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..... 9
Subdivision B—Offences etc. 9
44ZZRF................. Making a contract etc. containing a cartel provision............ 9
44ZZRG................ Giving effect to a cartel provision..................................... 10
44ZZRH................ Determining guilt.............................................................. 11
44ZZRI.................. Court may make related civil orders.................................. 12
Subdivision C—Civil penalty provisions 12
44ZZRJ................. Making a contract etc. containing a cartel provision.......... 12
44ZZRK................ Giving effect to a cartel provision..................................... 12
Subdivision D—Exceptions 13
44ZZRL................. Conduct notified............................................................... 13
44ZZRM............... Cartel provision subject to grant of authorisation.............. 13
44ZZRN................ Contracts, arrangements or understandings between related bodies corporate 14
44ZZRO................ Joint ventures—prosecution............................................. 14
44ZZRP................. Joint ventures—civil penalty proceedings......................... 17
44ZZRQ................ Covenants affecting competition....................................... 19
44ZZRR................ Resale price maintenance.................................................. 20
44ZZRS................. Exclusive dealing.............................................................. 20
44ZZRT................. Dual listed company arrangement..................................... 21
44ZZRU................ Acquisition of shares or assets......................................... 21
44ZZRV................ Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 22
Division 1A—Anti‑competitive disclosure of pricing and other information 23
44ZZS................... Definitions........................................................................ 23
44ZZT................... Goods and services to which this Division applies........... 23
44ZZU................... Provisions affecting whether a person has disclosed information to another person 23
44ZZV................... Meaning of private disclosure to competitors.................. 25
44ZZW.................. Person must not make private disclosure of pricing information etc. to competitors 26
44ZZX................... Person must not make disclosure of pricing information etc. for purpose of substantially lessening competition.......................................................................................... 26
44ZZY................... Exceptions that apply to sections 44ZZW and 44ZZX...... 28
44ZZZ................... Additional exceptions that only apply to section 44ZZW.. 30
44ZZZA................ Burden of proof................................................................ 32
44ZZZB................. Mere receipt of information does not constitute being knowingly involved in contravention 33
Division 2—Other provisions 34
45.......................... Contracts, arrangements or understandings that restrict dealings or affect competition 34
45B........................ Covenants affecting competition....................................... 37
45C........................ Covenants in relation to prices.......................................... 41
45D....................... Secondary boycotts for the purpose of causing substantial loss or damage 43
45DA.................... Secondary boycotts for the purpose of causing substantial lessening of competition 44
45DC..................... Involvement and liability of employee organisations........ 45
45DD.................... Situations in which boycotts permitted............................. 47
45E........................ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services............................................................................. 50
45EA..................... Provisions contravening section 45E not to be given effect 53
45EB..................... Sections 45D to 45EA do not affect operation of other provisions of Part 54
46.......................... Misuse of market power................................................... 54
47.......................... Exclusive dealing.............................................................. 58
48.......................... Resale price maintenance.................................................. 65
49.......................... Dual listed company arrangements that affect competition 65
50.......................... Prohibition of acquisitions that would result in a substantial lessening of competition 66
51.......................... Exceptions........................................................................ 68
Schedule 2—The Australian Consumer Law 73
Chapter 1—Introduction 86
1............................ Application of this Schedule............................................. 86
2............................ Definitions........................................................................ 86
3............................ Meaning of consumer..................................................... 100
4............................ Misleading representations with respect to future matters 104
5............................ When donations are treated as supplies or acquisitions... 105
6............................ Related bodies corporate................................................. 105
7............................ Meaning of manufacturer............................................... 105
8............................ Goods affixed to land or premises.................................. 107
9............................ Meaning of safety defect in relation to goods.................. 107
10.......................... Asserting a right to payment........................................... 108
11.......................... References to acquisition, supply and re‑supply............. 108
12.......................... Application of Schedule in relation to leases and licences of land and buildings 109
13.......................... Loss or damage to include injury.................................... 110
14.......................... Meaning of continuing credit contract............................ 110
15.......................... Contraventions of this Schedule..................................... 111
16.......................... Severability..................................................................... 111
17.......................... References to provisions in this Schedule....................... 111
Chapter 2—General protections 112
Part 2‑1—Misleading or deceptive conduct 112
18.......................... Misleading or deceptive conduct..................................... 112
19.......................... Application of this Part to information providers............ 112
Part 2‑2—Unconscionable conduct 114
20.......................... Unconscionable conduct within the meaning of the unwritten law 114
21.......................... Unconscionable conduct in connection with goods or services 114
22.......................... Matters the court may have regard to for the purposes of section 21 115
22A....................... Presumptions relating to whether representations are misleading 118
Part 2‑3—Unfair contract terms 119
23.......................... Unfair terms of consumer contracts and small business contracts 119
24.......................... Meaning of unfair........................................................... 120
25.......................... Examples of unfair terms................................................ 120
26.......................... Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected........................................................................................ 121
27.......................... Standard form contracts.................................................. 122
28.......................... Contracts to which this Part does not apply.................... 123
Chapter 3—Specific protections 124
Part 3‑1—Unfair practices 124
Division 1—False or misleading representations etc. 124
29.......................... False or misleading representations about goods or services 124
30.......................... False or misleading representations about sale etc. of land 125
31.......................... Misleading conduct relating to employment.................... 126
32.......................... Offering rebates, gifts, prizes etc.................................... 127
33.......................... Misleading conduct as to the nature etc. of goods........... 128
34.......................... Misleading conduct as to the nature etc. of services........ 128
35.......................... Bait advertising............................................................... 128
36.......................... Wrongly accepting payment............................................ 129
37.......................... Misleading representations about certain business activities 131
38.......................... Application of provisions of this Division to information providers 131
Division 2—Unsolicited supplies 134
39.......................... Unsolicited cards etc....................................................... 134
40.......................... Assertion of right to payment for unsolicited goods or services 135
41.......................... Liability etc. of recipient for unsolicited goods............... 136
42.......................... Liability of recipient for unsolicited services................... 137
43.......................... Assertion of right to payment for unauthorised entries or advertisements 137
Division 3—Pyramid schemes 140
44.......................... Participation in pyramid schemes.................................... 140
45.......................... Meaning of pyramid scheme.......................................... 140
46.......................... Marketing schemes as pyramid schemes........................ 141
Division 4—Pricing 143
47.......................... Multiple pricing.............................................................. 143
48.......................... Single price to be specified in certain circumstances....... 144
Division 5—Other unfair practices 148
49.......................... Referral selling................................................................ 148
50.......................... Harassment and coercion................................................ 148
Part 3‑2—Consumer transactions 149
Division 1—Consumer guarantees 149
Subdivision A—Guarantees relating to the supply of goods 149
51.......................... Guarantee as to title......................................................... 149
52.......................... Guarantee as to undisturbed possession......................... 149
53.......................... Guarantee as to undisclosed securities etc....................... 150
54.......................... Guarantee as to acceptable quality................................... 151
55.......................... Guarantee as to fitness for any disclosed purpose etc..... 152
56.......................... Guarantee relating to the supply of goods by description 153
57.......................... Guarantees relating to the supply of goods by sample or demonstration model 154
58.......................... Guarantee as to repairs and spare parts........................... 154
59.......................... Guarantee as to express warranties................................. 155
Subdivision B—Guarantees relating to the supply of services 155
60.......................... Guarantee as to due care and skill................................... 155
61.......................... Guarantees as to fitness for a particular purpose etc....... 155
62.......................... Guarantee as to reasonable time for supply..................... 156
63.......................... Services to which this Subdivision does not apply......... 157
Subdivision C—Guarantees not to be excluded etc. by contract 157
64.......................... Guarantees not to be excluded etc. by contract................ 157
64A....................... Limitation of liability for failures to comply with guarantees 157
Subdivision D—Miscellaneous 159
65.......................... Application of this Division to supplies of gas, electricity and telecommunications 159
66.......................... Display notices............................................................... 159
67.......................... Conflict of laws.............................................................. 160
68.......................... Convention on Contracts for the International Sale of Goods 160
Division 2—Unsolicited consumer agreements 161
Subdivision A—Introduction 161
69.......................... Meaning of unsolicited consumer agreement................. 161
70.......................... Presumption that agreements are unsolicited consumer agreements 162
71.......................... Meaning of dealer.......................................................... 163
72.......................... Meaning of negotiation................................................... 163
Subdivision B—Negotiating unsolicited consumer agreements 163
73.......................... Permitted hours for negotiating an unsolicited consumer agreement 163
74.......................... Disclosing purpose and identity...................................... 164
75.......................... Ceasing to negotiate on request....................................... 164
76.......................... Informing person of termination period etc..................... 165
77.......................... Liability of suppliers for contraventions by dealers........ 166
Subdivision C—Requirements for unsolicited consumer agreements etc. 166
78.......................... Requirement to give document to the consumer.............. 166
79.......................... Requirements for all unsolicited consumer agreements etc. 167
80.......................... Additional requirements for unsolicited consumer agreements not negotiated by telephone 168
81.......................... Requirements for amendments of unsolicited consumer agreements 168
Subdivision D—Terminating unsolicited consumer agreements 169
82.......................... Terminating an unsolicited consumer agreement during the termination period 169
83.......................... Effect of termination....................................................... 170
84.......................... Obligations of suppliers on termination.......................... 171
85.......................... Obligations and rights of consumers on termination....... 171
86.......................... Prohibition on supplies etc. for 10 business days........... 173
87.......................... Repayment of payments received after termination......... 174
88.......................... Prohibition on recovering amounts after termination...... 174
Subdivision E—Miscellaneous 175
89.......................... Certain provisions of unsolicited consumer agreements void.. 175
90.......................... Waiver of rights.............................................................. 176
91.......................... Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 176
92.......................... Application of this Division to supplies to third parties.. 176
93.......................... Effect of contravening this Division............................... 177
94.......................... Regulations may limit the application of this Division.... 177
95.......................... Application of this Division to certain conduct covered by the Corporations Act 177
Division 3—Lay‑by agreements 178
96.......................... Lay‑by agreements must be in writing etc....................... 178
97.......................... Termination of lay‑by agreements by consumers............ 178
98.......................... Termination of lay‑by agreements by suppliers.............. 179
99.......................... Effect of termination....................................................... 179
Division 4—Miscellaneous 181
100........................ Supplier must provide proof of transaction etc............... 181
101........................ Consumer may request an itemised bill........................... 182
102........................ Prescribed requirements for warranties against defects... 183
103........................ Repairers must comply with prescribed requirements..... 183
Part 3‑3—Safety of consumer goods and product related services 185
Division 1—Safety standards 185
104........................ Making safety standards for consumer goods and product related services 185
105........................ Declaring safety standards for consumer goods and product related services 186
106........................ Supplying etc. consumer goods that do not comply with safety standards 186
107........................ Supplying etc. product related services that do not comply with safety standards 188
108........................ Requirement to nominate a safety standard..................... 189
Division 2—Bans on consumer goods and product related services 190
Subdivision A—Interim bans 190
109........................ Interim bans on consumer goods or product related services that will or may cause injury to any person etc......................................................................................... 190
110........................ Places in which interim bans apply................................. 191
111........................ Ban period for interim bans............................................ 191
112........................ Interaction of multiple interim bans................................. 192
113........................ Revocation of interim bans............................................. 193
Subdivision B—Permanent bans 193
114........................ Permanent bans on consumer goods or product related services 193
115........................ Places in which permanent bans apply............................ 194
116........................ When permanent bans come into force........................... 194
117........................ Revocation of permanent bans........................................ 194
Subdivision C—Compliance with interim bans and permanent bans 195
118........................ Supplying etc. consumer goods covered by a ban.......... 195
119........................ Supplying etc. product related services covered by a ban 196
Subdivision D—Temporary exemption from mutual recognition principles 197
120........................ Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997 197
121........................ Temporary exemption under the Mutual Recognition Act 1992 197
Division 3—Recall of consumer goods 199
Subdivision A—Compulsory recall of consumer goods 199
122........................ Compulsory recall of consumer goods........................... 199
123........................ Contents of a recall notice............................................... 199
124........................ Obligations of a supplier in relation to a recall notice...... 201
125........................ Notification by persons who supply consumer goods outside Australia if there is compulsory recall 201
126........................ Interaction of multiple recall notices................................ 202
127........................ Compliance with recall notices........................................ 203
Subdivision B—Voluntary recall of consumer goods 204
128........................ Notification requirements for a voluntary recall of consumer goods 204
Division 4—Safety warning notices 206
129........................ Safety warning notices about consumer goods and product related services 206
130........................ Announcement of the results of an investigation etc....... 206
Division 5—Consumer goods, or product related services, associated with death or serious injury or illness 208
131........................ Suppliers to report consumer goods associated with the death or serious injury or illness of any person........................................................................................ 208
132........................ Suppliers to report product related services associated with the death or serious injury or illness of any person........................................................................................ 210
132A..................... Confidentiality of notices given under this Division....... 212
Division 6—Miscellaneous 213
133........................ Liability under a contract of insurance............................ 213
Part 3‑4—Information standards 214
134........................ Making information standards for goods and services... 214
135........................ Declaring information standards for goods and services 214
136........................ Supplying etc. goods that do not comply with information standards 215
137........................ Supplying etc. services that do not comply with information standards 216
Part 3‑5—Liability of manufacturers for goods with safety defects 218
Division 1—Actions against manufacturers for goods with safety defects 218
138........................ Liability for loss or damage suffered by an injured individual 218
139........................ Liability for loss or damage suffered by a person other than an injured individual 218
140........................ Liability for loss or damage suffered by a person if other goods are destroyed or damaged 219
141........................ Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged........................................................................................ 219
142........................ Defences to defective goods actions............................... 220
Division 2—Defective goods actions 221
143........................ Time for commencing defective goods actions............... 221
144........................ Liability joint and several................................................ 221
145........................ Survival of actions.......................................................... 221
146........................ No defective goods action where workers’ compensation law etc. applies 221
147........................ Unidentified manufacturer.............................................. 222
148........................ Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard......................................................... 222
149........................ Representative actions by the regulator........................... 223
Division 3—Miscellaneous 224
150........................ Application of all or any provisions of this Part etc. not to be excluded or modified 224
Chapter 4—Offences 225
Part 4‑1—Offences relating to unfair practices 225
Division 1—False or misleading representations etc. 225
151........................ False or misleading representations about goods or services 225
152........................ False or misleading representations about sale etc. of land 227
153........................ Misleading conduct relating to employment.................... 227
154........................ Offering rebates, gifts, prizes etc.................................... 228
155........................ Misleading conduct as to the nature etc. of goods........... 229
156........................ Misleading conduct as to the nature etc. of services........ 230
157........................ Bait advertising............................................................... 230
158........................ Wrongly accepting payment............................................ 231
159........................ Misleading representations about certain business activities 233
160........................ Application of provisions of this Division to information providers 234
Division 2—Unsolicited supplies 237
161........................ Unsolicited cards etc....................................................... 237
162........................ Assertion of right to payment for unsolicited goods or services 238
163........................ Assertion of right to payment for unauthorised entries or advertisements 239
Division 3—Pyramid schemes 241
164........................ Participation in pyramid schemes.................................... 241
Division 4—Pricing 242
165........................ Multiple pricing.............................................................. 242
166........................ Single price to be specified in certain circumstances....... 242
Division 5—Other unfair practices 244
167........................ Referral selling................................................................ 244
168........................ Harassment and coercion................................................ 244
Part 4‑2—Offences relating to consumer transactions 246
Division 1—Consumer guarantees 246
169........................ Display notices............................................................... 246
Division 2—Unsolicited consumer agreements 247
Subdivision A—Negotiating unsolicited consumer agreements 247
170........................ Permitted hours for negotiating an unsolicited consumer agreement 247
171........................ Disclosing purpose and identity...................................... 247
172........................ Ceasing to negotiate on request....................................... 248
173........................ Informing person of termination period etc..................... 249
Subdivision B—Requirements for unsolicited consumer agreements etc. 250
174........................ Requirement to give document to the consumer.............. 250
175........................ Requirements for all unsolicited consumer agreements etc. 251
176........................ Additional requirements for unsolicited consumer agreements not negotiated by telephone 252
177........................ Requirements for amendments of unsolicited consumer agreements 253
Subdivision C—Terminating unsolicited consumer agreements 253
178........................ Obligations of suppliers on termination.......................... 253
179........................ Prohibition on supplies for 10 business days................. 254
180........................ Repayment of payments received after termination......... 254
181........................ Prohibition on recovering amounts after termination...... 255
Subdivision D—Miscellaneous 256
182........................ Certain provisions of unsolicited consumer agreements void.. 256
183........................ Waiver of rights.............................................................. 256
184........................ Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 257
185........................ Application of this Division to supplies to third parties.. 257
186........................ Regulations may limit the application of this Division.... 257
187........................ Application of this Division to certain conduct covered by the Corporations Act 258
Division 3—Lay‑by agreements 259
188........................ Lay‑by agreements must be in writing etc....................... 259
189........................ Termination charges........................................................ 259
190........................ Termination of lay‑by agreements by suppliers.............. 260
191........................ Refund of amounts......................................................... 260
Division 4—Miscellaneous 261
192........................ Prescribed requirements for warranties against defects... 261
193........................ Repairers must comply with prescribed requirements..... 261
Part 4‑3—Offences relating to safety of consumer goods and product related services 262
Division 1—Safety standards 262
194........................ Supplying etc. consumer goods that do not comply with safety standards 262
195........................ Supplying etc. product related services that do not comply with safety standards 263
196........................ Requirement to nominate a safety standard..................... 264
Division 2—Bans on consumer goods and product related services 265
197........................ Supplying etc. consumer goods covered by a ban.......... 265
198........................ Supplying etc. product related services covered by a ban 266
Division 3—Recall of consumer goods 268
199........................ Compliance with recall orders......................................... 268
200........................ Notification by persons who supply consumer goods outside Australia if there is compulsory recall 268
201........................ Notification requirements for a voluntary recall of consumer goods 269
Division 4—Consumer goods, or product related services, associated with death or serious injury or illness 270
202........................ Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person........................................................................................ 270
Part 4‑4—Offences relating to information standards 271
203........................ Supplying etc. goods that do not comply with information standards 271
204........................ Supplying etc. services that do not comply with information standards 272
Part 4‑5—Offences relating to substantiation notices 274
205........................ Compliance with substantiation notices.......................... 274
206........................ False or misleading information etc................................ 274
Part 4‑6—Defences 276
207........................ Reasonable mistake of fact.............................................. 276
208........................ Act or default of another person etc................................ 276
209........................ Publication of advertisements in the ordinary course of business 277
210........................ Supplying goods acquired for the purpose of re‑supply. 277
211........................ Supplying services acquired for the purpose of re‑supply 279
Part 4‑7—Miscellaneous 280
212........................ Prosecutions to be commenced within 3 years................ 280
213........................ Preference must be given to compensation for victims... 280
214........................ Penalties for contraventions of the same nature etc......... 280
215........................ Penalties for previous contraventions of the same nature etc... 281
216........................ Granting of injunctions etc.............................................. 282
217........................ Criminal proceedings not to be brought for contraventions of Chapter 2 or 3 282
Chapter 5—Enforcement and remedies 283
Part 5‑1—Enforcement 283
Division 1—Undertakings 283
218........................ Regulator may accept undertakings................................. 283
Division 2—Substantiation notices 284
219........................ Regulator may require claims to be substantiated etc...... 284
220........................ Extending periods for complying with substantiation notices 285
221........................ Compliance with substantiation notices.......................... 286
222........................ False or misleading information etc................................ 286
Division 3—Public warning notices 288
223........................ Regulator may issue a public warning notice.................. 288
Part 5‑2—Remedies 289
Division 1—Pecuniary penalties 289
224........................ Pecuniary penalties......................................................... 289
225........................ Pecuniary penalties and offences.................................... 293
226........................ Defence........................................................................... 294
227........................ Preference must be given to compensation for victims... 294
228........................ Civil action for recovery of pecuniary penalties.............. 295
229........................ Indemnification of officers.............................................. 295
230........................ Certain indemnities not authorised and certain documents void 295
Division 2—Injunctions 296
232........................ Injunctions...................................................................... 296
233........................ Consent injunctions........................................................ 297
234........................ Interim injunctions.......................................................... 298
235........................ Variation and discharge of injunctions............................ 298
Division 3—Damages 299
236........................ Actions for damages....................................................... 299
Division 4—Compensation orders etc. for injured persons and orders for non‑party consumers 300
Subdivision A—Compensation orders etc. for injured persons 300
237........................ Compensation orders etc. on application by an injured person or the regulator 300
238........................ Compensation orders etc. arising out of other proceedings 301
Subdivision B—Orders for non‑party consumers 301
239........................ Orders to redress etc. loss or damage suffered by non‑party consumers 301
240........................ Determining whether to make a redress order etc. for non‑party consumers 303
241........................ When a non‑party consumer is bound by a redress order etc. 303
Subdivision C—Miscellaneous 304
242........................ Applications for orders................................................... 304
243........................ Kinds of orders that may be made................................... 304
244........................ Power of a court to make orders..................................... 305
245........................ Interaction with other provisions.................................... 305
Division 5—Other remedies 306
246........................ Non‑punitive orders........................................................ 306
247........................ Adverse publicity orders................................................. 307
248........................ Order disqualifying a person from managing corporations 308
249........................ Privilege against exposure to penalty or forfeiture—disqualification from managing corporations 309
250........................ Declarations relating to consumer contracts and small business contracts 309
Division 6—Defences 311
251........................ Publication of advertisement in the ordinary course of business 311
252........................ Supplying consumer goods for the purpose of re‑supply 311
253........................ Supplying product related services for the purpose of re‑supply 312
Part 5‑3—Country of origin representations 314
254........................ Overview........................................................................ 314
255........................ Country of origin representations do not contravene certain provisions 314
258........................ Proceedings relating to false, misleading or deceptive conduct or representations 316
Part 5‑4—Remedies relating to guarantees 317
Division 1—Action against suppliers 317
Subdivision A—Action against suppliers of goods 317
259........................ Action against suppliers of goods................................... 317
260........................ When a failure to comply with a guarantee is a major failure 318
261........................ How suppliers may remedy a failure to comply with a guarantee 319
262........................ When consumers are not entitled to reject goods............ 319
263........................ Consequences of rejecting goods.................................... 320
264........................ Replaced goods............................................................... 321
265........................ Termination of contracts for the supply of services that are connected with rejected goods 321
266........................ Rights of gift recipients................................................... 322
Subdivision B—Action against suppliers of services 322
267........................ Action against suppliers of services................................ 322
268........................ When a failure to comply with a guarantee is a major failure 323
269........................ Termination of contracts for the supply of services........ 324
270........................ Termination of contracts for the supply of goods that are connected with terminated services 325
Division 2—Action for damages against manufacturers of goods 326
271........................ Action for damages against manufacturers of goods...... 326
272........................ Damages that may be recovered by action against manufacturers of goods 327
273........................ Time limit for actions against manufacturers of goods.... 328
Division 3—Miscellaneous 329
274........................ Indemnification of suppliers by manufacturers............... 329
275........................ Limitation of liability etc................................................. 330
276........................ This Part not to be excluded etc. by contract................... 330
276A..................... Limitation in certain circumstances of liability of manufacturer to seller 331
277........................ Representative actions by the regulator........................... 332
Part 5‑5—Liability of suppliers and credit providers 333
Division 1—Linked credit contracts 333
278........................ Liability of suppliers and linked credit providers relating to linked credit contracts 333
279........................ Action by consumer to recover amount of loss or damage 334
280........................ Cases where a linked credit provider is not liable........... 334
281........................ Amount of liability of linked credit providers................. 336
282........................ Counter‑claims and offsets............................................. 337
283........................ Enforcement of judgments etc......................................... 337
284........................ Award of interest to consumers...................................... 339
285........................ Liability of suppliers to linked credit providers, and of linked credit providers to suppliers 339
286........................ Joint liability proceedings and recovery under section 135 of the National Credit Code 340
Division 2—Non‑linked credit contracts 342
287........................ Liability of suppliers and credit providers relating to non‑linked credit contracts 342
Chapter 6—Application and transitional provisions 344
Part 1—Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012 344
288........................ Application of amendments relating to lay‑by agreements 344
289........................ Application of amendment relating to repairs.................. 344
290........................ Saving of regulations relating to repairs.......................... 344
Part 1A—Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 345
290A..................... Application..................................................................... 345
Endnotes 347
Endnote 1—About the endnotes 347
Endnote 2—Abbreviation key 349
Endnote 3—Legislation history 350
Endnote 4—Amendment history 371
Schedule 1—The Schedule version of Part IV
Part 1—Schedule version of Part IV
Note: See section 150A.
Division 1—Cartel conduct
Subdivision A—Introduction
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 B—Offences 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 C—Civil 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 D—Exceptions
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 1A—Anti‑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