RESTRICTIVE TRADE PRACTICES ACT 1971 [Note: This Act is "repealed" by Act No. 51 of 1974]
(#DATE 19:12:1973)
Compilation Information
- Reprinted as at 19 December 1973
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - TABLE OF PROVISIONS
TABLE
RESTRICTIVE TRADE PRACTICES ACT 1971-1973
TABLE OF PROVISIONS
PART I-PRELIMINARY
Section
1. Short title
2. Commencement
3. (Repealed)
4. Repeal
5. Definitions
6. Crown not bound
PART II-CONSTITUTION OF THE TRADE PRACTICES TRIBUNAL
7. Constitution of Tribunal
8. Qualifications of members
9. Terms and conditions of appointment
10. Remuneration and allowances
11. Travelling allowances
12. Acting appointments
13. Suspension and removal of members
14. Resignation
15. Oath or affirmation of office
16. Constitution of Tribunal for particular matters
17. Arrangement of business
18. Disclosure of financial interests of members
19. Presidential member to preside
20. Decision of questions
21. Member ceasing to be available
PART III-THE COMMISSIONER, THE REGISTRAR OF THE TRIBUNAL AND
OTHER OFFICERS
22. Office of Commissioner
23. Terms and conditions of appointment
24. Remuneration and allowances
25. Outside employment and interests
26. Rights of public servant appointed as Commissioner
27. Acting Commissioner
28. Suspension and removal of Commissioner
29. Resignation
30. Oath or affirmation of office
31. Staff
32. Delegation by Commissioner
33. Staff of Tribunal
34. Secrecy
PART IV-EXAMINABLE AGREEMENTS AND PRACTICES
35. Agreements between competitors containing certain restrictions
36. Examinable practices
37. Monopolization an examinable practice
38. Exemptions in respect of practices
39. Combinations
PART V-REGISTRATION OF CERTAIN AGREEMENTS
40. Register to be kept
41. Agreements subject to registration
42. Particulars to be furnished of certain agreements, variations and
determinations
43. Failure to furnish particulars an offence
44. Registration by Commissioner
45. Register to be evidence
PART VI-EXAMINATION OF AGREEMENTS AND PRACTICES BY THE
TRIBUNAL
Division 1-General
46. Interpretation
47. Institution of proceedings
48. Commissioner to consult parties with a view to avoiding proceedings
49. Inquiry and determination by Tribunal
50. The public interest
51. Effect of determinations
52. Orders in consequence of determinations
53. Date of effect of orders
54. Interim restraining orders
55. Effect of variation or determination of agreement
56. Effect of variation or abandonment of practice
57. Duration and operation of orders
58. Further consideration by Tribunal of determinations and orders upon
change of circumstances
Division 2-Negative Clearances
59. Certificate that agreement or practice not contrary to public
interest
60. Proceedings before Tribunal
Division 3-Review of Determinations and Judicial Determination
of Questionsof Law
61. Constitution of Review Division
62. Application for reconsideration of determination
63. Hearing of application
64. Reconsideration by Tribunal
65. Reference of questions of law to Commonwealth Industrial Court
PART VII-RESALE PRICE MAINTENANCE
Division 1-The Unlawful Practice of Resale Price
Maintenance
66. Resale price maintenance an unlawful practice
67. Recommended prices
68. Withholding the supply of goods
69. Statements as to the minimum price of goods
70. Criminal proceedings not to be brought
71. Agreements providing for resale price maintenance unenforceable
Division 2-Exemptions
72. Applications for exemptions
73. Directions to amend
74. Determination of applications for exemption
75. Exemption extends to goods of others than applicant
Division 3-General
76. Evidentiary provisions
77. Application of certain provisions
PART VIII-ENFORCEMENT OF ORDERS OF THE TRIBUNAL
78. Contravention of orders to be contempt of Tribunal
79. Punishment of contempt
80. Protection of certain persons
PART IX-PROVISIONS RELATING TO THE TRIBUNAL
Division 1-Procedure and Evidence
81. Procedure generally
82. Regulations as to certain matters
83. Power to take evidence on oath
84. Hearings to be in public except in special circumstances
85. Evidence in form of written statement
86. Taking of evidence by single member
87. Representation
Division 2-General
88. Parties
89. Ancillary orders, &c.
90. Undertakings to the Tribunal
91. Protection of members, barristers and witnesses
92. Incriminating answers
Division 3-Offences in relation to the Tribunal
93. Failure of witness to attend
94. Refusal to be sworn or to answer questions
95. Contempt of Tribunal, &c.
PART X-COLLUSIVE TENDERING AND COLLUSIVE BIDDING
96. Collusive tendering
97. Collusive bidding
98. Exemptions
PART XI-CIVIL REMEDIES
99. Actions for damages
100. Deferment of action on application of Attorney-General
101. Findings in contempt proceedings to be evidence
102. Injunctions
103. Jurisdiction of Court
PART XII-OVERSEAS CARGO SHIPPING
Division 1-Preliminary
104. Definitions
105. Part to be exclusive of certain sections
106. Part to be exclusive of Part X
107. Agreements to which Part applies
108. Shipowners may be required to be represented by agent and give
address for service
Division 2-Filing of Conference Agreements
109. Clerk of Shipping Agreements
110. Agreements subject to filing
111. Particulars to be furnished of certain agreements, variations and
determinations
112. Failure to furnish particulars an offence
113. Clerk to file particulars
114. Filed documents to be evidence
115. Secrecy
Division 3-Powers in relation to Conference Agreements
116. Minister may request undertakings
117. Disapproval of agreements
118. Effect of disapproval
119. Reinstatement of disapproved agreement or approval of substituted
agreement
120. Injunctions
121. Publication and commencement of orders
Division 4-Powers in relation to Individual Shipowners
122. Minister may request undertakings
123. Declaration of shipowners
124. Prohibitions applicable to declared shipowner
125. Injunction
Division 5-General
126. Minister may refer certain matters to Tribunal
127. Minister to consult with shipowners before making reference
128. Representation
129. Undertakings to Tribunal
130. Publication of reports of Tribunal
131. Institution of prosecutions
132. Aiding and abetting
133. Protection of certain persons
134. Constitution of Court
Division 6-Civil Remedies in relation to Overseas Cargo
Shipping
135. Actions for damages
136. Deferment of action on application of Minister
137. Findings in contempt proceedings to be evidence
PART XIII-INTERPRETATIVE PROVISIONS
138. Provisions relating to agreements
139. Special provisions relating to trade associations
140. References to restrictions
141. Supply, acquisition and production
142. References to acts
143. Related companies
PART XIV-TRANSITIONAL PROVISIONS
144. Saving of s. 8 of Acts Interpretation Act
145. Continuation of certain appointments
146. Secrecy
147. The Register of Trade Agreements continued
148. Commissioner may retain certain documents
149. Certain particulars not required to be furnished
150. Registration of agreements continued
151. Undertaking by Tasmanian Breweries Pty. Limited continued
152. Determination and order in certain proceedings continued
153. Certain proceedings continued
154. Proceedings for exemption by A. H. & A. W. Reed Pty. Limited
continued
155. Certain notices continued
156. Particulars of agreements continued
157. Repository of documents continued
158. Secrecy
159. Undertakings continued
PART XV-MISCELLANEOUS
160. Inspection of, furnishing of copies of, and evidence of, documents
161. Determinations and orders evidence of certain facts
162. Evidence of Register
163. Judicial notice
164. Prosecutions
165. Validity of determinations or orders
166. Commissioner may require furnishing of information of production and
documents
167. Inspection, &c., of documents
168. Commissioner to furnish report
169. Certain agreements and practices not subject to Act
170. Regulations
THE SCHEDULES
FIRST SCHEDULE
Oath
SECOND SCHEDULE
Agreements and Practices not Subject to Act
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 1.
Short title.
SECT
RESTRICTIVE TRADE PRACTICES ACT 1971-1973
An Act to preserve Competition in Trade and Commerce to the extent required by
the Public Interest.
PART I-PRELIMINARY
Short title amended; No. 32, 1918, s. 2.
1. This Act may be cited as the Restrictive Trade Practices Act 1971-1973.*
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 2.
Commencement.
SECT
2. This Act shall come into operation on a date to be fixed by
Proclamation.*
Section 3 repealed by No. 216, 1973, s. 3.
* * * * * * * *
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 4.
Repeal.
SECT
4. (1) The following Acts are repealed:-
Trade Practices Act 1965;
Trade Practices Act 1966;
Trade Practices Act 1967;
Trade Practices Act 1971.
(2) Nothing in the last preceding sub-section revives the operation of an
Act, or of a section of an Act, referred to in sub-section (2A), (3) or (4),
of section 4 of the Trade Practices Act 1965-1971 or affects the provision
made by sub-sections (6) and (7) of that section for the citation of the Seat
of Government (Administration) Act 1910-1965 or of the Northern Territory
(Administration) Act 1910-1967.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 5.
Definitions.
SECT
Amended by No. 216, 1973, s. 3.
5. In this Act, unless the contrary intention appears-
''business'' includes a profession;
''consumer'' includes a person to whom services are supplied;
''corporation'' means a corporation that is a foreign corporation, a trading
corporation formed within the limits of the Commonwealth or a financial
corporation so formed;
''deal with'' means supply goods or services to, or acquire goods or
services from, and other references to dealing or dealings have corresponding
meanings;
''Deputy President'' means a Deputy President of the Tribunal, and includes
a person appointed to act as a Deputy President of the Tribunal;
''Deputy Registrar'' means a Deputy Registrar of the Tribunal, and includes
a person appointed to act as a Deputy Registrar of the Tribunal;
''document'' includes a book or writing;
''goods'' includes-
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or
not; and
(d) gas and electricity;
''member'' means a member of the Tribunal, and includes the President and a
person appointed to act as a member;
''order'' includes a refusal to make an order;
''person'' includes a body corporate, whether a corporation or not, as well
as a natural person;
''practice'' includes a single act or transaction;
''presidential member'' means the President or a Deputy President;
''price'' includes a charge of any description;
''relevant restriction'', in relation to an examinable agreement-
(a) means the restriction under the agreement by reason of which the
agreement is an examinable agreement; or
(b) if there are several restrictions under the agreement by reason of
any of which the agreement is an examinable agreement, means either or any of
those restrictions,
but does not include so much of the operation of a restriction as is
required by this Act to be disregarded in determining whether the agreement is
an examinable agreement;
''restriction'' includes any negative obligation, whether absolute or not
and whether express or implied;
''services'' includes, without limiting the generality of that expression,
the rights or benefits that are to be provided under an agreement for-
(a) the performance of work (otherwise than under a contract of
service), whether with or without the supply of goods;
(b) the provision of, or of the use or enjoyment of facilities for,
amusement, entertainment, recreation or instruction; or
(c) the conferring of rights or privileges for which remuneration is
payable in the form of a royalty, tribute, levy or similar exaction;
''supply'' includes-
(a) in relation to goods-supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase; and
(b) in relation to services-provide, grant or confer,
and ''supplied'' and ''supplier'' have corresponding meanings;
''the Commissioner'' means the Commissioner of Trade Practices, and includes
a person appointed to act as the Commissioner of Trade Practices;
''the Court'' means the Commonwealth Industrial Court;
''the practice of resale price maintenance'' means the practice of resale
price maintenance referred to in Part VII;
''the President'' means the President of the Tribunal, and includes a person
appointed to act as President of the Tribunal;
''the Register'' means the Register of Trade Agreements kept under this Act,
and includes a part of that Register;
''the Registrar'' means the Registrar of the Tribunal, and includes a person
appointed to act as the Registrar of the Tribunal;
''the Tribunal'' means the Trade Practices Tribunal established by this Act,
and includes a member or Division of that Tribunal performing functions of
that Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 6.
Crown not bound.
SECT
6. This Act does not bind the Crown in right of the Commonwealth or of a
State.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 7.
Constitution of Tribunal.
SECT
PART II-CONSTITUTION OF THE TRADE PRACTICES TRIBUNAL
7. (1) There is hereby established a Trade Practices Tribunal, which shall
consist of a President and such number of Deputy Presidents and other members
as are appointed in accordance with this section.
(2) A member of the Tribunal shall be appointed by the Governor-General.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 8.
Qualifications of members.
SECT
Sub-section (1) amended by No. 216, 1973, s. 3.
8. (1) A person shall not be appointed as a presidential member unless he
is-
(a) a Judge of a Federal Court, not being the High Court or a court of an
external Territory; or
(b) a person who has the status of a Judge of the Court.
(2) A person shall not be appointed as a member other than a presidential
member unless he appears to the Governor-General to be qualified for
appointment by virtue of his knowledge of, or experience in, industry,
commerce or public administration.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 9.
Terms and conditions of appointment.
SECT
9. (1) Subject to this Part, a member holds office for such period, not
exceeding seven years, as is specified in the instrument of his appointment,
but is eligible for re-appointment.
(2) Subject to this Part, the Governor-General may, in the instrument of
appointment of a member, specify terms and conditions of appointment, which
may include terms and conditions making provision, to the exclusion of any
other provision that would be applicable, with respect to leave of absence and
pensions or retiring allowances.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 10.
Remuneration and allowances.
SECT
10. (1) The President shall, if he is not the Chief Judge of the
Commonwealth Industrial Court or the President of the Commonwealth
Conciliation and Arbitration Commission, be paid additional remuneration at
the rate of Two thousand dollars per annum and an additional annual allowance
at the rate of Five hundred dollars per annum.*
(2) A member other than a presidential member shall be paid remuneration at
the rate of Two thousand six hundred dollars per annum and, in addition,
Thirty-five dollars in respect of each day on which he sits as a member of a
Division of the Tribunal for the purpose of hearing and determining
proceedings.
(3) No remuneration or allowance referred to in either of the last two
preceding sub-sections shall be diminished during a term of office.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 11.
Travelling allowances.
SECT
11. A member shall be paid such allowances in respect of travelling expenses
as are prescribed.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 12.
Acting appointments.
SECT
12. (1) Where the President is, or is expected to be, absent from duty, or
there is a vacancy in the office of President, the Attorney-General may
appoint a Deputy President or an acting Deputy President to act as President
during the absence or until the filling of the vacancy.
(2) Where a presidential member (including the President) is, or is expected
to be, absent from duty, the Governor-General may appoint a person qualified
to be appointed as a presidential member to act as a Deputy President during
the absence from duty of the member.
(3) Where a member other than a presidential member is, or is expected to
be, absent from duty, the Governor-General may appoint a person qualified to
be appointed as a member other than a presidential member to act as such a
member during the absence from duty of the member.
(4) Where a person has been appointed under sub-section (2) or (3) of this
section, the Governor-General may, by reason of pending proceedings or other
special circumstances, direct, before the absent member resumes duty, that the
person so appointed shall continue to act under the appointment after the
resumption of duty by the absent member until the Governor-General terminates
the appointment, but a person shall not continue to act as a member by virtue
of this sub-section for more than one year after the resumption of duty by the
absent member.
(5) Where a person has been appointed under this section to act as a member
during the absence from duty of a member, and that member ceases to hold
office without having resumed duty, the period of appointment of the person so
appointed shall be deemed to continue until it is terminated by the
Governor-General, or until the expiration of twelve months from the date on
which the absent member ceases to hold office, whichever first happens.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 13.
Suspension and removal of members.
SECT
13. (1) The Governor-General may suspend a member from office on the ground
of misbehaviour or physical or mental incapacity.
(2) The Attorney-General shall cause a statement of the ground of the
suspension to be laid before each House of the Parliament within seven sitting
days of the House after the suspension.
(3) Where such a statement has been laid before a House of the Parliament,
that House may, within fifteen sitting days of that House after the day on
which the statement has been laid before it, by resolution, declare that the
member should be restored to office and, if each House so passes such a
resolution, the Governor-General shall terminate the suspension.
(4) If, at the expiration of fifteen sitting days of a House of the
Parliament after the day on which the statement has been laid before that
House, that House has not passed such a resolution, the Governor-General may
remove the member from office.
(5) If a member becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with his creditors or
makes an assignment of his remuneration for their benefit, the
Governor-General shall remove him from office.
(6) A member shall not be removed from office except as provided by this
section.
(7) A presidential member ceases to hold office if he no longer holds office
as a person referred to in paragraph (a) or paragraph (b) of sub-section (1)
of section 8 of this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 14.
Resignation.
SECT
14. A member may resign his office by writing signed by him and delivered to
the Governor-General.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 15.
Oath or affirmation of office.
SECT
15. (1) A member shall, before proceeding to discharge the duties of his
office, take an oath or make an affirmation in accordance with the form of
oath or affirmation in the First Schedule to this Act.
(2) The oath or affirmation shall be taken or made before a Judge of a
Federal Court or of the Supreme Court of a State.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 16.
Constitution of Tribunal for particular matters.
SECT
16. (1) Except as otherwise provided by this Act, the Tribunal shall, for
the purpose of hearing and determining proceedings, be constituted by a
Division of the Tribunal consisting of a presidential member and two members
who are not presidential members.
(2) Where, before the commencement of the hearing of proceedings to which
the last preceding sub-section would be applicable, there is filed with the
Registrar, in accordance with such requirements as to time or otherwise as are
prescribed, a notice signed by or on behalf of all the parties, other than the
Commissioner, that they have agreed that the proceedings shall be dealt with
by the Tribunal constituted by a single presidential member, the Tribunal
shall be constituted for the purpose of those proceedings by a single
presidential member.
(3) The Tribunal as constituted in accordance with the last preceding
sub-section may continue to deal with proceedings notwithstanding that a
further party is added to the proceedings after the commencement of the
hearing.
(4) The validity of a determination or order of the Tribunal purporting to
be constituted by one or more members in accordance with this Act shall not be
affected or called in question by reason of any defect or irregularity in the
constitution of the Tribunal by that member or those members.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 17.
Arrangement of business.
SECT
17. The President may give directions as to the arrangement of the business
of the Tribunal and the constitution of Divisions of the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 18.
Disclosure of financial interests of members.
SECT
18. When a member, other than a presidential member, is informed by the
President that the President proposes that the member shall be a member of a
Division of the Tribunal in any proceedings, the member shall, to the best of
his knowledge, disclose to the President any direct or indirect pecuniary
interest that the member has in any business carried on in Australia, or in
any body corporate carrying on any such business, being an interest that could
be in conflict with his duties as a member of the Tribunal in those
proceedings.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 19.
Presidential member to preside.
SECT
19. (1) The President shall preside at proceedings of a Division of the
Tribunal at which he is present.
(2) At proceedings before a Division of the Tribunal at which the President
is not present, the Deputy President present or, in the case of a Review
Division, a Deputy President nominated by the President, shall preside.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 20.
Decision of questions.
SECT
20. (1) Subject to Division 3 of Part VI (including that Division in its
application by virtue of section 77 of this Act), a question of law arising in
a matter before a Division of the Tribunal other than a Review Division
(including the question whether a particular question is one of law) shall be
determined in accordance with the opinion of the presidential member
presiding.
(2) Subject to the last preceding sub-section, a question arising in
proceedings before a Division of the Tribunal shall be determined in
accordance with the opinion of a majority of the members constituting the
Division.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 21.
Member ceasing to be available.
SECT
21. (1) This section applies where the hearing of any proceedings has been
commenced or completed by the Tribunal but, before the matter to which the
proceedings relate has been determined, the member, or one of the members,
constituting the Tribunal for the purposes of the proceedings has ceased to be
a member of the Tribunal or has ceased to be available for the purposes of the
proceedings.
(2) Where the President is satisfied that this section applies in relation
to proceedings, the President may direct that a specified member of the
Tribunal shall take the place of the member referred to in the last preceding
sub-section for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were being
dealt with before the Tribunal constituted by three members, the President
may, instead of giving a direction under the last preceding subsection, direct
that the hearing and determination, or the determination, of the proceedings
be completed by the Tribunal constituted by the members other than the member
referred to in sub-section (1) of this section.
(4) Where the President has given a direction under the last preceding
sub-section, he may, at any time before the determination of the proceedings,
direct that a third member be added to the Tribunal as constituted in
accordance with the last preceding sub-section.
(5) The Tribunal as constituted in accordance with any of the provisions of
this section for the purposes of any proceedings may have regard to any record
of the proceedings before the Tribunal as previously constituted.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 22.
Office of Commissioner.
SECT
PART III-THE COMMISSIONER, THE REGISTRAR OF THE TRIBUNAL AND OTHER
OFFICERS
22. There shall be a Commissioner of Trade Practices, who shall be appointed
by the Governor-General.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 23.
Terms and conditions of appointment.
SECT
23. (1) Subject to this Part, the Commissioner holds office for such period,
not exceeding seven years, as is specified in the instrument of his
appointment, but is eligible for re-appointment.
(2) Subject to this Part, the Governor-General may, in the instrument of
appointment of a person as the Commissioner, specify terms and conditions of
appointment, which may include terms and conditions making provision, to the
exclusion of any other provision that would be applicable, with respect to
leave of absence and pensions or retiring allowances.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 24.
Remuneration and allowances.
SECT
24. (1) The Commissioner shall be paid salary at the rate of Nineteen
thousand five hundred dollars per annum and an annual allowance at the rate of
One thousand dollars per annum.*
(2) Neither the salary nor the allowance referred to in the last preceding
sub-section shall be diminished during a term of office.
(3) The Commissioner shall be paid such allowances in respect of travelling
expenses as are prescribed.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 25.
Outside employment and interests.
SECT
25. (1) The Commissioner shall not engage in paid employment outside the
duties of his office.
(2) A person who is a director of a company shall not be appointed as the
Commissioner and the Commissioner shall not act as director of a company.
(3) The Commissioner shall give written notice to the Attorney-General of
all direct and indirect pecuniary interests that he has or acquires in any
business carried on in Australia or in any body corporate carrying on any such
business.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 26.
Rights of public servant appointed as Commissioner.
SECT
Amended by No. 216, 1973, s. 3.
26. If a person appointed to the office of Commissioner was, immediately
before his appointment, an officer of the Public Service of the Commonwealth-
(a) he retains his existing and accruing rights; and
(b) for the purpose of determining those rights, his service as the
Commissioner shall be taken into account as if it were service in the Public
Service of the Commonwealth.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 27.
Acting Commissioner.
SECT
27. (1) Where the Commissioner is, or is expected to be, absent from duty,
or there is a vacancy in the office of Commissioner, the Governor-General may
appoint a person to act as the Commissioner during the absence or until the
filling of the vacancy, but a person so appointed by reason of a vacancy in
the office of Commissioner shall not act as the Commissioner for more than
twelve months.
(2) Where a person has been appointed to act as the Commissioner during the
absence from duty of the Commissioner and the Commissioner ceases to hold
office without having resumed duty, the period of appointment of the person so
appointed shall be deemed to continue until it is terminated by the
Governor-General, or until the expiration of twelve months from the date on
which the Commissioner ceases to hold office, whichever first happens.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 28.
Suspension and removal of Commissioner.
SECT
28. (1) The Governor-General may suspend the Commissioner from office for
misbehaviour or physical or mental incapacity.
(2) The Attorney-General shall cause a statement of the ground of the
suspension to be laid before each House of the Parliament within seven sitting
days of the House after the suspension.
(3) Where such a statement has been laid before a House of the Parliament,
that House may, within fifteen sitting days of that House after the day on
which the statement has been laid before it, by resolution, declare that the
Commissioner ought to be restored to office and, if each House so passes such
a resolution, the Governor-General shall terminate the suspension.
(4) If, at the expiration of fifteen sitting days of a House of the
Parliament after the day on which the statement has been laid before that
House, that House has not passed such a resolution, the Governor-General may
remove the Commissioner from office.
(5) If the Commissioner becomes bankrupt, applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors, compounds with his
creditors or makes an assignment of his remuneration for their benefit, the
Governor-General shall remove him from office.
(6) The Commissioner shall not be removed from office except as provided by
this section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 29.
Resignation.
SECT
29. The Commissioner may resign his office by writing signed by him and
delivered to the Governor-General.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 30.
Oath or affirmation of office.
SECT
30. (1) The Commissioner shall, before proceeding to discharge the duties of
his office, take an oath or make an affirmation in accordance with the form of
oath or affirmation in the First Schedule to this Act.
(2) The oath or affirmation shall be taken or made before a justice of the
peace or a commissioner for taking affidavits.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 31.
Staff.
SECT
31. The staff necessary to assist the Commissioner shall be persons employed
under, or whose services are made available in accordance with arrangements
made under, the Public Service Act 1922-1968.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 32.
Delegation by Commissioner.
SECT
32. (1) The Commissioner may, by writing under his hand, delegate to a
person doing duty under the last preceding section, either generally or as
provided by the instrument of delegation, any of his powers and functions
under this Act, except-
(a) this power of delegation; or
(b) his powers and functions under sub-sections (1) and (2) of section 47
of this Act.
(2) A power or function so delegated may be exercised or performed by the
delegate in accordance with the instrument of delegation.
(3) A delegation under this section is revocable at will and does not
prevent the exercise of a power or the performance of a function by the
Commissioner.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 33.
Staff of Tribunal.
SECT
33. (1) There shall be a Registrar of the Tribunal and such Deputy
Registrars of the Tribunal as are appointed in accordance with this section.
(2) The Registrar and the Deputy Registrars shall be appointed by the
Attorney-General and shall have such duties and functions as are provided by
this Act and the regulations and such other duties and functions as the
President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to
assist them, shall be persons employed under, or whose services are made
available in accordance with arrangements made under, the Public Service Act
1922-1968.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 34.
Secrecy.
SECT
34. (1) This section applies to every person who is or has been the
Commissioner or a member of the staff assisting the Commissioner.
(2) Subject to this section, a person to whom this section applies shall
not, either directly or indirectly, except in the performance of a duty under
or in connexion with this Act-
(a) make a record of, or divulge or communicate to any person, any
information concerning the affairs of any other person acquired by him by
reason of his office or employment under or for the purposes of this Act; or
(b) produce to any person the Register or a document furnished for the
purposes of this Act.
Penalty: One thousand dollars or imprisonment for three months.
(3) A person to whom this section applies shall not be required to produce
in a court the Register or any document relating to the affairs of any other
person of which he has the custody, or to which he has access, by virtue of
his office or employment under or for the purposes of this Act, or to divulge
or communicate to any court any information concerning the affairs of any
other person obtained by him by reason of any such office or employment,
except when it is necessary to do so for the purposes of, or of a prosecution
under or arising out of, this Act.
(4) Nothing in this section applies in relation to-
(a) the communication of information to, or the production of the Register
or a document to, the Attorney-General or to an officer acting on behalf of,
and with the authority of, the Attorney-General; or
(b) the communication or production to a person of, or of information or
documents concerning, particulars furnished to the Commissioner of an
agreement to which, according to those particulars, that person is or has been
a party.
(5) In this section-
''court'' includes any tribunal, authority or person having power to require
the production of documents or the answering of questions;
''produce'' includes permit access to and ''production'' has a corresponding
meaning.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 35.
Agreement between competitors containing certain restrictions.
SECT
PART IV-EXAMINABLE AGREEMENTS AND PRACTICES
35. (1) An agreement is an examinable agreement for the purposes of this Act
if, whether as originally made or by reason of a subsequent variation, it is
an agreement the parties to which are or include two or more persons, at least
one of which is a corporation, carrying on businesses that are competitive
with each other and each of which is a business of the supply of goods or
services and if it is an agreement under which a restriction of any of the
kinds referred to in the next succeeding sub-section is accepted by a
corporation, being one of those persons, in relation to any such business,
whether or not the restriction is accepted by another of those persons.
(2) The restrictions referred to in the last preceding sub-section are
restrictions in respect of-
(a) the terms or conditions, whether as to prices or as to any other
matter, upon or subject to which dealings may be engaged in;
(b) the concessions or benefits, including allowances, discounts, rebates
or credit, that may be given or allowed in connexion with, or by reason of,
dealings;
(c) the quantities, qualities, kinds or extent of goods or services that
may be produced, acquired, held in stock or supplied, or the resources or
methods that may be used, or the resources that may be acquired or maintained
for use;
(d) the places in, to or from which goods or services may be supplied; or
(e) the persons or classes of persons who may be dealt with, or the
circumstances in which, or the conditions subject to which, persons or classes
of persons may be dealt with.
(3) For the purposes of this section, two or more businesses are competitive
with each other where the businesses are, in whole or in part, competitive
with each other in relation to the supply or acquisition of goods or services,
including acquisition of materials, or, but for any agreement of a kind
referred to in sub-section (1) of this section, would be, or would be likely
to become, so competitive, whether or not the businesses relate to the same
kind of goods or services.
(4) The agreements referred to in sub-section (1) of this section do not
include an agreement the only parties to which are two or more bodies
corporate that are related to each other.
Amended by No. 216, 1973, s. 3.
(5) In determining whether an agreement is an examinable agreement, regard
shall not be had-
(a) to any provision of the agreement that is, or is of a kind,
specifically authorized or approved by, or by regulations under, an Act;
(b) to any provision of the agreement that is, or is of a kind,
specifically authorized or approved by, or by regulations under, a State Act
or an Ordinance of an internal Territory, except to the extent that the
provision gives rise to a restriction to be observed in another State or
internal Territory;
(c) to any provision of the agreement relating to the remuneration,
conditions of employment, hours of work or working conditions of employees;
(d) to any provision of the agreement obliging a person to comply with or
apply standards prepared or approved by the Standards Association of Australia
or by a prescribed association or body;
(e) in the case of an agreement for the sale of a business-to any provision
of the agreement that is solely for the protection of the purchaser in respect
of the goodwill of the business;
(f) in the case of an agreement for or in respect of-
(i) a licence granted or to be granted by the proprietor, licensee or
owner of a patent, a registered design or copyright or by a person who has
applied for a patent or for the registration of a design; or
(ii) an assignment of a patent, a registered design or copyright or of
the right to apply for a patent or for the registration of a design,
to any condition of the licence or assignment relating exclusively to-
(iii) the invention to which the patent or application for a patent
relates or articles made by the use of that invention;
(iv) goods in respect of which the design is or is proposed to be
registered and to which it is applied; or
(v) the work or other subject matter in which the copyright subsists;
(g) in the case of an agreement authorizing the use of a certification
trade mark-to any provision included in the agreement in accordance with rules
applicable under Part XI of the Trade Marks Act 1955-1966; or
(h) in the case of an agreement between the registered proprietor of a
trade mark other than a certification trade mark and a person authorized by
the agreement to use the trade mark subject to registration as a registered
user under Part IX of the Trade Marks Act 1955-1966-to any provision of the
agreement with respect to the kinds, qualities or standards of goods bearing
the mark that may be produced or supplied.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 36.
Examinable practices.
SECT
36. (1) Practices of the following kinds are examinable practices for the
purposes of this Act:-
(a) in or in connexion with the acquisition, or possible acquisition, of
goods by a corporation from a person, inducing or attempting to induce that
person by any express or implied threat or promise to accept terms as to price
or any other matter or conditions, including collateral conditions, that are
more favourable to the corporation than those upon or subject to which that
person is willing to supply goods of the same kind and quantity to business
competitors generally of the corporation, where the more favourable terms or
conditions are, or would be, likely to lessen substantially the ability of a
person to compete with the corporation;
(b) in or in connexion with the acquisition, or possible acquisition, of
goods by a person from a corporation, inducing or attempting to induce that
corporation by any express or implied threat or promise to accept terms as to
price or any other matter or conditions, including collateral conditions, that
are more favourable to that person than those upon or subject to which that
corporation is willing to supply goods of the same kind and quantity to
business competitors generally of that person, where the more favourable terms
or conditions are, or would be, likely to lessen substantially the ability of
a person to compete with the first-mentioned person;
(c) the requiring by a corporation, as a condition of the supply of goods
or services to a person carrying on a business, that that person acquire all
or a part of his requirements of goods or services of another class directly
or indirectly from a second person;
(d) the requiring by a person, as a condition of the supply of goods or
services to a corporation carrying on a business, that that corporation
acquire all or a part of its requirements of goods or services of another
class directly or indirectly from a second person;
(e) the inducing by a corporation of a person carrying on a business to
refuse to deal with a second person, or to refuse to deal with a second person
except on terms disadvantageous to the second person, where the corporation-
(i) is a trade association or is acting as a member of, or on behalf
of, a trade association; or
(ii) is acting, in connexion with the carrying on of a business by it,
in pursuance of an agreement with, or in concert with, another person carrying
on a business;
(f) the inducing by a person of a corporation carrying on a business to
refuse to deal with a second person, or to refuse to deal with a second person
except on terms disadvantageous to the second person, where the
first-mentioned person-
(i) is a trade association or is acting as a member of, or on behalf
of, a trade association; or
(ii) is acting, in connexion with the carrying on of a business by him,
in pursuance of an agreement with, or in concert with, another person carrying
on a business; or
(g) the attempting by a corporation or another person to induce as
mentioned in either of the last two preceding paragraphs.
(2) Where a body corporate and a corporation are related to each other, the
last preceding sub-section does not apply with respect to anything done to or
in relation to that body corporate by that corporation or to or in relation to
that corporation by that body corporate.
(3) Where a person, being a body corporate, and a second person, being a
body corporate, are related to each other, sub-section (1) of this section has
effect as if those persons were one person.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 37.
Monopolization an examinable practice.
SECT
37. (1) The engaging by a corporation in monopolization within the meaning
of this section is an examinable practice for the purposes of this Act.
(2) For the purposes of this section, a corporation engages in
monopolization if, being in a dominant position in the trade in goods of a
particular description, or in the supply of services of a particular
description, in Australia or in a part of Australia, it takes advantage of
that position so as to-
(a) induce or attempt to induce a person carrying on a business to refuse
to deal with a second person or to refuse to deal with a second person except
on terms disadvantageous to the second person;
(b) engage in price-cutting with the object of substantially damaging the
business of a competitor or preventing a possible competitor from entering
into competition with it; or
(c) impose prices or other terms or conditions of dealing that it would be
unable to impose but for its dominant position.
(3) The Tribunal shall not regard as a part of Australia for the purposes of
this section an area that does not include the whole of a State or Territory
unless it is satisfied that it is appropriate to do so having regard to the
substantial size of the area and the significance of the area as a market
area.
(4) The Tribunal shall not regard a description of goods or services as
being a particular description of goods or services for the purposes of this
section if the Tribunal considers that it would be unreasonable to do so
having regard to the fact that other goods or services are competitive with
goods or services that are included in the description and to the extent to
which those other goods or services are so competitive.
(5) For the purposes of this section, the Tribunal shall regard a
corporation as being in a dominant position in the trade in goods of a
particular description, or in the supply of services of a particular
description, in Australia or in a part of Australia if, and only if, the
Tribunal is satisfied that that corporation, or a combination of which that
corporation is a member, is the supplier of not less than one-third, by
quantity or value, of the goods, including imported goods, or services of that
description that are supplied in Australia or in that part of Australia,
whether, in the case of goods, the corporation or combination supplies the
goods by wholesale, by retail or otherwise.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 38.
Exemptions in respect of practices.
SECT
38. (1) In determining whether a corporation or another person has engaged,
is engaging or proposes to engage in an examinable practice, regard shall not
be had to any act or thing that is, or is of a kind, specifically authorized
or approved by, or by regulations under, an Act.
Amended by No. 216, 1973, s. 3.
(2) In determining whether a corporation or another person has engaged, is
engaging or proposes to engage in an examinable practice by reason of acts or
things done or proposed to be done in a particular State or internal
Territory, regard shall not be had to any act or thing that is, or is of a
kind, specifically authorized or approved by, or by regulations under, an Act
of that State or an Ordinance of that Territory.
(3) In determining whether a corporation or another person has engaged, is
engaging or proposes to engage in an examinable practice other than a practice
of monopolization, regard shall not be had to a provision or condition
referred to in paragraphs (c) to (h) (inclusive) of sub-section (5) of section
35 of this Act or to an act or thing done in pursuance of such a provision or
condition.
(4) In determining whether a corporation has engaged, is engaging or
proposes to engage in an examinable practice of monopolization, regard shall
not be had to a provision referred to in paragraph (c), (d) or (e) of
sub-section (5) of section 35 of this Act or to an act or thing done in
pursuance of such a provision.
(5) In relation to monopolization, the reference in sub-section (1) of this
section to an Act does not include a reference to an Act relating to patents,
trade marks, designs or copyrights.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 39.
Combinations.
SECT
39. For the purposes of this Act-
(a) two or more corporations constitute a combination in relation to goods
or services of any description if those corporations so conduct their affairs
as in any way to restrict or prevent competition between them in connexion
with the supply of those goods or services; and
(b) two or more corporations constitute a combination if those corporations
are related to each other and each of them is included in any other
combination in which any of them is included.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 40.
Register to be kept.
SECT
PART V-REGISTRATION OF CERTAIN AGREEMENTS
40. (1) For the purposes of this Act, the Commissioner shall cause to be
kept a register to be known as the Register of Trade Agreements.
(2) Subject to this Act and the regulations, the Register shall be kept in
such form and manner as the Commissioner directs.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 41.
Agreements subject to registration.
SECT
41. (1) Subject to this section-
(a) an agreement made before the date of commencement of this Act that is,
on that date, an examinable agreement becomes subject to registration under
this Part on that date;
(b) an agreement made on or after that date that is, when made, an
examinable agreement becomes subject to registration under this Part upon the
making of the agreement; and
(c) an agreement, whether made before or after that date, that becomes an
examinable agreement at a time after the making of the agreement, being a time
after the commencement of this Act, becomes subject to registration under this
Part at that time.
(2) If the only relevant restrictions under an examinable agreement relate
exclusively to the supply or acquisition of services, the agreement is exempt
from registration under this Part unless those services are or include
services by way of-
(a) the production, construction, maintenance, repair, treatment,
processing, cleaning or alteration of goods or of fixtures on land;
(b) the alteration of the physical state of land;
(c) the distribution of goods; or
(d) the transportation of goods.
(3) Where an agreement that is, by virtue of the last preceding sub-section,
exempt from registration under this Part is so varied that, while remaining an
examinable agreement, it ceases to be so exempt, the agreement becomes subject
to registration under this Part on the day on which it is so varied.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 42.
Particulars to be furnished of certain agreements, variations and
determinations.
SECT
42. (1) Where an agreement has become subject to registration under this
Part, particulars of the agreement, in accordance with this section and
verified as required by this section, shall be furnished to the Commissioner
within the period of thirty days after the date on which the agreement became
subject to registration.
(2) In the case of an agreement that becomes subject to registration on a
date subsequent to the date of making of the agreement, the particulars
required to be furnished are particulars of the agreement as varied, whether
in respect of the parties or in respect of the terms, by any variations made
before or on the day on which the agreement becomes subject to registration.
(3) The duty to furnish particulars under this section in respect of an
agreement that has become subject to registration is not affected by any
subsequent variation or determination of the agreement, and if, at any time
after an agreement becomes subject to registration, the agreement is varied,
whether in respect of the parties or in respect of the terms, or is determined
otherwise than by effluxion of time, then, except as otherwise prescribed,
particulars of the variation or determination, verified as required by this
section, shall be furnished to the Commissioner within the period of thirty
days after the day on which the variation or determination occurred.
(4) The requirements of this section may be complied with-
(a) in respect of an agreement-by any party to the agreement; or
(b) in respect of a variation or determination of an agreement-by any
person who was a party to the agreement immediately before, or was a party to
the agreement immediately after, the variation or determination.
(5) Subject to the regulations, the particulars to be furnished of an
agreement are-
(a) the names of the parties to the agreement and the date of the
agreement; and
(b) the whole of the terms of the agreement, whether or not relating to
relevant restrictions.
(6) The particulars to be furnished of an agreement, or of a variation or
determination of an agreement, shall be furnished-
(a) in so far as the particulars are contained in an instrument in writing
by which the agreement, variation or determination was, in whole or in part,
made or effected-by lodging a true copy of that instrument; and
(b) in so far as the particulars are not contained in such an instrument,
whether or not there is such an instrument-by lodging a memorandum of those
particulars,
verified as a true copy or a full and correct memorandum, as the case
requires, by statutory declaration of the person by whom the particulars are
furnished or of a competent person authorized by that person.
(7) The regulations may provide for excluding any particulars from the
particulars required to be furnished under this Part and, in particular, for
excluding all or any of such particulars as to persons, prices, terms or other
matters as are material for the purpose only of defining the particular
application from time to time of continuing restrictions.
(8) A person referred to in sub-section (4) of this section may, before the
expiration of the time within which, but for this sub-section, the particulars
are required to be furnished, apply in writing to the Commissioner for an
extension of that time and, where such an application is made, the time within
which the particulars are required to be furnished shall be taken not to
expire-
(a) whether or not the application is granted-before the expiration of
fourteen days after the date on which the Commissioner informs the applicant
in writing of his decision on the application; or
(b) if the application is granted-before the expiration of the period of
the extension granted by the Commissioner.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 43.
Failure to furnish particulars an offence.
SECT
43. (1) If the requirements of the last preceding section are not complied
with in respect of an agreement, every corporation that was a party to the
agreement when it became subject to registration is guilty of an offence.
(2) If the requirements of the last preceding section are not complied with
in respect of a variation or determination of an agreement, every corporation
that was a party to the agreement immediately before, or immediately after,
the variation or determination is guilty of an offence.
(3) The penalty for an offence against this section is a fine not exceeding
Two thousand dollars.
(4) It is a defence to a prosecution for an offence against this section if
the corporation charged satisfies the Court that-
(a) it did not, within the time allowed for the furnishing of the
particulars, advert to the question whether particulars of the agreement,
variation or determination were required by this Act to be furnished to the
Commissioner and that its failure to advert to that question was not
attributable to a desire to avoid, or to indifference to, its obligations;
(b) it reasonably relied on another party, or on a trade association of
which it was a member, to ensure that the required particulars were duly
furnished; or
(c) it believed in good faith that particulars of the agreement, variation
or determination furnished to the Commissioner by it within the time allowed
complied with the requirements of this Act,
and that either the particulars, or the necessary further or amended
particulars, were duly furnished, except as regards time, by itself or another
party before the institution of the prosecution or it did not know or suspect,
before the institution of the prosecution, that there had been default in
compliance with the requirements of this Act with respect to the furnishing to
the Commissioner of particulars of the agreement, variation or determination.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 44.
Registration by Commissioner.
SECT
44. Where particulars of an agreement, or of a variation or determination of
an agreement, are duly furnished to the Commissioner in accordance with this
Part, or where those particulars are duly furnished except that the time
allowed for furnishing the particulars has expired, the Commissioner shall
register the agreement, variation or determination by filing in the Register
the document containing the particulars.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 45.
Register to be evidence.
SECT
45. In proceedings under this Act before the Tribunal or the Court, other
than proceedings for an offence against section 43 of this Act, particulars of
an agreement, or of a variation or determination of an agreement, as appearing
from the Register are evidence of the agreement, variation or determination.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 46.
Interpretation.
SECT
PART VI-EXAMINATION OF AGREEMENTS AND PRACTICES BY THE TRIBUNAL
Division 1-General
46. In this Part, the expression ''is contrary to the public interest''
shall, so far as necessary, be read as including the expressions ''was
contrary to the public interest'' and ''would be contrary to the public
interest'' and other expressions relating to the public interest shall be
similarly construed.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 47.
Institution of proceedings.
SECT
47. (1) Subject to the next succeeding section, where-
(a) the Commissioner has reason to believe, on the basis of information
available to him from the Register or from any other source, that an
examinable agreement exists or has existed after the commencement of this Act;
and
(b) the Commissioner is of opinion that any relevant restriction accepted
under the agreement is contrary to the public interest,
he may institute proceedings in the Tribunal under this section in respect of
that restriction.
(2) Subject to the next succeeding section, where the Commissioner has
reason to believe that a corporation or another person has, after the
commencement of this Act, engaged, is engaging or proposes to engage in an
examinable practice and the Commissioner is of opinion that the practice is
contrary to the public interest, he may institute proceedings in the Tribunal
under this section in respect of the practice.
(3) Proceedings under this section shall be instituted as prescribed.
(4) The Tribunal may, at any time, grant leave to the Commissioner to
discontinue proceedings under this section.
(5) The Attorney-General may, by writing under his hand, direct the
Commissioner to investigate the facts and circumstances with respect to an
examinable agreement or examinable practice or an alleged examinable agreement
or examinable practice with a view to deciding whether proceedings under this
section should be instituted and to report to the Attorney-General the results
of the investigation.
(6) In instituting proceedings under this section, the Commissioner shall
file with the Registrar a document giving, as fully as he is able, particulars
of the relevant agreement (if any) and of the restriction or practice to which
the proceedings relate, but so that any particulars that are set out in a
document filed in the Register may be given by appropriate reference to the
Register.
(7) Where proceedings have been instituted under this section, the
Commissioner shall cause notice of the proceedings, together with a copy of
the document first referred to in the last preceding sub-section, to be
served, as prescribed, on each other party to the proceedings.
(8) The Commissioner may, at any stage of the proceedings, by leave of the
Tribunal, amend the particulars referred to in sub-section (6) of this
section, whether by reason of a variation of the relevant agreement or
practice, or otherwise.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 48.
Commissioner to consult parties with a view to avoiding proceedings.
SECT
48. (1) The Commissioner shall not institute proceedings under the last
preceding section unless he has first carried on, or endeavoured to carry on,
either personally or through members of his staff with adequate knowledge of,
or experience in, industry or commerce, consultations with the persons who
would be the other parties to the proceedings, or with representatives of
those persons, with a view to securing such undertaking or action by those
persons, for or by way of determination, cessation or variation of the
agreement or practice concerned or otherwise, as will render the proposed
proceedings unnecessary.
(2) In connexion with consultations under the last preceding sub-section,
the Commissioner may agree to apply to the Tribunal for leave to file a
certificate under section 59 of this Act in respect of any restriction or
practice or proposed restriction or practice.
(3) Where a person (other than the Commissioner) taking part in
consultations under this section indicates his wish that the consultations, or
any part of the consultations, be on a ''without prejudice'' basis, evidence
of any statement, admission or offer made by a person (including the
Commissioner) in the consultations, or in that part of the consultations, as
the case may be, shall not be admitted in proceedings before the Tribunal
under this Act except with the consent of all parties to the proceedings.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 49.
Inquiry and determination by Tribunal.
SECT
49. (1) In proceedings under section 47 of this Act, if the Tribunal, after
such inquiry as it considers appropriate having regard to the matters alleged
by the Commissioner, is satisfied that an examinable agreement exists or has
existed, or an examinable practice has been, is being or is proposed to be,
engaged in, the Tribunal shall make a determination by which it-
(a) records its findings as to those matters, including its findings as to
the parties to, and terms of, the agreement, or the particulars of the
examinable practice; and
(b) determines, in accordance with its opinion, whether the relevant
restrictions to which the proceedings relate are contrary to the public
interest or the examinable practice is contrary to the public interest, as the
case requires.
(2) Where the Tribunal makes a determination under this section, it shall
state, and record in the records of the Tribunal, the reasons for its opinion
that the restriction or practice is, or is not, contrary to the public
interest.
(3) The Tribunal shall not find that a practice of monopolization is
proposed to be engaged in unless the Tribunal is satisfied that the
corporation concerned is already, within the meaning of section 37 of this
Act, in a dominant position in the trade in goods of the particular
description concerned, or in the supply of services of the particular
description concerned, in Australia or in a part of Australia.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 50.
The public interest.
SECT
50. (1) In considering whether a restriction, or a practice other than a
practice of monopolization, is contrary to the public interest, the Tribunal
shall take as the basis of its consideration the principle that the
preservation and encouragement of competition are desirable in the public
interest but shall weigh against the detriment constituted by any proved
restriction of, or tendency to restrict, competition any effect of the
restriction or practice as regards any of the matters referred to in the next
succeeding sub-section if that effect tends to establish that, on balance, the
restriction or the practice is not contrary to the public interest.
(2) The matters that are to be taken into account in accordance with the
last preceding sub-section are-
(a) the needs and interests of consumers, employees, producers,
distributors, importers, exporters, proprietors and investors;
(b) the needs and interests of small businesses;
(c) the promotion of new enterprises;
(d) the need to achieve the full and efficient use and distribution of
labour, capital, materials, industrial capacity, industrial know-how and other
resources;
(e) the need to achieve the production, provision, treatment and
distribution, by efficient and economical means, of goods and services of such
quality, quantity and price as will best meet the requirements of domestic and
overseas markets; and
(f) the ability of Australian producers and exporters to compete in
overseas markets.
(3) In considering the public interest in relation to a practice of
monopolization, the Tribunal shall weigh against any detriment, including
detriment constituted by any proved restriction of, or tendency to restrict,
competition, that has resulted, or can be expected to result, from the
practice any effect of the practice as regards any of the matters referred to
in the last preceding sub-section if that effect tends to establish that, on
balance, the practice is not contrary to the public interest.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 51.
Effect of determinations.
SECT
51. (1) Where the Tribunal determines that a restriction accepted under an
examinable agreement is contrary to the public interest, the agreement (if in
force) becomes, upon the date of the determination, unenforceable on the part
of or against a corporation as regards observance of the restriction on and
after that date.
(2) Where the Tribunal determines that a practice is contrary to the public
interest and finds that the practice is provided for by an agreement, the
agreement (if in force) becomes, upon the date of the determination,
unenforceable as regards engaging in the practice on and after that date.
(3) Where the Tribunal determines that a restriction or practice is contrary
to the public interest, a transaction entered into, whether before or after
the making of the determination, in pursuance of the restriction or in
accordance with the practice is not illegal or unenforceable by reason only of
the making of that determination.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 52.
Orders in consequence of determinations.
SECT
52. (1) Where the Tribunal determines that a restriction accepted under an
examinable agreement is contrary to the public interest, the Tribunal may make
such orders as it thinks proper for restraining all or any of the parties to
the agreement, being corporations, from-
(a) giving effect to, or enforcing or purporting to enforce, the agreement
in respect of that restriction or any restriction to the like effect; or
(b) entering into any other agreement, whether with the same parties or
with other parties, under which any restriction to the like effect is
accepted.
(2) Where the Tribunal determines that a practice is contrary to the public
interest, it may make such orders as it thinks proper for restraining the
corporation or other person concerned-
(a) from engaging or further engaging in the practice;
(b) from engaging in practices of a like kind; or
(c) from doing acts or things that, in the opinion of the Tribunal, would,
unless there were a change in circumstances, amount to, or contribute to, a
continuance or repetition of the practice or engagement in a practice of a
like kind.
(3) Where the Tribunal determines that a restriction accepted under an
agreement to which any member or members of a trade association are parties,
or a practice on the part of any member or members of a trade association, is
contrary to the public interest, the Tribunal may, in addition to making any
other order, make such orders restraining the association, being a
corporation, or a corporation acting on behalf of the association, from making
or purporting to make any recommendation or doing or purporting to do any
other act or thing as the Tribunal thinks necessary-
(a) for ensuring the effective operation of any order arising out of the
determination; or
(b) for ensuring that further restrictions to the like effect do not become
applicable under the agreement.
(4) Where the Tribunal finds that a practice that it has determined to be
contrary to the public interest is provided for by an agreement, the Tribunal
may make such orders as it thinks proper-
(a) for restraining all or any of the parties to the agreement from giving
effect to, enforcing or purporting to enforce the agreement in respect of that
practice; or
(b) for restraining a person engaging in the practice under the agreement
from entering into any other agreement, whether with the same parties or with
other parties, by which the practice, or any practice of a like kind, is
provided for.
(5) Where an order of the Tribunal under this section restrains a person
from entering into an agreement of a specified description, the order shall,
unless the contrary intention appears in the order, be deemed to be expressed,
and to operate, also to restrain that person from giving effect to, enforcing
or purporting to enforce-
(a) an agreement entered into by that person in contravention of the order;
or
(b) an agreement entered into by that person after the commencement of the
proceedings and before the making of the order, being an agreement of the
specified description,
in respect of any matter by reason of which the agreement is of the specified
description.
(6) In relation to an order or proposed order of the Tribunal, a reference
in this section to any restriction to the like effect or to any practice of a
like kind shall be read as including a reference to every restriction or
practice, as the case may be, that is included in a class or description of
restrictions or practices that is declared by the order to be, in the opinion
of the Tribunal, a class or description of restrictions to the like effect or
of practices of a like kind, as the case may be, but this sub- section does
not prevent the Tribunal from referring in an order in general terms to
restrictions to the like effect or practices of a like kind.
(7) Subject to section 57 of this Act, orders of the Tribunal have the force
of law.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 53.
Date of effect of orders.
SECT
53. An order under the last preceding section, or an order varying such an
order, takes effect on such date as is fixed by the Tribunal and, in fixing
the date, the Tribunal shall, where it can do so without serious detriment to
the public interest, allow reasonable time for the persons affected by the
order to make orderly arrangements for the conduct of their businesses
consistently with the order.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 54.
Interim restraining orders.
SECT
54. (1) Where proceedings instituted by the Commissioner under section 47 of
this Act are pending and the Tribunal is satisfied that -
(a) unless action is taken under this section, there is likely to be grave
hardship to a person or irremediable injury to the public interest; and
(b) it is reasonable to do so, having regard to decisions previously given
by the Tribunal in relation to agreements or practices similar to the
agreement or practice to which the proceedings relate,
the Tribunal may make such interim orders as it thinks fit, being orders of a
kind that can be made under this Division where a restriction or practice is
determined to be contrary to the public interest.
(2) An order under this section has effect, unless it sooner ceases to have
effect by virtue of its terms or is sooner revoked by the Tribunal, until the
determination of the pending proceedings but may, upon the determination of
those proceedings, be continued by the Tribunal until an order, not being an
interim order, made in those proceedings takes effect.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 55.
Effect of variation or determination of agreement.
SECT
55. (1) Subject to this section, proceedings under section 47 of this Act in
respect of an agreement shall relate to the agreement as in force immediately
before the institution of the proceedings.
(2) Where an agreement that was an examinable agreement has been determined,
by effluxion of time or otherwise, or has been so varied that a restriction
under the agreement has ceased to be in force, the Commissioner may, with the
leave of the Tribunal constituted by a presidential member, institute
proceedings under section 47 of this Act in respect of a restriction that was
accepted under the determined agreement, or in respect of the restriction that
has ceased to be in force, as the case may be.
(3) Leave shall not be granted under the last preceding sub-section for the
institution of proceedings in respect of a restriction unless the Tribunal is
satisfied that there are reasonable grounds for believing that the parties, or
former parties, to the agreement or any of them have entered into, or are
likely to enter into, another examinable agreement, or a further variation of
the agreement, under which a restriction to the like effect is or may be
accepted.
(4) If, while proceedings under section 47 of this Act in respect of an
agreement are pending, it is shown to the Tribunal that the agreement has been
determined, by effluxion of time or otherwise, since the institution of the
proceedings, the Tribunal may, if the Commissioner requests it to do so,
continue the proceedings in respect of the determined agreement but otherwise
shall dismiss the proceedings.
(5) If, while proceedings under section 47 of this Act in respect of an
agreement are pending, it is shown to the Tribunal that the agreement has been
varied since the institution of the proceedings, the Tribunal may, if the
Commissioner requests it to do so, continue the proceedings-
(a) in respect of the agreement as it existed before the variation; or
(b) in respect of the agreement as varied,
or both, but otherwise shall dismiss the proceedings.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 56.
Effect of variation or abandonment of practice.
SECT
56. (1) The Commissioner shall not institute proceedings under section 47 of
this Act in respect of a practice unless-
(a) the proceedings relate to a practice that the Commissioner alleges is
being, or is proposed to be, engaged in; or
(b) the Tribunal constituted by a presidential member has granted leave to
institute the proceedings.
(2) Leave shall not be granted under the last preceding sub-section for the
institution of proceedings in respect of a practice unless the Tribunal is
satisfied that there are reasonable grounds for believing that the corporation
or other person concerned is likely to engage again in the practice or to
engage in a practice of a like kind, or that a combination in which that
corporation is or will be included is likely to engage in a practice of a like
kind.
(3) If, while proceedings under section 47 of this Act in respect of a
practice are pending, it is shown to the Tribunal that the practice has ceased
to be engaged in since the institution of the proceedings, the Tribunal may,
if the Commissioner requests it to do so, continue the proceedings in respect
of the former practice but otherwise shall dismiss the proceedings.
(4) If, while proceedings under section 47 of this Act in respect of a
practice are pending, it is shown to the Tribunal that the practice has been
varied since the institution of the proceedings, the Tribunal may, if the
Commissioner requests it to do so, continue the proceedings-
(a) in respect of the practice as it existed before the variation; or
(b) in respect of the practice as varied,
or both, but otherwise shall dismiss the proceedings.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 57.
Duration and operation of orders.
SECT
57. (1) A determination or order of the Tribunal under this Division, other
than an interim order, remains in force, subject to Division 3 of this Part
and to any variation made in accordance with this Division, until rescinded by
the Tribunal in accordance with the next succeeding section.
(2) An order of the Tribunal under this Division is binding only on the
persons on whom it is expressed to be binding.
(3) Subject to the next succeeding sub-section, an order of the Tribunal
under this Division shall not be expressed to be binding on a person unless
that person, or a person appointed, in accordance with the regulations, to
represent that person in the proceedings, was a party to the proceedings.
(4) Where a trade association, an officer of a trade association or a person
appointed, in accordance with the regulations, to represent all or any of the
members of a trade association is a party to proceedings, an order under this
Division in those proceedings may be expressed to bind all or any persons,
being corporations, from time to time acting on behalf of the trade
association.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 58.
Further consideration by Tribunal of determinations and orders upon change of
circumstances.
SECT
58. (1) The Tribunal may, upon application made by leave granted in
accordance with this section-
(a) by order, rescind or vary an order made in consequence of a
determination; or
(b) by order, rescind a determination in respect of a restriction or
practice and any order made in consequence of the determination, and
substitute such other determination, and make such order in consequence of the
substituted determination, as appears to the Tribunal to be proper.
(2) In the application of this section in relation to Part VII, the
Tribunal-
(a) may, by order, give such directions as it thinks fit as to giving
notice of the application; and
(b) may make an order rescinding a determination without substituting
another determination for it.
(3) Subject to the next succeeding sub-section, an application under this
section may be made by the Commissioner or by any person affected by the
previous determination or order.
(4) An application under this section shall not be made except with the
leave of the Tribunal constituted by a presidential member and leave shall not
be granted unless the presidential member is satisfied that there has been
such a change in circumstances as to justify a re-consideration of the
determination or order.
(5) The circumstances to which the Tribunal is to have regard for the
purposes of the last preceding sub-section include later decisions of the
Tribunal in analogous cases.
(6) Where the Tribunal rescinds a determination by virtue of which an
agreement has become, in whole or in part, unenforceable, the agreement
becomes, in relation to matters arising after the rescinding order comes into
operation, enforceable to the same extent as it would have been if the
original determination had not been made.
(7) This Act applies to and in relation to determinations and orders under
this section in like manner as it applies to and in relation to determinations
and orders under sections 49 and 52 of this Act or under Part VII, as the case
requires.
(8) Nothing in this section authorizes the making or variation of an order
or determination if the order or determination is not, or the order or
determination as varied would not be, an order or determination that could be
made under this Division.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 59.
Certificate that agreement or practice not contrary to public interest.
SECT
Division 2-Negative Clearances
59. (1) Where the Commissioner is satisfied that a restriction under an
examinable agreement, or an examinable practice, is not contrary to the public
interest, he may, with the leave of the Tribunal constituted by a presidential
member, file with the Registrar a certificate to that effect, giving
particulars of the agreement, and of the particular restriction, to which the
certificate relates or particulars of the practice to which the certificate
relates.
(2) While a certificate filed under this section remains unrevoked,
proceedings under section 47 of this Act shall not be instituted in respect of
the restriction or practice to which the certificate relates.
(3) A certificate under this section may, with the leave of the Tribunal, be
revoked by the Commissioner by notice of revocation filed with the Registrar.
(4) Leave to revoke a certificate under this section shall not be granted
unless the Tribunal is satisfied that there has been such a change in
circumstances since the certificate was filed as to make it reasonable to
permit a revocation of the certificate.
(5) The circumstances to which the Tribunal is to have regard for the
purposes of the last preceding sub-section include decisions of the Tribunal
in analogous cases since the date on which the certificate was filed.
(6) The Commissioner is not required to give consideration to the filing of
a certificate under this section except where-
(a) the Tribunal gives a direction under the next succeeding section; or
(b) it is necessary to do so for the purposes of section 48 of this Act.
(7) In this section-
''examinable agreement'' includes a proposed agreement that would be, or
might be, an examinable agreement;
''examinable practice'' includes a proposed practice that would be, or might
be, an examinable practice;
''restriction'' includes a proposed restriction.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 60.
Proceedings before Tribunal.
SECT
60. (1) A person who is, or proposes to become, a party to an agreement that
is or may be an examinable agreement, or a person who is engaged or proposes
to engage in a practice that is or may be an examinable practice, may apply to
the Tribunal constituted by a presidential member for an order under this
section in respect of all or any of the restrictions accepted or proposed to
be accepted under the agreement or in respect of the practice.
(2) If, on an application under this section-
(a) the Tribunal is satisfied that the application arises out of a proposal
for a new venture, or for a substantial extension of an existing venture, and
there is furnished to the Tribunal a statutory declaration by the applicant,
or by a person acting on behalf of the applicant and having, in the opinion of
the Tribunal, sufficient means of knowledge, by which it is declared that-
(i) a restriction or practice in respect of which the application is
made is necessary to the success of the venture or of the extension of the
venture; and
(ii) the proposal will not be, or is unlikely to be, carried out unless
there is an assurance of the legality of the restriction or practice; or
(b) the Tribunal is satisfied that-
(i) the application relates to a restriction or practice in respect of
which consultations have been commenced in accordance with section 48 of this
Act;
(ii) a reasonable period for the consultations has elapsed; and
(iii) the Commissioner has neither instituted proceedings under section
47 of this Act in respect of the restriction or practice nor applied for leave
to file a certificate under section 59 of this Act as a result of the
consultations,
the Tribunal may, in its discretion, by order, direct the Commissioner to take
action in accordance with this section in respect of the restriction or
practice.
(3) Where a direction is given under the last preceding sub-section, the
Commissioner shall, as expeditiously as practicable, make any necessary
inquiries and either-
(a) apply for leave to file a certificate under section 59 of this Act in
respect of the restriction or practice; or
(b) institute proceedings in the Tribunal under section 47 of this Act in
respect of the restriction or practice.
(4) Where-
(a) the Tribunal gives a direction under sub-section (2) of this section by
reason of the provisions of paragraph (a) of that subsection; and
(b) as a result of the direction, the Commissioner applies for leave to
file a certificate under section 59 of this Act,
the Commissioner shall state in his application for leave a proposed minimum
period of operation of the certificate, not being less than five years, and,
if leave to file a certificate is granted, the certificate filed shall specify
that period as the minimum period of operation of the certificate.
(5) An application for leave to revoke the certificate shall not be made
before the period so specified has elapsed since the filing of the
certificate.
(6) Where-
(a) the Tribunal gives a direction under sub-section (2) of this section by
reason of the provisions of paragraph (a) of that sub- section;
(b) as a result of the direction, the Commissioner institutes proceedings
in the Tribunal in respect of the restriction or practice to which the
direction relates; and
(c) the Tribunal, in those proceedings, determines that the restriction or
practice is not contrary to the public interest,
the determination shall specify a period, not being less than five years, as
the minimum period of operation of the determination.
(7) An application by the Commissioner under section 58 of this Act for
leave to apply for rescission of the determination shall not be made before
the period so specified has elapsed since the making of the determination.
(8) In relation to proceedings instituted in pursuance of a direction under
this section, the provisions of Division 1 of this Part have effect subject to
such modifications as are necessary and, in particular, as if references to
agreements included references to proposed agreements and to agreements as
proposed to be varied.
(9) The Tribunal may rescind a direction under this section on the
application of the person on whose application the direction was given and in
that event the Commissioner is not required to take any further action in
respect of the direction.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 61.
Constitution of Review Division.
SECT
Division 3-Review of Determinations and Judicial Determination of
Questions of Law
61. A Review Division of the Tribunal shall be constituted by three
presidential members but shall not include the presidential member who heard,
or presided at the hearing of, the proceedings in which the determination of
which a reconsideration is sought was made.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 62.
Application for reconsideration of determination.
SECT
62. (1) Where the Tribunal has made a determination in any proceedings, a
party to the proceedings may, as prescribed and within the time allowed by or
under the regulations, file with the Registrar an application for an order of
a Review Division of the Tribunal directing a reconsideration of the
determination on any of the following grounds:-
(a) that the determination is based on reasons that are inconsistent with
the reasons for another decision of the Tribunal;
(b) that the determination is of such importance that, in the public
interest, it should be reconsidered; and
(c) that a material error of law was made by the Tribunal in the hearing or
determining of the proceedings.
(2) Where an application is filed under this section in relation to a
determination that a restriction or practice is contrary to the public
interest, the determination, and any orders made in consequence of the
determination, shall be deemed not to have, or to have had, any effect at any
time before the day next following-
(a) the day on which the application is disposed of; or
(b) if an order is made directing a reconsideration of the determination,
the day on which the decision of the Tribunal on the reconsideration is made.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 63.
Hearing of application.
SECT
63. (1) An application under the last preceding section shall be heard and
determined by a Review Division of the Tribunal.
(2) The Review Division shall not receive fresh evidence.
(3) If the Review Division finds that the ground of the application has been
established, it may, in its discretion, make an order directing a
reconsideration of the determination.
(4) Where a Review Division makes an order under this section, it shall
specify-
(a) where the order is made on the ground referred to in paragraph (a) of
sub-section (1) of the last preceding section-the nature of the
inconsistency;
(b) where the order is made on the ground referred to in paragraph (b) of
that sub-section-the matters that, in its opinion, should be considered or
further considered; or
(c) where the order is made on the ground referred to in paragraph (c) of
that sub-section-the error of law.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 64.
Reconsideration by Tribunal.
SECT
64. (1) Where the reconsideration of a determination has been directed under
this Division, the Tribunal shall consider or further consider-
(a) such matters as appear from the order of the Review Division to require
consideration or further consideration; or
(b) such matters as, in its opinion, require consideration or further
consideration as a consequence of the consideration or further consideration
of the matters referred to in the last preceding paragraph,
and shall either confirm the determination or make a determination having the
effect of varying the previous determination.
(2) In proceedings under this section, the Tribunal shall accept and act on
all findings of fact that were made in the proceedings that resulted in the
determination that is being reconsidered, except to the extent that it
considers that the order of the Review Division makes it inappropriate to do
so.
(3) Where, under this section, the Tribunal confirms a determination, it may
confirm, with or without variation, any order made in consequence of the
determination and where, under this section, the Tribunal makes a
determination having the effect of varying a previous determination, any
orders made in consequence of the previous determination shall be deemed to be
revoked.
(4) This Act applies, subject to such modifications as are necessary, as if
proceedings under this section were proceedings under Division 1 of this Part
or under Part VII, as the case may be, and the Tribunal may make orders
accordingly.
(5) The Tribunal as constituted in accordance with section 16 of this Act
for the purposes of proceedings under this section may consist of or include
the member, or all or any of the members, who constituted the Tribunal for the
purposes of the proceedings in which the determination that is to be
reconsidered was made.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 65.
Reference of questions of law to Commonwealth Industrial Court.
SECT
65. (1) The Tribunal, not being the Tribunal constituted as a Review
Division, may, of its own motion, or, if it thinks fit, on the application of
a party, refer a question of law arising in proceedings before it for
determination by the Court but a decision so to refer a question shall not be
made by a Division of the Tribunal without the concurrence of the presidential
member presiding.
(2) Jurisdiction is conferred on the Court to hear and determine a question
of law referred to it under this section.
(3) Where a question of law arising in any proceedings has been referred to
the Court under this section, the Tribunal shall not, in those proceedings-
(a) make a determination or order to which the question is relevant while
the reference is pending; or
(b) proceed in a manner, or make a determination or order, that is
inconsistent with the opinion of the Court on the question.
(4) A reference in this section to a question of law does not include a
reference to a question whether there is sufficient evidence to justify a
finding of fact by the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 66.
Resale price maintenance an unlawful practice.
SECT
PART VII-RESALE PRICE MAINTENANCE
Division 1-The Unlawful Practice of Resale Price Maintenance
66. (1) It is unlawful for a corporation or other person to engage in the
practice of resale price maintenance as mentioned in the succeeding provisions
of this section.
(2) Subject to this Part, a corporation (in this section called ''the
supplier'') engages in the practice of resale price maintenance if that
corporation does an act referred to in any of the paragraphs of sub-section
(4) of this section.
(3) Subject to this Part, a person (not being a corporation and also in this
section called ''the supplier'') engages in the practice of resale price
maintenance if that person does an act referred to in any of the paragraphs of
the next succeeding sub-section where the second person mentioned in that
paragraph is a corporation.
(4) The acts referred to in the last two preceding sub-sections are the
following:-
(a) the supplier making it known to a second person that the supplier will
not supply goods to the second person unless the second person agrees to sell
those goods at a price not less than a price specified by the supplier;
(b) the supplier inducing, or attempting to induce, a second person not to
sell, at a price less than a price specified by the supplier, goods supplied
to the second person by the supplier;
(c) the supplier entering into an agreement, or offering to enter into an
agreement, for the supply of goods to a second person, being an agreement one
of the terms of which is, or would be, that the second person will not sell
the goods at a price less than a price specified, or that would be specified,
by the supplier;
(d) the supplier withholding the supply of goods to a second person for the
reason that the second person-
(i) has not agreed as mentioned in paragraph (a) of this sub-section;
or
(ii) has sold, or is likely to sell, goods supplied to him by the
supplier, or goods supplied to him by a third person who, directly or
indirectly, has obtained the goods from the supplier, at a price less than a
price specified by the supplier as the price below which the goods are not to
be sold;
(e) the supplier withholding the supply of goods to a second person for the
reason that a third person who, directly or indirectly, has obtained, or
wishes to obtain, goods from the second person-
(i) has not agreed to sell those goods at a price not less than a price
specified by the supplier; or
(ii) has sold, or is likely to sell, goods supplied to him, or to be
supplied to him, by the second person, at a price less than a price specified
by the supplier as the price below which the goods are not to be sold; and
(f) the supplier using, in relation to any goods supplied, or that may be
supplied, by the supplier to a second person, a statement of a price that is
likely to be understood by that person as the price below which the goods are
not to be sold.
(5) For the purposes of the last preceding sub-section, where-
(a) a price is specified by another person on behalf of the supplier, it
shall be deemed to have been specified by the supplier;
(b) the supplier makes it known, in respect of goods, that the price below
which those goods are not to be sold is a price specified by another person in
respect of those goods, or in respect of goods of a like description, that
price shall be deemed to have been specified, in respect of the
first-mentioned goods, by the supplier;
(c) a formula is specified by or on behalf of the supplier and a price may
be ascertained by calculation from, or by reference to, that formula, that
price shall be deemed to have been specified by the supplier; and
(d) the supplier makes it known, in respect of goods, that the price below
which those goods are not to be sold is a price ascertained by calculation
from, or by reference to, a formula specified by another person in respect of
those goods, or in respect of goods of a like description, that price shall be
deemed to have been specified, in respect of the first-mentioned goods, by the
supplier.
(6) In the last preceding sub-section, ''formula'' includes a set form or
method.
(7) For the purposes of sub-section (4) of this section, anything done by a
person acting on behalf of, or by arrangement with, the supplier shall be
deemed to have been done by the supplier.
Amended by No. 216, 1973, s. 3.
(8) This section does not apply in respect of a practice that is
specifically authorized or approved by an Act, a State Act or an Ordinance of
an internal Territory or by regulations under such an Act or Ordinance.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 67.
Recommended prices.
SECT
67. For the purposes of paragraph (b) of sub-section (4) of the last
preceding section, the supplier is not to be taken as inducing, or attempting
to induce, a second person as mentioned in that paragraph in relation to any
goods by reason only of his having given notification in writing to the second
person of the price that he recommends as appropriate for the sale of those
goods, provided that there is included in the notification, and in each
writing that refers, whether expressly or by implication, to the notification,
a statement to the following effect:-
''The price set out or referred to herein is a recommended price only and
there is no obligation to comply with the recommendation.''
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 68.
Withholding the supply of goods.
SECT
68. (1) For the purposes of paragraph (d) or (e) of sub-section (4) of
section 66 of this Act, the supplier shall be deemed to withhold the supply of
goods to another person if-
(a) the supplier refuses or fails to supply those goods to, or as requested
by, the other person;
(b) the supplier refuses to supply those goods except on terms that are
disadvantageous to the other person;
(c) in supplying goods to the other person, the supplier treats that person
less favourably, whether in respect of time, method or place of delivery or
otherwise, than the supplier treats other persons to whom the supplier
supplies the same or similar goods; or
(d) the supplier causes or procures a person to withhold the supply of
goods to the other person as mentioned in any of the last three preceding
paragraphs.
(2) Paragraph (d) of sub-section (4) of section 66 of this Act does not
apply in relation to the withholding by the supplier of the supply of goods to
another person who, within the preceding year, has sold goods obtained,
directly or indirectly, from the supplier at less than their cost to that
other person-
(a) for the purpose of attracting to the establishment at which the goods
were sold persons likely to purchase other goods; or
(b) otherwise for the purpose of promoting the business of that other
person.
(3) For the purposes of the last preceding sub-section, there shall be
disregarded-
(a) a sale of goods that took place before the commencement of this Act;
(b) a genuine seasonal or clearance sale of goods that were not acquired
for the purpose of being sold at that sale; or
(c) a sale of goods that took place with the consent of the supplier.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 69.
Statements as to the minimum price of goods.
SECT
69. (1) For the purposes of paragraph (f) of sub-section (4) of section 66
of this Act, if-
(a) a statement is applied to goods, whether by being woven in, impressed
on, worked into or annexed or affixed to the goods or otherwise;
(b) a statement is applied to a covering, label, reel or thing in or with
which goods are supplied; or
(c) a statement is used in a sign, advertisement, invoice, catalogue,
business letter, business paper, price list or other document or otherwise in
a manner likely to lead to the belief that it refers to goods,
the statement shall be deemed to have been used in relation to those goods.
(2) For the purposes of the last preceding sub-section, ''covering''
includes a stopper, glass, bottle, vessel, box, capsule, case, frame or
wrapper and ''label'' includes a band or ticket.
(3) Paragraph (f) of sub-section (4) of section 66 of this Act does not
apply where a statement of a price was applied to goods as mentioned in
paragraph (a) or (b) of sub-section (1) of this section if the statement was
so applied before the ninth day of August, One thousand nine hundred and
seventy-one, and the goods were or are supplied within the period of twelve
months commencing on that date.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 70.
Criminal proceedings not to be brought.
SECT
70. Criminal proceedings do not lie against a person by reason only that
he-
(a) has engaged in, or has attempted to engage in, the practice of resale
price maintenance;
(b) has aided, abetted, counselled or procured a person to engage in that
practice;
(c) was in any way directly or indirectly knowingly concerned in, or party
to, the engagement by a person in that practice; or
(d) conspired with others to engage in that practice.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 71.
Agreements providing for resale price maintenance unenforceable.
SECT
71. Where the practice of resale price maintenance is provided for by an
agreement, the agreement is unenforceable as regards engaging in the
practice.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 72.
Applications for exemptions.
SECT
Division 2-Exemptions
72. (1) A person may apply to the Tribunal for a determination exempting
from the application of this Part the goods described in the application,
being goods that he supplies or is intending to supply otherwise than by way
of sale by retail.
(2) The application shall be as prescribed and shall be filed with the
Registrar.
(3) The prescribed fee shall be paid to the Registrar upon the filing of the
application and if the fee is not paid the application shall be deemed not to
have been filed.
(4) The applicant shall serve a copy of the application on the Commissioner,
who shall be taken to be a party to the proceedings.
(5) As soon as practicable after an application has been filed with the
Registrar, the Registrar shall cause notice of the application to be published
in the Gazette and may also cause the notice to be published in such
newspapers (if any) as he thinks fit.
(6) The notice shall include the name of the applicant and a description of
the goods to which the application relates.
(7) The applicant may, by leave of the Tribunal, amend the application and,
where leave is so granted, shall serve a copy of the application as amended on
the Commissioner.
(8) Where an application is amended, the Registrar shall cause notice of the
amended application to be advertised as provided by sub-sections (5) and (6)
of this section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 73.
Directions to amend.
SECT
73. The Tribunal may, on application by the Commissioner, direct an
applicant to amend his application-
(a) so as to describe more appropriately the goods in respect of which the
application is made; or
(b) so as to exclude certain goods from the application for the reason that
the Tribunal cannot otherwise deal satisfactorily with the application.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 74.
Determination of applications for exemption.
SECT
74. (1) The Tribunal shall, after making such inquiry as it thinks fit-
(a) make a determination exempting all or any of the goods the subject of
the application from the application of this Part; or
(b) make a determination dismissing the application.
(2) The Tribunal shall not make a determination exempting goods from the
application of this Part unless the Tribunal is satisfied that, unless the
exemption is granted-
(a) the quality of the goods available for sale, or the varieties of the
goods so available, would be substantially reduced to the detriment of the
public as consumers or users of those goods;
(b) the number of establishments in which the goods are sold by retail
would be substantially reduced to the detriment of the public as consumers or
users of those goods;
(c) the prices at which the goods are sold by retail would ultimately be
increased to the detriment of the public as consumers or users of those
goods;
(d) the goods would be sold by retail under conditions likely to cause
danger to the health of human beings or animals in consequence of their
misuse; or
(e) any necessary services provided in connexion with or after the sale of
the goods by retail would cease to be so provided or would be substantially
reduced to the detriment of the public as consumers or users of those goods.
(3) For the purposes of the last preceding sub-section, detriment to the
public as consumers or users of goods shall not be taken into account unless
it would outweigh any detriment to them as consumers or users of the goods,
whether by the restriction of competition or otherwise, that would result if
the determination were made.
(4) The Tribunal may, if it thinks fit, make one determination in respect of
two or more applications.
(5) In this section-
''consumer'' includes a person consuming for the purpose of, or in the
course of, trade or business or for a public purpose and ''user'' has a
corresponding meaning;
''necessary services'', in relation to goods, means services that, having
regard to the character of the goods, are reasonably necessary to guard
against the risk of injury in connexion with the consumption, installation or
use of the goods or are otherwise reasonably necessary for the benefit of
consumers or users.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 75.
Exemption extends to goods of others than applicant.
SECT
75. A determination under this Division has effect in respect of all the
goods to which the determination relates and not merely in respect of goods of
the applicant.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 76.
Evidentiary provisions.
SECT
Division 3-General
76. (1) Where, in proceedings under this Act by a person (in this section
referred to as ''the plaintiff'') against another person (in this section
referred to as ''the defendant''), it is claimed that the defendant has
engaged in the practice of resale price maintenance and it is proved that-
(a) the defendant has acted, in relation to the plaintiff, as mentioned in
paragraph (a), (b), (c) or (d) of sub-section (1) of section 68 of this Act;
(b) during a period ending immediately before the time when the defendant
so acted, the defendant had been supplying goods of the kind withheld to the
plaintiff or to another person carrying on a business similar to that of the
plaintiff; and
(c) during the period of six months ending immediately before the time when
the defendant so acted, the plaintiff, or a person who had obtained goods,
directly or indirectly, from the plaintiff-
(i) to the knowledge of the defendant, did not, when requested to do
so, enter into an agreement as mentioned in paragraph (a) of sub-section (4)
of section 66 of this Act;
(ii) to the knowledge of the defendant, sold, at a price less than a
price specified by the defendant (or that, by virtue of sub-section (5) of
section 66 of this Act, is to be deemed to have been so specified), goods
supplied by the defendant or by a person who, directly or indirectly, had
obtained those goods from the defendant; or
(iii) had made known to the defendant his intention so to sell goods
supplied as mentioned in the last preceding sub-paragraph,
then, subject to the next succeeding sub-section, it shall be presumed, unless
the contrary is proved, that the defendant withheld the supply of the goods
for the reason that the plaintiff, or a person who had obtained goods,
directly or indirectly, from the plaintiff, had acted as mentioned in
sub-paragraph (i) or (ii), as the case may be, of paragraph (d) or (e) of
sub-section (4) of section 66 of this Act.
(2) The last preceding sub-section does not apply where the plaintiff proves
the matter mentioned in paragraph (b) or (c) of sub-section (1) of section 68
of this Act but the terms disadvantageous to the plaintiff, or the less
favourable treatment of the plaintiff, consisted only of a requirement by the
defendant as to the time at which, or the form in which, payment was to be
made or as to the giving of security to secure payment.
(3) In the application of this section in proceedings by the
Attorney-General or the Commissioner for an injunction, references to the
plaintiff shall be read as references to a person specified in the application
for the injunction as the person in relation to whom the defendant is claimed
to have acted as mentioned in paragraph (a) of sub-section (1) of this
section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 77.
Application of certain provisions.
SECT
77. Section 58 of this Act and Division 3 of Part VI apply in relation to
this Part as they apply in relation to that Part.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 78.
Contravention of orders to be contempt of Tribunal.
SECT
PART VIII-ENFORCEMENT OF ORDERS OF THE TRIBUNAL
78. A person who-
(a) contravenes or fails to comply with an order of the Tribunal under
section 52, 54, 58 or 64 of this Act or an undertaking given to the Tribunal;
(b) aids, abets, counsels or procures, or is in any way directly or
indirectly knowingly concerned in, or party to-
(i) a contravention of, or a failure to comply with, such an order or
undertaking; or
(ii) the doing of an act outside Australia that would, if done within
Australia, be such a contravention; or
(c) does an act or thing with the intention of evading or frustrating such
an order or undertaking or causing or encouraging the evasion or frustration
of such an order or undertaking,
is guilty of a contempt of the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 79.
Punishment of contempt.
SECT
79. (1) A contempt of the Tribunal referred to in the last preceding section
is punishable by the Court as if it were a contempt of the Court and
jurisdiction is conferred on the Court to hear and determine proceedings in
respect of such a contempt.
(2) Subject to this section, a proceeding in respect of such a contempt
shall be instituted, carried on, heard and determined in accordance with the
laws applicable to and in relation to the punishment of contempts of the
Court.
(3) In so far as any such law is incapable of application, the Court may
give a direction as to the manner of instituting, carrying on, hearing or
determining a proceeding referred to in the last preceding sub-section.
(4) For the purposes of proceedings under this section, the Court shall be
constituted by not less than three judges.
(5) Proceedings before the Court in accordance with this section shall not
be instituted except with the consent in writing of the Attorney-General.
(6) A reference in a law of the Commonwealth to an offence against a law of
the Commonwealth shall be read as including a reference to a contempt referred
to in this Part.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 80.
Protection of certain persons.
SECT
80. Where a person enters into, or purports to enter into, a transaction
that involves a contravention by him of, or a failure by him to comply with,
an order of, or an undertaking given to, the Tribunal or a provision of Part
X, a person who is not bound by the order or undertaking, or was not guilty of
an offence against Part X in relation to the transaction, as the case may be,
has the same rights and title, whether as a party to the transaction or as a
person claiming directly or indirectly under a party to the transaction, as he
would have had if the transaction had not involved such a contravention or
failure.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 81.
Procedure generally.
SECT
PART IX-PROVISIONS RELATING TO THE TRIBUNAL
Division 1-Procedure and Evidence
81. (1) In proceedings before the Tribunal-
(a) the procedure of the Tribunal is, subject to this Act and the
regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality and
technicality, and with as much expedition, as the requirements of this Act and
a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence.
(2) The powers of the Tribunal with respect to matters of procedure in
particular proceedings may be exercised by the Tribunal constituted by a
presidential member.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 82.
Regulations as to certain matters.
SECT
82. The regulations may make provision-
(a) for securing, by means of preliminary statements of facts and
contentions, and by the production of documents, that all material facts and
considerations are brought before the Tribunal by all parties to any
proceedings before the Tribunal, including the Commissioner; and
(b) with respect to the representation in any such proceedings of persons
having a common interest in the proceedings.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 83.
Power to take evidence on oath.
SECT
83. (1) The Tribunal may take evidence on oath or affirmation and for that
purpose a member may administer an oath or affirmation.
(2) A member may summon a person to appear before the Tribunal to give
evidence and to produce such documents (if any) as are referred to in the
summons.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 84.
Hearings to be in public except in special circumstances.
SECT
84. (1) Subject to this section, the hearing of proceedings before the
Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason
of the confidential nature of any evidence or matter or for any other reason,
the Tribunal may-
(a) direct that a hearing or part of a hearing shall take place in private
and give directions as to the persons who may be present; or
(b) give directions prohibiting or restricting the publication of evidence
given before the Tribunal, whether in public or in private, or of matters
contained in documents filed or lodged with the Registrar, received in
evidence by the Tribunal or placed in the records of the Tribunal.
(3) The powers of the Tribunal under this section may be exercised by the
Tribunal as constituted for the purposes of the hearing or by the Tribunal
constituted by a presidential member.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 85.
Evidence in form of written statement.
SECT
85. The Tribunal may, if it thinks fit, permit a person appearing as a
witness before the Tribunal to give evidence by tendering, and verifying by
oath or affirmation, a written statement, which shall be filed with the
Registrar.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 86.
Taking of evidence by single member.
SECT
86. The Tribunal as constituted for the purposes of any proceedings in which
evidence may be taken may authorize a presidential member to take evidence for
the purposes of the proceedings on its behalf, with such limitations (if any)
as the Tribunal so constituted directs and, where such an authority is given-
(a) that member may take evidence accordingly; and
(b) for the purposes of this Act, that member shall, in relation to the
taking of evidence in accordance with the authority, be deemed to constitute
the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 87.
Representation.
SECT
Amended by No. 216, 1973, s. 3.
87. In proceedings before the Tribunal-
(a) a party or intervener other than a body corporate or a trade
association may appear in person or may be represented by an employee of the
party or intervener approved by the Tribunal;
(b) a party or intervener, being a body corporate other than a trade
association, may be represented by an employee, or a director or other
officer, of the party or intervener approved by the Tribunal;
(c) a party or intervener being a trade association or a member of a trade
association may be represented by a member or officer of the trade association
approved by the Tribunal; and
(d) any party or intervener may be represented by a barrister or a
solicitor of the Supreme Court of a State or Territory or of the High Court.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 88.
Parties.
SECT
Division 2-General
88. (1) The regulations may make provision as to the parties to proceedings
before the Tribunal.
(2) The Tribunal may, in any proceedings before the Tribunal, direct that a
person shall be joined as a party or that a party be dismissed from the
proceedings.
(3) The Tribunal may, upon such conditions as it thinks fit, permit a person
to intervene in proceedings before the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 89.
Ancillary orders, &c.
SECT
89. The Tribunal has power-
(a) to make an order incidental or ancillary to another order of the
Tribunal;
(b) to make or vary a determination or order by consent of the parties
affected, being a determination or order, or a variation of a determination or
order, that the Tribunal is authorized to make in the proceedings concerned;
(c) to make a conditional determination or order; and
(d) to suspend an order.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 90.
Undertakings to the Tribunal.
SECT
90. (1) The Tribunal may receive an undertaking to the Tribunal by a party
to proceedings before the Tribunal with respect to a matter appearing to the
Tribunal to be relevant to the operation of this Act.
(2) The Tribunal may, with the consent of the Commissioner, adjourn
indefinitely proceedings under Part VI, or may grant leave to the Commissioner
to discontinue any such proceedings, upon the giving of appropriate
undertakings by parties other than the Commissioner.
(3) An undertaking to the Tribunal shall not, unless the contrary intention
appears expressly from the terms of the undertaking, be construed as an
admission that any restriction or practice is contrary to the public interest
or as an admission as to any other matter.
(4) The Tribunal shall record in writing an undertaking received or given
for the purposes of this section and the writing shall be placed in the
records of the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 91.
Protection of members, barristers and witnesses.
SECT
91. (1) A member of the Tribunal has, in the performance of his duty as a
member, the same protection and immunity as a Justice of the High Court.
(2) A barrister, solicitor or other person appearing before the Tribunal on
behalf of a party or intervener has the same protection and immunity as a
barrister has in appearing for a party in proceedings in the High Court.
(3) Subject to this Act, a person summoned to attend or appearing before the
Tribunal as a witness has the same protection, and is, in addition to the
penalties provided by this Act, subject to the same liabilities, in any civil
or criminal proceedings as a witness in proceedings in the High Court.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 92.
Incriminating answers.
SECT
92. (1) A person appearing as a witness before the Tribunal is not excused
from answering a question, or producing a document, on the ground that the
answer to the question, or the document, may tend to incriminate him.
(2) Evidence given by a person before the Tribunal is not admissible against
him in any criminal proceedings other than proceedings under this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 93.
Failure of witness to attend.
SECT
Division 3-Offences in relation to the Tribunal
93. A person served, as prescribed, with a summons to appear as a witness
before the Tribunal shall not, without reasonable excuse-
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself from day to day unless excused, or
released from further attendance, by a member.
Penalty: One thousand dollars or imprisonment for three months.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 94.
Refusal to be sworn or to answer questions.
SECT
94. A person appearing as a witness before the Tribunal shall not, without
reasonable excuse-
(a) refuse or fail to be sworn or to make an affirmation;
(b) refuse or fail to answer a question that he is required to answer by
the member presiding at the proceedings; or
(c) refuse or fail to produce a document that he was required to produce by
a summons under this Part served on him as prescribed.
Penalty: One thousand dollars or imprisonment for three months.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 95.
Contempt of Tribunal, &c.
SECT
95. A person shall not-
(a) insult or disturb a member of the Tribunal in the exercise of his powers
or functions as a member;
(b) interrupt the proceedings of the Tribunal;
(c) use insulting language towards a member;
(d) create a disturbance or take part in creating or continuing a
disturbance in or near a place where the Tribunal is sitting; or
(e) do any other act or thing that would, if the Tribunal were a court of
record, constitute a contempt of that court.
Penalty: One thousand dollars or imprisonment for three months.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 96.
Collusive tendering.
SECT
PART X-COLLUSIVE TENDERING AND COLLUSIVE BIDDING
96. (1) In this section-
''collusive tendering agreement'' means-
(a) an agreement by two or more persons for the submission of identical
tenders or a joint tender for the supply or acquisition of goods or services;
or
(b) any other agreement that has the purpose or effect of preventing or
restricting competition among all or any of the parties in respect of
tendering for the supply or acquisition of goods or services,
whether the agreement was made before, or is made after, the date of
commencement of this Act and whether or not the agreement relates expressly or
exclusively to tendering;
''joint tender'' means a tender by two or more persons jointly for the
supply or acquisition of goods or services, and includes a tender, whether
made in the name of one person or in the names of two or more persons, made
with the intention that, if the tender is successful, the supply or
acquisition of the goods or services, or the goods or services acquired, as
the case may be, will or may be shared by two or more persons.
(2) A corporation that-
(a) makes, or joins in the making of, a tender in accordance with a
collusive tendering agreement; or
(b) in pursuance of a collusive tendering agreement, abstains from making a
tender,
is guilty of an offence against this section.
(3) The last preceding sub-section does not apply unless the invitation to
tender required tenders submitted to be in writing.
(4) It is a defence to a prosecution under sub-section (2) of this section
if the defendant satisfies the court that-
(a) the agreement concerned was not made for the purposes of a particular
invitation to tender; and
(b) at the time of the alleged offence-
(i) full and accurate particulars of the agreement, and of any
variation of the agreement, were contained in the Register; and
(ii) there was not in force an order of the Tribunal that was
contravened by the conduct constituting the alleged offence.
(5) Sub-section (2) of this section does not apply in relation to the making
of, or abstaining from making, a tender for-
(a) the supply of goods to a person carrying on business outside Australia
where the successful tenderer is required to export the goods or where it is
apparent from the terms or circumstances of the invitation to tender that the
goods are to be exported for the purposes of that business; or
(b) the supply of services outside Australia.
(6) Sub-section (2) of this section does not apply to the making, or the
joining in the making of, a joint tender at the request of, or with the prior
consent of, the person inviting tenders.
(7) The penalty for an offence against this section is a fine not exceeding
Ten thousand dollars.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 97.
Collusive bidding.
SECT
97. (1) In this section-
''auction'' means an auction in Australia at which any goods, land or other
property, or any rights or privileges, is or are submitted to auction;
''collusive bidding agreement'' means-
(a) an agreement by two or more persons for the submission of a joint
bid at an auction; or
(b) any other agreement that has the purpose or effect of preventing or
restricting competition among all or any of the parties to the agreement in
respect of bidding at an auction or auctions,
whether the agreement was made before, or is made after, the commencement
of this Act and whether or not the agreement relates expressly or exclusively
to bidding;
''joint bid'' means a bid made by two or more persons jointly and includes a
bid, whether made in the name of one person or in the names of two or more
persons, made with the intention that, if the bid is successful, the property,
rights or privileges bid for will or may be shared by two or more persons.
(2) A corporation that-
(a) bids, or joins in the making of a bid, at an auction in accordance with
a collusive bidding agreement; or
(b) in pursuance of a collusive bidding agreement, abstains from attending
an auction or from bidding, or making a further bid, at an auction,
is guilty of an offence against this section.
(3) The last preceding sub-section does not apply to making, or joining in
the making of, a joint bid at the request of, or with the prior consent of,
the auctioneer.
(4) It is a defence to a prosecution under sub-section (2) of this section
if the defendant satisfies the Court that-
(a) the agreement concerned was not made for the purposes of a particular
auction; and
(b) at the time of the alleged offence-
(i) full and accurate particulars of the agreement and of any variation
of the agreement were contained in the Register; and
(ii) there was not in force an order of the Tribunal that was
contravened by the conduct constituting the alleged offence.
(5) For the purposes of this section, an act done by an agent in accordance
with, or in pursuance of, an agreement made by his principal, including an
agreement made by the agent within the scope of his agency, shall be deemed to
have been done by the principal and not by the agent.
(6) The penalty for an offence against this section is a fine not exceeding
Ten thousand dollars.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 98.
Exemptions.
SECT
98. (1) An agreement is not a collusive tendering agreement or collusive
bidding agreement for the purposes of this Part to the extent that-
(a) the agreement is between bodies corporate that are related to each
other;
(b) the agreement is between partners, in relation to the terms of the
partnership or the conduct of the partnership business or in relation to
competition between a partner and the partnership;
(c) the agreement is between trustees, in relation to the conduct of a
business carried on by them as trustees; or
(d) the agreement relates to tendering or bidding otherwise than in the
course of, or in connexion with, a business.
(2) An agreement is not a collusive tendering agreement or collusive bidding
agreement for the purposes of this Part to the extent that the agreement is,
or is of a kind, specifically authorized or approved by, or by regulations
under, an Act.
Amended by No. 216, 1973, s. 3.
(3) In relation to an invitation to submit tenders in a particular State or
internal Territory or an auction held in a particular State or Territory, an
agreement is not a collusive tendering agreement or collusive bidding
agreement to the extent that the agreement is, or is of a kind, specifically
authorized or approved by, or by regulations under, an Act of that State or an
Ordinance of that Territory, as the case may be.
(4) An agreement is not a collusive tendering agreement or a collusive
bidding agreement for the purposes of this Part by reason only of a provision
or condition referred to in any of paragraphs (c) to (h) (inclusive) of
sub-section (5) of section 35 of this Act or any act or thing done in
pursuance of such a provision or condition.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 99.
Actions for damages.
SECT
PART XI-CIVIL REMEDIES
99. (1) A person who suffers loss or damage by an act of another person
that-
(a) was done in contravention of an order of the Tribunal in proceedings
under Part VI;
(b) constitutes the practice of resale price maintenance; or
(c) was done in contravention of section 96 or 97 of this Act,
may recover the amount of the loss or damage by action against that other
person.
(2) In an action under this section in respect of an act in contravention of
section 96 or 97 of this Act, the provisions of sub-section (4) of section 96,
or of sub-section (4) of section 97, of this Act apply as if the reference to
a prosecution were a reference to the action and as if the reference to the
alleged offence were a reference to that act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 100.
Deferment of action on application of Attorney-General.
SECT
100. The court in which an action under this Part is instituted may, on the
application of the Attorney-General, defer or adjourn the hearing of the
action where the court is satisfied that it is in the interests of justice to
do so having regard to any pending or possible prosecution or proceedings in
respect of a contempt of the Tribunal or of a court.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 101.
Findings in contempt proceedings to be evidence.
SECT
101. In proceedings against a person under this Part, a finding of any fact
by the Court in proceedings under Part VIII in which that person has been
found guilty of a contempt of the Tribunal is evidence of that fact and the
finding may be proved by production of a document under the seal of the Court
from which the finding appears.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 102.
Injunctions.
SECT
102. (1) Where a person has engaged in the practice of resale price
maintenance, the Court may, on application by-
(a) the Attorney-General;
(b) the Commissioner; or
(c) a person who has suffered loss or damage by reason of the
first-mentioned person having engaged in that practice,
grant an injunction restraining the first-mentioned person from engaging in
the practice of resale price maintenance in respect of such goods as are
specified in the order.
(2) The Court may rescind or vary an order made under the last preceding
sub-section.
(3) Proceedings for contempt of court in respect of an injunction granted
under this section may be brought by a person referred to in any of the
paragraphs of sub-section (1) of this section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 103.
Jurisdiction of Court.
SECT
103. Jurisdiction is conferred on the Court to hear and determine actions
and other proceedings under this Part and that jurisdiction is exclusive of
the jurisdiction of any other court, other than the jurisdiction of the High
Court under section 75 of the Constitution.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 104.
Definitions.
SECT
PART XII-OVERSEAS CARGO SHIPPING
Division 1-Preliminary
Amended by No. 118, 1972, s. 3; and No. 216, 1973, s. 3.
104. In this Part, unless the contrary intention appears-
''Australian flag shipping operator'' means-
(a) for the purposes of the making of an order under section 117 of this
Act-a person who carries on, or proposes to carry on, operations by way of
overseas cargo shipping between ports between which any of the outwards cargo
shipping to which the relevant conference agreement relates is carried on; or
(b) for the purposes of the making of an order under section 123 of this
Act-a person who carries on, or proposes to carry on, operations by way of
overseas cargo shipping between Australia and the port or ports to be
specified in the order,
being a person who normally uses, or proposes normally to use, for the
purposes of those operations, a ship or ships registered in Australia and no
other ship, and being an Australian citizen or a body corporate incorporated
by or under a law of the Commonwealth or of a State or internal Territory;
''conference agreement'' means an agreement to which this Part applies;
''declared shipowner'' means a shipowner in respect of whom an order under
section 123 of this Act is in force;
''disapproved agreement'' means a conference agreement in respect of which
an order of disapproval under this Part is in force;
''outwards cargo shipping'' means overseas cargo shipping commencing at a
place in Australia;
''overseas cargo shipping'' means the carriage of goods wholly or partly by
sea from a place in Australia to a place outside Australia or from a place
outside Australia to a place in Australia;
''shipowner'' means a person who carries on the business of outwards cargo
shipping, whether alone or in partnership with another person or other
persons, and includes such a person irrespective of nationality or place of
incorporation, residence or business;
''shipper body'' means an association that, in the opinion of the Minister,
represents the interests, in relation to outwards cargo shipping, of persons
who are shippers of goods, or producers of goods of a kind exported from
Australia;
''the Clerk'' means the Clerk of Shipping Agreements appointed under this
Part and includes a person appointed to act as Clerk of Shipping Agreements.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 105.
Part to be exclusive of certain sections.
SECT
105. (1) The restrictions referred to in section 35 of this Act do not
include restrictions in respect of overseas cargo shipping accepted by a
shipowner under a conference agreement, including a disapproved agreement.
(2) The practices referred to in sections 36 and 37 of this Act do not
include practices in respect of overseas cargo shipping engaged in by a
shipowner in pursuance of a conference agreement, including a disapproved
agreement.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 106.
Part to be exclusive of Part X.
SECT
106. Part X does not apply in relation to tendering or bidding in respect of
the supply of services by way of overseas cargo shipping.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 107.
Agreements to which Part applies.
SECT
107. (1) Subject to this section, an agreement is an agreement to which this
Part applies if the agreement, whether as originally made or by reason of a
subsequent variation, is one the parties to which are or include two or more
persons carrying on two or more businesses that include outwards cargo
shipping and is one that makes provision, in relation to outwards cargo
shipping, having the purpose or effect of restricting, preventing or
hindering-
(a) competition between any of the parties to the agreement; or
(b) competition between persons other than those parties and those parties
or any of them,
including provision for-
(c) the fixing or regulation of freight rates;
(d) the giving to shippers, or the withholding from shippers, of special
rates or other special privileges or advantages;
(e) the pooling or apportioning of earnings, losses or traffic;
(f) the allocation of ports or the restriction or other regulation of the
number and character of sailings between ports; or
(g) the restriction or other regulation of the volume or character of goods
to be carried.
(2) An agreement is not an agreement to which this Part applies by reason
only of any provision as between shipowners of the one part and shippers of
the other part with respect to the terms and conditions that are to be
applicable to contracts for outwards cargo shipping.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 108.
Shipowners may be required to be represented by agent and give address for
service.
SECT
108. (1) The Minister may, by notice in writing to a shipowner served as
prescribed, request the shipowner to comply with the provisions of this
section, and, where such a request has been made, the provisions of
sub-sections (2) to (7) of this section apply.
(2) The shipowner (not being a natural person resident in Australia) shall,
at all times after the expiration of fourteen days from the date of service of
the notice, be represented for the purposes of this Part by a person (not
being a body corporate) resident in Australia and appointed by the shipowner
as the agent of the shipowner for the purposes of this Part.
(3) The appointment shall not be deemed to be duly made or revoked until the
shipowner has given notice in writing of the appointment or revocation to the
Minister, specifying the name, and, in the case of an appointment, the place
of residence, of the agent.
(4) Everything done by the agent in his representative capacity shall, for
the purposes of this Part, be deemed to have been done by the shipowner, but
not so as to affect any liability of the agent under this Part.
(5) The shipowner shall, at all times after the expiration of fourteen days
from the date of service of the notice, have an address in Australia for
service for the purposes of this Part.
(6) The address does not become the address for service of the shipowner
until the shipowner has given notice in writing of the address to the Minister
and an address so notified continues to be the address for service of the
shipowner until another address has been so notified.
(7) A document or notice required or permitted to be served on, or given to,
the shipowner under or for the purposes of this Part, including process of the
Court, may, notwithstanding any other law, be served or given by leaving it at
his address for service or by serving it by registered post on the shipowner
at that address.
(8) Where a shipowner has given notice in writing to the Minister of the
appointment of an agent of the shipowner, or of an address in Australia of the
shipowner for service, for the purposes of this Part, the notice shall, for
the purposes of sub-section (4) or (7) of this section, as the case requires,
be deemed to have been given in accordance with a request made by the Minister
in pursuance of sub-section (1) of this section.
(9) Failure to comply with this section is not an offence but entails the
consequences specified in this Part.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 109.
Clerk of Shipping Agreements.
SECT
Division 2-Filing of Conference Agreements
Inserted by No. 118, 1972, s. 4.
109. (1) There shall be a Clerk of Shipping Agreements, who shall be
appointed by the Governor-General.
(1A) Where the Clerk of Shipping Agreements is, or is expected to be, absent
from duty or the office of Clerk of Shipping Agreements is vacant, the
Governor-General may appoint a person to act as Clerk of Shipping Agreements
during the absence or until the filling of the vacancy, as the case may be.
(2) The Clerk, and any staff necessary to assist him, shall be persons
employed under the Public Service Act 1922-1968.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 110.
Agreements subject to filing.
SECT
110. (1) An agreement made before the date of commencement of this Act that
is, on that date, an agreement to which this Part applies becomes subject to
filing on that date.
(2) An agreement made on or after that date that is, when made, an agreement
to which this Part applies becomes subject to filing upon the making of the
agreement.
(3) An agreement to which this Part applies, whether made before or after
that date, that becomes subject to filing at a time after the making of the
agreement, being a time after the commencement of this Act, becomes subject to
filing at that time.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 111.
Particulars to be furnished of certain agreements, variations and
determinations.
SECT
111. (1) Where a conference agreement has become subject to filing,
particulars of the agreement, in accordance with this section and verified as
required by this section, shall be furnished to the Clerk within the period of
thirty days after the date on which the agreement became subject to filing.
(2) In the case of a conference agreement that becomes subject to filing on
a date after the date of making of the agreement, the particulars required to
be furnished are particulars of the agreement as varied, whether in respect of
the parties or in respect of the terms, by any variations made on or before
the date on which the agreement becomes subject to filing.
(3) The duty to furnish particulars under this section in respect of a
conference agreement that has become subject to filing is not affected by any
subsequent variation or determination of the agreement and if, at any time
after a conference agreement becomes subject to filing, the agreement is
varied, whether in respect of the parties or in respect of the terms, or is
determined otherwise than by effluxion of time, then, except as otherwise
prescribed, particulars of the variation or determination, verified as
required by this section, shall be furnished to the Clerk within the period of
thirty days after the day on which the variation or determination occurs.
(4) The requirements of this section may be complied with-
(a) in respect of an agreement-by any party to the agreement; or
(b) in respect of a variation or determination of an agreement-by any
person who was a party to the agreement immediately before, or is a party
immediately after, the variation or determination.
(5) Subject to the regulations, the particulars to be furnished of an
agreement are-
(a) the names of the parties to the agreement and the date of the
agreement; and
(b) the whole of the terms of the agreement, whether or not relating to
overseas cargo shipping.
(6) The particulars to be furnished of an agreement, or of a variation or
determination of an agreement, shall be furnished-
(a) in so far as the particulars are contained in an instrument in writing
by which the agreement, variation or determination was, in whole or in part,
made or effected-by lodging with the Clerk a true copy of that instrument;
and
(b) in so far as the particulars are not contained in such an instrument,
whether or not there is such an instrument-by lodging with the Clerk a
memorandum of those particulars,
verified as a true copy or a full and correct memorandum, as the case
requires, by statutory declaration of the person by whom the particulars are
furnished or of a competent person authorized by that person.
(7) The regulations may provide for excluding any particulars from the
particulars required to be furnished under this Division.
(8) A person referred to in sub-section (4) of this section may, before the
expiration of the time within which, but for this sub-section, the particulars
are required to be furnished, apply in writing to the Minister for an
extension of that time and, where such an application is made, the time within
which the particulars are required to be furnished shall be taken not to
expire-
(a) whether or not the application is granted-before the expiration of
fourteen days after the date on which the Minister informs the applicant in
writing of his decision on the application; or
(b) if the application is granted-before the expiration of the period of
the extension granted by the Minister.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 112.
Failure to furnish particulars an offence.
SECT
112. (1) If the requirements of the last preceding section are not complied
with in respect of an agreement, each person who was a party to the agreement
when it became subject to filing is guilty of an offence.
(2) If the requirements of the last preceding section are not complied with
in respect of a variation or determination of an agreement, each person who
was a party to the agreement immediately before, or immediately after, the
variation or determination is guilty of an offence.
(3) The penalty for an offence against this section is a fine not exceeding
Two thousand dollars.
(4) It is a defence to a prosecution for an offence against this section if
the person charged satisfies the Court that-
(a) he did not, within the time allowed for the furnishing of the
particulars, advert to the question whether particulars of the agreement,
variation or determination were required by this Act to be furnished to the
Clerk and his failure to advert to that question was not attributable to a
desire to avoid, or to indifference to, his obligations;
(b) he reasonably relied on another party to ensure that the required
particulars were duly furnished; or
(c) he believed in good faith that particulars of the agreement, variation
or determination furnished to the Clerk by him within the time allowed
complied with the requirements of this Act,
and that either the particulars, or the necessary further or amended
particulars, were duly furnished, except as regards time, by himself or
another party before the institution of the prosecution or he did not know or
suspect, before the institution of the prosecution, that there had been
default in compliance with the requirements of this Act with respect to the
furnishing to the Clerk of particulars of the agreement, variation or
determination.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 113.
Clerk to file particulars.
SECT
113. (1) Where particulars of an agreement, or of a variation or
determination of an agreement, are duly furnished to the Clerk in accordance
with this Division, or where those particulars are duly furnished except that
the time allowed for furnishing the particulars has expired, the Clerk shall
file the document containing the particulars in a repository of such documents
to be kept by him.
(2) The Clerk shall keep such records and indexes of documents received by
him under this Division as he thinks necessary or as the Minister directs.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 114.
Filed documents to be evidence.
SECT
114. In proceedings under this Act before the Tribunal or the Court, other
than proceedings for an offence against a provision of this Division,
particulars of an agreement, or of a variation or determination of an
agreement, as appearing from a document filed by the Clerk are evidence of the
agreement, variation or determination.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 115.
Secrecy.
SECT
115. (1) This section applies to every person who is or has been the Clerk
or a member of the staff assisting the Clerk.
(2) Subject to this section, a person to whom this section applies shall
not, either directly or indirectly, except in the performance of a duty under
or in connexion with this Part-
(a) make a record of, or divulge or communicate to any person, any
information concerning the affairs of another person acquired by him by reason
of his office or employment under or for the purposes of this Part; or
(b) produce to any person a document furnished in pursuance of this
Division.
Penalty: One thousand dollars or imprisonment for three months.
(3) A person to whom this section applies shall not be required to produce
in a court any document relating to the affairs of another person of which he
has the custody, or to which he has access, by virtue of his office or
employment under or for the purposes of this Part, or to divulge or
communicate to any court any information concerning the affairs of another
person obtained by him by reason of any such office or employment, unless it
is necessary to do so for the purposes of, or of a prosecution under or
arising out of, this Part.
(4) This section does not apply in relation to-
(a) the communication of information to, or the production of a document
to, the Tribunal for the purposes of an inquiry under this Part, the Minister
or an officer acting on behalf of, and with the authority of, the Minister;
or
(b) the communication or production to a person of, or of information or
documents concerning, particulars furnished to the Clerk of an agreement to
which, according to those particulars, that person is or has been a party.
(5) For the purposes of paragraph (b) of the last preceding sub- section,
the communication or production of any matter or document to a person
authorized by writing under the common seal of a body corporate to represent
the body corporate for the purposes of this section shall be deemed to be
communication or production to that body corporate.
(6) In this section-
''court'' includes any tribunal, authority or person having power to require
the production of documents or the answering of questions;
''produce'' includes permit access to and ''production'' has a corresponding
meaning.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 116.
Minister may request undertakings.
SECT
Division 3-Powers in relation to Conference Agreements
116. (1) The Minister may serve on each of the parties to a conference
agreement who carry on outwards cargo shipping to which the agreement relates
a notice in accordance with this section.
Amended by No. 118, 1972, s. 5.
(2) A notice to a party under the last preceding sub-section shall request
the party to give to the Minister, not later than a date specified in the
notice, an undertaking in writing executed by the party that, whenever the
party is reasonably requested by the designated shipper body, by notice in
writing, to take part in negotiations with that shipper body with regard to
arrangements for, and the terms and conditions that are to be applicable to,
outwards cargo shipping to which the conference agreement relates-
(a) the party will take part in those negotiations and will have due regard
to matters and considerations raised, and representations made, by the
designated shipper body in the course of the negotiations;
(b) the party will cause an officer designated from time to time by the
Minister to be furnished with such information as the officer requires
concerning the progress of the negotiations, will permit that officer to be
present at any meetings in the course of the negotiations and will give
consideration to any suggestions that he may make; and
(c) if the designated shipper body requests the party to make available for
the purposes of the negotiations any information that is reasonably necessary
for those purposes and itself makes available for those purposes any such
information that the parties or any of them request to be made available, the
party will make available the information requested by the shipper body.
(3) An undertaking for the purposes of this section shall be deemed to be
duly given notwithstanding that it contains qualifications or exceptions if
they were permitted by the notice requesting the undertaking or have been
accepted by the Minister by notice in writing to the party.
(4) A person on whom a notice has been served under sub-section (1) of this
section may, before the date specified in the notice, apply in writing to the
Minister for an extension of the time for compliance with the notice and,
where such an application is made, the time within which the notice is to be
complied with shall be taken not to expire-
(a) whether or not the application is granted-before the expiration of
fourteen days after the date on which the Minister informs the applicant in
writing of his decision on the application; or
(b) if the application is granted-before the expiration of the period of
the extension granted by the Minister.
Substituted by No. 118, 1972, s. 5.
(5) The designated officer may appoint an officer or officers to be his
deputy or deputies and any undertaking given for the purposes of this section
by a party to a conference agreement shall be deemed to include an undertaking
that the party will-
(a) cause a deputy so appointed to be furnished with such information as
the deputy requires concerning the progress of the negotiations with the
designated shipper body; and
(b) in the event of the absence of the designated officer from a meeting in
the course of the negotiations, permit the deputy, or, if there is more than
one deputy, one of the deputies, to be present at that meeting and give
consideration to any suggestions that he may make.
Added by No. 118, 1972, s. 5.
(6) In this section-
''the designated officer'' means the officer designated by the Minister
under paragraph (b) of sub-section (2) of this section;
''the designated shipper body'' means the shipper body designated by the
Minister in the notice requesting the undertaking.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 117.
Disapproval of agreements.
SECT
117. (1) The Governor-General may, by order, disapprove a conference
agreement, whether or not particulars of the agreement have been furnished to
the Clerk, on a ground specified in the order, being one of the following
grounds:-
(a) that a party to the agreement has, without reasonable excuse, failed to
comply with section 108 of this Act;
(b) that there has been a failure to comply with a request for the giving
of an undertaking made by the Minister under the last preceding section in
relation to the agreement;
(c) that the Governor-General is satisfied, after consideration of a report
to the Minister by the Tribunal, that-
(i) there has been a failure to comply with an undertaking given under
the last preceding section in relation to the agreement;
(ii) the agreement, or the manner in which it is being interpreted or
applied by the parties, or the conduct of, or the provision of facilities by,
the parties in relation to outwards cargo shipping to which the agreement
relates does not have due regard to the need for services by way of overseas
cargo shipping to be efficient, economical and adequate; or
(iii) the agreement, or the manner in which it is being interpreted or
applied by the parties, or the conduct of the parties in relation to matters
to which the agreement relates, is preventing a person from, or hindering a
person in, engaging efficiently, to an extent that is reasonable, in overseas
cargo shipping in relation to which he is an Australian flag shipping
operator.
(2) For the purposes of sub-paragraph (ii) of paragraph (c) of the last
preceding sub-section, consideration shall be given to the need to ensure the
continuing provision of services by way of overseas cargo shipping and, in
that connexion, the conditions under which, on a long term view, shipowners
may reasonably be expected to provide such services.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 118.
Effect of disapproval.
SECT
118. (1) Where an agreement is disapproved under this Division, the
agreement becomes, upon the date on which the order of disapproval takes
effect, unenforceable as regards observance of the agreement, so far as it
relates to outwards cargo shipping, on and after that date, but a transaction
entered into, whether before or after the order takes effect, in pursuance of
the agreement is not illegal or unenforceable by reason only of the making of
the order.
(2) A party to a disapproved agreement shall not-
(a) do any act or thing in pursuance of, or enforce or purport to enforce,
the agreement (including the agreement as varied by any later agreement) so
far as it relates to outwards cargo shipping;
(b) enter into any other conference agreement (whether with the same
parties or with other parties) that relates, in whole or in part, to the
carriage of goods from Australia to a place outside Australia that is a place
to the carriage of goods to which the disapproved agreement related; or
(c) do any act or thing in pursuance of, or enforce or purport to enforce,
an agreement referred to in the last preceding paragraph.
Penalty: Fifty thousand dollars.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 119.
Reinstatement of disapproved agreement or approval of substituted agreement.
SECT
119. (1) Where, in his discretion, he considers it desirable to do so, the
Governor-General may-
(a) by order, revoke an order disapproving a conference agreement; or
(b) approve the entering into by one or more of the parties to a
disapproved agreement of another conference agreement, whether with or without
parties who were not parties to the disapproved agreement.
(2) Paragraphs (b) and (c) of sub-section (2) of the last preceding section
do not apply in relation to a conference agreement in respect of which an
approval has been given under this section and which has not been disapproved
under this Division.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 120.
Injunctions.
SECT
120. The Court is empowered, on the application of the Minister, to grant an
injunction restraining a person who has been convicted of an offence against
section 118 of this Act from further contravening that section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 121.
Publication and commencement of orders.
SECT
121. An order under this Division-
(a) shall be published in the Gazette; and
(b) takes effect on the date of publication or on such later date as is
fixed by the order.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 122.
Minister may request undertakings.
SECT
Division 4-Powers in relation to Individual Shipowners
Sub-section (1) amended by No. 118, 1972, s. 6.
122. (1) Subject to the next succeeding sub-section, the Minister may serve
on a shipowner a notice requesting the shipowner to give to the Minister, not
later than a date specified in the notice, an undertaking in writing executed
by the shipowner that, whenever the shipowner is reasonably requested by the
designated shipper body, by notice in writing, to take part in negotiations
with that shipper body with regard to arrangements for, and the terms and
conditions that are to be applicable to, outwards cargo shipping to which the
notice relates-
(a) the shipowner will take part in those negotiations and will have due
regard to matters and considerations raised, and representations made, by the
designated shipper body in the course of the negotiations;
(b) the shipowner will cause an officer designated from time to time by the
Minister to be furnished with such information as the officer requires
concerning the progress of the negotiations, will permit that officer to be
present at any meetings in the course of the negotiations and will give
consideration to any suggestions that he may make; and
(c) if the designated shipper body requests the shipowner to make available
for the purposes of the negotiations any information that is reasonably
necessary for those purposes and itself makes available for those purposes any
such information that the shipowner requests to be made available, the
shipowner will make available the information requested by the shipper body.
(2) A notice under the last preceding sub-section requesting an undertaking
shall be expressed to relate to outwards cargo shipping by the shipowner to a
specified port or to specified ports, not being outwards cargo shipping that
is within the operation of a conference agreement, not being a disapproved
agreement, particulars of which have been furnished under Division 2 of this
Part.
(3) An undertaking for the purposes of this section shall be deemed to be
duly given notwithstanding that it contains qualifications or exceptions if
they were permitted by the notice requesting the undertaking or have been
accepted by the Minister by notice in writing to the shipowner.
(4) A shipowner on whom a notice has been served under subsection (1) of
this section may, before the date specified in the notice, apply in writing to
the Minister for an extension of the time for compliance with the notice and,
where such an application is made, the time within which the notice is to be
complied with shall be taken not to expire-
(a) whether or not the application is granted-before the expiration of
fourteen days after the date on which the Minister informs the applicant in
writing of his decision on the application; or
(b) if the application is granted-before the expiration of the period of
the extension granted by the Minister.
Substituted by No. 118, 1972, s. 6.
(5) The designated officer may appoint an officer or officers to be his
deputy or deputies and any undertaking given for the purposes of this section
by a shipowner shall be deemed to include an undertaking that the shipowner
will-
(a) cause a deputy so appointed to be furnished with such information as
the deputy requires concerning the progress of the negotiations with the
designated shipper body; and
(b) in the event of the absence of the designated officer from a meeting in
the course of the negotiations, permit the deputy, or, if there is more than
one deputy, one of the deputies, to be present at that meeting and give
consideration to any suggestions that he may make.
Added by No. 118, 1972, s. 6.
(6) In this section-
''the designated officer'' means the officer designated by the Minister
under paragraph (b) of sub-section (1) of this section;
''the designated shipper body'' means the shipper body designated by the
Minister in the notice requesting the undertaking.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 123.
Declaration of shipowners.
SECT
123. (1) Subject to this section, the Governor-General may, by order,
declare a shipowner to be, in relation to outwards cargo shipping to a port or
the ports specified in the order (in this section referred to as ''the
relevant shipping''), a shipowner to whom the next succeeding section
applies.
(2) The Governor-General shall not make such an order except on a ground
specified in the order, being one of the following grounds:-
(a) that the shipowner has, without reasonable excuse, failed to comply
with section 108 of this Act;
(b) that the shipowner has failed to comply with a request for the giving
of an undertaking made by the Minister under the last preceding section in
relation to the relevant shipping;
(c) that the Governor-General is satisfied, after consideration of a report
to the Minister by the Tribunal, that-
(i) the shipowner has failed to comply with an undertaking given under
the last preceding section in relation to the relevant shipping;
(ii) the conduct of, or provision of facilities by, the shipowner in
relation to the relevant shipping does not have due regard to the need for
services by way of overseas cargo shipping to be efficient, economical and
adequate;
(iii) the conduct of the shipowner in relation to overseas cargo
shipping between Australia and a port or the ports to be specified in the
order is preventing a person from, or hindering a person in, engaging
efficiently, to an extent that is reasonable, in overseas cargo shipping in
relation to which he is an Australian flag shipping operator; or
(iv) a conference agreement to which the shipowner was a party, being an
agreement that related in whole or in part to the relevant shipping, has been
disapproved under this Part and the disapproval has not been revoked.
(3) For the purposes of sub-paragraph (ii) of paragraph (c) of the last
preceding sub-section, consideration shall be given to the need to ensure the
continuing provision of services, by way of overseas cargo shipping and, in
that connexion, the conditions under which, on a long term view, shipowners
may reasonably be expected to provide such services.
(4) Where, in his discretion, he considers it desirable to do so, the
Governor-General may, by order, revoke an order under sub-section (1) of this
section.
(5) An order under this section-
(a) shall be published in the Gazette; and
(b) takes effect on the date of publication or on such later date as is
fixed by the order.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 124.
Prohibitions applicable to declared shipowner.
SECT
124. A declared shipowner shall not, in respect of outwards cargo shipping
to a port specified in the order by virtue of which he is a declared
shipowner-
(a) enter into a contract, or follow a practice, under which a shipper-
(i) is subject to restrictions with respect to, or is subject to any
detriment by reason of or in the event of, his giving patronage to another
shipowner; or
(ii) obtains or may obtain advantageous freight rates on condition that,
or by reason that, he gives all or a part of his patronage to the shipowner,
or to two or more particular shipowners;
(b) pay or allow, or make an agreement to pay or allow, to a shipper a
deferred rebate, that is to say, a rebate of portion of any freight money upon
fulfilment by the shipper of a condition with respect to confining patronage
to the shipowner or to two or more particular shipowners;
(c) with the object of substantially damaging the business of another
shipowner or preventing another shipowner from entering into competition with
him, engage in freight-cutting, or use a vessel, whether alone or in
conjunction with any other shipowner, to forestall the first-mentioned
shipowner in the obtaining of cargoes; or
(d) retaliate, or threaten to retaliate, against a shipper for giving
patronage to another shipowner-
(i) by refusing, or threatening to refuse, to carry goods of the
shipper or to carry goods of the shipper otherwise than on terms
disadvantageous to the shipper; or
(ii) by resorting to other discriminatory measures.
Penalty: Fifty thousand dollars.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 125.
Injunction.
SECT
125. The Court is empowered, on the application of the Minister, to grant an
injunction restraining a person who has been convicted of an offence against
the last preceding section from further contravening that section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 126.
Minister may refer certain matters to Tribunal.
SECT
Division 5-General
126. (1) The Minister may refer to the Tribunal for inquiry and report any
matter relevant to the exercise of the power of the Governor-General to make
an order upon a ground specified in paragraph (c) of sub-section (1) of
section 117 of this Act or paragraph (c) of sub-section (2) of section 123 of
this Act, and the Tribunal shall hold an inquiry, and make a report,
accordingly.
(2) For the purposes of an inquiry under this section-
(a) the Tribunal shall, notwithstanding anything contained in section 16 of
this Act but subject to section 21 of this Act, be constituted by a Division
of the Tribunal consisting of a presidential member and two members who are
not presidential members;
(b) section 21 of this Act applies as if the holding of the inquiry, and
the making of a report on the inquiry, were the hearing and determining of
proceedings; and
(c) sections 87, 88 and 90 of this Act do not apply.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 127.
Minister to consult with shipowners before making reference.
SECT
127. The Minister shall not refer a matter to the Tribunal under the last
preceding section unless he has first carried on, or endeavoured to carry on,
either personally or through officers acting on his behalf and with his
authority, consultations with the parties to the conference agreement
concerned who carry on overseas cargo shipping, or with the ship-owner
concerned, as the case requires, with a view to securing such undertaking or
action by those parties or by that shipowner as will render the proposed
reference unnecessary.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 128.
Representation.
SECT
128. (1) In an inquiry under this Division in respect of a matter arising
under section 117 of this Act, any party to the conference agreement concerned
is entitled to be represented.
(2) In an inquiry under this Division in respect of a matter arising under
section 123 of this Act, the shipowner concerned is entitled to be
represented.
(3) In an inquiry under this Division-
(a) the Minister is entitled to be represented;
(b) if the Tribunal is satisfied that a shipper body has a sufficient
interest in the inquiry, the Tribunal shall grant to the shipper body leave to
be represented; and
(c) the Tribunal may grant to any person appearing to it to have a
sufficient interest in the inquiry leave to be represented.
Amended by No. 216, 1973, s. 3.
(4) The representation of a person or body in an inquiry under this Division
shall be-
(a) by a barrister or a solicitor of the Supreme Court of a State or
Territory or of the High Court; or
(b) by a person approved by the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 129.
Undertakings to Tribunal.
SECT
129. (1) In connexion with an inquiry under this Division, the Tribunal may
receive an undertaking to the Tribunal by a shipowner with respect to a matter
appearing to the Tribunal to be relevant to the operation of this Part.
(2) The Minister may withdraw a reference of a matter to the Tribunal under
this Division upon the giving of an undertaking under the last preceding
sub-section to the satisfaction of the Minister.
(3) An undertaking to the Tribunal under this section shall not, unless the
contrary intention appears expressly from the terms of the undertaking, be
construed as an admission as to any matter.
(4) The Tribunal shall record in writing an undertaking received or given
for the purposes of this section and the writing shall be placed in the
records of the Tribunal.
(5) For the purposes of the application of section 79 of this Act in
relation to a contempt of the Tribunal in connexion with an undertaking given
in accordance with this section, the reference in that section to the
Attorney-General shall be read as a reference to the Minister.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 130.
Publication of reports of Tribunal.
SECT
130. (1) Where the Tribunal has made a report to the Minister under this
Division, the Minister shall-
(a) upon the expiration of a period of sixty days after the date on which
he received the report; or
(b) if, before the expiration of that period, the Governor-General makes an
order after consideration of the report, immediately after the making of the
order,
direct the Registrar to make the report public.
(2) After a direction has been given under the last preceding sub-section in
respect of a report, a person may, on payment of the prescribed fee-
(a) inspect a copy of the report at the office of the Registrar; or
(b) obtain a copy of the report certified to be a true copy under the hand
of the Registrar or of a Deputy Registrar.
(3) Section 161 of this Act does not apply in relation to a report of the
Tribunal under this Division.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 131.
Institution of prosecutions.
SECT
131. (1) For the purpose of proceedings before the Court for an offence
against this Part, the references in paragraph (b) of sub-section (5) of
section 164 of this Act to the Attorney-General shall be read as references to
the Minister.
(2) Proceedings before the Court in respect of a contempt of the Court in
relation to an injunction under this Part shall not be instituted except with
the consent in writing of the Minister.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 132.
Aiding and abetting.
SECT
132. (1) A person who aids, abets, counsels or procures, or is in any way
directly or indirectly knowingly concerned in, or party to-
(a) the commission of an offence against this Part; or
(b) the doing of an act or thing outside Australia that would, if done
within Australia, be an offence against this Part,
shall be deemed to have committed the offence and is punishable accordingly.
(2) The references in the last preceding sub-section to an offence against
this Part shall be read as including references to a contempt of the Court in
relation to an injunction under this Part.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 133.
Protection of certain persons.
SECT
133. Where a person enters into, or purports to enter into, a contract of
carriage or other transaction that involves an offence by him against this
Part or a breach by him of an injunction of the Court under this Part, a
person who was not guilty of such an offence or breach in relation to the
transaction has the same rights, whether as a party to the transaction or as a
person claiming directly or indirectly under a party to the transaction, as he
would have had if the contract or transaction had not involved such an offence
or breach.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 134.
Constitution of Court.
SECT
134. (1) The jurisdiction of the Court in proceedings for an injunction
under this Part may be exercised by a single Judge.
(2) For the purposes of proceedings in respect of a contempt of the Court
consisting of failure to comply with an injunction under this Part, the Court
shall be constituted by not less than three Judges.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 135.
Actions for damages.
SECT
Division 6-Civil Remedies in relation to Overseas Cargo Shipping
135. (1) Subject to this section, a shipper, shipowner or other person who
suffers loss or damage by an act of another person done in contravention of
section 118 or section 124 of this Act may recover the amount of the loss or
damage by action against that other person.
(2) Jurisdiction is conferred on the Court to hear and determine actions
under this section and that jurisdiction is exclusive of the jurisdiction of
any other court, other than the jurisdiction of the High Court under section
75 of the Constitution.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 136.
Deferment of action on application of Minister.
SECT
136. The court in which an action under this Division is instituted may, on
the application of the Minister, defer or adjourn the hearing of the action
where it is satisfied that it is in the interests of justice to do so having
regard to any pending or possible prosecution or proceedings for an injunction
or for contempt of the Court arising out of disobedience to an injunction.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 137.
Findings in contempt proceedings to be evidence.
SECT
137. In proceedings against a person under this Division, a finding of a
fact by the Court in proceedings under, or arising out of, this Part in
which-
(a) that person has been found guilty of an offence against a provision of
Division 3 or of Division 4 of this Part;
(b) an injunction has been granted against that person; or
(c) that person has been found guilty of contempt of the Court,
is evidence of the fact and the finding may be proved by production of a
document under the seal of the Court from which the finding appears.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 138.
of this Act and of any order of the Tribunal.
SECT
PART XIII-INTERPRETATIVE PROVISIONS
138. (1) The following provisions of this section have effect for the
purposes of this Act and of any order of the Tribunal.
(2) An arrangement or understanding, whether formal or informal and whether
express or implied, shall be deemed to be an agreement.
(3) A reference to an agreement shall be read as including a reference to an
agreement made outside Australia and to an agreement made before the
commencement of this Act.
(4) A reference to an agreement shall be read as including a reference to
every relevant restriction accepted under the agreement.
(5) A reference to an agreement shall be read as including a reference to an
agreement that is not enforceable by legal proceedings, whether or not it was
intended to be so enforceable.
(6) A reference to restrictions under an agreement, or the doing of an act
or thing under or in pursuance of an agreement, shall, in relation to an
agreement that is not enforceable, be construed as if the agreement were
enforceable.
(7) Where a person is a party to an agreement under which that person
undertakes, or is or may be required to ensure, that a body corporate which
that person is in a position to control will do an act or thing, or which
provides for the doing of an act or thing by such a body corporate-
(a) that body corporate shall be deemed to be a party to the agreement;
and
(b) the agreement shall be deemed to require that body corporate to do that
act or thing,
and, for the purposes of this sub-section, a body corporate that is the
holding company of another body corporate shall be deemed to be in a position
to control that other body corporate.
(8) Where, under an agreement-
(a) a party is subject to an obligation, or may be subjected to a penalty
or disadvantage, if he fails to comply with conditions; or
(b) privileges or benefits are, or are to be, conferred upon a party only
if he complies with conditions,
that person shall be deemed to be required by that agreement to comply with
those conditions.
(9) Without affecting the operation of the last preceding sub-section, an
obligation on the part of a party to an agreement to make payments calculated
by reference to-
(a) the quantity of any goods produced or supplied by him or the extent of
any services supplied by him; or
(b) the quantity of any materials acquired by him for the purpose of, or
used by him in, the production of any goods or the supply of any services,
being payments calculated, or calculated at an increased rate, in respect of
goods, services or materials in excess of a quantity or extent specified in,
or ascertained in accordance with, the agreement, shall be deemed to be a
restriction in respect of the quantities of those goods that he may produce or
supply, or the extent of those services that he may supply, as the case may
be.
(10) An act or thing done by a party to an agreement shall be deemed to have
been done in pursuance of a requirement of the agreement where-
(a) the party would have contravened that requirement if he had not done
that act or thing; or
(b) that requirement was applicable in relation to the doing of that act or
thing and the act or thing was done consistently with that requirement.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 139.
Special provisions relating to trade associations.
SECT
139. (1) In this Act, ''trade association'' means an association, body or
organization, whether incorporated or not, formed, existing or conducted for
the purpose of furthering, or for purposes that include or are conducive to
the furthering of, the business or professional interests of all or any of its
members, but does not include-
(a) a partnership; or
(b) an association, body or organization the only members of which are
bodies corporate related to each other.
(2) For the purposes of this Act-
(a) where an association, body or organization, whether or not it is a
trade association, or a person representing an association, body or
organization, is a member of another association, body or organization, each
member of the first-mentioned association, body or organization shall be
deemed to be a member of the last-mentioned association, body or
organization;
(b) where a person is a member of an association, body or organization in
the capacity of representative of another person, including a body corporate,
that other person shall be deemed to be a member of that association, body or
organization;
(c) the constitution of a trade association shall be deemed to be an
agreement to which all persons who for the time being are members of the trade
association are parties;
(d) where a direction by or on behalf of a trade association has been given
to, or was intended to affect the conduct of, all or any of its members, it
shall be conclusively presumed that the direction was authorized by the
constitution of the trade association and that those members were required by
that constitution to comply with it; and
(e) an agreement made by a trade association shall be deemed to be an
agreement to which all members of the trade association for the time being are
parties and by which those members agree to do all acts and things that, under
the agreement, are to be done by them or the trade association is to cause,
require or recommend them to do.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 140.
References to restrictions.
SECT
140. (1) For the purposes of this Act, the general obligation of a party to
an agreement to comply with a provision of that agreement under which that
party is or could be required to observe restrictions with respect to a
matter, whether particulars of the restrictions are contained or referred to
in the agreement or are to be defined by some later act or document, is a
restriction with respect to that matter accepted by that party under the
agreement.
(2) Notwithstanding the last preceding sub-section, a reference in this Act
to a restriction under an agreement includes a reference to a particular
obligation arising under a provision referred to in that sub- section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 141.
Supply, acquisition and production.
SECT
141. In this Act-
(a) a reference to the supply or acquisition of goods includes a reference
to agreeing to supply or acquire goods;
(b) a reference to the acquisition of goods includes a reference to the
acquisition of property in, or rights in relation to, goods in pursuance of a
supply of the goods;
(c) a reference to the supply or acquisition of services includes a
reference to agreeing to supply or acquire services;
(d) a reference to the supply or acquisition of goods includes a reference
to the supply or acquisition of goods together with services; and
(e) a reference to the production of goods includes a reference to the
getting of minerals and the taking of animals, including fish.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 142.
References to acts.
SECT
142. For the purposes of this Act-
(a) refusing to do or refraining from doing an act or thing; or
(b) entering into an agreement, refusing to enter into an agreement or
refraining from entering into an agreement,
shall be deemed to be doing an act or thing.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 143.
Related companies.
SECT
143. (1) Where a provision of this Act refers to a body corporate being the
holding company of another body corporate, the question whether that body
corporate is the holding company of that other body corporate shall be
determined in the same manner as the question whether a corporation is the
holding company of another corporation is determined under the Companies
Ordinance.
(2) Where a provision of this Act-
(a) refers to bodies corporate or corporations being related to each other;
or
(b) refers to a body corporate and a corporation being related to each
other,
the question whether those bodies corporate or corporations, or that body
corporate and that corporation, are so related shall be determined in the same
manner as the question whether two corporations are related to each other is
determined under the Companies Ordinance.
(3) In this section, ''the Companies Ordinance'' means the Companies
Ordinance 1962-1969 of the Australian Capital Territory or, if that Ordinance
is amended, that Ordinance as amended.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 144.
Saving of s. 8 of Acts Interpretation Act.
SECT
PART XIV-TRANSITIONAL PROVISIONS
144. Nothing in this Part affects the operation of section 8 of the Acts
Interpretation Act 1901-1966 in relation to the Acts repealed by this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 145.
Continuation of certain appointments.
SECT
145. (1) A person named in an instrument of appointment to an office made or
purporting to have been made under a provision of the Trade Practices Act 1965
or of that Act as amended, but not including a person who had ceased to hold
his office before the commencement of this Act, shall be deemed to have been
appointed to the corresponding office under this Act and holds office for the
remainder of the period of his appointment under the Trade Practices Act
1965-1971.
(2) It is not necessary for a person referred to in this section to take an
oath or make an affirmation as provided by section 15 or by section 30 of this
Act.
(3) Section 26 of this Act applies in relation to the person holding office
immediately before the commencement of this Act as Commissioner of Trade
Practices under the Trade Practices Act 1965-1971 as if he had been appointed
under this Act and, in the application of paragraph (b) of that section in
relation to that person, his service under the Trade Practices Act 1965 or
under that Act as amended shall be taken into account as though it were
service under this Act.
(4) The reference in sub-section (4A) of section 25 of the Public Service
Act 1922-1968 to the Commissioner of Trade Practices shall be read as a
reference to the Commissioner of Trade Practices holding office under this Act
and a reference in that sub-section to section thirty-one of the Trade
Practices Act 1965-1966 shall be read as a reference to section 31 of this
Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 146.
Secrecy.
SECT
146. The application of section 34 of this Act extends to information and
documents referred to in section 34 of the Trade Practices Act 1965-1971.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 147.
The Register of Trade Agreements continued.
SECT
147. (1) The Register kept under section 40 of the Trade Practices Act
1965-1971 shall be deemed to be incorporated with and to form part of the
Register kept under section 40 of this Act.
(2) The last preceding sub-section does not apply to so much of the Register
first referred to in that sub-section as consists of documents containing
particulars that would not have been required to be furnished if this Act had
been in force when they were furnished.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 148.
Commissioner may retain certain documents.
SECT
148. (1) Notwithstanding the repeal of the Acts referred to in sub-section
(1) of section 4 of this Act, the Commissioner may retain a document-
(a) furnished under section 42 of the Trade Practices Act 1965 or of that
Act as amended; or
(b) produced under section 103 of the Trade Practices Act 1965 or of that
Act as amended,
being a document-
(c) that relates to a restriction or practice that was or is (whether
exclusively or not) applicable to a transaction, act or operation of a kind
referred to in any of the paragraphs of sub-section (1) of section 7 of the
Trade Practices Act 1965-1971 or in sub-section (2) or (3) of that section;
or
(d) that relates to a restriction or practice referred to in paragraph (a)
or (b) of sub-section (2) of section 7A of the Trade Practices Act 1965-1967.
(2) Notwithstanding the repeal referred to in the last preceding
sub-section, the Commissioner may retain a copy of, or an extract from, a
document made or taken under section 104 of the Trade Practices Act 1965 or of
that Act as amended, being a document referred to in paragraph (c) or (d) of
that sub-section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 149.
Certain particulars not required to be furnished.
SECT
149. (1) It is not necessary for particulars in respect of an agreement that
have been furnished as required by section 42 of the Trade Practices Act 1965
or of that Act as amended to be furnished as required by section 42 of this
Act and this Act applies to and in relation to particulars so furnished, and
to and in relation to the agreement in respect of which they were so
furnished, as if the particulars had been furnished under section 42 of this
Act.
(2) The last preceding sub-section does not have effect so as to apply this
Act to or in relation to particulars, or to or in relation to an agreement in
respect of which particulars were furnished, if those particulars would not
have been required to be furnished if this Act had been in force when they
were furnished.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 150.
Registration of agreements continued.
SECT
150. (1) An agreement, variation or determination registered under section
44 of the Trade Practices Act 1965 or of that Act as amended shall be deemed
to have been registered under section 44 of this Act.
(2) The last preceding sub-section does not apply to an agreement, variation
or determination if the agreement, variation or determination would not have
been subject to registration if this Act had been in force when the agreement,
variation or determination was registered.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 151.
Undertaking by Tasmanian Breweries Pty. Limited continued.
SECT
151. The undertaking of Tasmanian Breweries Pty. Limited received by the
Trade Practices Tribunal under section 79 of the Trade Practices Act 1965-1969
has effect as if it had been received by the Trade Practices Tribunal under
sub-section (1) of section 90 of this Act and had been recorded as provided by
sub-section (4) of that section.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 152.
Determination and order in certain proceedings continued.
SECT
152. The determination made by the Trade Practices Tribunal on the
twenty-seventh day of August, One thousand nine hundred and seventy-one, under
section 49 of the Trade Practices Act 1965-1971 in proceedings number 1 of
1970, being proceedings instituted by the Commissioner of Trade Practices on
the eleventh day of December, One thousand nine hundred and seventy, under
section 47 of that Act, and the order made in those proceedings by the Trade
Practices Tribunal on the first-mentioned date under section 52 of the Trade
Practices Act 1965-1971, have effect (except as they apply in relation to a
person not being a corporation) as though they had been made under sections 49
and 52, respectively, of this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 153.
Certain proceedings continued.
SECT
153. The proceedings instituted by the Commissioner of Trade Practices under
section 47 of the Trade Practices Act 1965-1969 on the fourteenth day of May,
One thousand nine hundred and seventy-one, being proceedings number 1 of 1971,
have effect as if they had been instituted by the Commissioner of Trade
Practices under section 47 of this Act on the date of commencement of this Act
and everything done in relation to those proceedings before the commencement
of this Act has effect as if it had been done under this Act or the
regulations, as the case requires.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 154.
Proceedings for exemption by A. H. & A. W. Reed Pty. Limited continued.
SECT
154. The application made by A. H. & A. W. Reed Pty. Limited on the ninth
day of August, One thousand nine hundred and seventy-one, under section 66H of
the Trade Practices Act 1965-1971 has effect as if it had been made under
section 72 of this Act on the date of commencement of this Act and everything
done in relation to that application before the commencement of this Act has
effect as if it had been done under this Act or the regulations, as the case
requires.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 155.
Certain notices continued.
SECT
155. (1) A notice served by the Minister under sub-section (1) of section
90D of the Trade Practices Act 1965-1966 or of that Act as amended shall be
deemed to have been served under sub-section (1) of section 108 of this Act.
(2) A person appointed under section 90D of the Trade Practices Act
1965-1966 or of that Act as amended as the agent of a shipowner shall be
deemed to have been appointed under section 108 of this Act.
(3) An address for service of a shipowner notified under section 90D of the
Trade Practices Act 1965-1966 or of that Act as amended shall be deemed to
have been notified under section 108 of this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 156.
Particulars of agreements continued.
SECT
156. It is not necessary for particulars in respect of an agreement
furnished under section 90G of the Trade Practices Act 1965-1966 or of that
Act as amended to be furnished as required by section 111 of this Act and this
Act applies to and in relation to particulars so furnished, and to and in
relation to the agreement in respect of which they were so furnished, as if
the particulars had been furnished under section 111 of this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 157.
Repository of documents continued.
SECT
157. The repository of documents kept under sub-section (1) of section 90J
of the Trade Practices Act 1965-1971 shall continue as the repository of
documents referred to in sub-section (1) of section 113 of this Act and
documents filed in the first-mentioned repository shall be deemed to have been
filed in the last-mentioned repository.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 158.
Secrecy.
SECT
158. The application of section 115 of this Act extends to information and
documents referred to in section 90L of the Trade Practices Act 1965-1971.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 159.
Undertakings continued.
SECT
159. (1) A notice served by the Minister under sub-section (1) of section
90M of the Trade Practices Act 1965-1966 or of that Act as amended shall be
deemed to have been served under section 116 of this Act.
(2) An undertaking given as requested in a notice referred to in the last
preceding sub-section shall be deemed to have been given as requested in a
notice under section 116 of this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 160.
Inspection of, furnishing of copies of, and evidence of, documents.
SECT
PART XV-MISCELLANEOUS
160. (1) Subject to any direction under section 84 of this Act, a person
may, on application in accordance with the regulations and on payment of the
prescribed fee-
(a) inspect the document recording a determination or order of the Tribunal
or any other document filed or lodged with the Registrar or recorded in the
records of the Tribunal in pursuance of this Act or the regulations; and
(b) obtain a copy of such a document, certified to be a true copy under the
hand of the Registrar or of a Deputy Registrar.
(2) A copy of a determination or order of, or undertaking given to, the
Tribunal, certified to be a true copy under the hand of the Registrar or of a
Deputy Registrar, shall be received in all courts as evidence of the
determination, order or undertaking.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 161.
Determinations and orders evidence of certain facts.
SECT
161. In proceedings under Part VIII or Part XI, a determination or order of
the Tribunal out of which the proceedings arose is evidence of the facts
stated in the determination or order to have been found by the Tribunal.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 162.
Evidence of Register.
SECT
162. A certificate under the hand of the Commissioner certifying as to any
matter relating to the contents of the Register shall be received in all
courts as evidence of the matter certified.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 163.
Judicial notice.
SECT
163. (1) All courts shall take judicial notice of-
(a) the official signature of any person who holds or has held the office
of President, Deputy President, member, Commissioner, Registrar or Deputy
Registrar and of the fact that that person holds or has held that office; and
(b) the official seal of the Tribunal,
if the signature or seal purports to be attached or appended to an official
document.
Amended by No. 216, 1973, s. 3.
(2) In this section, ''court'' includes a Federal Court or a court of a
State or internal Territory and all persons authorized by a law of the
Commonwealth, of a State or of an internal Territory or by consent of parties
to receive evidence.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 164.
Prosecutions.
SECT
164. (1) Prosecutions for offences against this Act shall be brought only in
the Court.
(2) Jurisdiction is conferred on the Court to hear and determine
prosecutions under this Act.
(3) Subject to the next succeeding sub-section, the jurisdiction of the
Court under this section may be exercised by a single Judge.
(4) The jurisdiction of the Court in respect of an offence against a
provision of Division 3 or Division 4 of Part XII shall be exercised by not
less than three Judges.
(5) Proceedings before the Court in accordance with this section-
(a) may be instituted by summons upon information; and
(b) shall not be instituted except with the consent in writing of the
Attorney-General or of a person authorized by the Attorney-General, by writing
under his hand, to give such consents.
(6) A prosecution for an offence against section 43, 96, 97 or 112 of this
Act may be commenced at any time after the commission of the offence.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 165.
Validity of determinations or orders.
SECT
165. (1) Subject to this section, the validity of a determination or order
of the Tribunal shall not be challenged, reviewed or called in question in any
proceedings, including proceedings under Part VIII or Part XI.
(2) The last preceding sub-section does not limit the exercise of any
jurisdiction of the High Court to issue a writ of prohibition, mandamus or
certiorari or to grant an injunction.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 166.
Commissioner may require furnishing of information of production and
documents.
SECT
166. (1) Where the Commissioner has reason to believe that a person is
capable of giving information or producing documents relating to matters that
constitute, or may constitute, an examinable agreement, an examinable practice
or the practice of resale price maintenance, he may, by notice in writing
served on that person, require that person-
(a) to furnish to him, by writing signed by that person or, in the case of
a body corporate, by a competent officer of the body corporate, within the
time and in the manner specified in the notice, any such information; or
(b) to produce to him, or to a person specified in the notice acting on his
behalf, in accordance with the notice, any such documents.
(2) A person shall not-
(a) refuse or fail to comply with a notice under this section to the extent
that he is capable of complying with it; or
(b) in purported compliance with such a notice, knowingly furnish
information that is false or misleading.
Penalty: One thousand dollars or imprisonment for three months.
(3) A person is not excused from furnishing information or producing a
document in pursuance of this section on the ground that the information or
document might tend to incriminate him, but his answer to any question asked
in the notice, or his furnishing of any other information in pursuance of the
notice, is not admissible in evidence against him in any criminal proceedings
other than proceedings under this Act.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 167.
Inspection, &c., of documents.
SECT
167. (1) The Commissioner, or a person authorized by him, may inspect a
document produced in pursuance of a notice under the last preceding section
and may make copies of or take extracts from the document.
(2) The Commissioner may, for the purposes of this Act, take, and retain for
as long as is necessary for those purposes, possession of a document produced
in pursuance of a notice under the last preceding section but the person
otherwise entitled to possession of the document is entitled to be supplied,
as soon as practicable, with a copy certified by the Commissioner under his
hand to be a true copy and the certified copy shall be received in all courts
as evidence as if it were the original.
(3) Until such a certified copy is supplied, the Commissioner shall, at such
times and places as he thinks appropriate, permit the person otherwise
entitled to possession of the document, or a person authorized by that person,
to inspect and make copies of or take extracts from the document.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 168.
Commissioner to furnish report
SECT
168. The Commissioner shall, within sixty days after each year ending on the
thirtieth day of June, furnish to the Attorney-General, for presentation to
the Parliament, a report with respect to his operations in that year,
including, in respect of the year ending on the thirtieth day of June, One
thousand nine hundred and seventy-two, his operations under the Trade
Practices Act 1965-1971.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 169.
Certain agreements and practices not subject to Act.
SECT
169. (1) This Act does not apply in respect of an agreement or practice
specified in the Second Schedule to this Act, being an agreement made by, or a
practice of, a body or organization so specified.
(2) The regulations may amend the Second Schedule to this Act by omitting
the name of a body or organization specified in that Schedule and any matter
so specified in relation to that body or organization.
(3) The regulations may amend any matter specified in the Second Schedule to
this Act in relation to a body or organization so specified.
(4) The regulations may provide that all or any of the provisions of this
Act are not to apply in respect of all or any agreements made by, or practices
of, a specified body or organization that performs functions in relation to
the marketing of primary products.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECT. 170.
Regulations.
SECT
170. The Governor-General may make regulations, not inconsistent with this
Act, prescribing all matters that are required or permitted by this Act to be
prescribed or are necessary or convenient to be prescribed for carrying out or
giving effect to this Act and, in particular, for-
(a) prescribing matters in connexion with the procedure of the Tribunal and
fees and expenses of witnesses in proceedings before the Tribunal;
(b) prescribing matters in connexion with access to documents filed or
lodged with the Registrar and the issue of certified copies of such
documents;
(c) requiring a document furnished or used for the purposes of this Act or
the regulations to be verified by statutory declaration; and
(d) prescribing fees to be paid to the Registrar.
-----------
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - FIRST SCHEDULE
SCH
THE SCHEDULES
FIRST SCHEDULE
Sections 15 and
30
OATH
I, A.B., do swear that I will be faithful and bear true allegiance to Her
Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law,
that I will well and truly serve Her in the office of and that I will
faithfully and impartially perform the duties of that office.
SO HELP ME GOD)
AFFIRMATION
I, A.B., do solemnly and sincerely promise and declare that I will be
faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second,
Her Heirs and Successors according to law, that I will well and truly serve
Her in the office of and that I will faithfully and impartially
perform the duties of that office.
RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - SECOND SCHEDULE
SCH
SECOND SCHEDULE
Section
169
AGREEMENTS AND PRACTICES NOT SUBJECT TO ACT
1. Any agreement made by, or any practice of, Ricegrowers' Co-operative Mills
Limited
2. Any agreement made by, or any practice of, Australian Dairy Industry
Council
3. Any agreement made by, or any practice of, The Australian Dried Fruits
Association
4. Any agreement made by, or any practice of, The Committee established under
agreements made between Commonwealth Dairy Produce Equalisation Committee
Limited and producers of casein and known as the Casein Equalisation Advisory
Committee
5. Any agreement made by, or any practice of, The Council of Egg Marketing
Authorities of Australia
6. Any agreement made by, or any practice of, The Australian Canners'
Association that relates to the marketing of-
(a) canned apricots, canned peaches or canned pears; or
(b) canned mixed fruits having a fruit content not less than 55 per
centum of which consists of one or more of the fruits referred to in the last
preceding paragraph.
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RESTRICTIVE TRADE PRACTICES ACT 1971-1973 - NOTES
NOTES
1. The Restrictive Trade Practices Act 1971-1973 comprises the Restrictive
Trade Practices Act 1971 as amended by the other Acts specified in the
following table:
----------------------------------------------------------------------------
Number Date of Date of
Act and year Assent commencement
----------------------------------------------------------------------------
Restrictive Trade
Practices Act 1971 No. 138, 1971 20 Dec 1971 1 Feb 1972 (see
Gazette 1972, No.
4, p. 1)
Restrictive Trade
Practices Act 1972 No. 118, 1972 31 Oct 1972 31 Oct 1972
Statute Law Revision Act
1973 No. 216, 1973 19 Dec 1973 31 Dec 1973
----------------------------------------------------------------------------
2.-S. 10(1)-Sub-section 13(2) of the Remuneration and Allowances Acts 1973
provides as follows:-
''(2) Notwithstanding sub-section 10(1) of the Restrictive Trade Practices
Act 1971-1972, the rate per annum of the additional remuneration payable to
the person for the time being holding, or acting in, the office of President
of the Trade Practices Tribunal if he is not the Chief Judge of the
Commonwealth Industrial Court or the President of the Commonwealth
Conciliation and Arbitration Commission is Two thousand two hundred dollars
per annum.''
3.-S. 24(1)-By section 15 of, and Schedule 4 to, the Remuneration and
Allowances Acts 1973, the rate per annum of the salary applicable to the
office of Commissioner of Trade Practices is $25,000 with an annual allowance
of $1,200.