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Competition and Consumer Act 2010

Authoritative Version
  • - C2013C00004
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012
An Act relating to competition, fair trading and consumer protection, and for other purposes
Administered by: Industry, Innovation, Climate Change, Science, Research and Tertiary Education; Infrastructure and Transport; Treasury; Broadband, Communications and the Digital Economy
Registered 03 Jan 2013
Start Date 03 Dec 2012
End Date 11 Apr 2013
Table of contents.

Competition and Consumer Act 2010

Act No. 51 of 1974 as amended

This compilation was prepared on 19 December 2012
taking into account amendments up to Act No. 169 of 2012

Volume 3 includes:    Table of Contents
                                    Schedules 1 and 2
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Notes 2 – 4
                                    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

44ZZRM Cartel 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 1A—Anti‑competitive disclosure of pricing and other information      21

44ZZS... Definitions........................................................................................ 21

44ZZT... Goods and services to which this Division applies........................... 21

44ZZU.. Provisions affecting whether a person has disclosed information to another person                21

44ZZV.. Meaning of private disclosure to competitors................................... 23

44ZZW.. Person must not make private disclosure of pricing information etc. to competitors                24

44ZZX.. Person must not make disclosure of pricing information etc. for purpose of substantially lessening competition    24

44ZZY.. Exceptions that apply to sections 44ZZW and 44ZZX...................... 25

44ZZZ... Additional exceptions that only apply to section 44ZZW.................. 27

44ZZZA Burden of proof................................................................................ 30

44ZZZB Mere receipt of information does not constitute being knowingly involved in contravention   30

Division 2—Other provisions                                                                                 31

45.......... Contracts, arrangements or understandings that restrict dealings or affect competition            31

45B....... Covenants affecting competition....................................................... 34

45C....... Covenants in relation to prices.......................................................... 37

45D....... Secondary boycotts for the purpose of causing substantial loss or damage              39

45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition               40

45DC.... Involvement and liability of employee organisations......................... 41

45DD.... Situations in which boycotts permitted.............................................. 42

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

45EA..... Provisions contravening section 45E not to be given effect.............. 48

45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part               49

46.......... Misuse of market power................................................................... 49

47.......... Exclusive dealing.............................................................................. 52

48.......... Resale price maintenance................................................................... 59

49.......... Dual listed company arrangements that affect competition................ 59

50.......... Prohibition of acquisitions that would result in a substantial lessening of competition             60

51.......... Exceptions......................................................................................... 62

Schedule 2—The Australian Consumer Law                                                     67

Chapter 1—Introduction                                                                                                 79

1............ Application of this Schedule............................................................. 79

2............ Definitions........................................................................................ 79

3............ Meaning of consumer....................................................................... 92

4............ Misleading representations with respect to future matters................. 95

5............ When donations are treated as supplies or acquisitions..................... 96

6............ Related bodies corporate................................................................... 97

7............ Meaning of manufacturer................................................................. 97

8............ Goods affixed to land or premises.................................................... 98

9............ Meaning of safety defect in relation to goods.................................... 98

10.......... Asserting a right to payment............................................................. 99

11.......... References to acquisition, supply and re‑supply............................. 100

12.......... Application of Schedule in relation to leases and licences of land and buildings      101

13.......... Loss or damage to include injury.................................................... 101

14.......... Meaning of continuing credit contract............................................ 101

15.......... Contraventions of this Schedule...................................................... 102

16.......... Severability..................................................................................... 102

17.......... References to provisions in this Schedule....................................... 103

Chapter 2—General protections                                                                               104

Part 2‑1—Misleading or deceptive conduct                                                 104

18.......... Misleading or deceptive conduct..................................................... 104

19.......... Application of this Part to information providers............................ 104

Part 2‑2—Unconscionable conduct                                                                   106

20.......... Unconscionable conduct within the meaning of the unwritten law.. 106

21.......... Unconscionable conduct in connection with goods or services....... 106

22.......... Matters the court may have regard to for the purposes of section 21 107

22A....... Presumptions relating to whether representations are misleading.... 110

Part 2‑3—Unfair contract terms                                                                        111

23.......... Unfair terms of consumer contracts................................................ 111

24.......... Meaning of unfair........................................................................... 111

25.......... Examples of unfair terms................................................................ 112

26.......... Terms that define main subject matter of consumer contracts etc. are unaffected      113

27.......... Standard form contracts.................................................................. 113

28.......... Contracts to which this Part does not apply.................................... 114

Chapter 3—Specific protections                                                                               115

Part 3‑1—Unfair practices                                                                                    115

Division 1—False or misleading representations etc.                                   115

29.......... False or misleading representations about goods or services.......... 115

30.......... False or misleading representations about sale etc. of land.............. 116

31.......... Misleading conduct relating to employment.................................... 117

32.......... Offering rebates, gifts, prizes etc..................................................... 117

33.......... Misleading conduct as to the nature etc. of goods........................... 119

34.......... Misleading conduct as to the nature etc. of services........................ 119

35.......... Bait advertising............................................................................... 119

36.......... Wrongly accepting payment............................................................ 120

37.......... Misleading representations about certain business activities........... 121

38.......... Application of provisions of this Division to information providers 122

Division 2—Unsolicited supplies                                                                        124

39.......... Unsolicited cards etc....................................................................... 124

40.......... Assertion of right to payment for unsolicited goods or services..... 125

41.......... Liability etc. of recipient for unsolicited goods................................ 126

42.......... Liability of recipient for unsolicited services................................... 127

43.......... Assertion of right to payment for unauthorised entries or advertisements                127

Division 3—Pyramid schemes                                                                            130

44.......... Participation in pyramid schemes.................................................... 130

45.......... Meaning of pyramid scheme........................................................... 130

46.......... Marketing schemes as pyramid schemes......................................... 131

Division 4—Pricing                                                                                               133

47.......... Multiple pricing............................................................................... 133

48.......... Single price to be specified in certain circumstances....................... 134

Division 5—Other unfair practices                                                                   137

49.......... Referral selling................................................................................ 137

50.......... Harassment and coercion................................................................ 137

Part 3‑2—Consumer transactions                                                                     138

Division 1—Consumer guarantees                                                                    138

Subdivision A—Guarantees relating to the supply of goods                       138

51.......... Guarantee as to title......................................................................... 138

52.......... Guarantee as to undisturbed possession.......................................... 138

53.......... Guarantee as to undisclosed securities etc....................................... 139

54.......... Guarantee as to acceptable quality................................................... 140

55.......... Guarantee as to fitness for any disclosed purpose etc..................... 141

56.......... Guarantee relating to the supply of goods by description................ 142

57.......... Guarantees relating to the supply of goods by sample or demonstration model       142

58.......... Guarantee as to repairs and spare parts........................................... 143

59.......... Guarantee as to express warranties................................................. 143

Subdivision B—Guarantees relating to the supply of services                   144

60.......... Guarantee as to due care and skill................................................... 144

61.......... Guarantees as to fitness for a particular purpose etc........................ 144

62.......... Guarantee as to reasonable time for supply..................................... 145

63.......... Services to which this Subdivision does not apply......................... 145

Subdivision C—Guarantees not to be excluded etc. by contract                145

64.......... Guarantees not to be excluded etc. by contract................................ 145

64A....... Limitation of liability for failures to comply with guarantees.......... 146

Subdivision D—Miscellaneous                                                                            147

65.......... Application of this Division to supplies of gas, electricity and telecommunications 147

66.......... Display notices................................................................................ 147

67.......... Conflict of laws............................................................................... 148

68.......... Convention on Contracts for the International Sale of Goods......... 149

Division 2—Unsolicited consumer agreements                                              150

Subdivision A—Introduction                                                                               150

69.......... Meaning of unsolicited consumer agreement................................. 150

70.......... Presumption that agreements are unsolicited consumer agreements 151

71.......... Meaning of dealer........................................................................... 151

72.......... Meaning of negotiation................................................................... 152

Subdivision B—Negotiating unsolicited consumer agreements                 152

73.......... Permitted hours for negotiating an unsolicited consumer agreement 152

74.......... Disclosing purpose and identity...................................................... 152

75.......... Ceasing to negotiate on request....................................................... 153

76.......... Informing person of termination period etc..................................... 154

77.......... Liability of suppliers for contraventions by dealers......................... 154

Subdivision C—Requirements for unsolicited consumer agreements etc. 154

78.......... Requirement to give document to the consumer.............................. 154

79.......... Requirements for all unsolicited consumer agreements etc.............. 155

80.......... Additional requirements for unsolicited consumer agreements not negotiated by telephone     156

81.......... Requirements for amendments of unsolicited consumer agreements 157

Subdivision D—Terminating unsolicited consumer agreements               157

82.......... Terminating an unsolicited consumer agreement during the termination period        157

83.......... Effect of termination........................................................................ 159

84.......... Obligations of suppliers on termination.......................................... 159

85.......... Obligations and rights of consumers on termination....................... 160

86.......... Prohibition on supplies etc. for 10 business days........................... 161

87.......... Repayment of payments received after termination......................... 162

88.......... Prohibition on recovering amounts after termination....................... 162

Subdivision E—Miscellaneous                                                                            163

89.......... Certain provisions of unsolicited consumer agreements void.......... 163

90.......... Waiver of rights.............................................................................. 164

91.......... Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.    164

92.......... Application of this Division to supplies to third parties.................. 164

93.......... Effect of contravening this Division................................................ 164

94.......... Regulations may limit the application of this Division.................... 165

95.......... Application of this Division to certain conduct covered by the Corporations Act    165

Division 3—Lay‑by agreements                                                                         166

96.......... Lay‑by agreements must be in writing etc....................................... 166

97.......... Termination of lay‑by agreements by consumers............................ 166

98.......... Termination of lay‑by agreements by suppliers............................... 167

99.......... Effect of termination........................................................................ 167

Division 4—Miscellaneous                                                                                   168

100........ Supplier must provide proof of transaction etc................................ 168

101........ Consumer may request an itemised bill........................................... 169

102........ Prescribed requirements for warranties against defects................... 170

103........ Repairers must comply with prescribed requirements..................... 170

Part 3‑3—Safety of consumer goods and product related services 171

Division 1—Safety standards                                                                              171

104........ Making safety standards for consumer goods and product related services             171

105........ Declaring safety standards for consumer goods and product related services          172

106........ Supplying etc. consumer goods that do not comply with safety standards               172

107........ Supplying etc. product related services that do not comply with safety standards    174

108........ Requirement to nominate a safety standard..................................... 174

Division 2—Bans on consumer goods and product related services         176

Subdivision A—Interim bans                                                                              176

109........ Interim bans on consumer goods or product related services that will or may cause injury to any person etc.         176

110........ Places in which interim bans apply................................................. 177

111........ Ban period for interim bans............................................................. 177

112........ Interaction of multiple interim bans................................................. 178

113........ Revocation of interim bans.............................................................. 179

Subdivision B—Permanent bans                                                                        179

114........ Permanent bans on consumer goods or product related services..... 179

115........ Places in which permanent bans apply............................................ 180

116........ When permanent bans come into force............................................ 180

117........ Revocation of permanent bans........................................................ 180

 

Subdivision C—Compliance with interim bans and permanent bans       180

118........ Supplying etc. consumer goods covered by a ban........................... 180

119........ Supplying etc. product related services covered by a ban................ 181

Subdivision D—Temporary exemption from mutual recognition principles 182

120........ Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997       182

121........ Temporary exemption under the Mutual Recognition Act 1992....... 183

Division 3—Recall of consumer goods                                                             184

Subdivision A—Compulsory recall of consumer goods                               184

122........ Compulsory recall of consumer goods............................................ 184

123........ Contents of a recall notice............................................................... 184

124........ Obligations of a supplier in relation to a recall notice...................... 186

125........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall     186

126........ Interaction of multiple recall notices................................................ 187

127........ Compliance with recall notices........................................................ 187

Subdivision B—Voluntary recall of consumer goods                                   188

128........ Notification requirements for a voluntary recall of consumer goods 188

Division 4—Safety warning notices                                                                   191

129........ Safety warning notices about consumer goods and product related services            191

130........ Announcement of the results of an investigation etc....................... 191

Division 5—Consumer goods, or product related services, associated with death or serious injury or illness      193

131........ Suppliers to report consumer goods associated with the death or serious injury or illness of any person                193

132........ Suppliers to report product related services associated with the death or serious injury or illness of any person     194

132A..... Confidentiality of notices given under this Division....................... 196

Division 6—Miscellaneous                                                                                   198

133........ Liability under a contract of insurance............................................. 198

Part 3‑4—Information standards                                                                      199

134........ Making information standards for goods and services.................... 199

135........ Declaring information standards for goods and services................. 199

136........ Supplying etc. goods that do not comply with information standards 200

137........ Supplying etc. services that do not comply with information standards 201

Part 3‑5—Liability of manufacturers for goods with safety defects 203

Division 1—Actions against manufacturers for goods with safety defects 203

138........ Liability for loss or damage suffered by an injured individual........ 203

139........ Liability for loss or damage suffered by a person other than an injured individual   203

140........ Liability for loss or damage suffered by a person if other goods are destroyed or damaged    204

141........ Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged              204

142........ Defences to defective goods actions................................................ 205

Division 2—Defective goods actions                                                                 206

143........ Time for commencing defective goods actions................................ 206

144........ Liability joint and several................................................................ 206

145........ Survival of actions.......................................................................... 206

146........ No defective goods action where workers’ compensation law etc. applies               206

147........ Unidentified manufacturer............................................................... 206

148........ Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard........................................................................................... 207

149........ Representative actions by the regulator........................................... 208

Division 3—Miscellaneous                                                                                   209

150........ Application of all or any provisions of this Part etc. not to be excluded or modified                209

Chapter 4—Offences                                                                                                       210

Part 4‑1—Offences relating to unfair practices                                         210

Division 1—False or misleading representations etc.                                   210

151........ False or misleading representations about goods or services.......... 210

152........ False or misleading representations about sale etc. of land.............. 211

153........ Misleading conduct relating to employment.................................... 212

154........ Offering rebates, gifts, prizes etc..................................................... 213

155........ Misleading conduct as to the nature etc. of goods........................... 214

156........ Misleading conduct as to the nature etc. of services........................ 214

157........ Bait advertising............................................................................... 215

158........ Wrongly accepting payment............................................................ 216

159........ Misleading representations about certain business activities........... 218

160........ Application of provisions of this Division to information providers 219

Division 2—Unsolicited supplies                                                                        221

161........ Unsolicited cards etc....................................................................... 221

162........ Assertion of right to payment for unsolicited goods or services..... 222

163........ Assertion of right to payment for unauthorised entries or advertisements                223

Division 3—Pyramid schemes                                                                            225

164........ Participation in pyramid schemes.................................................... 225

Division 4—Pricing                                                                                               226

165........ Multiple pricing............................................................................... 226

166........ Single price to be specified in certain circumstances....................... 226

Division 5—Other unfair practices                                                                   228

167........ Referral selling................................................................................ 228

168........ Harassment and coercion................................................................ 228

Part 4‑2—Offences relating to consumer transactions                          230

Division 1—Consumer guarantees                                                                    230

169........ Display notices................................................................................ 230

Division 2—Unsolicited consumer agreements                                              231

Subdivision A—Negotiating unsolicited consumer agreements                 231

170........ Permitted hours for negotiating an unsolicited consumer agreement 231

171........ Disclosing purpose and identity...................................................... 231

172........ Ceasing to negotiate on request....................................................... 232

173........ Informing person of termination period etc..................................... 233

Subdivision B—Requirements for unsolicited consumer agreements etc. 234

174........ Requirement to give document to the consumer.............................. 234

175........ Requirements for all unsolicited consumer agreements etc.............. 235

176........ Additional requirements for unsolicited consumer agreements not negotiated by telephone     236

177........ Requirements for amendments of unsolicited consumer agreements 237

Subdivision C—Terminating unsolicited consumer agreements               237

178........ Obligations of suppliers on termination.......................................... 237

179........ Prohibition on supplies for 10 business days.................................. 237

180........ Repayment of payments received after termination......................... 238

181........ Prohibition on recovering amounts after termination....................... 238

Subdivision D—Miscellaneous                                                                            239

182........ Certain provisions of unsolicited consumer agreements void.......... 239

183........ Waiver of rights.............................................................................. 240

184........ Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.    240

185........ Application of this Division to supplies to third parties.................. 241

186........ Regulations may limit the application of this Division.................... 241

187........ Application of this Division to certain conduct covered by the Corporations Act    241

Division 3—Lay‑by agreements                                                                         242

188........ Lay‑by agreements must be in writing etc....................................... 242

189........ Termination charges........................................................................ 242

190........ Termination of lay‑by agreements by suppliers............................... 243

191........ Refund of amounts.......................................................................... 243

Division 4—Miscellaneous                                                                                   244

192........ Prescribed requirements for warranties against defects................... 244

193........ Repairers must comply with prescribed requirements..................... 244

Part 4‑3—Offences relating to safety of consumer goods and product related services             245

Division 1—Safety standards                                                                              245

194........ Supplying etc. consumer goods that do not comply with safety standards               245

195........ Supplying etc. product related services that do not comply with safety standards    246

196........ Requirement to nominate a safety standard..................................... 247

Division 2—Bans on consumer goods and product related services         248

197........ Supplying etc. consumer goods covered by a ban........................... 248

198........ Supplying etc. product related services covered by a ban................ 249

Division 3—Recall of consumer goods                                                             250

199........ Compliance with recall orders......................................................... 250

200........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall     250

201........ Notification requirements for a voluntary recall of consumer goods 251

Division 4—Consumer goods, or product related services, associated with death or serious injury or illness      252

202........ Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person          252

Part 4‑4—Offences relating to information standards                           253

203........ Supplying etc. goods that do not comply with information standards 253

204........ Supplying etc. services that do not comply with information standards 254

Part 4‑5—Offences relating to substantiation notices                            256

205........ Compliance with substantiation notices........................................... 256

206........ False or misleading information etc................................................. 256

Part 4‑6—Defences                                                                                                    258

207........ Reasonable mistake of fact.............................................................. 258

208........ Act or default of another person etc................................................ 258

209........ Publication of advertisements in the ordinary course of business... 259

210........ Supplying goods acquired for the purpose of re‑supply................. 259

211........ Supplying services acquired for the purpose of re‑supply.............. 260

Part 4‑7—Miscellaneous                                                                                         262

212........ Prosecutions to be commenced within 3 years................................ 262

213........ Preference must be given to compensation for victims.................... 262

214........ Penalties for contraventions of the same nature etc......................... 262

215........ Penalties for previous contraventions of the same nature etc........... 263

216........ Granting of injunctions etc.............................................................. 264

217........ Criminal proceedings not to be brought for contraventions of Chapter 2 or 3          264

Chapter 5—Enforcement and remedies                                                              265

Part 5‑1—Enforcement                                                                                           265

Division 1—Undertakings                                                                                    265

218........ Regulator may accept undertakings................................................. 265

Division 2—Substantiation notices                                                                    266

219........ Regulator may require claims to be substantiated etc....................... 266

220........ Extending periods for complying with substantiation notices......... 267

221........ Compliance with substantiation notices........................................... 267

222........ False or misleading information etc................................................. 268

Division 3—Public warning notices                                                                   269

223........ Regulator may issue a public warning notice.................................. 269

Part 5‑2—Remedies                                                                                                   270

Division 1—Pecuniary penalties                                                                        270

224........ Pecuniary penalties.......................................................................... 270

225........ Pecuniary penalties and offences..................................................... 274

226........ Defence........................................................................................... 275

227........ Preference must be given to compensation for victims.................... 275

228........ Civil action for recovery of pecuniary penalties.............................. 275

229........ Indemnification of officers.............................................................. 276

230........ Certain indemnities not authorised and certain documents void...... 276

Division 2—Injunctions                                                                                        277

232........ Injunctions...................................................................................... 277

233........ Consent injunctions......................................................................... 278

234........ Interim injunctions.......................................................................... 278

235........ Variation and discharge of injunctions............................................ 279

Division 3—Damages                                                                                            280

236........ Actions for damages....................................................................... 280

Division 4—Compensation orders etc. for injured persons and orders for non‑party consumers            281

Subdivision A—Compensation orders etc. for injured persons                  281

237........ Compensation orders etc. on application by an injured person or the regulator        281

238........ Compensation orders etc. arising out of other proceedings............. 282

Subdivision B—Orders for non‑party consumers                                         282

239........ Orders to redress etc. loss or damage suffered by non‑party consumers  282

240........ Determining whether to make a redress order etc. for non‑party consumers            283

241........ When a non‑party consumer is bound by a redress order etc.......... 284

Subdivision C—Miscellaneous                                                                            284

242........ Applications for orders................................................................... 284

243........ Kinds of orders that may be made................................................... 285

244........ Power of a court to make orders..................................................... 286

245........ Interaction with other provisions..................................................... 286

Division 5—Other remedies                                                                                287

246........ Non‑punitive orders........................................................................ 287

247........ Adverse publicity orders................................................................. 288

248........ Order disqualifying a person from managing corporations............. 288

249........ Privilege against exposure to penalty or forfeiture—disqualification from managing corporations          290

250........ Declarations relating to consumer contracts.................................... 290

Division 6—Defences                                                                                             291

251........ Publication of advertisement in the ordinary course of business..... 291

252........ Supplying consumer goods for the purpose of re‑supply............... 291

253........ Supplying product related services for the purpose of re‑supply.... 292

Part 5‑3—Country of origin representations                                              294

254........ Overview........................................................................................ 294

255........ Country of origin representations do not contravene certain provisions 294

256........ Cost of producing or manufacturing goods..................................... 297

257........ Rules for determining the percentage of costs of production or manufacture attributable to a country     298

258........ Proceedings relating to false, misleading or deceptive conduct or representations    299

Part 5‑4—Remedies relating to guarantees                                                 300

Division 1—Action against suppliers                                                                300

Subdivision A—Action against suppliers of goods                                        300

259........ Action against suppliers of goods................................................... 300

260........ When a failure to comply with a guarantee is a major failure.......... 301

261........ How suppliers may remedy a failure to comply with a guarantee... 302

262........ When consumers are not entitled to reject goods............................. 302

263........ Consequences of rejecting goods.................................................... 303

264........ Replaced goods............................................................................... 304

265........ Termination of contracts for the supply of services that are connected with rejected goods     304

266........ Rights of gift recipients................................................................... 305

Subdivision B—Action against suppliers of services                                    305

267........ Action against suppliers of services................................................ 305

268........ When a failure to comply with a guarantee is a major failure.......... 306

269........ Termination of contracts for the supply of services......................... 307

270........ Termination of contracts for the supply of goods that are connected with terminated services 307

Division 2—Action for damages against manufacturers of goods            309

271........ Action for damages against manufacturers of goods....................... 309

272........ Damages that may be recovered by action against manufacturers of goods              310

273........ Time limit for actions against manufacturers of goods.................... 311

Division 3—Miscellaneous                                                                                   312

274........ Indemnification of suppliers by manufacturers............................... 312

275........ Limitation of liability etc.................................................................. 313

276........ This Part not to be excluded etc. by contract................................... 313

276A..... Limitation in certain circumstances of liability of manufacturer to seller.. 314

277........ Representative actions by the regulator........................................... 314

Part 5‑5—Liability of suppliers and credit providers                             315

Division 1—Linked credit contracts                                                                  315

278........ Liability of suppliers and linked credit providers relating to linked credit contracts  315

279........ Action by consumer to recover amount of loss or damage.............. 316

280........ Cases where a linked credit provider is not liable............................ 316

281........ Amount of liability of linked credit providers................................. 318

282........ Counter‑claims and offsets.............................................................. 318

283........ Enforcement of judgments etc......................................................... 319

284........ Award of interest to consumers...................................................... 320

285........ Liability of suppliers to linked credit providers, and of linked credit providers to suppliers     321

286........ Joint liability proceedings and recovery under section 135 of the National Credit Code          322

 

Division 2—Non‑linked credit contracts                                                          323

287........ Liability of suppliers and credit providers relating to non‑linked credit contracts     323

Notes                                                                                                                                           325


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 1AAnti‑competitive disclosure of pricing and other information

44ZZS  Definitions

                   In this Division:

disclose has a meaning affected by section 44ZZU.

Division 1A goods or services means goods or services to which this Division applies (see section 44ZZT).

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.

intermediary: see subsection 44ZZU(3).

private disclosure to competitors: see section 44ZZV.

44ZZT  Goods and services to which this Division applies

                   This Division applies to goods and services of the classes prescribed by the regulations for the purpose of section 44ZZT of the Competition and Consumer Act 2010.

44ZZU  Provisions affecting whether a person has disclosed information to another person

Disclosure to director, employee or agent etc. of another person

             (1)  For the purpose of this Division:

                     (a)  if a person (the first person) makes a disclosure of information to another person (the second person) in the second person’s capacity as a director, employee or agent of a body corporate, the disclosure is taken to have been made by the first person to the body corporate; and

                     (b)  if a person (the first person) makes a disclosure of information to another person (the second person) in the second person’s capacity as an employee or agent of another person (not being a body corporate), the disclosure is taken to have been made by the first person to that other person.

Disclosure to discloser’s own agent

             (2)  For the purpose of this Division, the disclosure of information by a person (the first person) to another person is to be disregarded if:

                     (a)  the disclosure is made to the other person in the other person’s capacity as an agent of the first person; and

                     (b)  subsection (3) does not apply to the disclosure.

Disclosure through intermediary

             (3)  If:

                     (a)  a person (the first person) makes a disclosure of information to another person (the intermediary); and

                     (b)  the first person makes the disclosure to the intermediary for the purpose of the intermediary disclosing (or arranging for the disclosure of) the information to one or more other persons; and

                     (c)  the information is so disclosed to one or more of those other persons (the recipients);

then, for the purpose of this Division:

                     (d)  the disclosure of the information to the recipients is taken to have been made by the first person; and

                     (e)  the disclosure of the information to the intermediary is to be disregarded (unless the intermediary is a competitor or potential competitor of the first person in a market).

Accidental disclosure

             (4)  For the purpose of this Division, the disclosure of information by a person (the first person) to another person (the recipient) is to be disregarded if the disclosure to the recipient is due to:

                     (a)  an accident; or

                     (b)  the default of a person other than the first person; or

                     (c)  some other cause beyond the control of the first person.

Note:          This subsection does not apply to a disclosure of information covered by subsection (3).

Section 84 not limited

             (5)  This section does not limit section 84.

44ZZV  Meaning of private disclosure to competitors

Main definition

             (1)  A disclosure of information by a person is a private disclosure to competitors, in relation to a particular market, if the disclosure is to one or more competitors or potential competitors of the person in that market, and is not to any other person.

Note:          The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more competitors or potential competitors, and is not to any other person.

Anti‑avoidance

             (2)  For the purpose of determining whether a person (the first person) has made a private disclosure to competitors in relation to a particular market, the fact that the disclosure is also made to another person who is not a competitor or potential competitor of the first person in that market is to be disregarded if:

                     (a)  for a disclosure that is not made through an intermediary—the first person made the disclosure to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure; or

                     (b)  for a disclosure that is made through an intermediary—either:

                              (i)  the first person directed or requested the intermediary to disclose the information to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure; or

                             (ii)  the intermediary disclosed the information to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure.

Fact that the information is otherwise available is not relevant

             (3)  The question whether a disclosure of information by a person is a private disclosure to competitors is not affected by the information otherwise being or becoming available to competitors or potential competitors of the person in the market, or to other persons.

44ZZW  Person must not make private disclosure of pricing information etc. to competitors

                   A person must not make a disclosure of information if:

                     (a)  the information relates to a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the person in a market (whether or not the information also relates to other matters); and

                     (b)  the disclosure is a private disclosure to competitors in relation to that market; and

                     (c)  the disclosure is not in the ordinary course of business.

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(6A) or notified under subsection 93(1).

44ZZX  Person must not make disclosure of pricing information etc. for purpose of substantially lessening competition

The prohibition

             (1)  A person must not make a disclosure of information if:

                     (a)  the information relates to one or more of the following (whether or not it also relates to other matters):

                              (i)  a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the person;

                             (ii)  the capacity, or likely capacity, of the person to supply or acquire Division 1A goods or services;

                            (iii)  any aspect of the commercial strategy of the person that relates to Division 1A goods or services; and

                     (b)  the person makes the disclosure for the purpose of substantially lessening competition in a market.

Note:          Conduct that would otherwise contravene this section can be authorised under subsection 88(6A).

Determining whether disclosure made for purpose of substantially lessening competition

             (2)  In determining, for the purpose of this section, if a person has made a disclosure for the purpose of substantially lessening competition in a market, the matters to which the court may have regard include (but are not limited to):

                     (a)  whether the disclosure was a private disclosure to competitors in relation to that market; and

                     (b)  the degree of specificity of the information; and

                     (c)  whether the information relates to past, current or future activities; and

                     (d)  how readily available the information is to the public; and

                     (e)  whether the disclosure is part of a pattern of similar disclosures by the person.

             (3)  Without 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 made a disclosure of information for the purpose of substantially lessening competition in a market even though, 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.

44ZZY  Exceptions that apply to sections 44ZZW and 44ZZX

Disclosure authorised by law: general exception for 10 years

             (1)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if:

                     (a)  the disclosure is authorised by or under a law of the Commonwealth, a State or a Territory; and

                     (b)  the disclosure occurs before the end of 10 years after the day on which the Competition and Consumer Amendment Act (No. 1) 2011 receives the Royal Assent.

Note:          This subsection has effect in addition to:

(a)  subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and

(b)  subsection 51(1) (which covers things authorised by certain laws).

Disclosure to related bodies corporate

             (2)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a body corporate (the first body corporate) if the disclosure is to one or more other bodies corporate that are related to the first body corporate, and is not to any other person.

Note:          The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more bodies corporate that are related to the first body corporate, and is not to any other person.

Disclosure for collective bargaining

             (3)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if:

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

                     (b)  the notice is in force; and

                     (c)  the disclosure is to one or more of the other contracting parties, and is not to any other person; and

                     (d)  the disclosure of the information:

                              (i)  if the notice relates to a contract—is required by the contract; or

                             (ii)  if the notice relates to a proposed contract—is made in the course of negotiations for the proposed contract or, if the proposed contract is entered into, is required by the contract.

Note:          The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more of the other contracting parties, and is not to any other person.

Disclosure in course of authorised conduct

             (4)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if:

                     (a)  an authorisation under section 88 (other than subsection 88(6A)) applies to or in relation to the person; and

                     (b)  the authorisation is in force; and

                     (c)  the disclosure of the information is made in the course of engaging in conduct that is covered by the authorisation.

Note:          A disclosure that would otherwise contravene section 44ZZW or 44ZZX can also be directly authorised under subsection 88(6A).

Disclosure covered by notification under section 93

             (5)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if:

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

                     (b)  the disclosure is conduct described in the notice; and

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

Compliance with continuous disclosure requirements of the Corporations Act 2001

             (6)  Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if the disclosure is made for the purpose of complying with Chapter 6CA of the Corporations Act 2001.

44ZZZ  Additional exceptions that only apply to section 44ZZW

Disclosure of information to acquirer or supplier of goods or services

             (1)  Section 44ZZW does not apply to the disclosure of information by a person (the first person) to another person (the recipient) if:

                     (a)  the information relates to goods or services supplied or likely to be supplied, by the first person to the recipient; or

                     (b)  the information relates to goods or services acquired or likely to be acquired, by the first person from the recipient.

Disclosure to unknown competitor

             (2)  Section 44ZZW does not apply to the disclosure of information by a person (the first person) to another person (the recipient) if:

                     (a)  the recipient is a competitor or potential competitor of the first person in the market referred to in that section; and

                     (b)  the first person did not know, and could not reasonably be expected to have known, that the recipient was such a competitor or potential competitor.

Disclosure to participants in joint venture

             (3)  Section 44ZZW does not apply to the disclosure of information by a person if:

                     (a)  either:

                              (i)  the person is a participant in a joint venture for the production and/or supply of goods or services; or

                             (ii)  the person proposes to enter into a joint venture with one or more other persons (the proposed participants); and

                     (b)  the disclosure is to one or more participants or proposed participants in the joint venture, and is not to any other person; and

                     (c)  the disclosure is made for the purposes of the joint venture or in the course of negotiations for the joint venture.

Note:          The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more participants in the joint venture, and is not to any other person.

Disclosure relating to provision of loans etc. to same person

          (3A)  Section 44ZZW does not apply to the disclosure of information between 2 or more persons (the relevant persons) if:

                     (a)  the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant persons; and

                     (b)  2 or more of the relevant persons are, in relation to the same person (the borrower), doing either or both of the following:

                              (i)  providing such services to the borrower;

                             (ii)  considering whether to provide such services to the borrower;

                     (c)  the disclosure is for the purpose of, or related to, providing services, or considering whether to provide services, to the borrower as mentioned in paragraph (b).

Disclosure between credit provider and provider of credit service

          (3B)  Section 44ZZW does not apply to the disclosure of information by a person to another person if:

                     (a)  one of the persons is a credit provider, and the other person provides a credit service, within the meaning of the National Consumer Credit Protection Act 2009; and

                     (b)  the disclosure is made in the course of the relationship between the persons in their capacities as credit provider and provider of a credit service.

Disclosure relating to acquisition of shares or assets

             (4)  Section 44ZZW does not apply to the disclosure of information by a person (the first person) in so far as the information is disclosed in connection with a contract, arrangement or understanding that provides, or a proposed contract, arrangement or understanding that would provide, for the acquisition of any shares in the capital of a body corporate, or any assets of a person, by or from the first person.

Note:          For the meaning of acquisition of shares, and acquisition of assets, see subsection 4(4).

Disclosure if borrower insolvent etc.

             (5)  Section 44ZZW does not apply to the disclosure of information between 2 or more persons (the relevant persons) if:

                     (a)  at least one of the relevant persons:

                              (i)  has provided a loan or credit to another person (the borrower); and

                             (ii)  has been notified of a borrower insolvency situation (see subsection (6)); and

                     (b)  the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant persons; and

                     (c)  the disclosure is for the purpose of one or more of the relevant persons considering whether to take measures to return the borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent.

             (6)  For the purpose of subsection (5), a relevant person is notified of a borrower insolvency situation if:

                     (a)  the person is notified that there are reasonable grounds for suspecting that one or more of the following may be or become insolvent:

                              (i)  the borrower;

                             (ii)  a person who has given a guarantee or indemnity in respect of loans or credit provided to the borrower by one or more of the relevant persons; and

                     (b)  the notification is given by the borrower, or by a person referred to in subparagraph (a)(ii).

44ZZZA  Burden of proof

                   If:

                     (a)  proceedings are brought against a person in respect of section 44ZZW or 44ZZX; and

                     (b)  the person seeks to rely on subsection 44ZZU(2) or (4), or on a subsection of section 44ZZY or 44ZZZ;

the person bears an evidential burden in relation to the matters set out in that subsection on which the person seeks to rely.

44ZZZB  Mere receipt of information does not constitute being knowingly involved in contravention

                   For the purpose of paragraph 76(1)(e), a person is not taken to be directly or indirectly knowingly concerned in, or party to, a contravention of section 44ZZW or 44ZZX merely because the person is a recipient of information disclosed in contravention of that section.


 

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; or

                     (b)  both of the following subparagraphs apply:

                              (i)  the person who required or requires the covenant to be given was or is, at that time, a registered charity;

                             (ii)  the covenant was or is required to be given for or in accordance with the purposes or objects of that registered charity; or

                     (c)  both of the following subparagraphs apply:

                              (i)  the covenant was or is required to be given in pursuance of a legally enforceable requirement made by a registered charity;

                             (ii)  that legally enforceable requirement was or is made for or in accordance with the purposes or objects of that registered charity.

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 seco