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A Bill for an Act to amend the Trade Practices Act 1974, and for other purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 21 Jun 2006
Introduced HR 19 Jun 2006
Table of contents.
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1 Short title
2 Commencement
3 Schedule(s)
Subdivision A—Exclusive dealing
Subdivision B—Collective bargaining
93AA Definitions
93AB Notification of collective bargaining
93AC Commission’s objection notice
93AD When collective bargaining notice comes into force and ceases to be in force
93AE Withdrawal of collective bargaining notice
93AF Only 1 collective bargaining notice may be given
Subdivision C—Conferences
Subdivision D—Register of notifications
76C Defence to proceedings relating to exclusionary provisions
76D Defence to proceedings relating to price fixing provisions
49 Dual listed company arrangements that affect competition
Part XID—Search and seizure
Division 1—Preliminary
154 Simplified outline
154A Definitions
Division 2—Appointment of inspectors and identity cards
154B Appointment of inspectors
154C Identity cards
Division 3—Entry to premises with consent
154D Entry with consent
154E Powers in relation to premises
154F Operation of electronic equipment at premises
Division 4—Entry to premises under a search warrant
Subdivision A—Powers available under a search warrant
154G The things that are authorised by a search warrant
154H Operation of electronic equipment at premises
154J Securing electronic equipment for use by experts
Subdivision B—Availability of assistance and use of force in executing a search warrant
154K Authorisation of officers assisting
154L Availability of assistance and use of force in executing a search warrant
Subdivision C—Obligations of executing officer and officers assisting
154M Announcement before entry
154N Details of warrant to be given to occupier
Subdivision D—Occupier’s rights and responsibilities
154P Occupier entitled to observe search being conducted
154Q Occupier to provide reasonable facilities and assistance
154R Answering of questions or producing evidential material
Subdivision E—General provisions relating to seizure
154T Receipts for things seized under warrant
154U Return of seized things
154V Magistrate may permit a thing to be retained
154W Disposal of things if there is no owner or owner cannot be located
Subdivision F—Search warrants
154X Issue of search warrants
154Y Search warrants by telephone, fax etc.
154Z Offences relating to warrants
Subdivision G—Powers of magistrates
154ZA Powers conferred on magistrates
Division 5—General provisions relating to electronic equipment
154ZB Operation of electronic equipment at premises
154ZC Compensation for damage to electronic equipment
206EA Disqualification under the Trade Practices Act 1974
206GA Involvement of ACCC—leave orders under section 206G
86E Order disqualifying a person from managing corporations
77A Indemnification of officers
77B Certain indemnities not authorised and certain documents void
77C Application of section 77A to a person other than a body corporate
2BA Application of Part IV to local government bodies
150F Commonwealth consent to conferral of functions etc. on Commonwealth entities
150FA How duty is imposed
150FB When an application law imposes a duty

2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Trade Practices Legislation Amendment Bill 2006

 

No.      , 2006

 

(Mr Katter)

 

 

 

A Bill for an Act to amend the Trade Practices Act 1974, and for other purposes

  

  


Contents

1  Short title....................................................................................................... 1

2  Commencement............................................................................................. 1

3  Schedule(s)..................................................................................................... 2

Schedule 1—Non-merger authorisations                                                  3

Trade Practices Act 1974                                                                                          3

Schedule 2—Collective bargaining                                                           6

Trade Practices Act 1974                                                                                          6

Subdivision A—Exclusive dealing                                                                            6

Subdivision B—Collective bargaining                                                                    7

93AA  Definitions............................................................................................. 7

93AB  Notification of collective bargaining....................................................... 8

93AC  Commission’s objection notice............................................................ 11

93AD  When collective bargaining notice comes into force and ceases to be in force            12

93AE  Withdrawal of collective bargaining notice........................................... 14

93AF  Only 1 collective bargaining notice may be given................................. 15

Subdivision C—Conferences                                                                                  15

Subdivision D—Register of notifications                                                             16

Schedule 3—Exclusionary provisions                                                     19

Trade Practices Act 1974                                                                                        19

76C  Defence to proceedings relating to exclusionary provisions................... 19

Schedule 4—Price fixing provisions                                                        21

Trade Practices Act 1974                                                                                        21

76D  Defence to proceedings relating to price fixing provisions..................... 21

Schedule 5—Dual listed companies                                                        23

Trade Practices Act 1974                                                                                        23

49  Dual listed company arrangements that affect competition...................... 24

49  Dual listed company arrangements that affect competition...................... 27

Schedule 6—Exclusive dealing                                                               30

Part 1—Tribunal Review                                                                      30

Trade Practices Act 1974                                                                                        30

Part 2—Related companies                                                                  31

Trade Practices Act 1974                                                                                        31

Part 3—Notification of exclusive dealing                                               32

Trade Practices Act 1974                                                                                        32

Schedule 7—Enforcement                                                                       33

Trade Practices Act 1974                                                                                        33

Part XID—Search and seizure                                                                33

Division 1—Preliminary                                                                    33

154  Simplified outline..................................................................................... 33

154A  Definitions............................................................................................ 34

Division 2—Appointment of inspectors and identity cards              35

154B  Appointment of inspectors.................................................................. 35

154C  Identity cards........................................................................................ 35

Division 3—Entry to premises with consent                                    36

154D  Entry with consent............................................................................... 36

154E  Powers in relation to premises.............................................................. 37

154F  Operation of electronic equipment at premises.................................... 38

Division 4—Entry to premises under a search warrant                    38

Subdivision A—Powers available under a search warrant                               38

154G  The things that are authorised by a search warrant.............................. 38

154H  Operation of electronic equipment at premises.................................... 39

154J  Securing electronic equipment for use by experts.................................. 40

Subdivision B—Availability of assistance and use of force in executing a search warrant              41

154K  Authorisation of officers assisting........................................................ 41

154L  Availability of assistance and use of force in executing a search warrant 41

Subdivision C—Obligations of executing officer and officers assisting       42

154M  Announcement before entry................................................................ 42

154N  Details of warrant to be given to occupier............................................ 42

Subdivision D—Occupier’s rights and responsibilities                                   42

154P  Occupier entitled to observe search being conducted............................ 42

154Q  Occupier to provide reasonable facilities and assistance...................... 43

154R  Answering of questions or producing evidential material..................... 43

Subdivision E—General provisions relating to seizure                                    44

154S  Copies of seized things to be provided................................................. 44

154T  Receipts for things seized under warrant.............................................. 44

154U  Return of seized things......................................................................... 44

154V  Magistrate may permit a thing to be retained....................................... 45

154W  Disposal of things if there is no owner or owner cannot be located.... 46

Subdivision F—Search warrants                                                                           46

154X  Issue of search warrants....................................................................... 46

154Y  Search warrants by telephone, fax etc................................................... 47

154Z  Offences relating to warrants................................................................ 49

Subdivision G—Powers of magistrates                                                                49

154ZA  Powers conferred on magistrates....................................................... 49

Division 5—General provisions relating to electronic equipment   50

154ZB  Operation of electronic equipment at premises................................. 50

154ZC  Compensation for damage to electronic equipment........................... 50

Schedule 8—Penalties                                                                             55

Part 1—Civil penalties                                                                         55

Trade Practices Act 1974                                                                                        55

Part 2—Disqualification from managing corporations                            58

Corporations Act 2001                                                                                            58

206EA  Disqualification under the Trade Practices Act 1974......................... 58

206GA  Involvement of ACCC—leave orders under section 206G............... 58

Trade Practices Act 1974                                                                                        59

86E  Order disqualifying a person from managing corporations..................... 59

Part 3—Indemnities                                                                             61

Trade Practices Act 1974                                                                                        61

77A  Indemnification of officers...................................................................... 61

77B  Certain indemnities not authorised and certain documents void............. 61

77C  Application of section 77A to a person other than a body corporate.... 62

Schedule 9—Local government bodies                                                   63

Trade Practices Act 1974                                                                                        63

2BA  Application of Part IV to local government bodies............................... 63

Schedule 10—Functions and powers etc. under Competition Code      64

Trade Practices Act 1974                                                                                        64

150F  Commonwealth consent to conferral of functions etc. on Commonwealth entities     64

150FA  How duty is imposed......................................................................... 65

150FB  When an application law imposes a duty........................................... 66

Schedule 11—Technical amendment                                                      67

Gas Pipelines Access (Commonwealth) Act 1998                                              67

 


A Bill for an Act to amend the Trade Practices Act 1974, and for other purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Trade Practices Legislation Amendment Act 2006.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Schedules 2 to 9

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

3.  Schedule 10

The day after this Act receives the Royal Assent.

 

4.  Schedule 11

The day on which this Act receives the Royal Assent.

 

5.  Schedule 12

Immediately after the commencement of Schedule 1 to the Trade Practices Legislation Amendment Act 2003.

1 March 2004

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Non-merger authorisations

  

Trade Practices Act 1974

1  Subsection 89(1)

Repeal the subsection, substitute:

             (1)  To be valid, an application for an authorisation, a minor variation of an authorisation, a revocation of an authorisation, or a revocation of an authorisation and the substitution of another authorisation, must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

          (1A)  If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:

                     (a)  stating that the person has not made a valid application; and

                     (b)  giving reasons why the purported application does not comply with this Division.

          (1B)  For the purposes of subsection (1A), business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

2  Subsection 89(2)

Omit “such an application”, substitute “an application referred to in subsection (1)”.

3  Subsections 90(10) and (10A)

Repeal the subsections, substitute:

           (10)  If the Commission does not determine an application for an authorisation (other than an application for an authorisation under subsection 88(9)) within the relevant period, then it is taken to have granted the application at the end of that period.

        (10A)  For the purposes of subsection (10), the relevant period is the period of 6 months beginning on the day the Commission received the application. However, if, before the end of that 6 month period:

                     (a)  the Commission has prepared a draft determination under subsection 90A(1) in relation to the application; and

                     (b)  the Commission determines in writing that that period is extended by a specified period of not more than 6 months; and

                     (c)  the applicant agrees to that period being so extended;

the relevant period is that period as so extended.

4  Subsection 90(11)

Omit “(12), (13) and (15)”, substitute “(12) and (13)”.

5  Subsection 90(12)

Omit “(10) or” (first occurring).

6  Subsection 90(12)

Omit “(10) or (11), as the case may be,”, substitute “(11)”.

7  Subsection 90(13)

Omit “(10) or” (wherever occurring).

8  Subsection 90(14)

Omit “period referred to in subsection (10) of this section”, substitute “relevant period (worked out under subsection (10A) of this section)”.

9  Subsection 90(15)

After “authorizations” (first occurring), insert “(other than an application for an authorisation under subsection 88(9))”.

10  Paragraph 90(15)(b)

Omit “period referred to in whichever of subsections (10) and (11) is applicable”, substitute “relevant period (worked out under subsection (10A))”.

11  After subsection 101(1)

Insert:

     (1AAA)  Subsection (1) does not apply to a determination under subsection 89(1A).

12  After subsection 172(2)

Insert:

          (2A)  The regulations may prescribe the circumstances in which the Commission may, on behalf of the Commonwealth, wholly or partly waive the fee that would otherwise be payable for an application referred to in subsection 89(1).

          (2B)  Subsection (2A) does not apply to an application for an authorisation under subsection 88(9), a minor variation of such an authorisation, a revocation of such an authorisation or a revocation of such an authorisation and the substitution of another authorisation.

13  Application

The amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule.

14  Saving

(1)        Regulations in force for the purposes of subsection 89(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of that subsection after that commencement.

(2)        An application made in accordance with subsection 89(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been made in accordance with that subsection after that commencement.


 

Schedule 2Collective bargaining

  

Trade Practices Act 1974

1  Subsection 8A(6)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

2  After subsection 45(8)

Insert:

          (8A)  Subsection (2) does not apply to a corporation engaging in conduct described in that subsection if:

                     (a)  the corporation has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and

                     (b)  the notice is in force under section 93AD.

3  Subsection 46(6)

After “operation of”, insert “subsection 45(8A) or”.

4  Subsection 46A(6)

After “operation of”, insert “subsection 45(8A) or”.

5  Before section 93

Insert:

Subdivision AExclusive dealing

6  Subsection 93(1)

Omit “notice, as prescribed,”, substitute “a notice”.

7  After subsection 93(1)

Insert:

          (1A)  To be valid, a notice under subsection (1) must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

8  After subsection 93(2A)

Insert:

          (2B)  If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

                     (a)  stating that the person has not given a valid notice; and

                     (b)  giving reasons why the purported notice does not comply with this Division.

Definition

          (2C)  In subsection (2B):

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

9  After section 93

Insert:

Subdivision BCollective bargaining

93AA  Definitions

                   In this Subdivision:

collective bargaining notice means a notice under subsection 93AB(1).

conference notice means a notice under subsection 93A(2).

contract means a contract, arrangement or understanding.

objection notice means a notice under subsection 93AC(1) or (2).

93AB  Notification of collective bargaining

Notice to Commission

             (1)  A corporation that:

                     (a)  has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(2)(a); or

                     (b)  proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(2)(b);

may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the following 3 requirements are satisfied.

Note 1:       Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2:       Section 93AD sets out when a collective bargaining notice comes into force.

First—making of initial contract

             (2)  First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:

                     (a)  the supply of particular goods or services to; or

                     (b)  the acquisition of particular goods or services from;

another person (the target) by the corporation and the contracting parties.

Second—making of contracts with target

             (3)  Second, the corporation must reasonably expect that it will make 1 or more contracts with the target about:

                     (a)  the supply of 1 or more of those goods or services to; or

                     (b)  the acquisition of 1 or more of those goods or services from;

the target by the corporation.

Third—price of contracts with target

             (4)  Third, the corporation must reasonably expect that:

                     (a)  in the case where the corporation reasonably expects to make only 1 contract with the target—the price for the supply or acquisition of those goods or services under that contract; or

                     (b)  in the case where the corporation reasonably expects to make 2 or more contracts with the target—the sum of the prices for the supply or acquisition of those goods or services under those contracts;

will not exceed $3,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries.

Timing of reasonable expectation

             (5)  The corporation must have the reasonable expectation referred to in subsections (3) and (4):

                     (a)  at the time of giving the collective bargaining notice; and

                     (b)  if the initial contract has been made—at the time it was made.

Form of notice etc.

             (6)  To be valid, a collective bargaining notice must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

Notice given by, or on behalf of, contracting persons

             (7)  A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties.

When a notice may not be given

             (8)  A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:

                     (a)  it has applied for an authorisation in relation to the contract or proposed contract; and

                     (b)  the Commission has made a determination dismissing the application; and

                     (c)  either:

                              (i)  the Tribunal has made a determination on an application for a review of the Commission’s determination; or

                             (ii)  the time for making such an application for review has ended without the making of an application.

Notice is invalid if given by union etc. on behalf of the corporation

             (9)  A notice given by a corporation under subsection (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:

                     (a)  a trade union; or

                     (b)  an officer of a trade union; or

                     (c)  a person acting on the direction of a trade union.

Invalid collective bargaining notice

           (10)  If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

                     (a)  stating that the person has not given a valid collective bargaining notice; and

                     (b)  giving reasons why the purported collective bargaining notice does not comply with this Division.

(10A) The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target. 

Definition

           (11)  In this section:

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

trade union has the meaning given by subsection 4(1) of the Workplace Relations Act 1996.

93AC  Commission’s objection notice

Commission’s objection notice—per se provisions

             (1)  If a corporation gives the Commission a collective bargaining notice in relation to:

                     (a)  a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(i) or (b)(i) (exclusionary provisions); or

                     (b)  a contract, or proposed contract, containing a price fixing provision;

then the Commission may, if it is satisfied that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision does not or would not outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision, give the corporation a written notice (the objection notice) stating that it is so satisfied.

Commission’s objection notice—competition provisions

             (2)  If a corporation gives the Commission a collective bargaining notice in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(ii) or (b)(ii) (other than a price fixing provision), then the Commission may, if it is satisfied that:

                     (a)  the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and

                     (b)  in all the circumstances, either:

                              (i)  the provision has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or

                             (ii)  any benefit to the public that has resulted or is likely to result, or would result or be likely to result, from the provision does not or would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;

give the corporation a written notice (the objection notice) stating that it is so satisfied.

Reasons for objection notice

             (3)  The Commission must, at the time it gives a corporation an objection notice, give the corporation a written statement of its reasons for giving the notice.

Conference before objection notice

             (4)  The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice.

Commission to seek additional information

             (5)  For the purposes of deciding whether or not to give an objection notice:

                     (a)  the Commission must seek such relevant information as it considers reasonable and appropriate; and

                     (b)  the Commission may make a decision on the basis of:

                              (i)  any information so obtained; or

                             (ii)  any other information given to it by the corporation or any other person; or

                            (iii)  any other information in its possession.

Definition

             (6)  In this section:

price fixing provision means a provision of the kind referred to in subsection 45A(1).

93AD  When collective bargaining notice comes into force and ceases to be in force

When collective bargaining notice comes into force

             (1)  A collective bargaining notice comes into force:

                     (a)  at the end of the period which is 14 days or such longer period as is prescribed by the regulations, starting on the day the corporation gave the Commission the notice; or

                     (b)  if the Commission gives the corporation a conference notice during the period referred to in paragraph (a) and then decides not to give the corporation an objection notice—when the Commission makes that decision.

             (2)  However, a collective bargaining notice does not come into force if:

                     (a)  it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or

                     (b)  the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice.

Note:          Section 93AE deals with the withdrawal of a collective bargaining notice.

When collective bargaining notice ceases to be in force

             (3)  A collective bargaining notice ceases to be in force at the earliest of the following times:

                     (a)  when it is withdrawn or taken to be withdrawn;

                     (b)  if the Commission gives the corporation an objection notice—on the 31st day after the relevant day or on a later day specified in writing by the Commission;

                     (c)  at the end of the period of 3 years beginning on the day the corporation gave the collective bargaining notice.

Note:          Section 93AE deals with the withdrawal of a collective bargaining notice.

             (4)  For the purposes of subsection (3), the relevant day is worked out in accordance with this table:

 

Relevant day

 

In this situation:

the relevant day is:

1

If an application is not made to the Tribunal for a review of the Commission’s decision to give the objection notice

the day the Commission gave the notice.

2

If an application is made to the Tribunal for a review of the Commission’s decision to give the objection notice

(a) if the review application is withdrawn—the day of the withdrawal; or

(b) if, on the application of the Commission or any other person who the Tribunal is satisfied has an interest in the subject matter of the review, the Tribunal declares that the applicant is not proceeding with the review application with due diligence—the day of the declaration; or

(c) in any other case—the day on which the Tribunal makes a determination on the review.

93AE  Withdrawal of collective bargaining notice

Withdrawal by corporation

             (1)  A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission.

             (2)  The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice.

Deemed withdrawal

             (3)  If:

                     (a)  a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and

                     (b)  before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and

                     (c)  the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and

                     (d)  either:

                              (i)  the Tribunal makes a determination on an application for a review of the Commission’s determination; or

                             (ii)  the time for making such an application for review ends without the making of an application;

then the collective bargaining notice is taken to be withdrawn.

93AF  Only 1 collective bargaining notice may be given

                   If:

                     (a)  a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and

                     (b)  either:

                              (i)  the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or

                             (ii)  the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);

then the corporation may not give the Commission a further collective bargaining notice in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.

10  Before section 93A

Insert:

Subdivision CConferences

11  Subsection 93A(1)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

Note:       The heading to section 93A is altered by omitting “in relation to exclusive dealing”.

12  Subsections 93A(3), (4) and (10A)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

13  Subsection 93A(12)

After “subsection 93(1)”, insert “or 93AB(1)”.

14  Before section 95

Insert:

Subdivision DRegister of notifications

15  Paragraph 95(1)(c)

After “section 93”, insert “or 93AB”.

16  Paragraph 95(1)(f)

Omit “by which notices under section 93 were given”, substitute “in relation to notices given by corporations under section 93 or 93AB”.

17  Before paragraph 95(1)(h)

Insert:

                    (gb)  details of the specification of any day by the Commission under paragraph 93AD(3)(b); and

18  Paragraph 95(2)(a)

After “section 93”, insert “or 93AB”.

19  Section 101A

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

Note:       The heading to section 101A is altered by inserting “or 93AC(1) or (2)” after “subsection 93(3)”.

20  After subsection 102(5)

Insert:

       (5AA)  Upon a review of the giving of a notice by the Commission under subsection 93AC(1):

                     (a)  if the person who applied for the review satisfies the Tribunal that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision outweighs or would outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision—the Tribunal must make a determination setting aside the notice; or

                     (b)  if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.

        (5AB)  Upon a review of the giving of a notice by the Commission under subsection 93AC(2):

                     (a)  if the person who applied for the review satisfies the Tribunal that:

                              (i)  the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or

                             (ii)  in all the circumstances:

                                        (A)  the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and

                                        (B)  that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;

                            the Tribunal must make a determination setting aside the notice; or

                     (b)  if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.

        (5AC)  If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1) or (2), then:

                     (a)  if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a)—the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and

                     (b)  for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given.

21  Subsection 109(1A)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

22  Paragraph 151AJ(7)(b)

After “operation of”, insert “subsection 45(8A) or”.

23  Paragraph 151AY(1)(b)

After “subsection 93(1)”, insert “or 93AB(1)”.

Note:       The heading to section 151AY is altered by omitting “section 93” and substituting “Part VII”.

24  Paragraph 151AY(2)(c)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

25  Subsection 155(1)

After “subsection 93(3)”, insert “or 93AC(1) or (2)”.

26  After subsection 45(8) of the Schedule

Insert:

          (8A)  Subsection (2) does not apply to a person engaging in conduct described in that subsection if:

                     (a)  the person has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and

                     (b)  the notice is in force under section 93AD.

27  Subsection 46(6) of the Schedule

After “operation of”, insert “subsection 45(8A) or”.

28  Application

The amendments made by this Schedule apply in relation to contracts or arrangements made, or understandings arrived at, after the commencement of this Schedule.

29  Saving

(1)        Regulations in force for the purposes of subsection 93(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of subsection 93(1A) of that Act after that commencement.

(2)        A notice given in accordance with subsection 93(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been given in accordance with subsection 93(1A) of that Act after that commencement.


 

Schedule 3Exclusionary provisions

  

Trade Practices Act 1974

1  After section 76B

Insert:

76C  Defence to proceedings relating to exclusionary provisions

Defence

             (1)  In proceedings against a person in relation to a contravention of subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary provision, it is a defence if the person establishes that the provision:

                     (a)  is for the purposes of a joint venture; and

                     (b)  does not have the purpose, and does not have and is not likely to have the effect, of substantially lessening competition.

Application of subsections 45(3) and (4)

             (2)  Subsections 45(3) and (4) apply for the purposes of subsection (1) in the same way as they apply for the purposes of section 45.

Definitions

             (3)  In this section:

contravention of subparagraph 45(2)(a)(i) or (b)(i) includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i).

proceedings means proceedings instituted under:

                     (a)  this Part or section 163A; or

                     (b)  section 21 or 23 of the Federal Court of Australia Act 1976; or

                     (c)  section 39B of the Judiciary Act 1903.

2  Application

The amendment made by this Schedule applies in relation to proceedings instituted after the commencement of this Schedule (whether the contract or arrangement was made, or the understanding was arrived at, before or after that commencement).


 

Schedule 4Price fixing provisions

  

Trade Practices Act 1974

1  Subsection 45A(2)

Repeal the subsection.

2  Before section 77

Insert:

76D  Defence to proceedings relating to price fixing provisions

Defence

             (1)  In proceedings against a person in relation to a contravention of subparagraph 45(2)(a)(ii) or (b)(ii) in relation to a provision of the kind referred to in subsection 45A(1), it is a defence, despite subsection 45A(1), if the person establishes that the provision:

                     (a)  is for the purposes of a joint venture; and

                     (b)  does not have the purpose, and does not have and is not likely to have the effect, of substantially lessening competition.

Application of subsections 45(3) and (4)

             (2)  Subsections 45(3) and (4) apply for the purposes of this section in the same way as they apply for the purposes of section 45.

Definitions

             (3)  In this section:

contravention of subparagraph 45(2)(a)(ii) or (b)(ii) includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of subparagraph 45(2)(a)(ii) or (b)(ii).

proceedings means proceedings instituted under:

                     (a)  this Part or section 163A; or

                     (b)  section 21 or 23 of the Federal Court of Australia Act 1976; or

                     (c)  section 39B of the Judiciary Act 1903.

3  Subsection 45A(2) of the Schedule

Repeal the subsection.

4  Application

(1)        The amendments made by items 1 and 3 apply in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this Schedule.

(2)        The amendment made by item 2 applies in relation to proceedings instituted after the commencement of this Schedule (whether the contract or arrangement was made, or the understanding was arrived at, before or after that commencement).


 

Schedule 5Dual listed companies

  

Trade Practices Act 1974

1  Subsection 4(1)

Insert:

dual listed company arrangement has the same meaning as in section 125-60 of the Income Tax Assessment Act 1997.

2  After subsection 4A(5)

Insert:

          (5A)  For the purposes of Parts IV, VI and VII:

                     (a)  a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

                     (b)  a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

                     (c)  a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

3  Paragraph 6(2)(h)

After “48,”, insert “49,”.

4  After subsection 45(6)

Insert:

          (6A)  The following conduct:

                     (a)  the making of a dual listed company arrangement;

                     (b)  the giving effect to a provision of a dual listed company arrangement;

does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49.

5  Subsection 46(6)

After “47”, insert “, 49”.

6  Subsection 46A(6)

After “47”, insert “, 49”.

7  After section 48

Insert:

49  Dual listed company arrangements that affect competition

             (1)  A corporation must not:

                     (a)  make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

                     (b)  give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition.

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(8B).

Exception

             (2)  The making by a corporation of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if:

                     (a)  the arrangement is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and

                     (b)  the corporation applies for the grant of such an authorisation within 14 days after the arrangement is made.

However, this subsection does not permit the corporation to give effect to such a provision.

Meaning of competition

             (3)  For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which:

                     (a)  a corporation that is a party to the arrangement or would be a party to the proposed arrangement; or

                     (b)  any body corporate related to such a corporation;

supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services.

             (4)  For the purposes of the application of this section in relation to a particular corporation, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions:

                     (a)  the other provisions of that arrangement or proposed arrangement;

                     (b)  the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;

together have or are likely to have that effect.

8  After subsection 88(8A)

Insert:

          (8B)  Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant it an authorisation:

                     (a)  to make a dual listed company arrangement; or

                     (b)  to give effect to a provision of a dual listed company arrangement;

and, while such an authorisation remains in force:

                     (c)  for an authorisation to make a dual listed company arrangement—section 49 does not prevent the corporation from:

                              (i)  making the arrangement in accordance with the authorisation; and

                             (ii)  giving effect, in accordance with the authorisation, to any provision of the arrangement so made; and

                     (d)  for an authorisation to give effect to a provision of a dual listed company arrangement—section 49 does not prevent the corporation from giving effect to the provision in accordance with the authorisation.

          (8C)  An authorisation granted by the Commission to a corporation under subsection (8B) has effect as if it were also an authorisation in the same terms to the other corporation named or referred to in the application for the authorisation as a party to the arrangement or proposed arrangement.

          (8D)  Subject to subsection 49(2), the Commission does not have power to grant an authorisation to a corporation to make a dual listed company arrangement if the arrangement has been made before the Commission makes a determination in respect of the application.

9  After subsection 90(8)

Insert:

          (8A)  The Commission must not make a determination granting an authorisation under subsection 88(8B) to make a dual listed company arrangement unless it is satisfied in all the circumstances that the making of the arrangement would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the arrangement should be allowed to be made.

          (8B)  The Commission must not make a determination granting an authorisation under subsection 88(8B) to give effect to a provision of a dual listed company arrangement unless it is satisfied in all the circumstances that the giving effect to the provision would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the provision should be allowed to be given effect to.

10  Subsection 90(9)

After “public”, insert “(see subsection (9A))”.

11  Subsection 90(9A)

Omit “subsection (9)”, substitute “subsections (8A), (8B) and (9)”.

12  Subsection 91A(5)

Omit “subsection 90(8) or (9)”, substitute “subsection 90(8), (8A), (8B) or (9)”.

13  Subsection 91B(5)

Omit “subsection 90(6), (7), (8) or (9)”, substitute “subsection 90(6), (7), (8), (8A), (8B) or (9)”.

14  Subsection 91C(7)

Omit “subsection 90(6), (7), (8) or (9)”, substitute “subsection 90(6), (7), (8), (8A), (8B) or (9)”.

15  Subsection 101(1A)

Omit “subsection 90(6), (7), (8) or (9)”, substitute “subsection 90(6), (7), (8), (8A), (8B) or (9)”.

16  Subsection 101(2)

Omit “subsections 90(6), (7), (8) and (9)”, substitute “subsections 90(6), (7), (8), (8A), (8B) and (9)”.

17  After subsection 45(6) of the Schedule

Insert:

          (6A)  The following conduct:

                     (a)  the making of a dual listed company arrangement;

                     (b)  the giving effect to a provision of a dual listed company arrangement;

does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49.

18  Subsection 46(6) of the Schedule

After “47”, insert “, 49”.

19  After section 48 of the Schedule

Insert:

49  Dual listed company arrangements that affect competition

             (1)  A person must not:

                     (a)  make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

                     (b)  give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition.

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(8B).

Exception

             (2)  The making by a person of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if:

                     (a)  the arrangement is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and

                     (b)  the person applies for the grant of such an authorisation within 14 days after the arrangement is made.

However, this subsection does not permit the person to give effect to such a provision.

Meaning of competition

             (3)  For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which:

                     (a)  a person that is a party to the arrangement or would be a party to the proposed arrangement; or

                     (b)  any body corporate related to such a person;

supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services.

             (4)  For the purposes of the application of this section in relation to a particular person, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions:

                     (a)  the other provisions of that arrangement or proposed arrangement;

                     (b)  the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party;

together have or are likely to have that effect.

20  Application

(1)        The amendments made by items 1, 4, 7, 8, 9 and 19 apply in relation to arrangements made after the commencement of those items.

(2)        The amendment made by item 2 applies in relation to conduct engaged in after the commencement of that item.


 

Schedule 6Exclusive dealing

Part 1Tribunal Review

Trade Practices Act 1974

1  Subsection 102(4)

Repeal the subsection, substitute:

             (4)  Upon a review of the giving of a notice by the Commission under subsection 93(3):

                     (a)  if the person who applied for the review satisfies the Tribunal that:

                              (i)  the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or

                             (ii)  in all the circumstances:

                                        (A)  the conduct or proposed conduct has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and

                                        (B)  that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the conduct or proposed conduct;

                            the Tribunal must make a determination setting aside the notice; or

                     (b)  if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.

2  Application

            The amendment made by item 17 applies in relation to notifications made after the commencement of that item.


 

Part 2Related companies

Trade Practices Act 1974

3  At the end of subsections 47(6) and (7)

Add “not being a body corporate related to the corporation”.

4  Paragraph 151AJ(5)(f)

After “omitted from”, insert “subsections 47(6) and (7) and”.

5  At the end of subsections 47(6) and (7) of the Schedule

Add “not being a body corporate related to the first person”.

6  Application

The amendments made by this Part apply in relation to conduct engaged in after the commencement of this Part.


 

Part 3Notification of exclusive dealing

Trade Practices Act 1974

7  Paragraph 93(2)(b)

Omit “or granting an authorisation (whether or not the authorisation is still in force)”.

8  Application

The amendment made by this Part applies in relation to notices given after the commencement of this Part (whether or not the application for authorisation was dismissed before or after that commencement).


 

Schedule 7Enforcement

  

Trade Practices Act 1974

1  Subsection 79A(1)

After “65R”, insert “, 154Q”.

2  Subsection 79A(1)

After “87A(5)”, insert “or section 149.1 of the Criminal Code that relates to Part XID”.

3  Section 10.91

Omit “Section 155 applies”, substitute “Part XID and section 155 apply”.

Note:       The heading to section 10.91 is altered by inserting “Part XID and” after “Application of”.

4  After Part XIC

Insert:

Part XIDSearch and seizure

Division 1Preliminary

154  Simplified outline

                   The following is a simplified outline of this Part:

•      This Part sets out an enforcement regime for the purposes of finding out whether there has been a contravention of this Act, Part 20 of the Telecommunications Act 1997 or Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

•      Division 2 provides for the appointment of inspectors and the issue of identity cards.

•      Division 3 deals with entry to premises with the consent of the occupier of the premises.

•      Division 4 deals with entry to premises under a search warrant issued by a magistrate. It sets out the powers available under a search warrant, the obligations of persons entering the premises and the rights and responsibilities of the occupier of the premises.

•      Division 5 contains some general provisions relating to the operation of electronic equipment at premises.

Note:          See also section 155 (which deals with the obtaining of information, documents and evidence).

154A  Definitions

                   In this Part:

consultant means a person engaged under section 27A.

evidential material means a document or other thing that may afford evidence relating to a contravention of:

                     (a)  this Act; or

                     (b)  Part 20 of the Telecommunications Act 1997; or

                     (c)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

executing officer, for a search warrant, means the inspector named in the warrant as being responsible for executing the warrant.

inspector means a person appointed as an inspector under section 154B.

occupier, in relation to premises, includes a person present at the premises who apparently represents the occupier.

officer assisting, for a search warrant, means:

                     (a)  an inspector who is assisting in executing the warrant; or

                     (b)  a person authorised under section 154K in relation to the warrant.

premises means:

                     (a)  an area of land or any other place (whether or not it is enclosed or built on); or

                     (b)  a building or other structure; or

                     (c)  a vehicle, vessel or aircraft; or

                     (d)  a part of any such premises.

search warrant means a warrant issued by a magistrate under section 154X or signed by a magistrate under section 154Y.

thing includes a thing in electronic or magnetic form.

Division 2Appointment of inspectors and identity cards

154B  Appointment of inspectors

             (1)  The Chairperson may, by writing, appoint a member of the staff assisting the Commission to be an inspector.

Staff member to have suitable qualifications and experience

             (2)  The Chairperson must not do so unless he or she is satisfied that the staff member has suitable qualifications and experience to properly exercise the powers of an inspector.

Inspector to comply with Chairperson’s directions

             (3)  An inspector must comply with any directions of the Chairperson in exercising powers or performing functions as an inspector.

154C  Identity cards

             (1)  The Chairperson must issue an identity card to an inspector.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain a recent photograph of the inspector.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an inspector; and

                     (c)  the person does not return the identity card to the Chairperson as soon as practicable.

Penalty:  1 penalty unit.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Card lost or destroyed

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

Inspector must carry card

             (6)  An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector.

Inspector must produce card on request

             (7)  An inspector is not entitled to exercise any powers under this Part in relation to premises if:

                     (a)  the occupier of the premises has requested the inspector to produce the inspector’s identity card for inspection by the occupier; and

                     (b)  the inspector fails to comply with the request.

Division 3Entry to premises with consent

154D  Entry with consent

Entry

             (1)  An inspector may enter premises if:

                     (a)  the Commission, the Chairperson or the Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on the premises; and

                     (b)  the inspector obtains the consent of the occupier of the premises to enter the premises.

             (2)  The inspector may be accompanied by any one or more of the following persons (each of whom is an assistant):

                     (a)  another member of the staff assisting the Commission;

                     (b)  a consultant.

Obtaining consent

             (3)  Before obtaining the consent of a person to enter premises under this Division, the inspector must inform the person that the person may refuse consent.

             (4)  A consent of a person is not effective for the purposes of this section unless it is voluntary.

154E  Powers in relation to premises

             (1)  The inspector or an assistant may do any of the following after entering premises under this Division:

                     (a)  search the premises, and any thing on the premises, for the evidential material;

                     (b)  make copies of the evidential material found on the premises;

                     (c)  operate electronic equipment at the premises to see whether the evidential material is accessible by doing so;

Note:       See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

                     (d)  remove the evidential material from the premises with the consent of the owner of the material;

Note:       See also subsection (2).

                     (e)  secure the evidential material, pending the obtaining of a search warrant to seize it;

                      (f)  take equipment and material onto the premises, and use it, for any of the above purposes.

Obtaining consent to remove evidential material

             (2)  Before obtaining the consent of a person to remove evidential material from premises under paragraph (1)(d), the inspector or an assistant must inform the person of the purpose for which the material is required and that the person may refuse consent. A consent of a person is not effective for the purposes of that paragraph unless the consent is voluntary.

154F  Operation of electronic equipment at premises

             (1)  The inspector or an assistant may do only 1 of 2 things if he or she finds that the evidential material is accessible by operating electronic equipment at the premises.

Removal of documents

             (2)  One thing he or she may do is operate the equipment or other facilities at the premises to put the evidential material in documentary form and remove the documents so produced.

Removal of disk, tape or other storage device

             (3)  The other thing he or she may do is operate the equipment or other facilities at the premises to transfer the evidential material to a disk, tape or other storage device that:

                     (a)  is brought to the premises for the exercise of the power; or

                     (b)  is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

Division 4Entry to premises under a search warrant

Subdivision APowers available under a search warrant

154G  The things that are authorised by a search warrant

             (1)  A search warrant that is in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:

                     (a)  enter the premises;

                     (b)  search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises;

                     (c)  make copies of the kind of evidential material specified in the warrant found on the premises;

                     (d)  operate electronic equipment at the premises to see whether the kind of evidential material specified in the warrant is accessible by doing so;

Note:       See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

                     (e)  take equipment and material onto the premises, and use it, for any of the above purposes.

Seizing other evidence

             (2)  If:

                     (a)  the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of an indictable offence against:

                              (i)  this Act; or

                             (ii)  Part 20 of the Telecommunications Act 1997; or

                            (iii)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

                     (b)  he or she believes on reasonable grounds that it is necessary to seize the other thing in order to prevent its concealment, loss or destruction;

then he or she may seize that other thing.

154H  Operation of electronic equipment at premises

             (1)  The executing officer or an officer assisting may do only 1 of 3 things if he or she finds that the kind of evidential material specified in the warrant is accessible by operating electronic equipment at the premises.

Seizure

             (2)  One thing he or she may do is seize the equipment and any disk, tape or other associated device.

Note:          Subsection (5) sets out limitations on seizure.

Removal of documents

             (3)  Another thing he or she may do is operate the equipment or other facilities at the premises to put the evidential material in documentary form and remove the documents so produced.

Removal of disk, tape or other storage device

             (4)  The final thing he or she may do is operate the equipment or other facilities at the premises to transfer the evidential material to a disk, tape or other storage device that:

                     (a)  is brought to the premises; or

                     (b)  is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

Limitation on seizure

             (5)  A person may seize a thing under subsection (2) only if:

                     (a)  it is not practicable to put the evidential material in documentary form as mentioned in subsection (3) or to transfer the evidential material as mentioned in subsection (4); or

                     (b)  possession of the thing by the occupier could constitute an offence against a law of the Commonwealth.

154J  Securing electronic equipment for use by experts

             (1)  If a search warrant in relation to premises is being executed and the executing officer or an officer assisting believes on reasonable grounds that:

                     (a)  the kind of evidential material specified in the warrant may be accessible by operating electronic equipment at the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

Notice to occupier

             (2)  The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

             (3)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever happens first.

Extensions

             (4)  If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.

             (5)  The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

             (6)  The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.

Subdivision BAvailability of assistance and use of force in executing a search warrant

154K  Authorisation of officers assisting

                   The executing officer for a search warrant may, by writing, authorise a member of the staff assisting the Commission, or a consultant, to assist in executing the warrant.

154L  Availability of assistance and use of force in executing a search warrant

                   In executing a search warrant:

                     (a)  the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and

                     (b)  the executing officer, or another inspector who is an officer assisting, may use such force against persons and things as is necessary and reasonable in the circumstances; and

                     (c)  a person who is not an inspector, but who is an officer assisting, may use such force against things as is necessary and reasonable in the circumstances.

Subdivision CObligations of executing officer and officers assisting

154M  Announcement before entry

             (1)  Before any person enters premises under a search warrant, the executing officer must:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  However, the executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

154N  Details of warrant to be given to occupier

                   If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the executing officer or an officer assisting must make available to the occupier a copy of the warrant or a copy of the form of warrant.

Subdivision DOccupier’s rights and responsibilities

154P  Occupier entitled to observe search being conducted

             (1)  If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the occupier is entitled to observe the search being conducted.

             (2)  The occupier’s right to observe the search being conducted ends if the occupier impedes the search.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

154Q  Occupier to provide reasonable facilities and assistance

                   The occupier of premises in relation to which a search warrant is being executed must provide the executing officer and any officer assisting with all reasonable facilities and assistance for the effective exercise of their powers.

Penalty:  30 penalty units.

154R  Answering of questions or producing evidential material

             (1)  If a search warrant in relation to premises is being executed, the executing officer or an officer assisting may:

                     (a)  require a person at the premises to answer questions or produce evidential material to which the warrant relates; and

                     (b)  seize that evidential material.

             (2)  A person commits an offence if the person fails to comply with a requirement under subsection (1).

Penalty:  30 penalty units.

Self-incrimination is no excuse

             (3)  An individual is not excused from answering a question or producing evidential material on the ground that the answer, or the production of the material, might tend to incriminate the individual or make the individual liable to a penalty.

             (4)  However, the answer is not admissible in evidence against the individual in any criminal proceedings, or in any proceedings that would expose the person to a penalty, other than:

                     (a)  proceedings for an offence against subsection (2); or

                     (b)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.

Subdivision EGeneral provisions relating to seizure

154S  Copies of seized things to be provided

             (1)  If, under a search warrant relating to premises, the executing officer or an officer assisting seizes:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a storage device the information in which can be readily copied;

then he or she must, if requested to do so by the occupier of the premises, give a copy of the thing or the information to the occupier as soon as practicable after the seizure.

             (2)  However, subsection (1) does not apply if possession of the document, film, computer file, thing or information by the occupier could constitute an offence against a law of the Commonwealth.

154T  Receipts for things seized under warrant

             (1)  If a thing is seized under a search warrant, the executing officer or an officer assisting must provide a receipt for the thing.

             (2)  If 2 or more things are seized, they may be covered in the one receipt.

154U  Return of seized things

             (1)  Subject to any contrary order of a court, if a person (the seizer) seizes a thing under this Division, the person must return it if:

                     (a)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

                     (b)  the period of 60 days after its seizure ends;

whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

             (2)  At the end of the 60 days specified in subsection (1), the seizer must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it), unless:

                     (a)  proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                     (b)  an inspector may retain the thing because of an order under section 154V; or

                     (c)  the seizer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

154V  Magistrate may permit a thing to be retained

Application for extension

             (1)  An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:

                     (a)  before the end of 60 days after the seizure; or

                     (b)  before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced.

Grant of extension

             (2)  If the magistrate is satisfied that it is necessary for the inspector to continue to retain the thing for the purposes of an investigation as to whether there has been a contravention of:

                     (a)  this Act; or

                     (b)  Part 20 of the Telecommunications Act 1997; or

                     (c)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;

the magistrate may order that the inspector may retain the thing for a period (not exceeding 3 years) specified in the order.

Affect on interested parties

             (3)  Before making the application, the inspector must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

154W  Disposal of things if there is no owner or owner cannot be located

                   If:

                     (a)  a thing is seized under this Division; and

                     (b)  a person would otherwise be required to return the thing to its owner; and

                     (c)  there is no owner or the person cannot, despite making reasonable efforts, locate the owner;

the person may dispose of the thing in such manner as he or she thinks appropriate.

Subdivision FSearch warrants

154X  Issue of search warrants

Application for warrant

             (1)  An inspector may apply to a magistrate for a warrant under this section in relation to premises.

Issue of warrant

             (2)  The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that:

                     (a)  there is evidential material on the premises; or

                     (b)  there may be evidential material on the premises within the next 72 hours.

             (3)  However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

Content of warrant

             (4)  The warrant must state:

                     (a)  a description of the premises to which the warrant relates; and

                     (b)  the kind of evidential material that is to be searched for under the warrant (including stating the contraventions to which the warrant relates); and

                     (c)  the name of the inspector who is to be responsible for executing the warrant; and

                     (d)  whether the warrant may be executed at any time of the day or night or during specified hours of the day or night; and

                     (e)  the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect.

154Y  Search warrants by telephone, fax etc.

Application for warrant

             (1)  If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 154X in relation to premises.

Voice communication

             (2)  The magistrate may require communication by voice to the extent that it is practicable in the circumstances.

Information

             (3)  Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 154X(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.

Issue of warrant

             (4)  If the magistrate is satisfied:

                     (a)  after having considered the terms of the information; and

                     (b)  after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 154X if the application had been made under that section.

Notification

             (5)  If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of:

                     (a)  the terms of the warrant; and

                     (b)  the day on which and the time at which the warrant was signed; and

                     (c)  the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect.

Form of warrant

             (6)  The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

             (7)  The applicant must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

                     (a)  the form of warrant completed by the applicant; and

                     (b)  the information referred to in subsection (3), which must have been duly sworn or affirmed.

Attachment

             (8)  The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.

Authority of warrant

             (9)  A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

           (10)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

                     (b)  the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

154Z  Offences relating to warrants

             (1)  An inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

             (2)  An inspector must not:

                     (a)  state in a document that purports to be a form of warrant under section 154Y the name of a magistrate unless that magistrate issued the warrant; or

                     (b)  state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the form authorised by the magistrate; or

                     (c)  purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows:

                              (i)  has not been approved by a magistrate under that section; or

                             (ii)  departs in a material particular from the terms authorised by a magistrate under that section; or

                     (d)  give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.

Penalty:  Imprisonment for 2 years.

Subdivision GPowers of magistrates

154ZA  Powers conferred on magistrates

             (1)  A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred.

             (2)  A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

Division 5General provisions relating to electronic equipment

154ZB  Operation of electronic equipment at premises

                   A person may operate electronic equipment at premises in order to exercise a power under this Part only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

154ZC  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of electronic equipment being operated as mentioned in section 154E, 154F, 154G, 154H or 154J:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

5  Subsection 155(1)

Omit “93(3) or (3A)”, substitute “91B(4), 91C(4), 93(3), 93(3A) or 95AS(7) or the making of an application under subsection 95AZM(6)”.

6  Paragraph 155(1)(c)

After “Commission”, insert “, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice,”.

7  Subsection 155(2)

Repeal the subsection.

8  Subsection 155(2A)

Omit “or an authorisation under subsection (2)”.

9  Subsection 155(3)

Repeal the subsection, substitute:

             (3)  If a notice under subsection (1) requires a person to appear before the Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation.

          (3A)  If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.

10  Subsection 155(4)

Repeal the subsection.

11  Paragraph 155(5)(b)

Omit “or” (last occurring).

12  Paragraph 155(5)(c)

Repeal the paragraph.

13  Subsection 155(6)

Repeal the subsection.

14  Subsection 155(6A)

Omit “or (6)”.

15  Subsection 155(7)

Omit “or permitting the inspection of”.

16  Subsection 155(7)

Omit “or made available to an authorised officer for inspection”.

17  Paragraphs 155(7A)(b) and (c)

Omit “or permit inspection of”.

18  After subsection 155(7A)

Insert:

          (7B)  This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

19  At the end of section 155

Add:

           (10)  In this section:

legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995.

20  Subsection 155AA(3) (paragraph (a) of the definition of protected Part IV information)

After “under”, insert “Part XID or”.

21  Subsection 155AA(3) (subparagraph (a)(i) of the definition of protected Part VB information)

After “under”, insert “Part XID or”.

22  Subsection 155AB(3) (subparagraph (a)(i) of the definition of protected Part XIB or XIC information)

After “155”, insert “or Part XID”.

23  Subsection 163(5)

After “118,”, insert “154Q,”.

24  Subparagraph 171(3)(a)(ii)

Repeal the subparagraph.

25  Paragraph 171(3)(b)

Omit “or authorisations”.

26  Paragraph 171(3)(c)

Omit “or authorisations”.

27  Paragraph 171(3)(d)

Repeal the paragraph, substitute:

                     (d)  the number of search warrants issued by a magistrate under section 154X or signed by a magistrate under section 154Y; and

                    (da)  a general description of the nature of the matters in respect of which the search warrants were issued or signed; and

                    (db)  the number of proceedings brought to challenge the validity of the search warrants; and

                    (dc)  the number of entries onto premises under Part XID; and

28  Application

The amendment made by item 4 applies in relation to contraventions occurring either before or after the commencement of that item.

29  Transitional—old authorisations

Subsection 155(2) of the Trade Practices Act 1974, as in force immediately before the commencement of this item, continues to apply after that commencement in relation to an authorisation given under that subsection before that commencement, but only in relation to any entry to premises under that authorisation that occurs before the 14th day after that commencement.


 

Schedule 8Penalties

Part 1Civil penalties

Trade Practices Act 1974

1  Subsection 75B(1)

Omit “or 75AYA”, substitute “, 75AYA or 95AZN”.

2  At the end of paragraph 76(1)(a)

Add:

                            (iii)  section 95AZN; or

3  At the end of paragraphs 76(1)(b), (c) and (d)

Add “or”.

4  Subsection 76(1A)

Repeal the subsection, substitute:

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

                     (a)  for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA—$750,000; and

                     (b)  for each act or omission to which this section applies that relates to any other provision of Part IV—the greatest of the following:

                              (i)  $10,000,000;

                             (ii)  if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;

                            (iii)  if the Court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and

                     (c)  for each act or omission to which this section applies that relates to section 95AZN—$33,000; and

                     (d)  for each other act or omission to which this section applies—$10,000,000.

Note:          For annual turnover, see subsection (5).

5  Subsection 76(1B)

Repeal the subsection, substitute:

          (1B)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:

                     (a)  for each act or omission to which this section applies that relates to section 95AZN—$6,600; and

                     (b)  for each other act or omission to which this section applies—$500,000.

6  Subsection 76(4)

Omit “subsection (1A)”, substitute “paragraphs (1A)(a) and (b)”.

7  At the end of section 76

Add:

Annual turnover

             (5)  For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than:

                     (a)  supplies made from any of those bodies corporate to any other of those bodies corporate; or

                     (b)  supplies that are input taxed; or

                     (c)  supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or

                     (d)  supplies that are not made in connection with an enterprise that the body corporate carries on; or

                     (e)  supplies that are not connected with Australia.

             (6)  Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

8  Subsection 76A(1)

Insert:

contravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.

Note:       The heading to section 76A is altered by inserting “or 95AZN” after “75AYA”.

9  Subsection 76A(1) (definition of contravention of section 75AYA)

Repeal the definition.

10  Subsection 76A(2)

After “75AYA”, insert “or 95AZN”.

11  Subsection 76B(1)

Insert:

contravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.

Note:       The heading to section 76B is altered by inserting “or 95AZN” after “75AYA”.

12  Subsection 76B(1) (definition of contravention of section 75AYA)

Repeal the definition.

13  Subsections 76B(2), (3) and (4)

After “75AYA”, insert “or 95AZN”.

14  Paragraph 76B(5)(a)

After “75AYA”, insert “or 95AZN”.

15  Application

The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.


 

Part 2Disqualification from managing corporations

Corporations Act 2001

16  After section 206E

Insert:

206EA  Disqualification under the Trade Practices Act 1974

                   A person is disqualified from managing corporations if a court order disqualifying the person from managing corporations is in force under section 86E of the Trade Practices Act 1974.

17  After section 206G

Insert:

206GA  Involvement of ACCC—leave orders under section 206G

Scope of section

             (1)  This section applies in relation to a person who is disqualified from managing corporations under section 206EA.

Notice lodged with ASIC before leave application

             (2)  If the person lodges a notice with ASIC under subsection 206G(2), ASIC must give the ACCC a copy of the notice.

Leave orders

             (3)  If the person lodges a copy of an order with ASIC under subsection 206G(4), ASIC must give the ACCC a copy of the order.

Revoking leave

             (4)  If ASIC decides to apply for an order under subsection 206G(5) in relation to the person, it must consult the ACCC before making the application.

Definition

             (5)  In this section:

ACCC means the Australian Competition and Consumer Commission.

18  Paragraph 1274AA(1)(a)

After “206E”, insert “, 206EA”.

19  After paragraph 1274AA(2)(a)

Insert:

                    (aa)  every court order referred to in section 206EA; and

Trade Practices Act 1974

20  After section 86D

Insert:

86E  Order disqualifying a person from managing corporations

             (1)  On application by the Commission, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if:

                     (a)  the Court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of Part IV; and

                     (b)  the Court is satisfied that the disqualification is justified.

Note:          Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.

             (2)  In determining whether the disqualification is justified, the Court may have regard to:

                     (a)  the person’s conduct in relation to the management, business or property of any corporation; and

                     (b)  any other matters that the Court considers appropriate.

             (3)  The Commission must notify ASIC if the Court makes an order under this section. The Commission must give ASIC a copy of the order.

Note:          ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001.

             (4)  In this section:

ASIC means the Australian Securities and Investments Commission.

21  Application

The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.


 

Part 3Indemnities

Trade Practices Act 1974

22  Paragraph 6(2)(h)

After “50A,”, insert “77A,”.

23  After section 77

Insert:

77A  Indemnification of officers

             (1)  A body corporate (the first body), or a body corporate related to the first body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the first body:

                     (a)  a civil liability;

                     (b)  legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.

Penalty:  25 penalty units.

             (2)  For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.

Definitions

             (3)  In this section:

civil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV.

officer has the same meaning as in the Corporations Act 2001.

77B  Certain indemnities not authorised and certain documents void

             (1)  Section 77A does not authorise anything that would otherwise be unlawful.

             (2)  Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A.

77C  Application of section 77A to a person other than a body corporate

                   If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:

                     (a)  convicted of an offence (the relevant offence) against subsection 77A(1) of this Act; or

                     (b)  convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 77A(1) of this Act;

the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.

24  Application

The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.


 

Schedule 9Local government bodies

  

Trade Practices Act 1974

1  After section 2B

Insert:

2BA  Application of Part IV to local government bodies

             (1)  Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.

             (2)  In this section:

local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.

2  Subsection 2C(1)

Omit “sections 2A and 2B”, substitute “sections 2A, 2B and 2BA”.

3  At the end of paragraph 2C(1)(c)

Add:

                       or (viii)  only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;

4  Subsection 2C(2)

Omit “sections 2A and 2B”, substitute “sections 2A, 2B and 2BA”.

5  Section 2D

Repeal the section.


 

Schedule 10Functions and powers etc. under Competition Code

  

Trade Practices Act 1974

1  Section 150A

Insert:

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

2  Section 150F

Repeal the section, substitute:

150F  Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

150FA  How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 150F.

150FB  When an application law imposes a duty

                   For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:

                     (a)  the law confers a function or power on the entity; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.


 

Schedule 11Technical amendment

  

Gas Pipelines Access (Commonwealth) Act 1998

1  Section 13 (note)

Omit “sections 44ZZM, 29B and 44ZZOA of the Trade Practices Act 1974 respectively”, substitute “sections 29B and 44ZZM of the Trade Practices Act 1974”.

Note:       This item fixes an incorrect cross-reference.