Trade Practices Amendment Act 1977 (Cth)
An Act relating to Trade Practices.
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—
(2) The
“2a. (1) Subject to this section, this Act (other than Part X) binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
“(2) Subject to the succeeding provisions of this section, this Act applies as if—
(a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business,
were a corporation.
“(3) Nothing in this Act renders the Crown in right of the Commonwealth liable to be prosecuted for an offence.
“(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.”.
(a) by inserting in sub-section (1), before the definition of “authorization”, the following definitions:—
“‘acquire’ includes—
(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and
(b) in relation to services—accept;
‘arrive at’, in relation to an understanding, includes reach or enter into;
‘authority of the Commonwealth’ means—
(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest;”;
(b) by inserting in sub-section (1), after the definition of “authorization”, the following definition:—
“‘business’ includes a business not carried on for profit;”;
(c) by omitting from sub-section (1) the definitions of “commencing date”, “Commission” and “Companies Ordinance” and substituting the following definitions:—
“‘commencing date’ means 1 October 1974;
‘Commission’ means the Trade Practices Commission established by section 6a, and includes a member of the Commission or a Division of the Commission performing functions of the Commission;”;
(d) by omitting from sub-section (1) the definition of “conduct”;
(e) by inserting in sub-section (1), after the definition of “Court”, the following definitions: —
“ ‘covenant’ means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and ‘proposed covenant’ has a corresponding meaning;
‘debenture’ includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not;”;
(f) by omitting from sub-section (1) the definitions of “engage in conduct” and “financial corporation” and substituting the following definition: —
“‘financial corporation’ means a financial corporation within the meaning of paragraph 51 (xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned);”;
(g) by omitting from sub-section (1) the definitions of “full-time member of the Commission” and “give effect to” and substituting the following definition:—
“‘give effect to’, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce;”;
(h) by omitting from sub-section (1) the definitions of “market”, “meeting” and “member of the Commission” and substituting the following definition:—
“‘member of the Commission’ includes the Chairman and a person appointed to act as a member of the Commission but does not include an associate member of the Commission;”;
(j) by omitting from sub-section (1) the definition of “practice of exclusive dealing” and substituting the following definition:—
“‘practice of exclusive dealing’ means the practice of exclusive dealing referred to in sub-section 47(2), (3), (4), (5), (6), (7), (8) or (9);”;
(k) by inserting in sub-section (1), after the definition of “price”, the following definition: —
“‘provision’, in relation to an understanding, means any matter forming part of the understanding;”;
(l) by inserting in sub-section (1), after the definition of “Registrar”, the following definition: —
“‘require’, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand;”;
(m) by omitting from sub-section (1) the definitions of “services” and “share” and substituting the following definitions:—
“‘services’ includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under—
(a) a contract for or in relation to—
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(d) any contract for or in relation to the lending of moneys,
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service;
‘share’ includes stock;”;
(n) by adding at the end of sub-section (1) the following definition:—
“‘unsolicited services’ means services supplied to a person without any request made by him or on his behalf.”; and
(o) by omitting sub-sections (2), (3) and (4) and substituting the following sub-sections:—
“(2) In this Act—
(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(c) a reference to refusing to do an act includes a reference to—
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
“(3) Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that—
(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract or the covenant will not or may not have that effect at a later time.
“(4) In this Act—
(a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and
(b) a reference to the acquisition of assets of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.”.
“4a. (1) For the purposes of this Act, a body corporate shall, subject to sub-section (3), be deemed to be a subsidiary of another body corporate if—
(a) that other body corporate—
(i) controls the composition of the board of directors of the first-mentioned body corporate;
(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or
(iii) holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).
“(2) For the purposes of sub-section (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if—
(a) a person cannot be appointed as a director without the exercise in his favour by that other body corporate of such a power; or
(b) a person’s appointment as a director follows necessarily from his being a director or other officer of that other body corporate.
“(3) In determining whether a body corporate is a subsidiary of another body corporate—
(a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power exercisable—
(i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that other body corporate;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
“(4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.
“(5) Where a body corporate—
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body corporate,
that first-mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.
“(6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
“4b. (1) For the purposes of this Act, unless the contrary intention appears—
(a) a person shall be taken to have acquired particular goods as a consumer if, and only if—
(i) the price paid or payable by the person for the goods did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount—the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption,
and the person did not acquire the goods, or hold himself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and
(b) a person shall be taken to have acquired particular services as a consumer if, and only if—
(i) the price paid or payable by the person for the services did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
“(2) For the purposes of sub-section (1)—
(a) the prescribed amount is $15,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount;
(b) if a person acquired goods together with other property or with services, or with both other property and services, and a specified price was not allocated to the goods in the contract under which they were acquired, the price paid or payable by the person for the goods shall be taken to have been the amount that was the market value of the goods at the time when that contract was entered into; and
(c) if a person acquired services together with property or with other services, or with both property and other services, and a specified price was not allocated to the first-mentioned services in the contract under which they were acquired, the price paid or payable by the person for the first-mentioned services shall be taken to have been the amount that was the market value of those services at the time when that contract was entered into.
“(3) Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
“4c. In this Act, unless the contrary intention appears—
(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;
(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;
(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(e) a reference to the re-supply of goods acquired from a person includes a reference to—
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the first-mentioned goods have been incorporated.
“4d. (1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if—
(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and
(b) the provision has the purpose of preventing, restricting or limiting—
(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons; or
(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons in particular circumstances or on particular conditions,
by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.
“(2) A person shall be deemed to be competitive with another person for the purposes of this section if the first-mentioned person or a body corporate that is related to that person is, or is likely to be, in competition, in relation to the supply or acquisition of goods or services, with the other person or with a body corporate that is related to the other person.
“4e. For the purposes of this Act, ‘market’ means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.
“4f. For the purposes of this Act—
(a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if—
(i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if—
(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and
(ii) that purpose or reason was or is a substantial purpose or reason.
“4g. For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.
“4h. In this Act—
(a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences;
(b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
“4j. In this Act—
(a) a reference to a joint venture is a reference to an activity in trade or commerce—
(i) carried on jointly by two or more persons, whether or not in partnership; or
(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and
(b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in sub-paragraph (a) (ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.
“4k. In this Act—
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
“4l. If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.
“4m. This Act does not affect the operation of—
(a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or
(b) the law relating to breaches of confidence,
but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.”.
(a) by omitting from paragraph (b) of sub-section (2) the words and figures “sections 46, 60 and 61, sub-sections 64(3) and (4) “and substituting the words, figures and letters “sections 45, 45b, 45d, 46, 60 and 61, sub-sections 64 (3) and (4), section 75a”;
(b) by omitting paragraphs (d) and (e) of sub-section (2) and substituting the following paragraphs: —
“(d) in sub-section 45(1) and sub-paragraph 87(3)(a)(i) the words ‘in so far as it confers rights or benefits or imposes duties or obligations on a corporation’ were omitted;
“(e) in sub-section 45b(1) and sub-paragraph 87(3)(a)(ii) the words ‘in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation’ were omitted;”;
(c) by inserting in paragraph (f) of sub-section (2), before the word and figures “section 60”, the words, figures and letter “subsection 53a(2) and”; and
(d) by omitting paragraph (h) of sub-section (2) and substituting the following paragraph: —
“(h) subject to paragraphs (d), (e), (f) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 50 or 81 or sub-section 88(9), included a reference to a person not being a corporation.”.
“6a. (1) Upon the commencement of this section the Commission
established by the
“(2) The Commission—
(a) is a body corporate, with perpetual succession;
(b) shall have an official seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue or be sued in its corporate name.
“7. (1) The Commission shall consist of a Chairman and such number of other members as are from time to time appointed in accordance with this Act.
“(2) The members of the Commission shall be appointed by the Governor-General and shall be so appointed as full-time members.
“(3) A person shall not be appointed as a member of the Commission unless he appears to the Governor-General to be qualified for appointment by virtue of his knowledge of, or experience in, industry, commerce, economics, law or public administration.”.
(2) Any documents that were furnished under the Principal Act to the Commission established by that Act shall be deemed for the purposes of that Act as amended by this Act to have been furnished to the Trade Practices Commission established by that Act as so amended and, subject to that Act as so amended, that last-mentioned Commission is entitled to obtain and retain custody of those documents.
(3) Where, immediately before the commencement of this section, the Commission established by the Principal Act was a party to or intervener in a proceeding in a court, the Trade Practices Commission established by the Principal Act as amended by this Act shall be deemed to be substituted for the first-mentioned Commission as a party to or intervener in that proceeding.
(4) The power of the Trade Practices Commission established by the Principal Act as amended by this Act to institute any proceeding in the Court extends to the institution of a proceeding in respect of conduct engaged in before the commencement of this Act.
(5) Section 167 of the Principal Act as amended by this Act applies in relation to the official signature of a person who has held the office of Chairman, Deputy Chairman or member of the Commission that was established by the Principal Act and in relation to the official seal of that Commission in like manner as it applies in relation to the official signature of a person who holds the office of Chairman, Deputy Chairman or member of the Trade Practices Commission established by the Principal Act as amended by this Act and in relation to the official seal of that last-mentioned Commission, respectively.
(6) The Trade Practices Commission established by the Principal Act as amended by this Act shall, not later than 31 August 1977, furnish to the Minister, for presentation to the Parliament, a report with respect to the operations in the year ending on 30 June 1977 of the Trade Practices Commission established by the Principal Act.
“8a. (1) The Minister may appoint persons to be associate members of the Commission.
“(2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his appointment, but is eligible for re-appointment.
“(3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines.
“(4) The Chairman may, by writing signed by him, direct that, for the purposes of the exercise of the powers of the Commission under this Act in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be.
“(5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19.
“(6) For the purpose of the determination by the Commission of an application for an authorization or the making by the Commission of any decision for the purposes of sub-section 93(3), the Chairman shall consider—
(a) whether he should give a direction under sub-section (4) of this section; or
(b) in the case of a matter in relation to which the Chairman proposes to give a direction under sub-section 19(1), whether he should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission.
“(7) Nothing in sub-section (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission under section 171.”.
“(3) In this section, ‘member of the Commission’ includes an associate member of the Commission.”.
“13. (1) The Governor-General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.
“(2) If a member of the Commission—
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;
(b) fails to comply with his obligations under section 17;
(c) engages in any paid employment outside the duties of his office; or
(d) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or for 28 days in any 12 months,
the Governor-General shall terminate the appointment of that member of the Commission.
“14. (1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity.
“(2) If an associate member of the Commission—
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or
(b) fails to comply with his obligations under section 17,
the Minister shall terminate the appointment of that associate member of the Commission.”.
“(2) An associate member of the Commission may resign his office by writing signed by him and delivered to the Minister.”.
(a) by omitting sub-section (2) and substituting the following sub-section: —
“(2) Where an interest is so disclosed to the Chairman and—
(a) in case of an interest in a business—the person carrying on the business; or
(b) in the case of an interest in a body corporate—that body corporate,
is concerned in a matter before the Commission, being a matter in the determination of which the member who has the interest is or will be participating, the Chairman shall cause the interest to be disclosed to the public.”; and
(b) by adding at the end thereof the following sub-section:—
“(4) In this section, ‘member of the Commission’ includes an associate member of the Commission.”.
“(1) The Minister may—
(a) give directions as to matters to be given special consideration by the Commission in determining applications for authorizations or in making decisions for the purposes of paragraph 93(3)(a) or (b); and
(b) give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act, not including, except as mentioned in paragraph (a), functions or powers related directly or indirectly to Part VII,
and the Commission shall comply with any directions so given.”.
(a) by omitting sub-section (1) and substituting the following sub-section:—
“(1) A person shall not be appointed as a presidential member of the Tribunal unless he is a Judge of a Federal Court, not being the High Court or a court of an external Territory.”; and
(b) by inserting in sub-section (2), after the word “commerce”, the words”, economics, law”.
(2) For the avoidance of doubt, it is hereby declared that the
23. Section 35 of the Principal Act is amended by omitting from sub-section (2) the word “Attorney-General” and substituting the word “Minister”.
“45. (1) If a provision of a contract made before the commencement
of the
(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 corporation.
“(2) A corporation 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 and section 45a, ‘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 corporation that 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 corporation, 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 corporation, 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 corporation or a body corporate related to the corporation 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 sub-section 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 sub-section 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 conduct that contravenes section 48 or would contravene that section if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods are to be sold or are to be advertised, displayed or offered for sale.
“(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 sub-section 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 sub-section 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 sub-section 47(2), (4), (6) or (8), being an act done by a person at a time when—
(i) an authorization under sub-section 88 (8) is in force in relation to conduct engaged in by that person on that condition; or
(ii) by reason of sub-section 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.
“(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, or any assets, of a body corporate.
“(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.
“(9) The making by a corporation of a contract that contains a provision in relation to which sub-section 88(1) applies is not a contravention of sub-section (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 corporation is granted an authorization to give effect to the provision; and
(b) the corporation applies for the grant of such an authorization within 14 days after the contract is made,
but nothing in this sub-section prevents the giving effect by a corporation to such a provision from constituting a contravention of sub-section (2).
45a. (1) Without limiting the generality of section 45, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has or is likely to have the effect, as the case may be, 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 or to be supplied or acquired by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other.
“(2) Sub-section (1) does not apply to a provision of a contract or arrangement made or of an understanding arrived at, or of a proposed contract or arrangement to be made or of a proposed understanding to be arrived at, for the purposes of a joint venture to the extent that the provision relates or would relate to—
(a) the joint supply by the parties to the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture;
(b) the joint supply by the parties to the joint venture of services in pursuance of the joint venture; or
(c) in the case of a joint venture carried on by a body corporate as mentioned in sub-paragraph 4j (a) (ii)—
(i) the supply by that body corporate of goods produced by it in pursuance of the joint venture; or
(ii) the supply by that body corporate of services in pursuance of the joint venture, not being services supplied on behalf of the body corporate by—
(a) a person who is the owner of shares in the capital of the body corporate; or
(b) a body corporate that is related to such a person.
“(3) Sub-section (1) does not apply in relation to a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, to the extent that the provision recommends or provides for recommending, or would recommend or provide for recommending, the price for, or a discount, allowance, rebate or credit in relation to, goods or services, where the parties to the contract, arrangement or understanding, or the proposed parties to the proposed contract, arrangement or understanding, include—
(a) not less than 50 persons (bodies corporate that are related to one another being counted as a single person) who supply, in trade or commerce, goods or services to which the provision applies; or
(b) not less than 50 persons (bodies corporate that are related to one another being counted as a single person) who acquire, in trade or commerce, goods or services to which the provision applies.
“(4) Sub-section (1) does not apply to a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, being a provision—
(a) in relation to the price for goods or services to be collectively acquired, whether directly or indirectly, by parties to the contract, arrangement or understanding or by proposed parties to the proposed contract, arrangement or understanding; or
(b) for the joint advertising of the price for the re-supply of goods so acquired.
“(5) For the purposes of this Act, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not 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 by reason only of—
(a) the form of, or of that provision of, the contract, arrangement or understanding or the proposed contract, arrangement or understanding; or
(b) any description given to, or to that provision of, the contract, arrangement or understanding or the proposed contract, arrangement or understanding by the parties or proposed parties.
“(6) For the purposes of this Act but without limiting the generality of sub-section (5), a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not 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 by reason only that the provision recommends, or provides for the recommending of, such a price, discount, allowance, rebate or credit if in fact the provision has that purpose or has or is likely to have that effect.
“(7) For the purposes of the preceding provisions of this section but without limiting the generality of those provisions, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, 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 supplied as mentioned in sub-section (1) if the provision has the purpose, or 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 by persons to whom the goods are or would be supplied by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them.
“(8) The reference in sub-section (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.
“45b. (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 corporation or on a person associated with a corporation if the convenant has, or is likely to have, the effect of substantially lessening competition in any market in which the corporation or any person associated with the corporation supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the convenant, supply or acquire, or be likely to supply or acquire, goods or services.
“(2) A corporation or a person associated with a corporation 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 corporation, or any person associated with the corporation 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 corporation 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 corporation;
(b) threaten to engage in particular conduct if a person who, but for sub-section (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 sub-section (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 corporation that, or person who, is or would be, or but for sub-section (1) would be, entitled to the benefit of the first-mentioned covenant or proposed covenant; or
(b) a person associated with the corporation referred to in paragraph (a) or a corporation associated with the person referred to in that paragraph,
is or would be, or but for sub-section (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 sub-section 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 sub-section 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 sub-section 47(2), (4), (6) or (8), being an act done by a person at a time when—
(i) an authorization under sub-section 88(8) is in force in relation to conduct engaged in by that person on that condition; or
(ii) by reason of sub-section 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.
“(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 sub-paragraph 87(3)(a)(ii), a person and a corporation shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if—
(a) the 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 corporation in relation to the covenant or proposed covenant; or
(b) the person is a body corporate in relation to which the corporation is in the position mentioned in sub-paragraph 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 sub-section 88(5) applies is not a contravention of sub-section (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 sub-section affects the application of paragraph (2)(b) or (c) in relation to the covenant.
“(9) This section does not apply to or in relation to a covenant or proposed covenant if—
(a) the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes;
(b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
“45c. (1) In the application of sub-section 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 sub-section 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 sub-section has effect as if the words ‘if the covenant has, or is likely to have, the effect of substantially lessening competition in a market in which the corporation or any person associated with the corporation 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 sub-section 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 sub-section 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 sub-section 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 sub-section 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 supplied as mentioned on sub-section (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 by persons to whom the goods are. supplied by the persons who are, or but for sub-section. 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 supplied as mentioned in sub-section (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 by persons to whom the goods are supplied by the persons who would, or would but for sub-section 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 sub-section (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. (1) Subject to this section, a person shall not, in concert with another person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a corporation (not being an employer of the first-mentioned person), where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing—
(a) substantial loss or damage to the business of the corporation or of a body corporate that is related to the corporation; or
(b) a substantial lessening of competition in any market in which the corporation or a body corporate that is related to the corporation supplies or acquires goods or services.
“(2) Paragraph 4f(b) does not apply in relation to sub-section (1) of this section but a person shall be deemed to engage in conduct for a purpose mentioned in that sub-section if he engages in that conduct for purposes that include that purpose.
“(3) A person shall not be taken to contravene, or to be involved in a contravention of, sub-section (1) by engaging in conduct where—
(a) the dominant purpose for which the conduct is engaged in is substantially related to—
(i) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or
(ii) an employer of that person having terminated, or taken action to terminate, the employment of that person or of another person employed by that employer; or
(b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say—
(i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such an officer or officers; and
(ii) an employee, or 2 or more employees who are employed by the one employer,
the dominant purpose for which the conduct is engaged in is substantially related to—
(iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); or
(iv) the employer of the employee, or of the employees, referred to in sub-paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employees.
“(4) The application of sub-section (1) in relation to a person in respect of his engaging in conduct in concert with another person is not affected by reason that sub-section (3) operates to preclude the other person from being taken to contravene, or to be involved in a contravention of, sub-section (1) in respect of that conduct.
“(5) If two or more persons (in this sub-section referred to as the ‘participants’) each of whom is a member or officer of the same organization of employees (being an organization that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct.
“(6) Where an organization of employees engages, or is deemed by sub-section (5) to engage, in conduct in concert with members or officers of the organization in contravention of sub-section (1)—
(a) any loss or damage suffered by a person as a result of the conduct shall be deemed to have been caused by the conduct of the organization;
(b) if the organization is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organization; and
(c) if the organization is not a body corporate—
(i) a proceeding in respect of the conduct may be instituted under section 77, 80 or 82 against an officer or officers of the organization as a representative or representatives of the members of the organization and a proceeding so instituted shall be deemed to be a proceeding against all the persons who were members of the organization at the time when the conduct was engaged in;
(ii) sub-section 76(2) does not prevent an order being made in a proceeding mentioned in sub-paragraph (i) that was instituted under section 77;
(iii) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in sub-paragraph (ii) is the penalty applicable under section 76 in relation to a body corporate;
(iv) except as provided by sub-paragraph (i), a proceeding in respect of the conduct shall not be instituted under section 77 or 82 against any of the members or officers of the organization; and
(v) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in sub-paragraph (i) that is instituted under section 77 or 82, process may be issued and executed against any property of the organization or of any branch or part of the organization, or any property in which the organization or any branch or part of the organization has, or any members of the organization or of a branch or part of the organization have in their capacity as such members, a beneficial interest, whether vested in trustees or however otherwise held, as if the organization were a body corporate and the absolute owner of the property or interest but no process shall be issued or executed against any other property of members, or against any property of officers, of the organization or of a branch or part of the organization.
“(7) Nothing in this section affects the operation of any other provision of this Part.
“46. (1) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position for the purpose of—
(a) eliminating or substantially damaging a person, being a competitor in that market or in any other market of the corporation or of a body corporate related to the corporation;
(b) preventing the entry of a person into that market or into any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that market or in any other market.
“(2) If—
(a) a body corporate that is related to a corporation is, or two or more bodies corporate each of which is related to the one corporation together are, in a position substantially to control a market for goods or services; or
(b) a corporation, and a body corporate that is, or two or more bodies corporate each of which is, related to that corporation, together are in a position substantially to control a market for goods or services,
the corporation shall be deemed for the purposes of this section to be in a position substantially to control that market.
“(3) A reference in this section to a corporation or other body corporate being in a position substantially to control a market for goods or services includes a reference to a corporation or other body corporate, as the case may be, having, by reason of its share of the market, or its share of the market combined with the availability to it of technical knowledge, raw materials or capital, the power to determine the prices, or control the production or distribution, of a substantial part of the goods or services in that market.
“(4) A reference in this section to substantially controlling a market for goods or services shall be construed as a reference to substantially controlling such a market either as a supplier or as an acquirer of goods or services in that market.
“(5) Without extending by implication the meaning of sub-section (1), a corporation shall not be taken to contravene that sub-section by reason only that it acquires plant or equipment.
“(6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45b, 47 and 50, by reason that an authorization is in force or by reason of the operation of section 93.
“47. (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.
“(2) A corporation engages in the practice of exclusive dealing if the corporation—
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation,
on the condition that the person to whom the corporation supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate—
(d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;
(e) will not, or will not except to a limited extent, re-supply goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or
(f) in the case where the corporation supplies or would supply goods, will not re-supply the goods to any person, or will not, or will not except to a limited extent, re-supply the goods—
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places.
“(3) A corporation also engages in the practice of exclusive dealing if the corporation refuses—
(a) to supply goods or services to a person;
(b) to supply goods or services to a person at a particular price; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a person,
for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate—
(d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;
(e) has re-supplied, or has not agreed not to re-supply, goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or
(f) in the case of a refusal in relation to the supply or proposed supply of goods, has re-supplied, or has not agreed not to re-supply, goods, or goods of a particular kind or description, acquired from the corporation to any person, or has re-supplied, or has not agreed not to re-supply, goods, or goods of a particular kind or description, acquired from the corporation—
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places.
“(4) A corporation also engages in the practice of exclusive dealing if the corporation—
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular price,
on the condition that the person from whom the corporation acquires or offers to acquire the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description—
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
“(5) A corporation also engages in the practice of exclusive dealing if the corporation refuses—
(a) to acquire goods or services from a person; or
(b) to acquire goods or services at a particular price from a person,
for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description—
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
“(6) A corporation also engages in the practice of exclusive dealing if the corporation—
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation,
on the condition that the person to whom the corporation supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.
“(7) A corporation also engages in the practice of exclusive dealing if the corporation refuses—
(a) to supply goods or services to a person;
(b) to supply goods or services at a particular price to a person; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person,
for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.
“(8) A corporation also engages in the practice of exclusive dealing if the corporation grants or renews, or makes it known that it will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate—
(a) will not, or will not except to a limited extent—
(i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or
(ii) re-supply goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;
(b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description—
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places; or
(c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.
“(9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate—
(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;
(b) has re-supplied, or has not agreed not to re-supply, goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;
(c) has supplied goods or services, or goods or services of a particular kind or description—
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places; or
(d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.
“(10) Sub-section (1) does not apply to the practice of exclusive dealing constituted by a corporation engaging in conduct of a kind referred to in sub-section (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless—
(a) the engaging by the corporation in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or
(b) the engaging by the corporation in that conduct, and the engaging by the corporation, or by a body corporate related to the corporation, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.
“(11) Sub-sections (8) and (9) do not apply with respect to—
(a) conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
“(12) Sub-section (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.
“(13) In this section—
(a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;
(b) a reference to competition, in relation to conduct to which a provision of this section other than sub-section (8) or (9) applies, shall be read as a reference to competition in any market in which—
(i) the corporation engaging in the conduct or any body corporate related to that corporation; or
(ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate,
supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the corporation engaging in the conduct or any other corporation the business dealings of which are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those corporations, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.”.
(a) by inserting in paragraph (b) of sub-section (1), after the word “given”, the words “or allowed”;
(b) by omitting from paragraphs (c) and (d) of sub-section (1) the words “or facilities”; and
(c) by inserting before the words “is likely to have” the words “has or”.
(a) in the case of a notice given under sub-section 92(1) of the
Trade Practices Act 1974 as so in force—a notice was given to the corporation under sub-section 92(2) of that Act; or(b) in the case of a notice given under sub-section 93(1) of the
Trade Practices Act 1974 as so in force—no notice was given to the Corporation under sub-section 93(2) of that Act; or(ii) made a determination granting an authorization (whether or not the authorization is still in force); and
(b) the Tribunal has made a determination on an application for a review of the determination of the Commission, or for a review of the determination of the Trade Practices Commission established under the
Trade Practices Act 1974 as in force immediately before the commencement of theTrade Practices Amendment Act 1977, or the time for making such an application for review has expired without an application for review having been made.
“(3) If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind referred to in a notice given by the corporation to the Commission under sub-section (1) has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47 and that in all the circumstances—
(a) the conduct has not resulted or is not likely to result, or the proposed conduct would not result or be likely to result, in a benefit to the public; or
(b) any benefit to the public that has resulted or is likely to result from the conduct, or would result or be likely to result from the proposed conduct, would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct,
the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.
“(4) Before giving a notice under sub-section (3) the Commission shall comply with the requirements of section 93a.
“(5) In satisfying itself for the purposes of sub-section (3) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation under sub-section (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or any other person or otherwise in its possession.
“(6) A corporation that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation a notice under sub-section (3) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first-mentioned notice.
“(7) Where a corporation has given notice to the Commission under sub-section (1)—
(a) in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the
Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and(b) in any case, the engaging by the corporation in the conduct referred to in the notice after the giving of the notice shall not be taken, for the purposes of section 47, to have the effect of substantially lessening competition within the meaning of that section unless—
(i) the Commission has given notice to the corporation under sub-section (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or
(ii) the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn.
“(8) Where—
(a) a corporation gives a notice to the Commission under sub-section (1) in relation to any conduct or proposed conduct;
(b) before or after the notice is given the corporation makes an application to the Commission for an authorization to engage in that conduct;
(c) the Commission—
(i) makes a determination dismissing the application; or
(ii) makes a determination granting an authorization in respect of the application; and
(d) the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for review having been made,
the notice shall thereupon be deemed to be withdrawn.
“(9) If an application is made to the Tribunal for a review of the giving of a notice by the Commission under sub-section (3), the reference in sub-section (7) to the day on which the Commission gave the notice shall be read as a reference to—
(a) if the application is withdrawn—the day on which the application is withdrawn;
(b) if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence—the day on which the Tribunal makes the declaration; or
(c) in any other case—the day on which the Tribunal makes a determination on the review.
“(10) Where—
(a) a corporation has given a notice to the Commission under sub-section (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation in writing under sub-section (3) in relation to the conduct or the proposed conduct; or
(b) a notice given by a corporation to the Commission under sub-section (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn,
the corporation is not entitled to give a further notice under sub-section (1) to the Commission in relation to the same conduct or proposed conduct or in relation to conduct or proposed conduct to the like effect.”.
“93a. (1) Before giving a notice under sub-section 93 (3) in relation to any conduct or proposed conduct, the Commission shall prepare a draft notice in relation to that conduct or proposed conduct.
“(2) The Commission shall, by notice in writing sent to the corporation to the conduct or proposed conduct of which the draft notice relates and to each other interested person, invite the corporation or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the corporation or other person wishes the Commission to hold a conference in relation to the draft notice.
“(3) The Commission shall send with each notice under sub-section (2) a copy of the draft notice and a summary of the reasons why it proposes to give the notice under sub-section 93(3).
“(4) If each of the persons to whom a notice was sent under sub-section (2)—
(a) notifies the Commission in writing within the period of 14 days mentioned in that sub-section that the person does not wish the Commission to hold a conference in relation to the draft notice; or
(b) does not notify the Commission within that period that he wishes the Commission to hold such a conference,
the Commission may give the notice under sub-section 93(3) at any time after the expiration of that period.
“(5) If any of the persons to whom a notice was sent under sub-section (2) notifies the Commission in writing within the period of 14 days mentioned in that sub-section that he wishes the Commission to hold a conference in relation to the draft notice, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under sub-section (2).
“(6) At the conference—
(a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft notice) nominated by the Chairman;
(b) each person to whom a notice was sent under sub-section (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate;
(c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him but a person who so assists another person at the conference is not entitled to participate in the discussion;
(d) the Minister or a person or persons appointed in writing by the Minister is or are entitled to attend and participate personally; and
(e) no other person is entitled to be present.
“(7) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.
“(8) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairman—
(a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;
(b) may terminate the conference when he is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first notification under sub-section (5) in relation to the draft notice was received by the Commission and the day on which the conference terminated,
and any such certificate shall be received in all courts as evidence of the matters certified.
“(9) A document purporting to be a certificate referred to in sub-section (8) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
“(10) The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference, if it is satisfied as to the matters referred to in sub-section 93(3), give a notice under that sub-section in relation to the conduct or proposed conduct.
“(11) For the purposes of this section, ‘interested person’ means a person who has notified the Commission in writing that he, or a specified unincorporated association of which he is a member, claims to have an interest in the matter, being an interest that, in the opinion of the Commission, is real and substantial.
“(12) Where the Commission is of the opinion that two or more notices given to the Commission under sub-section 93(1) by the same person, or by persons being bodies corporate that are related to each other, deal with substantially similar conduct or proposed conduct, the Commission may treat the notices as if they constituted a single notice and may prepare one draft notice in relation to the notices so given to the Commission and hold one conference in relation to that draft notice.”.
(2) Where before the commencement of this section a notice was given to a corporation under section 94 of the Principal Act by the Trade Practices Commission established under that Act stating that the Commission considered that a proposed acquisition of shares in the capital, or of assets, of a body corporate would not be likely to have the effect of substantially lessening competition in a market for goods or services, sections 46 and 50 of the Principal Act as amended by this Act do not apply to or in relation to that acquisition.
“95. (1) The Commission shall keep a register containing—
(a) draft notices, and summaries of reasons, by the Commission furnished to any person under section 93a;
(b) records of conferences made in accordance with sub-section 93a(7) and certificates in relation to conferences given under sub-section 93a(8);
(c) notices (including notices that have been withdrawn) given to the Commission under section 93;
(d) documents furnished to the Commission in relation to such notices;
(e) particulars of any oral submissions made to the Commission in relation to such notices;
(f) particulars of notices given by the Commission to corporations by which notices under section 93 were given; and
(g) particulars of any permits given by the Commission under sub-paragraph 93(7)(b)(i).
“(2) Where a person furnishes a document to the Commission in relation to a notice given to the Commission under section 93 or makes an oral submission to the Commission in relation to such a notice, he may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under sub-section (1) by reason of the confidential nature of any of the matters contained in the document or submission.
“(3) Where such a request is made—
(a) if the document or part of the document, or the submission or part of the submission, to which the request relates contains particulars of—
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of shares in the capital, or assets, of a body corporate; or
(iii) the current costs of manufacturing, producing or marketing goods or services,
the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under sub-section (1); and
(b) in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.
“(4) If the Commission refuses a request to exclude a document or a part of a document from the register kept under sub-section (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document.
“(5) Sub-section (4) does not apply in relation to a document that was produced to the Commission in pursuance of a notice under section 155.
“(6) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under sub-section (1), the person who made the submission may inform the Commission that he withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be.
“(7) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1) (e) from the register kept under sub-section (1).
“(8) If a person requests in accordance with sub-section (2) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under sub-section (1), the document or the part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.”.
(2) The register kept under sub-section 95(1) of the Principal Act as amended by this Act shall include—
(a) notices given under section 94 of the Principal Act to the Trade Practices Commission established under that Act; and
(b) particulars of notices given by that Commission to corporations by which notices under that section were given.
(a) by omitting from sub-section (1) the words “, not being a determination granting an authorization in pursuance of the requirements of sub-section 90(9), “; and
(b) by omitting sub-section (2) and substituting the following sub-section:—
“(2) A review by the Tribunal is a re-hearing of the matter and sub-sections 90(6), (7), (8) and (9) apply in relation to the Tribunal in like manner as they apply in relation to the Commission.”.
“101a. A person dissatisfied with the giving of a notice by the Commission under sub-section 93(3) may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the giving of the notice and, if the person was the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal shall review the giving of the notice.
“102. (1) Upon a review of a determination of the Commission in relation to an application for an authorization, the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.
“(2) A determination by the Tribunal affirming, setting aside or varying a determination of the Commission in relation to an application for an authorization shall, for the purposes of this Act other than this Part, be deemed to be a determination by the Commission.
“(3) Upon a review by the Tribunal, the Tribunal shall comply with any directions given by the Minister to the Commission under paragraph 29(1)(a) as if those directions had been given to the Tribunal.
“(4) Subject to sub-section (3), upon a review of the giving of a notice by the Commission under sub-section 93(3)—
(a) if the person who applied for the review satisfies the Tribunal that in all the circumstances—
(i) the conduct or proposed conduct to which the notice relates has resulted or is likely to result, or would result or be likely to result, as the case may be, in a benefit to the public; and
(ii) that benefit would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct,
the Tribunal shall make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal shall make a determination affirming the notice.
“(5) Where the Tribunal makes a determination setting aside a notice given by the Commission under sub-section 93(3), then, after the setting aside of the notice, sub-section 93(7) has effect in relation to the conduct referred to in the notice as if the Commission had not given the notice.
“(6) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
“(7) For the purposes of a review, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates.”.
“(1a) A person to whom a notice was given by the Commission under sub-section 93(3) is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that notice.”.
“(3a) For the purposes of paragraph (3)(b), the communication or production of any matter or document to a person authorized by writing under the common seal of a body corporate to represent the body corporate for the purposes of this section shall be deemed to be communication or production to that body corporate.
“(3b) This section
applies to persons who were members of the Trade Practices Commission
established by the
“(1) Where—
(a) a corporation makes an application to the Commission for an authorization;
(b) the Commission gives a notice under sub-section 91(4) to a corporation to which an authorization has been given;
(c) a proceeding is instituted against a corporation or other person under section 77, 80 or 81 ; or
(d) an application is made under section 80a or sub-section 87(1a) for an order against a corporation or other person,
the Commission shall, at the request of the corporation or other person and upon payment of the prescribed fee (if any), furnish to the corporation or other person—
(e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; and
(f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person,
not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission.
“(2) If the Commission does not comply with a request under sub-section (1), the Court shall, subject to sub-section (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request.”.
(a) by omitting from sub-section (1) the words “or a member of the Commission”;
(b) by omitting from sub-section (2) the words “or the Commission”; and
(c) by omitting from sub-section (3) the words “summoned to attend or appearing before the Tribunal or the Commission as a witness” and substituting the words “appearing before the Tribunal or the Commission to give evidence”.
(a) by omitting the words “the Tribunal or” (wherever appearing); and
(b) by omitting from sub-section (1) the words “(including a person appearing before the Commission under section 155)”.
(a) by omitting the words “or the Commission”; and
(b) by omitting from paragraph (b) the words “or a member of the Commission, as the case may be”.
(a) by omitting the words “or the Commission”; and
(b) by adding at the end thereof the following sub-section:—
“(2) It is a reasonable excuse for a person to refuse or fail to answer a question that he is required to answer under this section that the answer to the question may tend to incriminate him.”.
“162. A person shall not—
(a) insult a member of the Tribunal or a member of the Commission in the exercise of his powers or functions as a member;
(b) interrupt the proceedings of the Tribunal or a conference held by the Commission under section 90a or 93a;
(c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting or the Commission is holding such a conference; or
(d) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: $1,000 or imprisonment for 3 months.”.
“(3) The Commission is not entitled to institute a proceeding in the Court under this section but may intervene in a proceeding instituted in the Court or in any other court, being a proceeding—
(a) that involves a matter arising under Part IV other than a matter arising under section 48; and
(b) in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a).”.
(a) by omitting from sub-section (1) the words “a provision of a contract, or particulars of an arrangement or understanding,” and substituting the words “, or of a provision of, a contract, arrangement or understanding”; and
(b) by omitting from sub-section (3) the words “a provision of a contract, or of an arrangement or understanding,” and substituting the words “, or of a provision of, a contract, arrangement or understanding”.
“(2) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of this Act or of the provisions of this Act specified in the regulations—
(a) conduct engaged in by a specified organization or body that performs functions in relation to the marketing of primary products;
(b) a prescribed contract or proposed contract, contracts included in a prescribed class of contracts, or prescribed conduct, being a contract, proposed contract or class of contracts made, or conduct engaged in, in pursuance of or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a country outside Australia; or
(c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.
“(3) Strict compliance with a form of application or notice prescribed for the purposes of this Act is not, and shall be deemed never to have been, required and substantial compliance is, and shall be deemed always to have been, sufficient.”.
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