inserting after subsection (1) the following subsections:

“(1A) If a person applies to the Tribunal for review of a determination of the Commission relating to:

(a)     the grant of an authorisation under subsection 88(9); or

(b)    the revocation of an authorisation granted under that paragraph; the Tribunal must make its determination on the review within 60 days after receiving the application for review.

“(1B) The 60 day time limit in subsection (1A) does not apply if the Tribunal considers that the matter cannot be dealt with properly

within that period of 60 days, either because of its complexity or because of other special circumstances.

“(1C) If subsection (1B) applies, the Tribunal must notify the applicant before the end of the 60 day period that the matter cannot be dealt with properly within that period.”.

(2) The amendments made by this section apply only to applications for review that are made after the commencement of this Act.

Other amendments of the Principal Act

19.  The Principal Act is further amended as set out in Schedule 1.

Amendment of other Acts

20.  The Acts specified in Schedule 2 are amended as set out in Schedule 2.

Application of the merger amendments

21.(1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act.

(2)  If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made:

(a)     the proposed acquisition;

(b)    any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings.

(3)     If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made.

(4)     In this section, “merger amendments” means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

SCHEDULE 1                                                                        Section 19

OTHER AMENDMENTS OF THE PRINCIPAL ACT

Subsection 5(1):

Omit “Parts IV and V”, substitute “Parts IV, IVA and V”.

Subsection 6(3):

Omit “Divisions 1 and 1A of Part V”, substitute “the provisions of Part IVA and of Divisions 1 and 1A of Part V”.

Paragraph 6(3)(a):

Omit “those Divisions”, substitute “those provisions”.

Paragraph 6(3)(b):

Omit “those Divisions”, substitute “those provisions”.

Subsection 6(4):

Omit “Division 1 of Part V (other than sections 53A, 55 and 61) also has, by force of this subsection, the effect it”, substitute “the provisions of Part IVA and of Division 1 of Part V (other than sections 53A, 55 and 61) also have, by force of this subsection, the effect they”.

Paragraph 6(4)(a):

Omit “that Division were, by express provision, confined in its”, substitute “those provisions were, by express provision, confined in their”.

Paragraph 6(4)(b):

Omit “that Division”, substitute “those provisions”.

Subsection 75B(1):

Omit “Part IV”, substitute “Part IV, IVA”.

Subsection 79(1):

Omit “52A,”.

Paragraph 80(1)(a):

Omit “Part IV”, substitute “Part IV, IVA”.

Subsection 80A(1):

Omit “other than section 52A”.

Subsection 82(3):

Omit.

SCHEDULE 1—continued

Section 83:

Omit “Part IV”, substitute “Part IV, IVA”.

Subsection 84(1):

Omit “Part V”, substitute “Part IVA or V”.

Subsection 84(3):

Omit “Part V”, substitute “Part IVA or V”.

Subsection 86(2):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Paragraph 86A(1)(b):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Paragraph 86A(4)(b):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Paragraph 86A(5)(b):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Paragraph 86B(1)(b):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Subsection 87(1):

Omit “Part IV”, substitute “Part IV, IVA”.

Subsection 87(1A):

Omit “Part V”, substitute “Part IVA or V”.

Subsection 87(1B):

Omit “Part V”, substitute “Part IVA or V”.

Subsection 87(1C):

Omit “Part V”, substitute “Part IVA or V”.

Paragraph 87(1CA)(a):

Omit “section 52A”, substitute “Part IVA”.

Subsection 87(1D):

Omit “section 52A”, substitute “Part IVA”.

Subsection 87(1E):

Omit “section 52A”, substitute “Part IVA”.

SCHEDULE 1—continued

Paragraph 87A(1)(b):

Omit “Part V”, substitute “Part IVA or V”.

Paragraph 87A(1)(d):

Omit “Part V”, substitute “Part IVA or V”.

SCHEDULE 2                                                            Section 20

AMENDMENTS OF OTHER ACTS

Jurisdiction of Courts (Cross-vesting) Act 1987

Paragraph 10(b):

Omit “Division 1”, substitute “Part IVA or Division 1”.

Telecommunications Act 1991

Section 28:

After “Trade Practices Act 1974” insert “(as in force immediately before the commencement of the Trade Practices Legislation Amendment Act 1992)”.

NOTE

1. No. 51, 1974, as amended. For previous amendments, see Nos. 56 and 63, 1975; Nos. 88 and 157, 1976; Nos. 81, 111 and 151, 1977; Nos. 206 and 207, 1978; No. 73, 1980; Nos. 61 and 176, 1981; No. 80, 1982; No. 39, 1983; Nos. 63, 73 and 165, 1984; No. 65, 1985; Nos. 8, 17 and 168, 1986; Nos. 23 and 141, 1987; Nos. 8, 20 and 87, 1988; Nos. 28 and 34, 1989; Nos. 11, 70 and 108, 1990; Nos. 49, 122, 136, 173 and 180, 1991; and Nos. 22, 104 and 106, 1992.

[Minister’s second reading speech made in—

House of Representatives on 3 November 1992

Senate on 24 November 1992]