Queensland Consolidated Acts Queensland Consolidated Acts45.(1) If a provision of a contract made before the commencement of this section:
(a) is an exclusionary provision; or
(b) has the purpose, or has or is likely to have the effect, of substantially lessening competition;
that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.
(2) A person shall not:
(a) make a contract or arrangement, or arrive at an understanding, if:
(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or
(ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or
(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision:
(i) is an exclusionary provision; or
(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.
(3) For the purposes
of this section 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
person who is a party to the contract, arrangement or understanding or would
be a party to the proposed contract, arrangement or understanding, or any body
corporate related to such a person, supplies or acquires, or is likely to
supply or acquire, goods or services or would, but for the provision, supply
or acquire, or be likely to supply or acquire, goods or services.
(4) For the
purposes of the application of this section in relation to a particular
person, a provision of a contract, arrangement or understanding or of a
proposed contract, arrangement or understanding shall be deemed to have or to
be likely to have the effect of substantially lessening competition if that
provision and any one or more of the following provisions, namely:
(a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and
(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party;
together have or are likely to have that effect.
(5) This section does not apply to or in relation to:
(a) a provision of a contract where the provision constitutes a covenant to which section 45B applies or, but for subsection-45B(9), would apply;
(b) a provision of a proposed contract where the provision would constitute a covenant to which section 45B would apply or, but for subsection 45B(9), would apply; or
(c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to:
(i) conduct that contravenes section 48; or
(ii) conduct that would contravene section 48 but for the operation of subsection 88(8A); or
(iii) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.
(6) The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of:
(a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:
(i) an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or
(ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
(7) This section does not apply
to or in relation to a contract, arrangement or understanding in so far as the
contract, arrangement or understanding provides, or to or in relation to a
proposed contract, arrangement or understanding in so far as the proposed
contract, arrangement or understanding would provide, directly or indirectly
for the acquisition of any shares in the capital of a body corporate or any
assets of a person.
(8) This section does not apply to or in relation to a
contract, arrangement or understanding, or a proposed contract, arrangement or
understanding, the only parties to which are or would be bodies corporate that
are related to each other.
(9) The making by a person of a contract that
contains a provision in relation to which subsection 88(1) applies is not a
contravention of subsection (2) of this section if:
(a) the contract is subject to a condition that the provision will not come into force unless and until the person is granted an authorization to give effect to the provision; and
(b) the person applies for the grant of such an authorization within 14-days after the contract is made;
but nothing in this subsection prevents the giving effect by a person to such a provision from constituting a contravention of subsection (2).
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) Subsection (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 2 or more of the parties to the joint venture, or the supply by all the parties to the joint venture in proportion to their respective interests in the joint venture, of goods jointly produced by all the parties in pursuance of the joint venture;
(b) the joint supply by 2 or more of the parties to the joint venture of services in pursuance of the joint venture, or the supply by all the parties to the joint venture in proportion to their respective interests in the joint venture of services in pursuance of, and made available as a result of, the joint venture; or
(c) in the case of a joint venture carried on by a body corporate as mentioned in subparagraph 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.
(4) Subsection (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 or services 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 subsection (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 or services supplied as
mentioned in subsection (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 or
services by persons to whom the goods or services 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 subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.
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 first person or on a person
associated with a first person if the covenant has, or is likely to have, the
effect of substantially lessening competition in any market in which the first
person or any person associated with the first person supplies or acquires, or
is likely to supply or acquire, goods or services or would, but for the
covenant, supply or acquire, or be likely to supply or acquire, goods or
services.
(2) A first person or a person associated with a first person shall
not:
(a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which:
(i) the first person, or any person associated with the first person by virtue of paragraph (7)(b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or
(ii) any person associated with the first person by virtue of the operation of paragraph (7)(a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the first person;
(b) threaten to engage in particular conduct if a person who, but for subsection (1), would be bound by a covenant does not comply with the terms of the covenant; or
(c) engage in particular conduct by reason that a person who, but for subsection (1), would be bound by a covenant has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.
(3) Where a person:
(a) issues an invitation to another person to enter into a contract containing a covenant;
(b) makes an offer to another person to enter into a contract containing a covenant; or
(c) makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms;
the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant.
(4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which:
(a) a person who is or would be, or but for subsection (1) would be, entitled to the benefit of the first-mentioned covenant or proposed covenant; or
(b) a person associated with the person referred to in paragraph (a);
is or would be, or but for subsection (1) would be, entitled.
(5) The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving effect to the covenant would, or would but for the operation of subsection 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by way of:
(a) conduct that contravenes, or would but for the operation of subsection 88(8) or section 93 contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:
(i) an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or
(ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
(6) This
section does not apply to or in relation to a covenant or proposed covenant
where the only persons who are or would be respectively bound by, or entitled
to the benefit of, the covenant or proposed covenant are persons who are
associated with each other or are bodies corporate that are related to each
other.
(7) For the purposes of this section, section 45C and
subparagraph-87(3)(a)(ii), the first person and another person (the "second
person" ) shall be taken to be associated with each other in relation to a
covenant or proposed covenant if, and only if:
(a) the first person is a body corporate and the second person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the first person in relation to the covenant or proposed covenant; or
(b) the second person is a body corporate in relation to which the first person is in the position mentioned in subparagraph 4A(1)(a)(ii).
(8) The requiring by a person of the giving of, or the giving by a person of, a covenant in relation to which subsection 88(5) applies is not a contravention of subsection (2) of this section if:
(a) the covenant is subject to a condition that the covenant will not come into force unless and until the person is granted an authorization to require the giving of, or to give, the covenant; and
(b) the person applies for the grant of such an authorization within 14-days after the covenant is given;
but nothing in this subsection affects the application of paragraph (2)(b) or (c) in relation to the covenant.
(9) This section does not apply to or in relation to a covenant or proposed covenant if:
(a) the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes;
(b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
45C.(1) In the application of subsection 45B(1) in relation to a covenant that
has, or is likely to have, the effect of fixing, controlling or maintaining,
or providing for the fixing, controlling or maintaining of, the price for, or
a discount, allowance, rebate or credit in relation to, goods or services
supplied or acquired by the persons who are, or but for that subsection would
be, bound by or entitled to the benefit of the covenant, or by any of them, or
by any persons associated with any of them, in competition with each other,
that subsection has effect as if the words "if the covenant has, or is likely
to have, the effect of substantially lessening competition in any market in
which the first person or any person associated with the first person supplies
or acquires, or is likely to supply or acquire, goods or services or would,
but for the covenant, supply or acquire, or be likely to supply or acquire,
goods or services" were omitted.
(2) In the application of subsection 45B(2)
in relation to a proposed covenant that has the purpose, or would have or be
likely to have the effect, of fixing, controlling or maintaining, or providing
for the fixing, controlling or maintaining of, the price for, or a discount,
allowance, rebate or credit in relation to, goods or services supplied or
acquired by the persons who would, or would but for subsection 45B(1), be
bound by or entitled to the benefit of the proposed covenant, or by any of
them, or by any persons associated with any of them, in competition with each
other, paragraph-45B(2)(a) has effect as if all the words after the words
"require the giving of a covenant, or give a covenant" were omitted.
(3) For
the purposes of this Act, a covenant shall not be taken not to have, or not to
be likely to have, the effect, or a proposed covenant shall not be taken not
to have the purpose, or not to have, or not to be likely to have, the effect,
of fixing, controlling or maintaining, or providing for the fixing,
controlling or maintaining of, the price for, or a discount, allowance, rebate
or credit in relation to, goods or services by reason only of:
(a) the form of the covenant or proposed covenant; or
(b) any description given to the covenant by any of the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant.
(4) For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions:
(a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them; and
(b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them.
(5) The reference in subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.
45D.(1) Subject to subsection (2), a person must not, in concert with a second
person, engage in conduct that hinders or prevents the supply of goods or
services by a third person to a fourth person, or the acquisition of goods or
services by a third person from a fourth person, if the conduct is engaged in
for the purpose, and would have or be likely to have the effect, of causing a
substantial lessening of competition in any market in which the fourth person
supplies or acquires goods or services.
(2) In determining whether a
contravention of subsection (1) has been committed, boycott conduct within the
meaning of Division 7 of Part VI of the Industrial Relations Act 1988 is to be
disregarded.
(3) This section does not affect the operation of any other provision of this Part.
46.(1) A person (the "first person" ) who has a substantial degree of power in a market shall not take advantage of that power for the purpose of:
(a) eliminating or substantially damaging a competitor of the first person or of a body corporate that is related to the first person in that or any other market;
(b) preventing the entry of a person into that or any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that or any other market.
(1A) For the purposes of subsection (1):
(a) the reference in paragraph (1)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and
(b) the reference in paragraphs (1)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.
(2) If:
(a) a body corporate that is related to a person (the "first person" ) has, or 2 or more bodies corporate each of which is related to the one person (the "first person" ) together have, a substantial degree of power in a market; or
(b) a person (the "first person" ) and a body corporate that is, or a person (the "first person" ) and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in a market;
the first person shall be taken for the purposes of this section to have a substantial degree of power in that market.
(3) In determining for the purposes of this section the degree of power that a person (the "first person" ) or bodies corporate has or have in a market, the Court shall have regard to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or
(b) persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market.
(4) In this section:
(a) a reference to power is a reference to market power;
(b) a reference to a market is a reference to a market for goods or services; and
(c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.
(5) Without extending by implication the meaning
of subsection (1), a person shall not be taken to contravene that subsection
by reason only that the person acquires plant or equipment.
(6) This section
does not prevent a person from engaging in conduct that does not constitute a
contravention of any of the following sections, namely, sections 45, 45B, 47
and 50, by reason that an authorization is in force or by reason of the
operation of section 93.
(7) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have taken advantage of the person's power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.
47.(1) Subject to this section, a person shall not, in trade or commerce,
engage in the practice of exclusive dealing.
(2) A person (the "first person"
) engages in the practice of exclusive dealing if the first person:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;
on the condition that the person (the "second person" ) to whom the first person supplies, or offers or proposes to supply, the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate:
(d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
(e) will not, or will not except to a limited extent, re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
(f) in the case where the first person supplies or would supply goods or services, will not re-supply the goods or services to any person, or will not, or will not except to a limited extent, re-supply the goods or services:
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places.
(3) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services to a second person at a particular price; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:
(d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
(e) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
(f) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the first person to any person, or has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the first person:
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places.
(4) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person:
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular price;
on the condition that the person (the "second person" ) from whom the first person acquires or offers to acquire the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
(5) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person refuses:
(a) to acquire goods or services from a second person; or
(b) to acquire goods or services at a particular price from a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description:
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
(6) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;
on the condition that the person (the "second person" ) to whom the first person supplies or offers or proposes to supply the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person.
(7) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services at a particular price to a second person; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a second person;
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person.
(8) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person grants or renews, or makes it known that the first person will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:
(a) will not, or will not except to a limited extent:
(i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or
(ii) re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
(b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places; or
(c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
(9) A person (the "first person" ) also engages in the practice of exclusive dealing if the first person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:
(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
(b) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
(c) has supplied goods or services, or goods or services of a particular kind or description:
(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places; or
(d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
(10) Subsection (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless:
(a) the engaging by the person in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or
(b) the engaging by the person in that conduct, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.
(l0A) Subsection (1) does not apply to a person engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:
(a) the person has given the Commission a notice under subsection-93(1) describing the conduct; and
(b) the notice is in force under section 93.
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
(12) Subsection (1) does not apply with respect to any
conduct engaged in by a body corporate by way of restricting dealings by
another body corporate if those bodies corporate are related to each other.
(13) In this section:
(a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;
(b) a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which:
(i) the person engaging in the conduct or any body corporate related to that person; or
(ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate;
supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the person engaging in the conduct or any other person whose business dealings are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those persons, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.
48. A person shall not engage in the practice of resale price maintenance.
50.(1) A person must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
(3) Without limiting the matters that may be taken into account for the purposes of subsection (1) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:
(a) the actual and potential level of import competition in the market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
(f) the extent to which substitutes are available in the market or are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
(4) Where:
(a) a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;
(b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted an authorization to acquire the shares or assets; and
(c) the person applied for the grant of such an authorization before the expiration of 14 days after the contract was entered into;
the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before:
(d) the application for the authorization is disposed of; or
(e) the contract ceases to be subject to the condition;
whichever first happens.
(5) For the purposes of subsection (4), an application for an authorization shall be taken to be disposed of:
(a) in a case to which paragraph (b) of this subsection does not apply--at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or
(b) if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization--at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.
(6) In this section:
"market" means a substantial market for goods or services in Australia, in a State or in a Territory.
51.(1) In deciding whether a person has contravened this Part, the following must be disregarded:
(a) anything that is disregarded for the purposes of Part IV of the Trade Practices Act 1974 because of subsection 51(1) of that Act;
(b) anything done in a State, if the thing is specified in, and specifically authorised by:
(i) an Act passed by the Parliament of that State; or
(ii) regulations made under such an Act;
(c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:
(i) an enactment as defined in section 3 of the Australian Capital Territory (Self-Government) Act 1988 ; or
(ii) regulations made under such an enactment;
(d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:
(i) an enactment as defined in section 4 of the Northern Territory (Self-Government) Act 1978 ; or
(ii) regulations made under such an enactment;
(e) anything done in another Territory, if the thing is specified in, and specifically authorised by:
(i) an Ordinance of that Territory; or
(ii) regulations made under such an Ordinance.
(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:
(a) a licence or other instrument issued or made under the law specifies one or both of the following:
(i) the person authorised to engage in the conduct;
(ii) the place where the conduct is to occur; and
(b) the law specifies the attributes of the conduct except those mentioned in paragraph (a).
For this purpose, "law" means a State Act, enactment or Ordinance.
(1B) Subsections (1) and (lA) apply regardless of when the State Acts,
enactments, Ordinances, regulations or instruments referred to in those
subsections were passed, made or issued.
(1C) The operation of subsection (1)
(other than paragraph (1)(a)) is subject to the following limitations:
(a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to the Competition Code;
(b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50;
(c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation;
(d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations that:
(i) were made for the purposes of the subparagraph concerned; and
(ii) came into operation more than 2 years before the particular thing happened.
(2) In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had:
(a) to any act done in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees;
(b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he may engage during, or after the termination of, the contract;
(c) to any provision of a contract, arrangement or understanding, being a provision obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by the Standards Association of Australia or by a prescribed association or body;
(d) to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he is, or after he ceases to be, a partner;
(e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business--to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business; or
(g) to any provision of a contract, arrangement or understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished to the Commission before the expiration of 14 days after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8 September 1976, whichever was the later.
(2A) In determining whether a
contravention of a provision of this Part other than section 48 has been
committed, regard shall not be had to any acts done, otherwise than in the
course of trade or commerce, in concert by ultimate users or consumers of
goods or services against the suppliers of those goods or services.
(3) A
contravention of a provision of this Part other than section 46 or 48 shall
not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
(i) a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights within the meaning of the Circuit Layouts Act 1989 , or by a person who has applied for a patent or for the registration of a design; or
(ii) an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design;
to the extent that the condition relates to:
(iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention;
(iv) goods in respect of which the design is, or is proposed to be, registered and to which it is applied;
(v) the work or other subject matter in which the copyright subsists; or
(vi) the eligible layout in which the EL rights subsist;
(b) the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955 , or the giving effect to such a provision; or
(c) the inclusion in a contract, arrangement or understanding between:
(i) the registered proprietor of a trade mark other than a certification trade mark; and
(ii) a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his becoming registered as such a registered user;
of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied, or the giving effect to the provision to that extent.
(4) This section applies in determining whether a provision of a contract is unenforceable by reason of subsection 45(1), or whether a covenant is unenforceable by reason of subsection 45B(1), in like manner as it applies in determining whether a contravention of a provision of this Part has been committed.