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Competition and Consumer Act 2010

  • - C2011C00003
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Act No. 148 of 2010
An Act relating to competition, fair trading and consumer protection, and for other purposes
Administered by: Broadband, Communications and the Digital Economy; Infrastructure and Transport; Innovation, Industry, Science and Research; Treasury; Industry, Innovation, Science, Research and Tertiary Education
General Comments: This compilation is affected by a retrospective amendment, please see Competition and Consumer Legislation Amendment Act 2011 [Act No. 184, 2011], for details. This compilation is affected by a retrospective amendment, please see Statute Law Revision Act 2012 [Act No. 136 of 2012], for details.
Registered 04 Jan 2011
Start Date 01 Jan 2011
End Date 12 Apr 2011
Table of contents.

 

Competition and Consumer Act 2010

Act No. 51 of 1974 as amended

This compilation was prepared on 1 January 2011
taking into account amendments up to Act No. 148 of 2010

Volume 3 includes:      Table of Contents
                                    Schedules 1 and 2
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Notes 2 and 3
                                    Table A

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

  

  

  


Contents

Schedule 1—The Schedule version of Part IV                                                       1

Part 1—Schedule version of Part IV                                                                            1

Division 1—Cartel conduct                                                                                       1

Subdivision A—Introduction                                                                                     1

44ZZRA.................................................................................. Simplified outline  1

44ZZRB............................................................................................ Definitions  1

44ZZRC.................................................................... Extended meaning of party  3

44ZZRD.................................................................................. Cartel provisions  3

44ZZRE Meaning of expressions in other provisions of this Act.................... 8

Subdivision B—Offences etc.                                                                                    8

44ZZRF Making a contract etc. containing a cartel provision.......................... 8

44ZZRG........................................................ Giving effect to a cartel provision  9

44ZZRH.................................................................................. Determining guilt  10

44ZZRI. Court may make related civil orders................................................. 11

Subdivision C—Civil penalty provisions                                                               11

44ZZRJ Making a contract etc. containing a cartel provision........................ 11

44ZZRK........................................................ Giving effect to a cartel provision  11

Subdivision D—Exceptions                                                                                      12

44ZZRL Conduct notified............................................................................... 12

44ZZRMCartel provision subject to grant of authorisation........................... 12

44ZZRN Contracts, arrangements or understandings between related bodies corporate        12

44ZZRO................................................................ Joint ventures—prosecution  13

44ZZRP Joint ventures—civil penalty proceedings....................................... 16

44ZZRQ.......................................................... Covenants affecting competition  18

44ZZRR...................................................................... Resale price maintenance  18

44ZZRS Exclusive dealing............................................................................... 18

44ZZRT......................................................... Dual listed company arrangement  19

44ZZRU............................................................. Acquisition of shares or assets  20

44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 20

Division 2—Other provisions                                                                                21

45.......... Contracts, arrangements or understandings that restrict dealings or affect competition         21

45B....... Covenants affecting competition...................................................... 24

45C....... Covenants in relation to prices......................................................... 27

45D....... Secondary boycotts for the purpose of causing substantial loss or damage            29

45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition            30

45DC.... Involvement and liability of employee organisations....................... 31

45DD.... Situations in which boycotts permitted........................................... 32

45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services.......................................................................................................... 35

45EA..... Provisions contravening section 45E not to be given effect............. 38

45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part            39

46.......... Misuse of market power.................................................................. 39

47.......... Exclusive dealing............................................................................... 42

48.......... Resale price maintenance.................................................................. 49

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

50.......... Prohibition of acquisitions that would result in a substantial lessening of competition          50

51.......... Exceptions........................................................................................ 52

Schedule 2—The Australian Consumer Law                                                         57

Chapter 1—Introduction                                                                                                   69

1............ Application of this Schedule............................................................ 69

2............ Definitions........................................................................................ 69

3............ Meaning of consumer....................................................................... 82

4............ Misleading representations with respect to future matters.............. 85

5............ When donations are treated as supplies or acquisitions................... 86

6............ Related bodies corporate.................................................................. 87

7............ Meaning of manufacturer................................................................. 87

8............ Goods affixed to land or premises.................................................... 88

9............ Meaning of safety defect in relation to goods.................................... 88

10.......... Asserting a right to payment............................................................ 89

11.......... References to acquisition, supply and re‑supply............................. 90

12.......... Application of Schedule in relation to leases and licences of land and buildings     91

13.......... Loss or damage to include injury...................................................... 91

14.......... Meaning of continuing credit contract.............................................. 91

15.......... Contraventions of this Schedule....................................................... 92

16.......... Severability....................................................................................... 92

17.......... References to provisions in this Schedule........................................ 93

Chapter 2—General protections                                                                                  94

Part 2‑1—Misleading or deceptive conduct                                                   94

18.......... Misleading or deceptive conduct...................................................... 94

19.......... Application of this Part to information providers........................... 94

Part 2‑2—Unconscionable conduct                                                                     96

20.......... Unconscionable conduct within the meaning of the unwritten law.. 96

21.......... Unconscionable conduct................................................................... 96

22.......... Unconscionable conduct in business transactions............................ 97

Part 2‑3—Unfair contract terms                                                                          102

23.......... Unfair terms of consumer contracts............................................... 102

24.......... Meaning of unfair........................................................................... 102

25.......... Examples of unfair terms................................................................ 103

26.......... Terms that define main subject matter of consumer contracts etc. are unaffected  104

27.......... Standard form contracts.................................................................. 104

28.......... Contracts to which this Part does not apply................................. 105

Chapter 3—Specific protections                                                                                 106

Part 3‑1—Unfair practices                                                                                      106

Division 1—False or misleading representations etc.                                     106

29.......... False or misleading representations about goods or services.......... 106

30.......... False or misleading representations about sale etc. of land............ 107

31.......... Misleading conduct relating to employment.................................. 108

32.......... Offering rebates, gifts, prizes etc.................................................... 108

33.......... Misleading conduct as to the nature etc. of goods.......................... 110

34.......... Misleading conduct as to the nature etc. of services...................... 110

35.......... Bait advertising............................................................................... 110

36.......... Wrongly accepting payment........................................................... 111

37.......... Misleading representations about certain business activities......... 112

38.......... Application of provisions of this Division to information providers 113

Division 2—Unsolicited supplies                                                                          115

39.......... Unsolicited cards etc....................................................................... 115

40.......... Assertion of right to payment for unsolicited goods or services.... 116

41.......... Liability etc. of recipient for unsolicited goods.............................. 117

42.......... Liability of recipient for unsolicited services................................. 118

43.......... Assertion of right to payment for unauthorised entries or advertisements             118

Division 3—Pyramid schemes                                                                              121

44.......... Participation in pyramid schemes.................................................. 121

45.......... Meaning of pyramid scheme........................................................... 121

46.......... Marketing schemes as pyramid schemes........................................ 122

Division 4—Pricing                                                                                                124

47.......... Multiple pricing.............................................................................. 124

48.......... Single price to be specified in certain circumstances...................... 125

Division 5—Other unfair practices                                                                     128

49.......... Referral selling................................................................................ 128

50.......... Harassment and coercion................................................................ 128

Part 3‑2—Consumer transactions                                                                      129

Division 1—Consumer guarantees                                                                      129

Subdivision A—Guarantees relating to the supply of goods                           129

51.......... Guarantee as to title........................................................................ 129

52.......... Guarantee as to undisturbed possession........................................ 129

53.......... Guarantee as to undisclosed securities etc...................................... 130

54.......... Guarantee as to acceptable quality................................................. 131

55.......... Guarantee as to fitness for any disclosed purpose etc................... 132

56.......... Guarantee relating to the supply of goods by description............. 133

57.......... Guarantees relating to the supply of goods by sample or demonstration model    133

58.......... Guarantee as to repairs and spare parts......................................... 134

59.......... Guarantee as to express warranties................................................ 134

Subdivision B—Guarantees relating to the supply of services                       135

60.......... Guarantee as to due care and skill................................................... 135

61.......... Guarantees as to fitness for a particular purpose etc..................... 135

62.......... Guarantee as to reasonable time for supply................................... 136

63.......... Services to which this Subdivision does not apply........................ 136

Subdivision C—Guarantees not to be excluded etc. by contract                     136

64.......... Guarantees not to be excluded etc. by contract.............................. 136

64A....... Limitation of liability for failures to comply with guarantees........ 137

Subdivision D—Miscellaneous                                                                             138

65.......... Application of this Division to supplies of gas, electricity and telecommunications             138

66.......... Display notices............................................................................... 138

67.......... Conflict of laws.............................................................................. 139

68.......... Convention on Contracts for the International Sale of Goods....... 140

Division 2—Unsolicited consumer agreements                                                141

Subdivision A—Introduction                                                                                 141

69.......... Meaning of unsolicited consumer agreement................................. 141

70.......... Presumption that agreements are unsolicited consumer agreements 142

71.......... Meaning of dealer........................................................................... 142

72.......... Meaning of negotiation................................................................... 143

Subdivision B—Negotiating unsolicited consumer agreements                    143

73.......... Permitted hours for negotiating an unsolicited consumer agreement 143

74.......... Disclosing purpose and identity..................................................... 143

75.......... Ceasing to negotiate on request...................................................... 144

76.......... Informing person of termination period etc.................................... 145

77.......... Liability of suppliers for contraventions by dealers...................... 145

Subdivision C—Requirements for unsolicited consumer agreements etc.  145

78.......... Requirement to give document to the consumer............................. 145

79.......... Requirements for all unsolicited consumer agreements etc............. 146

80.......... Additional requirements for unsolicited consumer agreements not negotiated by telephone  147

81.......... Requirements for amendments of unsolicited consumer agreements 148

Subdivision D—Terminating unsolicited consumer agreements                  148

82.......... Terminating an unsolicited consumer agreement during the termination period      148

83.......... Effect of termination....................................................................... 150

84.......... Obligations of suppliers on termination......................................... 150

85.......... Obligations and rights of consumers on termination...................... 151

86.......... Prohibition on supplies etc. for 10 business days.......................... 152

87.......... Repayment of payments received after termination...................... 153

88.......... Prohibition on recovering amounts after termination..................... 153

Subdivision E—Miscellaneous                                                                              154

89.......... Certain provisions of unsolicited consumer agreements void......... 154

90.......... Waiver of rights.............................................................................. 155

91.......... Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 155

92.......... Application of this Division to supplies to third parties............... 155

93.......... Effect of contravening this Division............................................... 155

94.......... Regulations may limit the application of this Division.................. 156

95.......... Application of this Division to certain conduct covered by the Corporations Act                156

Division 3—Lay‑by agreements                                                                            157

96.......... Lay‑by agreements must be in writing etc...................................... 157

97.......... Termination of lay‑by agreements by consumers.......................... 157

98.......... Termination of lay‑by agreements by suppliers............................ 158

99.......... Effect of termination....................................................................... 158

Division 4—Miscellaneous                                                                                    159

100........ Supplier must provide proof of transaction etc............................. 159

101........ Consumer may request an itemised bill.......................................... 160

102........ Prescribed requirements for warranties against defects.................. 161

103........ Repairers must comply with prescribed requirements................... 161

Part 3‑3—Safety of consumer goods and product related services 162

Division 1—Safety standards                                                                                162

104........ Making safety standards for consumer goods and product related services            162

105........ Declaring safety standards for consumer goods and product related services         163

106........ Supplying etc. consumer goods that do not comply with safety standards            163

107........ Supplying etc. product related services that do not comply with safety standards               165

108........ Requirement to nominate a safety standard................................... 165

Division 2—Bans on consumer goods and product related services             167

Subdivision A—Interim bans                                                                                167

109........ Interim bans on consumer goods or product related services that will or may cause injury to any person etc.     167

110........ Places in which interim bans apply................................................ 168

111........ Ban period for interim bans............................................................ 168

112........ Interaction of multiple interim bans............................................... 169

113........ Revocation of interim bans............................................................. 170

Subdivision B—Permanent bans                                                                          170

114........ Permanent bans on consumer goods or product related services.... 170

115........ Places in which permanent bans apply.......................................... 171

116........ When permanent bans come into force........................................... 171

117........ Revocation of permanent bans....................................................... 171

Subdivision C—Compliance with interim bans and permanent bans            171

118........ Supplying etc. consumer goods covered by a ban.......................... 171

119........ Supplying etc. product related services covered by a ban.............. 172

Subdivision D—Temporary exemption from mutual recognition principles 173

120........ Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997     173

121........ Temporary exemption under the Mutual Recognition Act 1992..... 174

Division 3—Recall of consumer goods                                                                175

Subdivision A—Compulsory recall of consumer goods                                   175

122........ Compulsory recall of consumer goods........................................... 175

123........ Contents of a recall notice.............................................................. 175

124........ Obligations of a supplier in relation to a recall notice.................... 177

125........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall  177

126........ Interaction of multiple recall notices.............................................. 178

127........ Compliance with recall notices....................................................... 178

Subdivision B—Voluntary recall of consumer goods                                       179

128........ Notification requirements for a voluntary recall of consumer goods 179

Division 4—Safety warning notices                                                                     182

129........ Safety warning notices about consumer goods and product related services           182

130........ Announcement of the results of an investigation etc...................... 182

Division 5—Consumer goods, or product related services, associated with death or serious injury or illness           184

131........ Suppliers to report consumer goods associated with the death or serious injury or illness of any person             184

132........ Suppliers to report product related services associated with the death or serious injury or illness of any person........................................................................................................ 185

132A..... Confidentiality of notices given under this Division...................... 187

Division 6—Miscellaneous                                                                                    189

133........ Liability under a contract of insurance........................................... 189

Part 3‑4—Information standards                                                                        190

134........ Making information standards for goods and services................... 190

135........ Declaring information standards for goods and services................. 190

136........ Supplying etc. goods that do not comply with information standards 191

137........ Supplying etc. services that do not comply with information standards                192

Part 3‑5—Liability of manufacturers for goods with safety defects  194

Division 1—Actions against manufacturers for goods with safety defects  194

138........ Liability for loss or damage suffered by an injured individual........ 194

139........ Liability for loss or damage suffered by a person other than an injured individual 194

140........ Liability for loss or damage suffered by a person if other goods are destroyed or damaged   195

141........ Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged             195

142........ Defences to defective goods actions............................................... 196

Division 2—Defective goods actions                                                                    197

143........ Time for commencing defective goods actions............................... 197

144........ Liability joint and several............................................................... 197

145........ Survival of actions.......................................................................... 197

146........ No defective goods action where workers’ compensation law etc. applies             197

147........ Unidentified manufacturer.............................................................. 197

148........ Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard.......................................................................................... 198

149........ Representative actions by the regulator......................................... 199

Division 3—Miscellaneous                                                                                    200

150........ Application of all or any provisions of this Part etc. not to be excluded or modified             200

Chapter 4—Offences                                                                                                        201

Part 4‑1—Offences relating to unfair practices                                          201

Division 1—False or misleading representations etc.                                     201

151........ False or misleading representations about goods or services.......... 201

152........ False or misleading representations about sale etc. of land............ 202

153........ Misleading conduct relating to employment.................................. 203

154........ Offering rebates, gifts, prizes etc.................................................... 204

155........ Misleading conduct as to the nature etc. of goods.......................... 205

156........ Misleading conduct as to the nature etc. of services...................... 205

157........ Bait advertising............................................................................... 206

158........ Wrongly accepting payment........................................................... 207

159........ Misleading representations about certain business activities......... 209

160........ Application of provisions of this Division to information providers 210

Division 2—Unsolicited supplies                                                                          212

161........ Unsolicited cards etc....................................................................... 212

162........ Assertion of right to payment for unsolicited goods or services.... 213

163........ Assertion of right to payment for unauthorised entries or advertisements             214

Division 3—Pyramid schemes                                                                              216

164........ Participation in pyramid schemes.................................................. 216

Division 4—Pricing                                                                                                217

165........ Multiple pricing.............................................................................. 217

166........ Single price to be specified in certain circumstances...................... 217

Division 5—Other unfair practices                                                                     219

167........ Referral selling................................................................................ 219

168........ Harassment and coercion................................................................ 219

Part 4‑2—Offences relating to consumer transactions                           221

Division 1—Consumer guarantees                                                                      221

169........ Display notices............................................................................... 221

Division 2—Unsolicited consumer agreements                                                222

Subdivision A—Negotiating unsolicited consumer agreements                    222

170........ Permitted hours for negotiating an unsolicited consumer agreement 222

171........ Disclosing purpose and identity..................................................... 222

172........ Ceasing to negotiate on request...................................................... 223

173........ Informing person of termination period etc.................................... 224

Subdivision B—Requirements for unsolicited consumer agreements etc.  225

174........ Requirement to give document to the consumer............................. 225

175........ Requirements for all unsolicited consumer agreements etc............. 226

176........ Additional requirements for unsolicited consumer agreements not negotiated by telephone  227

177........ Requirements for amendments of unsolicited consumer agreements 228

Subdivision C—Terminating unsolicited consumer agreements                  228

178........ Obligations of suppliers on termination......................................... 228

179........ Prohibition on supplies for 10 business days................................ 228

180........ Repayment of payments received after termination...................... 229

181........ Prohibition on recovering amounts after termination..................... 229

Subdivision D—Miscellaneous                                                                             230

182........ Certain provisions of unsolicited consumer agreements void......... 230

183........ Waiver of rights.............................................................................. 231

184........ Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 231

185........ Application of this Division to supplies to third parties............... 232

186........ Regulations may limit the application of this Division.................. 232

187........ Application of this Division to certain conduct covered by the Corporations Act                232

Division 3—Lay‑by agreements                                                                            233

188........ Lay‑by agreements must be in writing etc...................................... 233

189........ Termination charges........................................................................ 233

190........ Termination of lay‑by agreements by suppliers............................ 234

191........ Refund of amounts......................................................................... 234

Division 4—Miscellaneous                                                                                    235

192........ Prescribed requirements for warranties against defects.................. 235

193........ Repairers must comply with prescribed requirements................... 235

Part 4‑3—Offences relating to safety of consumer goods and product related services              236

Division 1—Safety standards                                                                                236

194........ Supplying etc. consumer goods that do not comply with safety standards            236

195........ Supplying etc. product related services that do not comply with safety standards               237

196........ Requirement to nominate a safety standard................................... 238

Division 2—Bans on consumer goods and product related services             239

197........ Supplying etc. consumer goods covered by a ban.......................... 239

198........ Supplying etc. product related services covered by a ban.............. 240

Division 3—Recall of consumer goods                                                                241

199........ Compliance with recall orders........................................................ 241

200........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall  241

201........ Notification requirements for a voluntary recall of consumer goods 242

Division 4—Consumer goods, or product related services, associated with death or serious injury or illness           243

202........ Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person      243

Part 4‑4—Offences relating to information standards                             244

203........ Supplying etc. goods that do not comply with information standards 244

204........ Supplying etc. services that do not comply with information standards                245

Part 4‑5—Offences relating to substantiation notices                            247

205........ Compliance with substantiation notices......................................... 247

206........ False or misleading information etc................................................ 247

Part 4‑6—Defences                                                                                                    249

207........ Reasonable mistake of fact............................................................. 249

208........ Act or default of another person etc............................................... 249

209........ Publication of advertisements in the ordinary course of business.. 250

210........ Supplying goods acquired for the purpose of re‑supply............... 250

211........ Supplying services acquired for the purpose of re‑supply............ 251

Part 4‑7—Miscellaneous                                                                                        253

212........ Prosecutions to be commenced within 3 years............................... 253

213........ Preference must be given to compensation for victims.................. 253

214........ Penalties for contraventions of the same nature etc....................... 253

215........ Penalties for previous contraventions of the same nature etc........ 254

216........ Granting of injunctions etc............................................................. 255

217........ Criminal proceedings not to be brought for contraventions of Chapter 2 or 3        255

Chapter 5—Enforcement and remedies                                                                 256

Part 5‑1—Enforcement                                                                                            256

Division 1—Undertakings                                                                                     256

218........ Regulator may accept undertakings................................................ 256

Division 2—Substantiation notices                                                                      257

219........ Regulator may require claims to be substantiated etc..................... 257

220........ Extending periods for complying with substantiation notices....... 258

221........ Compliance with substantiation notices......................................... 258

222........ False or misleading information etc................................................ 259

Division 3—Public warning notices                                                                    260

223........ Regulator may issue a public warning notice.................................. 260

Part 5‑2—Remedies                                                                                                  261

Division 1—Pecuniary penalties                                                                          261

224........ Pecuniary penalties......................................................................... 261

225........ Pecuniary penalties and offences.................................................... 265

226........ Defence........................................................................................... 266

227........ Preference must be given to compensation for victims.................. 266

228........ Civil action for recovery of pecuniary penalties............................ 266

229........ Indemnification of officers.............................................................. 267

230........ Certain indemnities not authorised and certain documents void.... 267

Division 2—Injunctions                                                                                         268

232........ Injunctions...................................................................................... 268

233........ Consent injunctions........................................................................ 269

234........ Interim injunctions.......................................................................... 269

235........ Variation and discharge of injunctions............................................ 270

Division 3—Damages                                                                                             271

236........ Actions for damages....................................................................... 271

Division 4—Compensation orders etc. for injured persons and orders for non‑party consumers  272

Subdivision A—Compensation orders etc. for injured persons                     272

237........ Compensation orders etc. on application by an injured person or the regulator     272

238........ Compensation orders etc. arising out of other proceedings............ 273

Subdivision B—Orders for non‑party consumers                                            273

239........ Orders to redress etc. loss or damage suffered by non‑party consumers                273

240........ Determining whether to make a redress order etc. for non‑party consumers          274

241........ When a non‑party consumer is bound by a redress order etc........ 275

Subdivision C—Miscellaneous                                                                             275

242........ Applications for orders.................................................................. 275

243........ Kinds of orders that may be made.................................................. 276

244........ Power of a court to make orders..................................................... 277

245........ Interaction with other provisions................................................... 277

Division 5—Other remedies                                                                                 278

246........ Non‑punitive orders....................................................................... 278

247........ Adverse publicity orders................................................................ 279

248........ Order disqualifying a person from managing corporations............. 279

249........ Privilege against exposure to penalty or forfeiture—disqualification from managing corporations        281

250........ Declarations relating to consumer contracts................................... 281

Division 6—Defences                                                                                             282

251........ Publication of advertisement in the ordinary course of business... 282

252........ Supplying consumer goods for the purpose of re‑supply............. 282

253........ Supplying product related services for the purpose of re‑supply. 283

Part 5‑3—Country of origin representations                                               285

254........ Overview........................................................................................ 285

255........ Country of origin representations do not contravene certain provisions                285

256........ Cost of producing or manufacturing goods..................................... 288

257........ Rules for determining the percentage of costs of production or manufacture attributable to a country 289

258........ Proceedings relating to false, misleading or deceptive conduct or representations  290

Part 5‑4—Remedies relating to guarantees                                                 291

Division 1—Action against suppliers                                                                  291

Subdivision A—Action against suppliers of goods                                           291

259........ Action against suppliers of goods.................................................. 291

260........ When a failure to comply with a guarantee is a major failure......... 292

261........ How suppliers may remedy a failure to comply with a guarantee. 293

262........ When consumers are not entitled to reject goods........................... 293

263........ Consequences of rejecting goods.................................................... 294

264........ Replaced goods............................................................................... 295

265........ Termination of contracts for the supply of services that are connected with rejected goods 295

266........ Rights of gift recipients.................................................................. 296

Subdivision B—Action against suppliers of services                                       296

267........ Action against suppliers of services............................................... 296

268........ When a failure to comply with a guarantee is a major failure......... 297

269........ Termination of contracts for the supply of services...................... 298

270........ Termination of contracts for the supply of goods that are connected with terminated services             298

Division 2—Action for damages against manufacturers of goods                 300

271........ Action for damages against manufacturers of goods....................... 300

272........ Damages that may be recovered by action against manufacturers of goods            301

273........ Time limit for actions against manufacturers of goods................... 302

Division 3—Miscellaneous                                                                                    303

274........ Indemnification of suppliers by manufacturers.............................. 303

275........ Limitation of liability etc................................................................ 304

276........ This Part not to be excluded etc. by contract................................. 304

276A..... Limitation in certain circumstances of liability of manufacturer to seller                305

277........ Representative actions by the regulator......................................... 305

Part 5‑5—Liability of suppliers and credit providers                              306

Division 1—Linked credit contracts                                                                   306

278........ Liability of suppliers and linked credit providers relating to linked credit contracts              306

279........ Action by consumer to recover amount of loss or damage............. 307

280........ Cases where a linked credit provider is not liable........................... 307

281........ Amount of liability of linked credit providers................................ 309

282........ Counter‑claims and offsets............................................................. 309

283........ Enforcement of judgments etc........................................................ 310

284........ Award of interest to consumers..................................................... 311

285........ Liability of suppliers to linked credit providers, and of linked credit providers to suppliers 312

286........ Joint liability proceedings and recovery under section 135 of the National Credit Code        313

Division 2—Non‑linked credit contracts                                                            314

287........ Liability of suppliers and credit providers relating to non‑linked credit contracts  314

Notes                                                                                                                                          317


Schedule 1The Schedule version of Part IV

Part 1Schedule version of Part IV

Note:       See section 150A.

Division 1Cartel conduct

Subdivision AIntroduction

44ZZRA  Simplified outline

                   The following is a simplified outline of this Division:

•      This Division sets out parallel offences and civil penalty provisions relating to cartel conduct.

•      A person must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision.

•      A cartel provision is a provision relating to:

               (a)     price‑fixing; or

               (b)     restricting outputs in the production and supply chain; or

               (c)     allocating customers, suppliers or territories; or

               (d)     bid‑rigging;

       by parties that are, or would otherwise be, in competition with each other.

44ZZRB  Definitions

                   In this Division:

annual turnover, of a body corporate during a 12‑month period, means 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 the 12‑month 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.

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

benefit includes any advantage and is not limited to property.

bid includes:

                     (a)  tender; and

                     (b)  the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

knowledge has the same meaning as in the Criminal Code.

likely, in relation to any of the following:

                     (a)  a supply of goods or services;

                     (b)  an acquisition of goods or services;

                     (c)  the production of goods;

                     (d)  the capacity to supply services;

includes a possibility that is not remote.

obtaining includes:

                     (a)  obtaining for another person; and

                     (b)  inducing a third person to do something that results in another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering.

44ZZRC  Extended meaning of party

                   For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding.

44ZZRD  Cartel provisions

             (1)  For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:

                     (a)  either of the following conditions is satisfied in relation to the provision:

                              (i)  the purpose/effect condition set out in subsection (2);

                             (ii)  the purpose condition set out in subsection (3); and

                     (b)  the competition condition set out in subsection (4) is satisfied in relation to the provision.

Purpose/effect condition

             (2)  The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:

                     (a)  fixing, controlling or maintaining; or

                     (b)  providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation to:

                     (c)  goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

                     (d)  goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

                     (e)  goods or services re‑supplied, or likely to be re‑supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or

                      (f)  goods or services likely to be re‑supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.

Note 1:       The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8).

Note 2:       Party has an extended meaning—see section 44ZZRC.

Purpose condition

             (3)  The purpose condition is satisfied if the provision has the purpose of directly or indirectly:

                     (a)  preventing, restricting or limiting:

                              (i)  the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or

                             (ii)  the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or

                            (iii)  the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or

                     (b)  allocating between any or all of the parties to the contract, arrangement or understanding:

                              (i)  the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or

                             (ii)  the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or

                            (iii)  the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

                            (iv)  the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

                     (c)  ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:

                              (i)  one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or

                             (ii)  2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or

                            (iii)  2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or

                            (iv)  2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or

                             (v)  2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.

Note 1:       For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after‑hours medical services if the roster does not prevent, restrict or limit the supply of services.

Note 2:       The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9).

Note 3:       Party has an extended meaning—see section 44ZZRC.

Competition condition

             (4)  The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

                     (a)  are or are likely to be; or

                     (b)  but for any contract, arrangement or understanding, would be or would be likely to be;

in competition with each other in relation to:

                     (c)  if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services; or

                     (d)  if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services; or

                     (e)  if paragraph (2)(e) or (f) applies in relation to a re‑supply, or likely re‑supply, of goods or services—the supply of those goods or services to that re‑supplier; or

                      (f)  if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods; or

                     (g)  if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services—the supply of those services; or

                     (h)  if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services—the supply of those goods or services; or

                      (i)  if paragraph (3)(c) applies in relation to a supply of goods or services—the supply of those goods or services; or

                      (j)  if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services.

Note:          Party has an extended meaning—see section 44ZZRC.

Immaterial whether identities of persons can be ascertained

             (5)  It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained.

Recommending prices etc.

             (6)  For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:

                     (a)  to have the purpose mentioned in subsection (2); or

                     (b)  to have, or be likely to have, the effect mentioned in subsection (2);

by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.

Immaterial whether particular circumstances or particular conditions

             (7)  It is immaterial whether:

                     (a)  for the purposes of subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b) and (c)—a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and

                     (b)  for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and

                     (c)  for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.

Considering related provisions—purpose/effect condition

             (8)  For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:

                     (a)  the other provisions of the contract, arrangement or understanding;

                     (b)  the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;

has that purpose, or has or is likely to have that effect.

Considering related provisions—purpose condition

             (9)  For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:

                     (a)  the other provisions of the contract, arrangement or understanding;

                     (b)  the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;

has that purpose.

Purpose/effect of a provision

           (10)  For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:

                     (a)  the form of the provision; or

                     (b)  the form of the contract, arrangement or understanding; or

                     (c)  any description given to the provision, or to the contract, arrangement or understanding, by the parties.

Purpose of a provision

           (11)  For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:

                     (a)  the form of the provision; or

                     (b)  the form of the contract, arrangement or understanding; or

                     (c)  any description given to the provision, or to the contract, arrangement or understanding, by the parties.

44ZZRE  Meaning of expressions in other provisions of this Act

                   In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded.

Subdivision BOffences etc.

44ZZRF  Making a contract etc. containing a cartel provision

Offence

             (1)  A person commits an offence if:

                     (a)  the person makes a contract or arrangement, or arrives at an understanding; and

                     (b)  the contract, arrangement or understanding contains a cartel provision.

             (2)  The fault element for paragraph (1)(b) is knowledge or belief.

Penalty

             (3)  An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not exceeding the greater of the following:

                     (a)  $10,000,000;

                     (b)  if the court can determine the total value of the benefits that:

                              (i)  have been obtained by one or more persons; and

                             (ii)  are reasonably attributable to the commission of the offence;

                            3 times that total value;

                     (c)  if the court cannot determine the total value of those benefits—10% of the body corporate’s annual turnover during the 12‑month period ending at the end of the month in which the body corporate committed, or began committing, the offence.

             (4)  An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.

Indictable offence

             (5)  An offence against subsection (1) is an indictable offence.

44ZZRG  Giving effect to a cartel provision

Offence

             (1)  A person commits an offence if:

                     (a)  a contract, arrangement or understanding contains a cartel provision; and

                     (b)  the person gives effect to the cartel provision.

             (2)  The fault element for paragraph (1)(a) is knowledge or belief.

Penalty

             (3)  An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not exceeding the greater of the following:

                     (a)  $10,000,000;

                     (b)  if the court can determine the total value of the benefits that:

                              (i)  have been obtained by one or more persons; and

                             (ii)  are reasonably attributable to the commission of the offence;

                            3 times that total value;

                     (c)  if the court cannot determine the total value of those benefits—10% of the body corporate’s annual turnover during the 12‑month period ending at the end of the month in which the body corporate committed, or began committing, the offence.

             (4)  An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.

Pre‑commencement contracts etc.

             (5)  Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.

Indictable offence

             (6)  An offence against subsection (1) is an indictable offence.

44ZZRH  Determining guilt

             (1)  A person may be found guilty of an offence against section 44ZZRF or 44ZZRG even if:

                     (a)  each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or

                     (b)  subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence.

Note:          Party has an extended meaning—see section 44ZZRC.

             (2)  A person cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if:

                     (a)  all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and

                     (b)  a finding of guilt would be inconsistent with their acquittal.

44ZZRI  Court may make related civil orders

                   If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may:

                     (a)  grant an injunction under section 80 against the person in relation to:

                              (i)  the conduct that constitutes, or is alleged to constitute, the offence; or

                             (ii)  other conduct of that kind; or

                     (b)  make an order under section 86C, 86D, 86E or 87 in relation to the offence.

Subdivision CCivil penalty provisions

44ZZRJ  Making a contract etc. containing a cartel provision

                   A person contravenes this section if:

                     (a)  the person makes a contract or arrangement, or arrives at an understanding; and

                     (b)  the contract, arrangement or understanding contains a cartel provision.

Note:          For enforcement, see Part VI.

44ZZRK  Giving effect to a cartel provision

             (1)  A person contravenes this section if:

                     (a)  a contract, arrangement or understanding contains a cartel provision; and

                     (b)  the person gives effect to the cartel provision.

Note:          For enforcement, see Part VI.

             (2)  Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.

Subdivision DExceptions

44ZZRL  Conduct notified

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to a person in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:

                     (a)  the cartel provision:

                              (i)  has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); or

                             (ii)  has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); and

                     (b)  the person has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and

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

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRM  Cartel provision subject to grant of authorisation

             (1)  Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract that contains a cartel provision if:

                     (a)  the contract 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 contract is made.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRN  Contracts, arrangements or understandings between related bodies corporate

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding if the only parties to the contract, arrangement or understanding are bodies corporate that are related to each other.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRO  Joint ventures—prosecution

             (1)  Sections 44ZZRF and 44ZZRG do not apply in relation to a contract containing a cartel provision if:

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

                     (b)  the joint venture is for the production and/or supply of goods or services; and

                     (c)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract; and

                     (d)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1A)  Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

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

                     (d)  the joint venture is for the production and/or supply of goods or services; and

                     (e)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                      (f)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1B)  Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

                     (c)  when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

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

                     (e)  the joint venture is for the production and/or supply of goods or services; and

                      (f)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                     (g)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

             (2)  A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter.

Notice to prosecutor

             (3)  A person is not entitled to rely on subsection (1), (1A) or (1B) in a trial for an offence unless, within 28 days after the day on which the person is committed for trial, the person gives the prosecutor:

                     (a)  a written notice setting out:

                              (i)  the facts on which the person proposes to rely for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and

                             (ii)  the names and address of any witnesses whom the person proposes to call for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and

                     (b)  certified copies of any documents which the person proposes to adduce or point to for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be.

             (4)  If the trial of a person for an offence is being, or is to be, held in a court, the court may, by order:

                     (a)  exempt the person from compliance with subsection (3); or

                     (b)  extend the time within which the person is required to comply with subsection (3).

             (5)  For the purposes of paragraph (3)(b), a certified copy of a document is a copy of the document certified to be a true copy by:

                     (a)  a Justice of the Peace; or

                     (b)  a commissioner for taking affidavits.

44ZZRP  Joint ventures—civil penalty proceedings

             (1)  Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if:

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

                     (b)  the joint venture is for the production and/or supply of goods or services; and

                     (c)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract; and

                     (d)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1A)  Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

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

                     (d)  the joint venture is for the production and/or supply of goods or services; and

                     (e)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                      (f)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1B)  Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

                     (c)  when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

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

                     (e)  the joint venture is for the production and/or supply of goods or services; and

                      (f)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                     (g)  in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

             (2)  A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter.

44ZZRQ  Covenants affecting competition

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision, in so far as the cartel provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRR  Resale price maintenance

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:

                     (a)  conduct that contravenes section 48; or

                     (b)  conduct that would contravene section 48 but for the operation of subsection 88(8A); or

                     (c)  conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRS  Exclusive dealing

             (1)  Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47.

             (2)  Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision by way of:

                     (a)  engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or

                     (b)  doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:

                              (i)  an authorisation under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or

                             (ii)  by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or

                            (iii)  a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.

             (3)  A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter.

44ZZRT  Dual listed company arrangement

             (1)  Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as:

                     (a)  the contract, arrangement or understanding is a dual listed company arrangement; and

                     (b)  the making of the contract, arrangement or understanding would, or would apart from subsection 88(8B), contravene section 49.

             (2)  Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision, in so far as:

                     (a)  the cartel provision is a provision of a dual listed company arrangement; and

                     (b)  the giving effect to the cartel provision would, or would apart from subsection 88(8B), contravene section 49.

             (3)  A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter.

44ZZRU  Acquisition of shares or assets

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides directly or indirectly for the acquisition of:

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

                     (b)  any assets of a person.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

44ZZRV  Collective acquisition of goods or services by the parties to a contract, arrangement or understanding

             (1)  Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:

                     (a)  the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); and

                     (b)  either:

                              (i)  the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or

                             (ii)  the cartel provision is for the joint advertising of the price for the re‑supply of goods or services so acquired.

             (2)  A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.


 

Division 2Other provisions

45  Contracts, arrangements or understandings that restrict dealings or affect competition

             (1)  If a provision of a contract made before the commencement of this section:

                     (a)  is an exclusionary provision; or

                     (b) has the purpose, or has or is likely to have the effect, of substantially lessening competition;

that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.

             (2)  A person shall not:

                     (a)  make a contract or arrangement, or arrive at an understanding, if:

                              (i)  the proposed contract, arrangement or understanding contains an exclusionary provision; or

                             (ii)  a provision of the proposed contract, arrangement or understanding 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 contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision:

                              (i)  is an exclusionary provision; or

                             (ii)  has the purpose, or has or is likely to have the effect, of substantially lessening competition.

             (3)  For the purposes of this section, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a person who is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a person, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for 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 contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed 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, namely:

                     (a)  the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and

                     (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.

             (5)  This section does not apply to or in relation to:

                     (a)  a provision of a contract where the provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply;

                     (b)  a provision of a proposed contract where the provision would constitute a covenant to which section 45B would apply or, but for subsection 45B(9), would apply; or

                     (c)  a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to:

                              (i)  conduct that contravenes section 48; or

                             (ii)  conduct that would contravene section 48 but for the operation of subsection 88(8A); or

                            (iii)  conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.

             (6)  The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of:

                     (a)  engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or

                     (b)  doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:

                              (i)  an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or

                             (ii)  by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or

                            (iii)  a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.

          (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.

             (7)  This section does not apply to or in relation to a contract, arrangement or understanding in so far as the contract, arrangement or understanding provides, or to or in relation to a proposed contract, arrangement or understanding in so far as the proposed contract, arrangement or understanding would provide, directly or indirectly for the acquisition of any shares in the capital of a body corporate or any assets of a person.

             (8)  This section does not apply to or in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the only parties to which are or would be bodies corporate that are related to each other.

          (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.

             (9)  The making by a person of a contract that contains a provision in relation to which subsection 88(1) applies is not a contravention of subsection (2) of this section if:

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

                     (b)  the person applies for the grant of such an authorization within 14 days after the contract is made;

but nothing in this subsection prevents the giving effect by a person to such a provision from constituting a contravention of subsection (2).

45B  Covenants affecting competition

             (1)  A covenant, whether the covenant was given before or after the commencement of this section, is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a first person or on a person associated with a first person if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the first person or any person associated with the first person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services.

             (2)  A first person or a person associated with a first person shall not:

                     (a)  require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which:

                              (i)  the first person, or any person associated with the first person by virtue of paragraph (7)(b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or

                             (ii)  any person associated with the first person by virtue of the operation of paragraph (7)(a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the first person;

                     (b)  threaten to engage in particular conduct if a person who, but for subsection (1), would be bound by a covenant does not comply with the terms of the covenant; or

                     (c)  engage in particular conduct by reason that a person who, but for subsection (1), would be bound by a covenant has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.

             (3)  Where a person:

                     (a)  issues an invitation to another person to enter into a contract containing a covenant;

                     (b)  makes an offer to another person to enter into a contract containing a covenant; or

                     (c)  makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms;

the first‑mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant.

             (4)  For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which:

                     (a)  a person who is or would be, or but for subsection (1) would be, entitled to the benefit of the first‑mentioned covenant or proposed covenant; or

                     (b)  a person associated with the person referred to in paragraph (a);

is or would be, or but for subsection (1) would be, entitled.

             (5)  The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving effect to the covenant would, or would but for the operation of subsection 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by way of:

                     (a)  conduct that contravenes, or would but for the operation of subsection 88(8) or section 93 contravene, section 47; or

                     (b)  doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:

                              (i)  an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or

                             (ii)  by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or

                            (iii)  a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.

             (6)  This section does not apply to or in relation to a covenant or proposed covenant where the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant are persons who are associated with each other or are bodies corporate that are related to each other.

             (7)  For the purposes of this section, section 45C and subparagraph 87(3)(a)(ii), the first person and another person (the second person) shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if:

                     (a)  the first person is a body corporate and the second person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the first person in relation to the covenant or proposed covenant; or

                     (b)  the second person is a body corporate in relation to which the first person is in the position mentioned in subparagraph 4A(1)(a)(ii).

             (8)  The requiring by a person of the giving of, or the giving by a person of, a covenant in relation to which subsection 88(5) applies is not a contravention of subsection (2) of this section if:

                     (a)  the covenant is subject to a condition that the covenant will not come into force unless and until the person is granted an authorization to require the giving of, or to give, the covenant; and

                     (b)  the person applies for the grant of such an authorization within 14 days after the covenant is given;

but nothing in this subsection affects the application of paragraph (2)(b) or (c) in relation to the covenant.

             (9)  This section does not apply to or in relation to a covenant or proposed covenant if:

                     (a)  the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes;

                     (b)  the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or

                     (c)  the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.

45C  Covenants in relation to prices

             (1)  In the application of subsection 45B(1) in relation to a covenant that has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that subsection would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that subsection has effect as if the words “if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the first person or any person associated with the first person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services” were omitted.

             (2)  In the application of subsection 45B(2) in relation to a proposed covenant that has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them, in competition with each other, paragraph 45B(2)(a) has effect as if all the words after the words “require the giving of a covenant, or give a covenant” were omitted.

             (3)  For the purposes of this Act, a covenant shall not be taken not to have, or not to be likely to have, the effect, or a proposed covenant shall not be taken not to have the purpose, or not to have, or not to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of:

                     (a)  the form of the covenant or proposed covenant; or

                     (b)  any description given to the covenant by any of the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant.

             (4)  For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions:

                     (a)  a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re‑supply of the goods or services by persons to whom the goods or services are supplied by the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them; and

                     (b)  a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re‑supply of the goods or services by persons to whom the goods or services are supplied by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them.

             (5)  The reference in subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.

45D  Secondary boycotts for the purpose of causing substantial loss or damage

             (1)  A person must not, in concert with a second person, engage in conduct:

                     (a)  that hinders or prevents:

                              (i)  a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or

                             (ii)  a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

                     (b)  that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

Note 1:       Conduct that would otherwise contravene this section can be authorised under subsection 88(7).

Note 2:       This section also has effect subject to section 45DD, which deals with permitted boycotts.

             (2)  A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

45DA  Secondary boycotts for the purpose of causing substantial lessening of competition

             (1)  A person must not, in concert with a second person, engage in conduct:

                     (a)  that hinders or prevents:

                              (i)  a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or

                             (ii)  a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

                     (b)  that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.

Note 1:       Conduct that would otherwise contravene this section can be authorised under subsection 88(7).

Note 2:       This section also has effect subject to section 45DD, which deals with permitted boycotts.

             (2)  A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

Note:          This version of Part IV does not contain an equivalent of section 45DB of the Competition and Consumer Act 2010.

45DC  Involvement and liability of employee organisations

Certain organisations taken to be acting in concert

             (1)  If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D and 45DA:

                     (a)  to engage in that conduct in concert with the participants; and

                     (b)  to have engaged in that conduct for the purposes for which the participants engaged in it.

Consequences of organisation contravening subsection 45D(1) or 45DA(1)

             (2)  The consequences of an organisation of employees engaging, or being taken by subsection (1) to engage, in conduct in concert with any of its members or officers in contravention of subsection 45D(1) or 45DA(1) are as set out in subsections (3), (4) and (5).

Loss or damage taken to have been caused by organisation’s conduct

             (3)  Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation.

Taking proceedings if organisation is a body corporate

             (4)  If the organisation is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct.

Taking proceedings if organisation is not a body corporate

             (5)  If the organisation is not a body corporate:

                     (a)  a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and

                     (b)  subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section 77; and

                     (c)  the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section 77 is the penalty applicable under section 76 in relation to a body corporate; and

                     (d)  except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section 77 or 82 against any of the members or officers of the organisation; and

                     (e)  for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section 77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests:

                              (i)  any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held;

                             (ii)  any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;

                            (iii)  any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and

                      (f)  if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.

45DD  Situations in which boycotts permitted

Dominant purpose of conduct relates to employment
matters—conduct by a person

             (1)  A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.

Dominant purpose of conduct relates to employment
matters—conduct by employee organisation and employees

             (2)  If:

                     (a)  an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:

                              (i)  an organisation of employees; or

                             (ii)  an officer of an organisation of employees; and

                     (b)  the conduct is only engaged in by the persons covered by paragraph (a); and

                     (c)  the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);

the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in the conduct.

Dominant purpose of conduct relates to environmental protection or consumer protection

             (3)  A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if:

                     (a)  the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and

                     (b)  engaging in the conduct is not industrial action.

Note 1:       If an environmental organisation or a consumer organisation is a body corporate:

(a)    it is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption; and

(b)    each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.

Note 2:       If an environmental organisation or a consumer organisation is not a body corporate:

(a)    it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1) and 45DA(1) (consequently, this exemption does not cover the organisation as such); but

(b)    each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.

Meaning of industrial action—basic definition

             (4)  In subsection (3), industrial action means:

                     (a)  the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

                              (i)  the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or

                             (ii)  the work is performed, or the practice is adopted, in connection with an industrial dispute; or

                     (b)  a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or

                     (c)  a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

                     (d)  a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.

For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.

Meaning of industrial action—further clarification

             (5)  For the purposes of subsection (3):

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and

                     (b)  a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

Subsections (1), (2) and (3) do not protect people not covered by them

             (6)  In applying subsection 45D(1) or 45DA(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.

Note:          Section 415 of the Fair Work Act 2009 limits the right to bring actions under the Competition Code in respect of industrial action that is protected action for the purposes of that section.

45E  Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services

Situations to which section applies

             (1)  This section applies in the following situations:

                     (a)  a supply situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or

                     (b)  an acquisition situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).

Note :         For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).

Prohibition in a supply situation

             (2)  In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

                     (a)  preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or

                     (b)  preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:

                              (i)  that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and

                             (ii)  that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

Prohibition in an acquisition situation

             (3)  In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

                     (a)  preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or

                     (b)  preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:

                              (i)  that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and

                             (ii)  that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

No contravention if second person gives written consent to written contract etc.

             (4)  Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person.

Meaning of accustomed to supply

             (5)  In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):

                     (a)  a regular supplier of such goods or services to the second person; or

                     (b)  the latest supplier of such goods or services to the second person; or

                     (c)  a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.

Exception to subsection (5)

             (6)  If:

                     (a)  goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and

                     (b)  the period has ended; and

                     (c)  after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;

then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person.

Meaning of accustomed to acquire

             (7)  In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):

                     (a)  a regular acquirer of such goods or services from the second person; or

                     (b)  a person who, when last acquiring such goods or services, acquired them from the second person; or

                     (c)  a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.

Exception to subsection (7)

             (8)  If:

                     (a)  goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and

                     (b)  the period has ended; and

                     (c)  after the end of the period, the second person has refused to supply such goods or services to the first person;

then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person.

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).

45EA  Provisions contravening section 45E not to be given effect

                   A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:

                     (a)  contravened subsection 45E(2) or (3); or

                     (b)  would have contravened subsection 45E(2) or (3) if:

                              (i)  section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and

                             (ii)  the words “is in writing and” and “written” were not included in subsection 45E(4).

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).

45EB  Sections 45D to 45EA do not affect operation of other provisions of Part

                   Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.

46  Misuse of market power

             (1)  A person (the first person) who has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:

                     (a)  eliminating or substantially damaging a competitor of the first person or of a body corporate that is related to the first person in that or any other market;

                     (b)  preventing the entry of a person into that or any other market; or

                     (c)  deterring or preventing a person from engaging in competitive conduct in that or any other market.

     (1AAA)  If a person supplies goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying the goods or services, the person may contravene subsection (1) even if the person cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services.

       (1AA)  A person that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying such goods or services, for the purpose of:

                     (a)  eliminating or substantially damaging a competitor of the person or of a body corporate that is related to the person in that or any other market; or

                     (b)  preventing the entry of a person into that or any other market; or

                     (c)  deterring or preventing a person from engaging in competitive conduct in that or any other market.

        (1AB)  For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial share of a market, the Court may have regard to the number and size of the competitors of the person in the market.

          (1A)  For the purposes of subsections (1) and (1AA):

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

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

             (2)  If:

                     (a)  a body corporate that is related to a person (the first person) has, or 2 or more bodies corporate each of which is related to the one person (the first person) together have, a substantial degree of power in a market; or

                     (b)  a person (the first person) and a body corporate that is, or a person (the first person) and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in a market;

the first person shall be taken for the purposes of this section to have a substantial degree of power in that market.

             (3)  In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the court shall have regard to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:

                     (a)  competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or

                     (b)  persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market.

          (3A)  In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the court may have regard to the power the first person or bodies corporate has or have in that market that results from:

                     (a)  any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the first person or bodies corporate has or have, or may have, with another party or other parties; and

                     (b)  any covenants, or proposed covenants, that the first person or bodies corporate is or are, or would be, bound by or entitled to the benefit of.

          (3B)  Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate has or have in a market.

          (3C)  For the purposes of this section, without limiting the matters to which the court may have regard for the purpose of determining whether a person has a substantial degree of power in a market, a person may have a substantial degree of power in a market even though:

                     (a)  the person does not substantially control the market; or

                     (b)  the person does not have absolute freedom from constraint by the conduct of:

                              (i)  competitors, or potential competitors, of the person in that market; or

                             (ii)  persons to whom or from whom the person supplies or acquires goods or services in that market.

          (3D)  To avoid doubt, for the purposes of this section, more than 1 person may have a substantial degree of power in a market.

             (4)  In this section:

                     (a)  a reference to power is a reference to market power;

                     (b)  a reference to a market is a reference to a market for goods or services; and

                     (c)  a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

          (4A)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person has contravened subsection (1), the court may have regard to:

                     (a)  any conduct of the person that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the person of supplying such goods or services; and

                     (b)  the reasons for that conduct.

             (5)  Without extending by implication the meaning of subsection (1), a person shall not be taken to contravene that subsection by reason only that the person acquires plant or equipment.

             (6)  This section does not prevent a person from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, by reason that an authorization or clearance is in force or by reason of the operation of subsection 45(8A) or section 93.

          (6A)  In determining for the purposes of this section whether, by engaging in conduct, a person has taken advantage of the person’s substantial degree of power in a market, the court may have regard to any or all of the following:

                     (a)  whether the conduct was materially facilitated by the person’s substantial degree of power in the market;

                     (b)  whether the person engaged in the conduct in reliance on the person’s substantial degree of power in the market;

                     (c)  whether it is likely that the person would have engaged in the conduct if the person did not have a substantial degree of power in the market;

                     (d)  whether the conduct is otherwise related to the person’s substantial degree of power in the market.

This subsection does not limit the matters to which the court may have regard.

             (7)  Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have taken advantage of the person’s power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.

47  Exclusive dealing

             (1)  Subject to this section, a person shall not, in trade or commerce, engage in the practice of exclusive dealing.

             (2)  A person (the first person) engages in the practice of exclusive dealing if the first person:

                     (a)  supplies, or offers to supply, goods or services;

                     (b)  supplies, or offers to supply, goods or services at a particular price; or

                     (c)  gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;

on the condition that the person (the second person) to whom the first person supplies, or offers or proposes to supply, the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate:

                     (d)  will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;

                     (e)  will not, or will not except to a limited extent, re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or

                      (f)  in the case where the first person supplies or would supply goods or services, will not re‑supply the goods or services to any person, or will not, or will not except to a limited extent, re‑supply the goods or services:

                              (i)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                             (ii)  in particular places or classes of places or in places other than particular places or classes of places.

             (3)  A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:

                     (a)  to supply goods or services to a second person;

                     (b)  to supply goods or services to a second person at a particular price; or

                     (c)  to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a second person;

for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:

                     (d)  has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;

                     (e)  has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or

                      (f)  has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person to any person, or has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person:

                              (i)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                             (ii)  in particular places or classes of places or in places other than particular places or classes of places.

             (4)  A person (the first person) also engages in the practice of exclusive dealing if the first person:

                     (a)  acquires, or offers to acquire, goods or services; or

                     (b)  acquires, or offers to acquire, goods or services at a particular price;

on the condition that the person (the second person) from whom the first person acquires or offers to acquire the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:

                     (c)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                     (d)  in particular places or classes of places or in places other than particular places or classes of places.

             (5)  A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:

                     (a)  to acquire goods or services from a second person; or

                     (b)  to acquire goods or services at a particular price from a second person;

for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description:

                     (c)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                     (d)  in particular places or classes of places or in places other than particular places or classes of places.

             (6)  A person (the first person) also engages in the practice of exclusive dealing if the first person:

                     (a)  supplies, or offers to supply, goods or services;

                     (b)  supplies, or offers to supply, goods or services at a particular price; or

                     (c)  gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;

on the condition that the person (the second person) to whom the first person supplies or offers or proposes to supply the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.

             (7)  A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:

                     (a)  to supply goods or services to a second person;

                     (b)  to supply goods or services at a particular price to a second person; or

                     (c)  to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a second person;

for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.

             (8)  A person (the first person) also engages in the practice of exclusive dealing if the first person grants or renews, or makes it known that the first person will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:

                     (a)  will not, or will not except to a limited extent:

                              (i)  acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or

                             (ii)  re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;

                     (b)  will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:

                              (i)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                             (ii)  in particular places or classes of places or in places other than particular places or classes of places; or

                     (c)  will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.

             (9)  A person (the first person) also engages in the practice of exclusive dealing if the first person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:

                     (a)  has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;

                     (b)  has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;

                     (c)  has supplied goods or services, or goods or services of a particular kind or description:

                              (i)  to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

                             (ii)  in particular places or classes of places or in places other than particular places or classes of places; or

                     (d)  has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.

           (10)  Subsection (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless:

                     (a)  the engaging by the person in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or

                     (b)  the engaging by the person in that conduct, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.

        (10A)  Subsection (1) does not apply to a person engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:

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

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

           (11)  Subsections (8) and (9) do not apply with respect to:

                     (a)  conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or

                     (b)  conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.

           (12)  Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.

           (13)  In this section:

                     (a)  a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;

                     (b)  a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which:

                              (i)  the person engaging in the conduct or any body corporate related to that person; or

                             (ii)  any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate;

                            supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and

                     (c)  a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the person engaging in the conduct or any other person whose business dealings are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those persons, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.

48  Resale price maintenance

                   A person shall not engage in the practice of resale price maintenance.

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.

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

             (1)  A person must not directly or indirectly:

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

                     (b)  acquire any assets of a person;

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

Note:          The person will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).

             (3)  Without limiting the matters that may be taken into account for the purposes of subsection (1) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:

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

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

                     (c)  the level of concentration in the market;

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

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

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

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

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

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

             (4)  Where:

                     (a)  a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;

                     (b)  the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted a clearance or an authorization to acquire the shares or assets; and

                     (c)  the person applied for the grant of such a clearance or an authorization before the expiration of 14 days after the contract was entered into;

the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before:

                     (d)  the application for the clearance or authorization is disposed of; or

                     (e)  the contract ceases to be subject to the condition;

whichever first happens.

             (5)  For the purposes of subsection (4), an application for a clearance shall be taken to be disposed of:

                     (a)  in a case to which paragraph (b) of this subsection does not apply—at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the clearance; or

                     (b)  if an application is made to the Tribunal for a review of the determination by the Commission of the application for the clearance—at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.

          (5A)  For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application.

             (6)  In this section:

market means a substantial market for goods or services in:

                     (a)  Australia; or

                     (b)  a State; or

                     (c)  a Territory; or

                     (d)  a region of Australia.

51  Exceptions

             (1)  In deciding whether a person has contravened this Part, the following must be disregarded:

                     (a)  anything that is disregarded for the purposes of Part IV of the Competition and Consumer Act 2010 because of subsection 51(1) of that Act;

                     (b)  anything done in a State, if the thing is specified in, and specifically authorised by:

                              (i)  an Act passed by the Parliament of that State; or

                             (ii)  regulations made under such an Act;

                     (c)  anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an enactment as defined in section 3 of the Australian Capital Territory (Self‑Government) Act 1988; or

                             (ii)  regulations made under such an enactment;

                     (d)  anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an enactment as defined in section 4 of the Northern Territory (Self‑Government) Act 1978; or

                             (ii)  regulations made under such an enactment;

                     (e)  anything done in another Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an Ordinance of that Territory; or

                             (ii)  regulations made under such an Ordinance.

          (1A)  Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:

                     (a)  a licence or other instrument issued or made under the law specifies one or both of the following:

                              (i)  the person authorised to engage in the conduct;

                             (ii)  the place where the conduct is to occur; and

                     (b)  the law specifies the attributes of the conduct except those mentioned in paragraph (a).

For this purpose, law means a State Act, enactment or Ordinance.

          (1B)  Subsections (1) and (1A) apply regardless of when the State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued.

          (1C)  The operation of subsection (1) (other than paragraph (1)(a)) is subject to the following limitations:

                     (a)  in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to the Competition Code;

                     (b)  paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50;

                     (c)  regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation;

                     (d)  regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations that:

                              (i)  were made for the purposes of the subparagraph concerned; and

                             (ii)  came into operation more than 2 years before the particular thing happened.

             (2)  In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45E, 45EA or 48 has been committed, regard shall not be had:

                     (a)  to any act done in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees;

                     (b)  to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract;

                     (c)  to any provision of a contract, arrangement or understanding, being a provision obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia International Limited or by a prescribed association or body;

                     (d)  to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he or she is, or after he or she ceases to be, a partner;

                     (e)  in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business—to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business; or

                     (g)  to any provision of a contract, arrangement or understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished to the Commission before the expiration of 14 days after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8 September 1976, whichever was the later.

          (2A)  In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had to any acts done, otherwise than in the course of trade or commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services.

             (3)  A contravention of a provision of this Part other than section 46 or 48 shall not be taken to have been committed by reason of:

                     (a)  the imposing of, or giving effect to, a condition of:

                              (i)  a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights within the meaning of the Circuit Layouts Act 1989, or by a person who has applied for a patent or for the registration of a design; or

                             (ii)  an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design;

                            to the extent that the condition relates to:

                            (iii)  the invention to which the patent or application for a patent relates or articles made by the use of that invention;

                            (iv)  goods in respect of which the design is, or is proposed to be, registered and to which it is applied;

                             (v)  the work or other subject matter in which the copyright subsists; or

                            (vi)  the eligible layout in which the EL rights subsist;

                     (b)  the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955, or the giving effect to such a provision; or

                     (c)  the inclusion in a contract, arrangement or understanding between:

                              (i)  the registered proprietor of a trade mark other than a certification trade mark; and

                             (ii)  a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his or her becoming registered as such a registered user;

                            of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied, or the giving effect to the provision to that extent.

             (4)  This section applies in determining whether a provision of a contract is unenforceable by reason of subsection 45(1), or whether a covenant is unenforceable by reason of subsection 45B(1), in like manner as it applies in determining whether a contravention of a provision of this Part has been committed.


Schedule 2The Australian Consumer Law

Note:       See Part XI.

  

  

Chapter 1—Introduction

1  Application of this Schedule

2  Definitions

3  Meaning of consumer

4  Misleading representations with respect to future matters

5  When donations are treated as supplies or acquisitions

6  Related bodies corporate

7  Meaning of manufacturer

8  Goods affixed to land or premises

9  Meaning of safety defect in relation to goods

10  Asserting a right to payment

11  References to acquisition, supply and re‑supply

12  Application of Schedule in relation to leases and licences of land and buildings

13  Loss or damage to include injury

14  Meaning of continuing credit contract

15  Contraventions of this Schedule

16  Severability

17  References to provisions in this Schedule

Chapter 2—General protections

Part 2‑1—Misleading or deceptive conduct

18  Misleading or deceptive conduct

19  Application of this Part to information providers

Part 2‑2—Unconscionable conduct

20  Unconscionable conduct within the meaning of the unwritten law

21  Unconscionable conduct

22  Unconscionable conduct in business transactions

Part 2‑3—Unfair contract terms

23  Unfair terms of consumer contracts

24  Meaning of unfair

25  Examples of unfair terms

26  Terms that define main subject matter of consumer contracts etc. are unaffected

27  Standard form contracts

28  Contracts to which this Part does not apply

Chapter 3—Specific protections

Part 3‑1—Unfair practices

Division 1—False or misleading representations etc.

29  False or misleading representations about goods or services

30  False or misleading representations about sale etc. of land

31  Misleading conduct relating to employment

32  Offering rebates, gifts, prizes etc.

33  Misleading conduct as to the nature etc. of goods

34  Misleading conduct as to the nature etc. of services

35  Bait advertising

36  Wrongly accepting payment

37  Misleading representations about certain business activities

38  Application of provisions of this Division to information providers

Division 2—Unsolicited supplies

39  Unsolicited cards etc.

40  Assertion of right to payment for unsolicited goods or services

41  Liability etc. of recipient for unsolicited goods

42  Liability of recipient for unsolicited services

43  Assertion of right to payment for unauthorised entries or advertisements

Division 3—Pyramid schemes

44  Participation in pyramid schemes

45  Meaning of pyramid scheme

46  Marketing schemes as pyramid schemes

Division 4—Pricing

47  Multiple pricing

48  Single price to be specified in certain circumstances

Division 5—Other unfair practices

49  Referral selling

50  Harassment and coercion

Part 3‑2—Consumer transactions

Division 1—Consumer guarantees

Subdivision A—Guarantees relating to the supply of goods

51  Guarantee as to title

52  Guarantee as to undisturbed possession

53  Guarantee as to undisclosed securities etc.

54  Guarantee as to acceptable quality

55  Guarantee as to fitness for any disclosed purpose etc.

56  Guarantee relating to the supply of goods by description

57  Guarantees relating to the supply of goods by sample or demonstration model

58  Guarantee as to repairs and spare parts

59  Guarantee as to express warranties

Subdivision B—Guarantees relating to the supply of services

60  Guarantee as to due care and skill

61  Guarantees as to fitness for a particular purpose etc.

62  Guarantee as to reasonable time for supply

63  Services to which this Subdivision does not apply

Subdivision C—Guarantees not to be excluded etc. by contract

64  Guarantees not to be excluded etc. by contract

64A  Limitation of liability for failures to comply with guarantees

Subdivision D—Miscellaneous

65  Application of this Division to supplies of gas, electricity and telecommunications

66  Display notices

67  Conflict of laws

68  Convention on Contracts for the International Sale of Goods

Division 2—Unsolicited consumer agreements

Subdivision A—Introduction

69  Meaning of unsolicited consumer agreement

70  Presumption that agreements are unsolicited consumer agreements

71  Meaning of dealer

72  Meaning of negotiation

Subdivision B—Negotiating unsolicited consumer agreements

73  Permitted hours for negotiating an unsolicited consumer agreement

74  Disclosing purpose and identity

75  Ceasing to negotiate on request

76  Informing person of termination period etc.

77  Liability of suppliers for contraventions by dealers

Subdivision C—Requirements for unsolicited consumer agreements etc.

78  Requirement to give document to the consumer

79  Requirements for all unsolicited consumer agreements etc.

80  Additional requirements for unsolicited consumer agreements not negotiated by telephone

81  Requirements for amendments of unsolicited consumer agreements

Subdivision D—Terminating unsolicited consumer agreements

82  Terminating an unsolicited consumer agreement during the termination period

83  Effect of termination

84  Obligations of suppliers on termination

85  Obligations and rights of consumers on termination

86  Prohibition on supplies etc. for 10 business days

87  Repayment of payments received after termination

88  Prohibition on recovering amounts after termination

Subdivision E—Miscellaneous

89  Certain provisions of unsolicited consumer agreements void

90  Waiver of rights

91  Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.

92  Application of this Division to supplies to third parties

93  Effect of contravening this Division

94  Regulations may limit the application of this Division

95  Application of this Division to certain conduct covered by the Corporations Act

Division 3—Lay‑by agreements

96  Lay‑by agreements must be in writing etc.

97  Termination of lay‑by agreements by consumers

98  Termination of lay‑by agreements by suppliers

99  Effect of termination

Division 4—Miscellaneous

100  Supplier must provide proof of transaction etc.

101  Consumer may request an itemised bill

102  Prescribed requirements for warranties against defects

103  Repairers must comply with prescribed requirements

Part 3‑3—Safety of consumer goods and product related services

Division 1—Safety standards

104  Making safety standards for consumer goods and product related services

105  Declaring safety standards for consumer goods and product related services

106  Supplying etc. consumer goods that do not comply with safety standards

107  Supplying etc. product related services that do not comply with safety standards

108  Requirement to nominate a safety standard

Division 2—Bans on consumer goods and product related services

Subdivision A—Interim bans

109  Interim bans on consumer goods or product related services that will or may cause injury to any person etc.

110  Places in which interim bans apply

111  Ban period for interim bans

112  Interaction of multiple interim bans

113  Revocation of interim bans

Subdivision B—Permanent bans

114  Permanent bans on consumer goods or product related services

115  Places in which permanent bans apply

116  When permanent bans come into force

117  Revocation of permanent bans

Subdivision C—Compliance with interim bans and permanent bans

118  Supplying etc. consumer goods covered by a ban

119  Supplying etc. product related services covered by a ban

Subdivision D—Temporary exemption from mutual recognition principles

120  Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997

121  Temporary exemption under the Mutual Recognition Act 1992

Division 3—Recall of consumer goods

Subdivision A—Compulsory recall of consumer goods

122  Compulsory recall of consumer goods

123  Contents of a recall notice

124  Obligations of a supplier in relation to a recall notice

125  Notification by persons who supply consumer goods outside Australia if there is compulsory recall

126  Interaction of multiple recall notices

127  Compliance with recall notices

Subdivision B—Voluntary recall of consumer goods

128  Notification requirements for a voluntary recall of consumer goods

Division 4—Safety warning notices

129  Safety warning notices about consumer goods and product related services

130  Announcement of the results of an investigation etc.

Division 5—Consumer goods, or product related services, associated with death or serious injury or illness

131  Suppliers to report consumer goods associated with the death or serious injury or illness of any person

132  Suppliers to report product related services associated with the death or serious injury or illness of any person

132A  Confidentiality of notices given under this Division

Division 6—Miscellaneous

133  Liability under a contract of insurance

Part 3‑4—Information standards

134  Making information standards for goods and services

135  Declaring information standards for goods and services

136  Supplying etc. goods that do not comply with information standards

137  Supplying etc. services that do not comply with information standards

Part 3‑5—Liability of manufacturers for goods with safety defects

Division 1—Actions against manufacturers for goods with safety defects

138  Liability for loss or damage suffered by an injured individual

139  Liability for loss or damage suffered by a person other than an injured individual

140  Liability for loss or damage suffered by a person if other goods are destroyed or damaged

141  Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged

142  Defences to defective goods actions

Division 2—Defective goods actions

143  Time for commencing defective goods actions

144  Liability joint and several

145  Survival of actions

146  No defective goods action where workers’ compensation law etc. applies

147  Unidentified manufacturer

148  Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard

149  Representative actions by the regulator

Division 3—Miscellaneous

150  Application of all or any provisions of this Part etc. not to be excluded or modified

Chapter 4—Offences

Part 4‑1—Offences relating to unfair practices

Division 1—False or misleading representations etc.

151  False or misleading representations about goods or services

152  False or misleading representations about sale etc. of land

153  Misleading conduct relating to employment

154  Offering rebates, gifts, prizes etc.

155  Misleading conduct as to the nature etc. of goods

156  Misleading conduct as to the nature etc. of services

157  Bait advertising

158  Wrongly accepting payment

159  Misleading representations about certain business activities

160  Application of provisions of this Division to information providers

Division 2—Unsolicited supplies

161  Unsolicited cards etc.

162  Assertion of right to payment for unsolicited goods or services

163  Assertion of right to payment for unauthorised entries or advertisements

Division 3—Pyramid schemes

164  Participation in pyramid schemes

Division 4—Pricing

165  Multiple pricing</