2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 (Treasury) A Bill for an Act to amend the Trade Practices Act 1974, and for other purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 2 Schedule 1--Amendme nts relating to cartel conduct etc. 3 Proceeds of Crime Act 2002 3 Telecommunications (Interception and Access) Act 1979 3 Trade Practices Act 1974 4 Schedule 2--Other ame ndments 72 Part 1--Amendments 72 Trade Practices Act 1974 72 Part 2--Application 82 i Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 2 1974, and for other purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Trade Practices Amendment (Cartel 6 Conduct and Other Measures) Act 2008. 7 2 Commence ment 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 The 28th day after the day on which this Act receives the Royal Assent. 3. Schedule 2, The 28th day after the day on which this Act items 1 to 49 receives the Royal Assent. 4. Schedule 2, The day after this Act receives the Royal items 50 and 51 Assent. 5. Schedule 2, The 28th day after the day on which this Act items 52 and 53 receives the Royal Assent. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 2 Schedule 1--Amendments relating to cartel 3 conduct etc. 4 5 Proceeds of Crime Act 2002 6 1 Section 338 (after paragraph (ec) of the definition of serious 7 offence) 8 Insert: 9 (ed) an offence against either of the following sections of the 10 Trade Practices Act 1974: 11 (i) section 44ZZRF (making a contract etc. containing a 12 cartel provision); 13 (ii) section 44ZZRG (giving effect to a cartel provision); or 14 Telecommunications (Interception and Access) Act 1979 15 2 After subsection 5D(5A) 16 Insert: 17 Cartel offences 18 (5B) An offence is also a serious offence if it is: 19 (a) an offence against section 44ZZRF or 44ZZRG of the Trade 20 Practices Act 1974; or 21 (b) an offence under subsection 79(1) of the Trade Practices Act 22 1974 that relates to an offence covered by paragraph (a); or 23 (c) an offence against section 44ZZRF or 44ZZRG of the text set 24 out in Part 1 of the Schedule to the Trade Practices Act 1974, 25 so far as that section applies as a law of a State, the Northern 26 Territory or the Australian Capital Territory; or 27 (d) an offence under subsection 79(1) of the Trade Practices Act 28 1974 (so far as that subsection applies as a law of a State, the 29 Northern Territory or the Australian Capital Territory) that 30 relates to an offence covered by paragraph (c). 31 Note: Offences covered by paragraph (c) or (d) form part of the Competition 32 Code of the State or Territory concerned. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 3 [Page Break] 1 Trade Practices Act 1974 2 3 Subsection 4(1) 3 Insert: 4 cartel provision has the meaning given by section 44ZZRD. 5 4 Subsection 5(1) 6 Repeal the subsection, substitute: 7 (1) Each of the following provisions: 8 (a) Part IV; 9 (b) Part IVA; 10 (c) Part V (other than Division 1AA); 11 (d) Part VB; 12 (e) Part VC; 13 (f) the remaining provisions of this Act (to the extent to which 14 they relate to any of the provisions covered by paragraph (a), 15 (b), (c), (d) or (e)); 16 extends to the engaging in conduct outside Australia by: 17 (g) bodies corporate incorporated or carrying on business within 18 Australia; or 19 (h) Australian citizens; or 20 (i) persons ordinarily resident within Australia. 21 Note: The heading to section 5 is altered by omitting "and VC" and substituting ", VC etc.". 22 5 Subsection 5(4) 23 Omit "or the Commission", substitute ", the Commission or the Director 24 of Public Prosecutions". 25 6 At the end of paragraph 6(2)(a) 26 Add "and". 27 7 Paragraph 6(2)(b) 28 Omit "sections 45", substitute "sections 44ZZRF, 44ZZRG, 44ZZRJ, 29 44ZZRK, 45". 30 8 At the end of paragraph 6(2)(b) 31 Add "and". 4 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 9 At the end of paragraph 6(2)(c) 2 Add "and". 3 10 At the end of paragraph 6(2)(d) 4 Add "and". 5 11 At the end of paragraph 6(2)(e) 6 Add "and". 7 12 At the end of paragraph 6(2)(ea) 8 Add "and". 9 13 At the end of paragraph 6(2)(eb) 10 Add "and". 11 14 After subsection 6(2B) 12 Insert: 13 (2C) In addition to the effect that this Act (other than Parts IIIA, VIIA 14 and X) has as provided by another subsection of this section, this 15 Act (other than Parts IIIA, VIIA and X) has, by force of this 16 subsection, the effect it would have if: 17 (a) the reference in paragraph 44ZZRD(2)(c) to goods or 18 services supplied, or likely to be supplied, were, by express 19 provision, confined to goods or services supplied, or likely to 20 be supplied, to corporations or classes of corporations; and 21 (b) the reference in paragraph 44ZZRD(2)(d) to goods or 22 services acquired, or likely to be acquired, were, by express 23 provision, confined to goods or services acquired, or likely to 24 be acquired, from corporations or classes of corporations; and 25 (c) the reference in paragraph 44ZZRD(2)(e) to goods or 26 services re-supplied, or likely to be re-supplied, were, by 27 express provision, confined to goods or services re-supplied, 28 or likely to be re-supplied, to corporations or classes of 29 corporations; and 30 (d) the reference in paragraph 44ZZRD(2)(f) to goods or services 31 likely to be re-supplied were, by express provision, confined 32 to goods or services likely to be re-supplied to corporations 33 or classes of corporations; and Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 5 [Page Break] 1 (e) the following paragraphs were added at the end of subsection 2 44ZZRD(2): 3 "; or (g) goods or services re-supplied, or likely to be re-supplied, by 4 corporations or classes of corporations to whom those goods 5 or services were supplied by any or all of the parties to the 6 contract, arrangement or understanding; or 7 (h) goods or services likely to be re-supplied by corporations or 8 classes of corporations to whom those goods or services are 9 likely to be supplied by any or all of the parties to the 10 contract, arrangement or understanding."; and 11 (f) the reference in subparagraph 44ZZRD(3)(a)(i) to the 12 production, or likely production, of goods were, by express 13 provision, confined to the production, or likely production, of 14 goods for supply to corporations or classes of corporations; 15 and 16 (g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply 17 of services were, by express provision, confined to the supply 18 of services to corporations or classes of corporations; and 19 (h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i) 20 and (ii) to persons or classes of persons were, by express 21 provision, confined to corporations or classes of 22 corporations; and 23 (i) the reference in subparagraph 44ZZRD(3)(b)(iii) to the 24 geographical areas in which goods or services are supplied, 25 or likely to be supplied, were, by express provision, confined 26 to the geographical areas in which goods or services are 27 supplied, or likely to be supplied, to corporations or classes 28 of corporations; and 29 (j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the 30 geographical areas in which goods or services are acquired, 31 or likely to be acquired, were, by express provision, confined 32 to the geographical areas in which goods or services are 33 acquired, or likely to be acquired, from corporations or 34 classes of corporations; and 35 (k) the reference in paragraph 44ZZRD(3)(c) to the supply or 36 acquisition of goods or services were, by express provision, 37 confined to supply of goods or services to, or the acquisition 38 of goods or services from, corporations or classes of 39 corporations; and 6 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e) 2 or (f) included a reference to paragraph (2)(g) or (h); and 3 (m) section 44ZZRD also provided that it is immaterial whether 4 the identities of the corporations referred to in subsection (2) 5 or (3) of that section can be ascertained; and 6 (n) each reference in the following provisions of this Act: 7 (i) Division 1 of Part IV (other than section 44ZZRD); 8 (ii) any other provision (other than section 4, 44ZZRD, 9 151AE or 151AJ or this subsection or subsection (5A)) 10 to the extent to which it relates to Division 1 of Part IV; 11 to a corporation included a reference to a person not being a 12 corporation. 13 For the purposes of this subsection, likely and production have the 14 same meaning as in Division 1 of Part IV. 15 (2D) In addition to the effect that this Act (other than Parts IIIA, VIIA 16 and X) has as provided by another subsection of this section, this 17 Act (other than Parts IIIA, VIIA and X) has, by force of this 18 subsection, the effect it would have if: 19 (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by 20 express provision, confined in their operation to engaging in 21 conduct to the extent to which the conduct involves the use 22 of, or relates to, a postal, telegraphic, telephonic or other like 23 service within the meaning of paragraph 51(v) of the 24 Constitution; and 25 (b) each reference in the following provisions of this Act: 26 (i) Division 1 of Part IV; 27 (ii) any other provision (other than section 4, 151AE or 28 151AJ or this subsection or subsection (5A)) to the 29 extent to which it relates to Division 1 of Part IV; 30 to a corporation included a reference to a person not being a 31 corporation. 32 (2E) In addition to the effect that this Act (other than Parts IIIA, VIIA 33 and X) has as provided by another subsection of this section, this 34 Act (other than Parts IIIA, VIIA and X) has, by force of this 35 subsection, the effect it would have if: 36 (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by 37 express provision, confined in their operation to engaging in 38 conduct to the extent to which the conduct takes place in, or 39 relates to: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 7 [Page Break] 1 (i) a Territory; or 2 (ii) a Commonwealth place (within the meaning of the 3 Commonwealth Places (Application of Laws) Act 1970); 4 and 5 (b) each reference in the following provisions of this Act: 6 (i) Division 1 of Part IV; 7 (ii) any other provision (other than section 4, 151AE or 8 151AJ or this subsection or subsection (5A)) to the 9 extent to which it relates to Division 1 of Part IV; 10 to a corporation included a reference to a person not being a 11 corporation. 12 15 Subsection 6(3) 13 Omit "subsection (2)", substitute "another subsection of this section". 14 16 Subsection 6(4) 15 Omit "subsections (2) and (3)", substitute "another subsection of this 16 section". 17 17 After subsection 6(5) 18 Insert: 19 (5A) Despite anything in section 44ZZRF or 44ZZRG, if a body 20 corporate other than a corporation is convicted of an offence 21 against that section (as that section applies because of this section), 22 the offence is taken to be punishable on conviction as if the body 23 corporate were a corporation. 24 (5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other 25 than a body corporate is convicted of an offence against that 26 section (as that section applies because of this section), the offence 27 is taken to be punishable on conviction by a term of imprisonment 28 not exceeding 10 years or a fine not exceeding 2,000 penalty units, 29 or both. 30 18 Subsection 6AA(2) 31 Omit "or Division 7 of Part XIB", substitute ", Division 7 of Part XIB, 32 or section 44ZZRF or 44ZZRG". 33 19 Part IV (after heading) 8 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 Insert: 2 Division 1--Cartel conduct 3 Subdivision A--Introduction 4 44ZZRA Simplified outline 5 The following is a simplified outline of this Division: 6 · This Division sets out parallel offences and civil penalty 7 provisions relating to cartel conduct. 8 · A corporation must not make, or give effect to, a contract, 9 arrangement or understanding that contains a cartel provision. 10 · A cartel provision is a provision relating to: 11 (a) price-fixing; or 12 (b) restricting outputs in the production and supply 13 chain; or 14 (c) allocating customers, suppliers or territories; or 15 (d) bid-rigging; 16 by parties that are, or would otherwise be, in competition with 17 each other. 18 44ZZRB Definitions 19 In this Division: 20 annual turnover, of a body corporate during a 12-month period, 21 means the sum of the values of all the supplies that the body 22 corporate, and any body corporate related to the body corporate, 23 have made, or are likely to make, during the 12-month period, 24 other than: 25 (a) supplies made from any of those bodies corporate to any 26 other of those bodies corporate; or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 9 [Page Break] 1 (b) supplies that are input taxed; or 2 (c) supplies that are not for consideration (and are not taxable 3 supplies under section 72-5 of the A New Tax System (Goods 4 and Services Tax) Act 1999); or 5 (d) supplies that are not made in connection with an enterprise 6 that the body corporate carries on; or 7 (e) supplies that are not connected with Australia. 8 Expressions used in this definition that are also used in the A New 9 Tax System (Goods and Services Tax) Act 1999 have the same 10 meaning as in that Act. 11 benefit includes any advantage and is not limited to property. 12 bid includes: 13 (a) tender; and 14 (b) the taking, by a potential bidder or tenderer, of a preliminary 15 step in a bidding or tendering process. 16 evidential burden, in relation to a matter, means the burden of 17 adducing or pointing to evidence that suggests a reasonable 18 possibility that the matter exists or does not exist. 19 likely, in relation to any of the following: 20 (a) a supply of goods or services; 21 (b) an acquisition of goods or services; 22 (c) the production of goods; 23 (d) the capacity to supply services; 24 includes a possibility that is not remote. 25 obtaining includes: 26 (a) obtaining for another person; and 27 (b) inducing a third person to do something that results in 28 another person obtaining. 29 party has a meaning affected by section 44ZZRC. 30 production includes manufacture, processing, treatment, assembly, 31 disassembly, renovation, restoration, growing, raising, mining, 32 extraction, harvesting, fishing, capturing and gathering. 10 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 44ZZRC Exte nded meaning of party 2 For the purposes of this Division, if a body corporate is a party to a 3 contract, arrangement or understanding (otherwise than because of 4 this section), each body corporate related to that body corporate is 5 taken to be a party to that contract, arrangement or understanding. 6 44ZZRD Cartel provisions 7 (1) For the purposes of this Act, a provision of a contract, arrangement 8 or understanding is a cartel provision if: 9 (a) either of the following conditions is satisfied in relation to the 10 provision: 11 (i) the purpose/effect condition set out in subsection (2); 12 (ii) the purpose condition set out in subsection (3); and 13 (b) the competition condition set out in subsection (4) is satisfied 14 in relation to the provision. 15 Purpose/effect condition 16 (2) The purpose/effect condition is satisfied if the provision has the 17 purpose, or has or is likely to have the effect, of directly or 18 indirectly: 19 (a) fixing, controlling or maintaining; or 20 (b) providing for the fixing, controlling or maintaining of; 21 the price for, or a discount, allowance, rebate or credit in relation 22 to: 23 (c) goods or services supplied, or likely to be supplied, by any or 24 all of the parties to the contract, arrangement or 25 understanding; or 26 (d) goods or services acquired, or likely to be acquired, by any or 27 all of the parties to the contract, arrangement or 28 understanding; or 29 (e) goods or services re-supplied, or likely to be re-supplied, by 30 persons or classes of persons to whom those goods or 31 services were supplied by any or all of the parties to the 32 contract, arrangement or understanding; or 33 (f) goods or services likely to be re-supplied by persons or 34 classes of persons to whom those goods or services are likely 35 to be supplied by any or all of the parties to the contract, 36 arrangement or understanding. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 11 [Page Break] 1 Note 1: The purpose/effect condition can be satisfied when a provision is 2 considered with related provisions--see subsection (8). 3 Note 2: Party has an extended meaning--see section 44ZZRC. 4 Purpose condition 5 (3) The purpose condition is satisfied if the provision has the purpose 6 of directly or indirectly: 7 (a) preventing, restricting or limiting: 8 (i) the production, or likely production, of goods by any or 9 all of the parties to the contract, arrangement or 10 understanding; or 11 (ii) the capacity, or likely capacity, of any or all of the 12 parties to the contract, arrangement or understanding to 13 supply services; or 14 (iii) the supply, or likely supply, of goods or services to 15 persons or classes of persons by any or all of the parties 16 to the contract, arrangement or understanding; or 17 (b) allocating between any or all of the parties to the contract, 18 arrangement or understanding: 19 (i) the persons or classes of persons who have acquired, or 20 who are likely to acquire, goods or services from any or 21 all of the parties to the contract, arrangement or 22 understanding; or 23 (ii) the persons or classes of persons who have supplied, or 24 who are likely to supply, goods or services to any or all 25 of the parties to the contract, arrangement or 26 understanding; or 27 (iii) the geographical areas in which goods or services are 28 supplied, or likely to be supplied, by any or all of the 29 parties to the contract, arrangement or understanding; or 30 (iv) the geographical areas in which goods or services are 31 acquired, or likely to be acquired, by any or all of the 32 parties to the contract, arrangement or understanding; or 33 (c) ensuring that in the event of a request for bids in relation to 34 the supply or acquisition of goods or services: 35 (i) one or more parties to the contract, arrangement or 36 understanding bid, but one or more other parties do not; 37 or 12 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (ii) 2 or more parties to the contract, arrangement or 2 understanding bid, but at least 2 of them do so on the 3 basis that one of those bids is more likely to be 4 successful than the others; or 5 (iii) 2 or more parties to the contract, arrangement or 6 understanding bid, but not all of those parties proceed 7 with their bids until the suspension or finalisation of the 8 request for bids process; or 9 (iv) 2 or more parties to the contract, arrangement or 10 understanding bid and proceed with their bids, but at 11 least 2 of them proceed with their bids on the basis that 12 one of those bids is more likely to be successful than the 13 others; or 14 (v) 2 or more parties to the contract, arrangement or 15 understanding bid, but a material component of at least 16 one of those bids is worked out in accordance with the 17 contract, arrangement or understanding. 18 Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a 19 roster for the supply of after-hours medical services if the roster does 20 not prevent, restrict or limit the supply of services. 21 Note 2: The purpose condition can be satisfied when a provision is considered 22 with related provisions--see subsection (9). 23 Note 3: Party has an extended meaning--see section 44ZZRC. 24 Competition condition 25 (4) The competition condition is satisfied if at least 2 of the parties to 26 the contract, arrangement or understanding: 27 (a) are or are likely to be; or 28 (b) but for any contract, arrangement or understanding, would be 29 or would be likely to be; 30 in competition with each other in relation to: 31 (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or 32 likely supply, of goods or services--the supply of those 33 goods or services; or 34 (d) if paragraph (2)(d) or (3)(b) applies in relation to an 35 acquisition, or likely acquisition, of goods or services--the 36 acquisition of those goods or services; or 37 (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or 38 likely re-supply, of goods or services--the supply of those 39 goods or services to that re-supplier; or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 13 [Page Break] 1 (f) if subparagraph (3)(a)(i) applies in relation to preventing, 2 restricting or limiting the production, or likely production, of 3 goods--the production of those goods; or 4 (g) if subparagraph (3)(a)(ii) applies in relation to preventing, 5 restricting or limiting the capacity, or likely capacity, to 6 supply services--the supply of those services; or 7 (h) if subparagraph (3)(a)(iii) applies in relation to preventing, 8 restricting or limiting the supply, or likely supply, of goods 9 or services--the supply of those goods or services; or 10 (i) if paragraph (3)(c) applies in relation to a supply of goods or 11 services--the supply of those goods or services; or 12 (j) if paragraph (3)(c) applies in relation to an acquisition of 13 goods or services--the acquisition of those goods or services. 14 Note: Party has an extended meaning--see section 44ZZRC. 15 Immaterial whether identities of persons can be ascertained 16 (5) It is immaterial whether the identities of the persons referred to in 17 paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can 18 be ascertained. 19 Recommending prices etc. 20 (6) For the purposes of this Division, a provision of a contract, 21 arrangement or understanding is not taken: 22 (a) to have the purpose mentioned in subsection (2); or 23 (b) to have, or be likely to have, the effect mentioned in 24 subsection (2); 25 by reason only that it recommends, or provides for the 26 recommending of, a price, discount, allowance, rebate or credit. 27 Immaterial whether particular circumstances or particular 28 conditions 29 (7) It is immaterial whether: 30 (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) 31 and paragraphs (3)(b) and (c)--a supply or acquisition 32 happens, or a likely supply or likely acquisition is to happen, 33 in particular circumstances or on particular conditions; and 14 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (b) for the purposes of subparagraph (3)(a)(i)--the production 2 happens, or the likely production is to happen, in particular 3 circumstances or on particular conditions; and 4 (c) for the purposes of subparagraph (3)(a)(ii)--the capacity 5 exists, or the likely capacity is to exist, in particular 6 circumstances or on particular conditions. 7 Considering related provisions--purpose/effect condition 8 (8) For the purposes of this Division, a provision of a contract, 9 arrangement or understanding is taken to have the purpose, or to 10 have or be likely to have the effect, mentioned in subsection (2) if 11 the provision, when considered together with any or all of the 12 following provisions: 13 (a) the other provisions of the contract, arrangement or 14 understanding; 15 (b) the provisions of another contract, arrangement or 16 understanding, if the parties to that other contract, 17 arrangement or understanding consist of or include at least 18 one of the parties to the first-mentioned contract, 19 arrangement or understanding; 20 has that purpose, or has or is likely to have that effect. 21 Considering related provisions--purpose condition 22 (9) For the purposes of this Division, a provision of a contract, 23 arrangement or understanding is taken to have the purpose 24 mentioned in a paragraph of subsection (3) if the provision, when 25 considered together with any or all of the following provisions: 26 (a) the other provisions of the contract, arrangement or 27 understanding; 28 (b) the provisions of another contract, arrangement or 29 understanding, if the parties to that other contract, 30 arrangement or understanding consist of or include at least 31 one of the parties to the first-mentioned contract, 32 arrangement or understanding; 33 has that purpose. 34 Purpose/effect of a provision 35 (10) For the purposes of this Division, a provision of a contract, 36 arrangement or understanding is not to be taken not to have the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 15 [Page Break] 1 purpose, or not to have or to be likely to have the effect, mentioned 2 in subsection (2) by reason only of: 3 (a) the form of the provision; or 4 (b) the form of the contract, arrangement or understanding; or 5 (c) any description given to the provision, or to the contract, 6 arrangement or understanding, by the parties. 7 Purpose of a provision 8 (11) For the purposes of this Division, a provision of a contract, 9 arrangement or understanding is not to be taken not to have the 10 purpose mentioned in a paragraph of subsection (3) by reason only 11 of: 12 (a) the form of the provision; or 13 (b) the form of the contract, arrangement or understanding; or 14 (c) any description given to the provision, or to the contract, 15 arrangement or understanding, by the parties. 16 44ZZRE Meaning of expressions in other provisions of this Act 17 In determining the meaning of an expression used in a provision of 18 this Act (other than this Division, subsection 6(2C), paragraph 19 76(1A)(aa) or subsection 93AB(1A)), this Division is to be 20 disregarded. 21 Subdivision B--Offences etc. 22 44ZZRF Making a contract etc. containing a cartel provision 23 Offence 24 (1) A corporation commits an offence if: 25 (a) the corporation makes a contract or arrangement, or arrives at 26 an understanding; and 27 (b) the contract, arrangement or understanding contains a cartel 28 provision. 29 Note: Chapter 2 of the Criminal Code sets out the general principles of 30 criminal responsibility. 31 (2) The fault element for paragraph (1)(b) is knowledge or belief. 16 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 Penalty 2 (3) An offence against subsection (1) is punishable on conviction by a 3 fine not exceeding the greater of the following: 4 (a) $10,000,000; 5 (b) if the court can determine the total value of the benefits that: 6 (i) have been obtained by one or more persons; and 7 (ii) are reasonably attributable to the commission of the 8 offence; 9 3 times that total value; 10 (c) if the court cannot determine the total value of those 11 benefits--10% of the corporation's annual turnover during 12 the 12-month period ending at the end of the month in which 13 the corporation committed, or began committing, the offence. 14 Indictable offence 15 (4) An offence against subsection (1) is an indictable offence. 16 44ZZRG Giving effect to a cartel provision 17 Offence 18 (1) A corporation commits an offence if: 19 (a) a contract, arrangement or understanding contains a cartel 20 provision; and 21 (b) the corporation gives effect to the cartel provision. 22 Note: Chapter 2 of the Criminal Code sets out the general principles of 23 criminal responsibility. 24 (2) The fault element for paragraph (1)(a) is knowledge or belief. 25 Penalty 26 (3) An offence against subsection (1) is punishable on conviction by a 27 fine not exceeding the greater of the following: 28 (a) $10,000,000; 29 (b) if the court can determine the total value of the benefits that: 30 (i) have been obtained by one or more persons; and 31 (ii) are reasonably attributable to the commission of the 32 offence; Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 17 [Page Break] 1 3 times that total value; 2 (c) if the court cannot determine the total value of those 3 benefits--10% of the corporation's annual turnover during 4 the 12-month period ending at the end of the month in which 5 the corporation committed, or began committing, the offence. 6 Pre-commencement contracts etc. 7 (4) Paragraph (1)(a) applies to contracts or arrangements made, or 8 understandings arrived at, before, at or after the commencement of 9 this section. 10 Indictable offence 11 (5) An offence against subsection (1) is an indictable offence. 12 44ZZRH Determining guilt 13 (1) A corporation may be found guilty of an offence against 14 section 44ZZRF or 44ZZRG even if: 15 (a) each other party to the contract, arrangement or 16 understanding is a person who is not criminally responsible; 17 or 18 (b) subject to subsection (2), all other parties to the contract, 19 arrangement or understanding have been acquitted of the 20 offence. 21 Note: Party has an extended meaning--see section 44ZZRC. 22 (2) A corporation cannot be found guilty of an offence against 23 section 44ZZRF or 44ZZRG if: 24 (a) all other parties to the contract, arrangement or understanding 25 have been acquitted of such an offence; and 26 (b) a finding of guilt would be inconsistent with their acquittal. 27 44ZZRI Court may make related civil orders 28 If a prosecution against a person for an offence against 29 section 44ZZRF or 44ZZRG is being, or has been, heard by a 30 court, the court may: 31 (a) grant an injunction under section 80 against the person in 32 relation to: 18 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (i) the conduct that constitutes, or is alleged to constitute, 2 the offence; or 3 (ii) other conduct of that kind; or 4 (b) make an order under section 86C, 86D, 86E or 87 in relation 5 to the offence. 6 Subdivision C--Civil penalty provisions 7 44ZZRJ Making a contract etc. containing a cartel provision 8 A corporation contravenes this section if: 9 (a) the corporation makes a contract or arrangement, or arrives at 10 an understanding; and 11 (b) the contract, arrangement or understanding contains a cartel 12 provision. 13 Note: For enforcement, see Part VI. 14 44ZZRK Giving effect to a cartel provision 15 (1) A corporation contravenes this section if: 16 (a) a contract, arrangement or understanding contains a cartel 17 provision; and 18 (b) the corporation gives effect to the cartel provision. 19 Note: For enforcement, see Part VI. 20 (2) Paragraph (1)(a) applies to contracts or arrangements made, or 21 understandings arrived at, before, at or after the commencement of 22 this section. 23 Subdivision D--Exceptions 24 44ZZRL Conduct notified 25 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to 26 a corporation in relation to a contract, arrangement or 27 understanding containing a cartel provision, in so far as: 28 (a) the cartel provision: 29 (i) has the purpose, or has or is likely to have the effect, 30 mentioned in subsection 44ZZRD(2); or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 19 [Page Break] 1 (ii) has the purpose mentioned in a paragraph of subsection 2 44ZZRD(3) other than paragraph (c); and 3 (b) the corporation has given the Commission a collective 4 bargaining notice under subsection 93AB(1A) setting out 5 particulars of the contract, arrangement or understanding; and 6 (c) the notice is in force under section 93AD. 7 Note: A defendant bears an evidential burden in relation to the matter in 8 subsection (1) (see subsection 13.3(3) of the Criminal Code and 9 subsection (2) of this section). 10 (2) A person who wishes to rely on subsection (1) in relation to a 11 contravention of section 44ZZRJ or 44ZZRK bears an evidential 12 burden in relation to that matter. 13 44ZZRM Cartel provision subject to grant of authorisation 14 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 15 making of a contract that contains a cartel provision if: 16 (a) the contract is subject to a condition that the provision will 17 not come into force unless and until the corporation is 18 granted an authorisation to give effect to the provision; and 19 (b) the corporation applies for the grant of such an authorisation 20 within 14 days after the contract is made. 21 Note: A defendant bears an evidential burden in relation to the matter in 22 subsection (1) (see subsection 13.3(3) of the Criminal Code and 23 subsection (2) of this section). 24 (2) A person who wishes to rely on subsection (1) in relation to a 25 contravention of section 44ZZRJ bears an evidential burden in 26 relation to that matter. 27 44ZZRN Contracts, arrange ments or understandings between 28 related bodies corporate 29 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 30 relation to a contract, arrangement or understanding if the only 31 parties to the contract, arrangement or understanding are bodies 32 corporate that are related to each other. 33 Note: A defendant bears an evidential burden in relation to the matter in 34 subsection (1) (see subsection 13.3(3) of the Criminal Code and 35 subsection (2) of this section). 20 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (2) A person who wishes to rely on subsection (1) in relation to a 2 contravention of section 44ZZRJ or 44ZZRK bears an evidential 3 burden in relation to that matter. 4 44ZZRO Joint ventures--prosecution 5 (1) Sections 44ZZRF and 44ZZRG do not apply in relation to a 6 contract containing a cartel provision if: 7 (a) the cartel provision is for the purposes of a joint venture; and 8 (b) the joint venture is for the production and/or supply of goods 9 or services; and 10 (c) in a case where subparagraph 4J(a)(i) applies to the joint 11 venture--the joint venture is carried on jointly by the parties 12 to the contract; and 13 (d) in a case where subparagraph 4J(a)(ii) applies to the joint 14 venture--the joint venture is carried on by a body corporate 15 formed by the parties to the contract for the purpose of 16 enabling those parties to carry on the activity mentioned in 17 paragraph (b) jointly by means of: 18 (i) their joint control; or 19 (ii) their ownership of shares in the capital; 20 of that body corporate. 21 Note: A defendant bears an evidential burden in relation to the matter in 22 subsection (1) (see subsection 13.3(3) of the Criminal Code). 23 Notice to prosecutor 24 (2) A person is not entitled to rely on subsection (1) in a trial for an 25 offence unless, within 28 days after the day on which the person is 26 committed for trial, the person gives the prosecutor: 27 (a) a written notice setting out: 28 (i) the facts on which the person proposes to rely for the 29 purpose of discharging the evidential burden borne by 30 the person in relation to the matter in subsection (1); and 31 (ii) the names and address of any witnesses whom the 32 person proposes to call for the purpose of discharging 33 the evidential burden borne by the person in relation to 34 the matter in subsection (1); and 35 (b) certified copies of any documents which the person proposes 36 to adduce or point to for the purpose of discharging the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 21 [Page Break] 1 evidential burden borne by the person in relation to the 2 matter in subsection (1). 3 (3) If the trial of a person for an offence is being, or is to be, held in a 4 court, the court may, by order: 5 (a) exempt the person from compliance with subsection (2); or 6 (b) extend the time within which the person is required to 7 comply with subsection (2). 8 (4) For the purposes of paragraph (2)(b), a certified copy of a 9 document is a copy of the document certified to be a true copy by: 10 (a) a Justice of the Peace; or 11 (b) a commissioner for taking affidavits. 12 44ZZRP Joint ventures--civil penalty proceedings 13 (1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a 14 contract containing a cartel provision if: 15 (a) the cartel provision is for the purposes of a joint venture; and 16 (b) the joint venture is for the production and/or supply of goods 17 or services; and 18 (c) in a case where subparagraph 4J(a)(i) applies to the joint 19 venture--the joint venture is carried on jointly by the parties 20 to the contract; and 21 (d) in a case where subparagraph 4J(a)(ii) applies to the joint 22 venture--the joint venture is carried on by a body corporate 23 formed by the parties to the contract for the purpose of 24 enabling those parties to carry on the activity mentioned in 25 paragraph (b) jointly by means of: 26 (i) their joint control; or 27 (ii) their ownership of shares in the capital; 28 of that body corporate. 29 (2) A person who wishes to rely on subsection (1) bears an evidential 30 burden in relation to that matter. 31 44ZZRQ Covenants affecting competition 32 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 33 relation to a contract containing a cartel provision, in so far as the 22 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 cartel provision constitutes a covenant to which section 45B 2 applies or, but for subsection 45B(9), would apply. 3 Note: A defendant bears an evidential burden in relation to the matter in 4 subsection (1) (see subsection 13.3(3) of the Criminal Code and 5 subsection (2) of this section). 6 (2) A person who wishes to rely on subsection (1) in relation to a 7 contravention of section 44ZZRJ or 44ZZRK bears an evidential 8 burden in relation to that matter. 9 44ZZRR Resale price maintenance 10 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 11 relation to a contract, arrangement or understanding containing a 12 cartel provision, in so far as the cartel provision relates to: 13 (a) conduct that contravenes section 48; or 14 (b) conduct that would contravene section 48 but for the 15 operation of subsection 88(8A); or 16 (c) conduct that would contravene section 48 if this Act defined 17 the acts constituting the practice of resale price maintenance 18 by reference to the maximum price at which goods or 19 services are to be sold or supplied or are to be advertised, 20 displayed or offered for sale or supply. 21 Note: A defendant bears an evidential burden in relation to the matter in 22 subsection (1) (see subsection 13.3(3) of the Criminal Code and 23 subsection (2) of this section). 24 (2) A person who wishes to rely on subsection (1) in relation to a 25 contravention of section 44ZZRJ or 44ZZRK bears an evidential 26 burden in relation to that matter. 27 44ZZRS Exclusive dealing 28 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 29 making of a contract, arrangement or understanding that contains a 30 cartel provision, in so far as giving effect to the cartel provision 31 would, or would but for the operation of subsection 47(10) or 88(8) 32 or section 93, constitute a contravention of section 47. 33 Note: A defendant bears an evidential burden in relation to the matter in 34 subsection (1) (see subsection 13.3(3) of the Criminal Code and 35 subsection (3) of this section). Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 23 [Page Break] 1 (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the 2 giving effect to a cartel provision by way of: 3 (a) engaging in conduct that contravenes, or would but for the 4 operation of subsection 47(10) or 88(8) or section 93 5 contravene, section 47; or 6 (b) doing an act by reason of a breach or threatened breach of a 7 condition referred to in subsection 47(2), (4), (6) or (8), being 8 an act done by a person at a time when: 9 (i) an authorisation under subsection 88(8) is in force in 10 relation to conduct engaged in by that person on that 11 condition; or 12 (ii) by reason of subsection 93(7), conduct engaged in by 13 that person on that condition is not to be taken to have 14 the effect of substantially lessening competition within 15 the meaning of section 47; or 16 (iii) a notice under subsection 93(1) is in force in relation to 17 conduct engaged in by that person on that condition. 18 Note: A defendant bears an evidential burden in relation to the matter in 19 subsection (2) (see subsection 13.3(3) of the Criminal Code and 20 subsection (3) of this section). 21 (3) A person who wishes to rely on subsection (1) or (2) in relation to 22 a contravention of section 44ZZRJ or 44ZZRK bears an evidential 23 burden in relation to that matter. 24 44ZZRT Dual listed company arrange ment 25 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 26 making of a contract, arrangement or understanding that contains a 27 cartel provision, in so far as: 28 (a) the contract, arrangement or understanding is a dual listed 29 company arrangement; and 30 (b) the making of the contract, arrangement or understanding 31 would, or would apart from subsection 88(8B), contravene 32 section 49. 33 Note: A defendant bears an evidential burden in relation to the matter in 34 subsection (1) (see subsection 13.3(3) of the Criminal Code and 35 subsection (3) of this section). 36 (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the 37 giving effect to a cartel provision, in so far as: 24 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (a) the cartel provision is a provision of a dual listed company 2 arrangement; and 3 (b) the giving effect to the cartel provision would, or would apart 4 from subsection 88(8B), contravene section 49. 5 Note: A defendant bears an evidential burden in relation to the matter in 6 subsection (2) (see subsection 13.3(3) of the Criminal Code and 7 subsection (3) of this section). 8 (3) A person who wishes to rely on subsection (1) or (2) in relation to 9 a contravention of section 44ZZRJ or 44ZZRK bears an evidential 10 burden in relation to that matter. 11 44ZZRU Acquisition of shares or assets 12 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 13 relation to a contract, arrangement or understanding containing a 14 cartel provision, in so far as the cartel provision provides directly 15 or indirectly for the acquisition of: 16 (a) any shares in the capital of a body corporate; or 17 (b) any assets of a person. 18 Note: A defendant bears an evidential burden in relation to the matter in 19 subsection (1) (see subsection 13.3(3) of the Criminal Code and 20 subsection (2) of this section). 21 (2) A person who wishes to rely on subsection (1) in relation to a 22 contravention of section 44ZZRJ or 44ZZRK bears an evidential 23 burden in relation to that matter. 24 44ZZRV Collective acquisition of goods or services by the parties to 25 a contract, arrangement or understanding 26 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 27 relation to a contract, arrangement or understanding containing a 28 cartel provision, in so far as: 29 (a) the cartel provision has the purpose, or has or is likely to 30 have the effect, mentioned in subsection 44ZZRD(2); and 31 (b) either: 32 (i) the cartel provision relates to the price for goods or 33 services to be collectively acquired, whether directly or 34 indirectly, by the parties to the contract, arrangement or 35 understanding; or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 25 [Page Break] 1 (ii) the cartel provision is for the joint advertising of the 2 price for the re-supply of goods or services so acquired. 3 Note: A defendant bears an evidential burden in relation to the matter in 4 subsection (1) (see subsection 13.3(3) of the Criminal Code and 5 subsection (2) of this section). 6 (2) A person who wishes to rely on subsection (1) in relation to a 7 contravention of section 44ZZRJ or 44ZZRK bears an evidential 8 burden in relation to that matter. 9 Division 2--Other provisions 10 20 Subsection 45(3) 11 Omit "and section 45A". 12 21 Section 45A 13 Repeal the section. 14 22 At the end of subparagraph 76(1)(a)(i) 15 Add "(other than section 44ZZRF or 44ZZRG)". 16 23 Before paragraph 76(1A)(a) 17 Insert: 18 (aa) for each act or omission to which this section applies that 19 relates to section 44ZZRJ or 44ZZRK--the greatest of the 20 following: 21 (i) $10,000,000; 22 (ii) if the court can determine the total value of the benefits 23 that have been obtained (within the meaning of 24 Division 1 of Part IV) by one or more persons and that 25 are reasonably attributable to the act or omission--3 26 times that total value; 27 (iii) if the Court cannot determine the total value of those 28 benefits--10% of the annual turnover (within the 29 meaning of Division 1 of Part IV) of the body corporate 30 during the period (the turnover period) of 12 months 31 ending at the end of the month in which the act or 32 omission occurred; and 33 24 Subsection 76(3) 26 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 After "Part IV", insert "(other than section 44ZZRF or 44ZZRG)". 2 25 Subsection 76(4) 3 Omit "the 2 limits in paragraphs (1A)(a) and (b) apply is an amount up 4 to the higher", substitute "2 or more of the limits in 5 paragraphs (1A)(aa), (a) and (b) apply is an amount up to the highest". 6 26 Subsection 76B(1) (definition of contravention) 7 After "section" (wherever occurring), insert "or Part". 8 Note: The heading to section 76B is altered by inserting "Part IV or" before 9 "section 75AYA". 10 27 Subsections 76B(2), (3), (4) and (5) 11 Before "section 75AYA", insert "Part IV or". 12 28 At the end of section 76B 13 Add: 14 (6) In this section: 15 offence means an offence against a law of the Commonwealth, a 16 State or a Territory. 17 29 Section 76D 18 Repeal the section. 19 30 Subparagraph 78(a)(i) 20 Repeal the subparagraph, substitute: 21 (i) a provision of Part IV (other than section 44ZZRF or 22 44ZZRG); 23 (ia) a provision of Part V (other than section 65Q or 65R or 24 subsection 65F(9)); 25 31 Before paragraph 79(1)(a) 26 Insert: 27 (aa) attempts to contravene; or 28 Note: The heading to section 79 is altered by inserting "section 44ZZRF or 44ZZRG or" 29 after "against". 30 32 Subsection 79(1) Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 27 [Page Break] 1 Before "a provision of", insert "a cartel offence provision or". 2 33 Subsection 79(1) 3 Omit "punishable accordingly.", substitute: 4 punishable: 5 (e) in a case where: 6 (i) the provision is a cartel offence provision; and 7 (ii) the person is not a body corporate; 8 by a term of imprisonment not exceeding 10 years or a fine 9 not exceeding 2,000 penalty units, or both; or 10 (f) in any other case--accordingly. 11 34 After subsection 79(1) 12 Insert: 13 (1AA) For the purposes of the application of subsection (1) to a case 14 where: 15 (a) the provision is a cartel offence provision; and 16 (b) the person is a body corporate other than a corporation; 17 assume that each reference in paragraph 44ZZRF(3)(c) or 18 44ZZRG(3)(c) to a corporation were read as a reference to a body 19 corporate. 20 (1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply 21 in relation to paragraph (1)(aa) in the same way that they apply in 22 relation to the offence of attempt under subsection 11.1(1) of the 23 Criminal Code. 24 35 Subsection 79(5) 25 Before "a provision of", insert "a cartel offence provision or". 26 36 At the end of section 79 27 Add: 28 (7) In this section: 29 cartel offence provision means section 44ZZRF or 44ZZRG. 30 37 Subsection 79A(1) 31 Omit "section 65Q", substitute "section 44ZZRF, 44ZZRG, 65Q". 28 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 38 Subparagraph 79B(a)(ii) 2 After "under", insert "section 44ZZRF or 44ZZRG or". 3 39 At the end of section 80 4 Add: 5 (9) If the Director of Public Prosecutions makes an application to the 6 Court for the grant of an injunction under this section in relation to: 7 (a) a person's contravention, or proposed contravention, of 8 section 44ZZRF or 44ZZRG; or 9 (b) a person's involvement, or proposed involvement, in a 10 contravention of section 44ZZRF or 44ZZRG; 11 the Court must not require the Director of Public Prosecutions or 12 any other person, as a condition of granting an interim injunction, 13 to give any undertakings as to damages. 14 40 Section 83 15 After "offence against", insert "section 44ZZRF or 44ZZRG or". 16 41 Subsection 84(1) 17 Repeal the subsection, substitute: 18 (1) If, in: 19 (a) a prosecution for an offence against section 44ZZRF or 20 44ZZRG in respect of conduct engaged in by a body 21 corporate; or 22 (b) a proceeding under this Part in respect of conduct engaged in 23 by a body corporate, being conduct in relation to which 24 section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVA, IVB, V, 25 VB or VC applies; 26 it is necessary to establish the state of mind of the body corporate, 27 it is sufficient to show that: 28 (c) a director, employee or agent of the body corporate engaged 29 in that conduct; and 30 (d) the director, employee or agent was, in engaging in that 31 conduct, acting within the scope of his or her actual or 32 apparent authority; and 33 (e) the director, employee or agent had that state of mind. 34 Note: The heading to section 84 is altered by omitting "servants" and substituting 35 "employees". Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 29 [Page Break] 1 42 Subsection 84(2) 2 Omit "servant" (wherever occurring), substitute "employee". 3 43 Subsection 84(3) 4 Repeal the subsection, substitute: 5 (3) If, in: 6 (a) a prosecution for an offence against section 44ZZRF or 7 44ZZRG in respect of conduct engaged in by a person other 8 than a body corporate; or 9 (b) a proceeding under this Part in respect of conduct engaged in 10 by a person other than a body corporate, being conduct in 11 relation to which section 44ZZRJ or 44ZZRK or Part IVA, 12 IVB, V, VB or VC applies; 13 it is necessary to establish the state of mind of the person, it is 14 sufficient to show that: 15 (c) an employee or agent of the person engaged in that conduct; 16 and 17 (d) the employee or agent was, in engaging in that conduct, 18 acting within the scope of his or her actual or apparent 19 authority; and 20 (e) the employee or agent had that state of mind. 21 44 Paragraph 84(4)(a) 22 Omit "a servant", substitute "an employee". 23 45 Paragraph 84(4)(a) 24 Omit "the servant", substitute "the employee". 25 46 Paragraph 84(4)(b) 26 Omit "a servant", substitute "an employee". 27 47 Paragraph 84(4)(b) 28 Omit "the servant", substitute "the employee". 29 48 After subsection 84(4) 30 Insert: 31 (4A) If: 30 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (a) a person other than a body corporate is convicted of an 2 offence; and 3 (b) subsection (3) or (4) applied in relation to the conviction on 4 the basis that the person was the person first mentioned in 5 that subsection; and 6 (c) the person would not have been convicted of the offence if 7 that subsection had not been enacted; 8 the person is not liable to be punished by imprisonment for that 9 offence. 10 49 Subsection 86(1AA) 11 Omit "Part or Division" (wherever occurring), substitute "Part, Division 12 or section". 13 50 After subsection 86(3) 14 Insert: 15 (3A) The Supreme Court of a State is invested with federal jurisdiction 16 with respect to any matter in respect of which a civil proceeding 17 covered by section 44ZZRI is instituted in that Court. 18 (3B) Subject to the Constitution, the Supreme Court of a Territory is 19 conferred with jurisdiction with respect to any matter in respect of 20 which a civil proceeding covered by section 44ZZRI is instituted in 21 that Court. 22 51 After paragraph 86(4)(b) 23 Insert: 24 (ba) the jurisdiction of the Supreme Courts of the States under 25 subsection (3A); and 26 (bb) the jurisdiction of the Supreme Courts of the Territories 27 under subsection (3B); and 28 52 After subsection 86C(1) 29 Insert: 30 (1A) The Court may, on application by the Director of Public 31 Prosecutions, make one or more of the orders mentioned in 32 subsection (2) in relation to a person who has engaged in 33 contravening conduct that is: 34 (a) a contravention of section 44ZZRF or 44ZZRG; or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 31 [Page Break] 1 (b) an involvement in a contravention of section 44ZZRF or 2 44ZZRG. 3 53 Paragraph 86D(1)(b) 4 Omit "under", substitute "against section 44ZZRF or 44ZZRG or". 5 54 After subsection 86D(1) 6 Insert: 7 (1A) The Court may, on application by the Director of Public 8 Prosecutions, make an adverse publicity order in relation to a 9 person who is guilty of an offence against section 44ZZRF or 10 44ZZRG. 11 55 After subsection 86E(1) 12 Insert: 13 (1A) On application by the Director of Public Prosecutions, the Court 14 may make an order disqualifying a person from managing 15 corporations for a period that the Court considers appropriate if: 16 (a) the Court is satisfied that the person has contravened or has 17 been involved in a contravention of section 44ZZRF or 18 44ZZRG; and 19 (b) the Court is satisfied that the disqualification is justified. 20 Note: Section 206EA of the Corporations Act 2001 provides that a person is 21 disqualified from managing corporations if a court order is in force 22 under this section. That Act contains various consequences for persons 23 so disqualified. 24 56 Subsection 86E(2) 25 After "determining", insert "under subsection (1) or (1A)". 26 57 Subsection 86E(3) 27 Omit "this section", substitute "subsection (1)". 28 58 After subsection 86E(3) 29 Insert: 30 (3A) The Director of Public Prosecutions must notify ASIC if the Court 31 makes an order under subsection (1A). The Director of Public 32 Prosecutions must give ASIC a copy of the order. 32 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 Note: ASIC must keep a register of persons who have been disqualified from 2 managing corporations--see section 1274AA of the Corporations Act 3 2001. 4 59 Subsection 87(1) 5 After "offence against", insert "section 44ZZRF or 44ZZRG or". 6 60 At the end of paragraph 87(1A)(b) 7 Add "or". 8 61 After paragraph 87(1A)(b) 9 Insert: 10 (ba) on the application of the Director of Public Prosecutions in 11 accordance with subsection (1BA) on behalf of one or more 12 persons who have suffered, or who are likely to suffer, loss or 13 damage by conduct of another person that was engaged in in 14 contravention of section 44ZZRF or 44ZZRG; 15 62 After subsection 87(1B) 16 Insert: 17 (1BA) The Director of Public Prosecutions may make an application 18 under paragraph (1A)(ba) on behalf of one or more persons 19 identified in the application who: 20 (a) have suffered, or are likely to suffer, loss or damage by 21 conduct of another person that was engaged in in 22 contravention of section 44ZZRF or 44ZZRG; and 23 (b) have, before the application is made, consented in writing to 24 the making of the application. 25 63 Section 87D (after paragraph (a) of the definition of 26 plaintiff) 27 Insert: 28 (aa) if the proceeding is a proceeding that the Director of Public 29 Prosecutions commences under paragraph 87(1A)(ba)--a 30 person on whose behalf the Director of Public Prosecutions 31 commences the proceeding; or 32 64 Before subsection 88(1) 33 Insert: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 33 [Page Break] 1 (1A) Subject to this Part, the Commission may, upon application by or 2 on behalf of a corporation, grant an authorisation to the 3 corporation: 4 (a) to make a contract or arrangement, or arrive at an 5 understanding, if a provision of the proposed contract, 6 arrangement or understanding would be, or might be, a cartel 7 provision; or 8 (b) to give effect to a provision of a contract, arrangement or 9 understanding if the provision is, or may be, a cartel 10 provision; 11 and, while such an authorisation remains in force: 12 (c) in the case of an authorisation to make a contract or 13 arrangement, or to arrive at an understanding-- 14 sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not 15 prevent the corporation from making the contract or 16 arrangement, or arriving at the understanding, in accordance 17 with the authorisation; or 18 (d) in the case of an authorisation to give effect to a provision of 19 a contract, arrangement or understanding--sections 44ZZRG 20 and 44ZZRK do not prevent the corporation from giving 21 effect to the provision in accordance with the authorisation. 22 65 Subsection 88(10) 23 Omit "subsection (1)", substitute "subsection (1A) or (1)". 24 66 After subsection 90(5) 25 Insert: 26 (5A) The Commission must not make a determination granting an 27 authorisation under subsection 88(1A) in respect of a provision of a 28 proposed contract, arrangement or understanding that would be, or 29 might be, a cartel provision, unless the Commission is satisfied in 30 all the circumstances: 31 (a) that the provision would result, or be likely to result, in a 32 benefit to the public; and 33 (b) that the benefit would outweigh the detriment to the public 34 constituted by any lessening of competition that would result, 35 or be likely to result, if: 36 (i) the proposed contract or arrangement were made, or the 37 proposed understanding were arrived at; and 34 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (ii) the provision were given effect to. 2 (5B) The Commission must not make a determination granting an 3 authorisation under subsection 88(1A) in respect of a provision of a 4 contract, arrangement or understanding that is or may be a cartel 5 provision, unless the Commission is satisfied in all the 6 circumstances: 7 (a) that the provision has resulted, or is likely to result, in a 8 benefit to the public; and 9 (b) that the benefit outweighs or would outweigh the detriment to 10 the public constituted by any lessening of competition that 11 has resulted, or is likely to result, from giving effect to the 12 provision. 13 67 Subsection 91A(4) 14 Omit "90(6)", substitute "90(5A), (5B), (6)". 15 68 Subsection 91B(5) 16 Omit "90(6)", substitute "90(5A), (5B), (6)". 17 69 Subsection 91C(7) 18 Omit "90(6)", substitute "90(5A), (5B), (6)". 19 70 Section 93AA (definition of collective bargaining notice) 20 Omit "93AB(1)", substitute "93AB(1A) or (1)". 21 71 Before subsection 93AB(1) 22 Insert: 23 Notice to Commission--cartel provisions 24 (1A) A corporation that: 25 (a) has made, or proposes to make, a contract (the initial 26 contract) that contains a cartel provision that: 27 (i) has the purpose; or 28 (ii) has or is likely to have the effect; 29 mentioned in subsection 44ZZRD(2); or 30 (b) has made, or proposes to make, a contract (the initial 31 contract) that contains a cartel provision that has the purpose Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 35 [Page Break] 1 mentioned in a paragraph of subsection 44ZZRD(3) other 2 than paragraph (c); or 3 (c) proposes to give effect to a provision of a contract (the initial 4 contract) where the provision is a cartel provision that: 5 (i) has the purpose; or 6 (ii) has or is likely to have the effect; 7 mentioned in subsection 44ZZRD(2); or 8 (d) proposes to give effect to a provision of a contract (the initial 9 contract) where the provision is a cartel provision that has 10 the purpose mentioned in a paragraph of subsection 11 44ZZRD(3) other than paragraph (c); 12 may give the Commission a notice (the collective bargaining 13 notice) setting out particulars of the contract or proposed contract, 14 but only if the 3 requirements set out in subsections (2), (3) and (4) 15 are satisfied. 16 Note 1: Subsection (6) deals with the form etc. of a collective bargaining 17 notice. 18 Note 2: Section 93AD sets out when a collective bargaining notice comes into 19 force. 20 72 Subsection 93AB(1) 21 Omit "following 3 requirements", substitute "3 requirements set out in 22 subsections (2), (3) and (4)". 23 Note: The heading to subsection 93AB(1) is altered by adding at the end "--per se and 24 competition provisions". 25 73 Before subsection 93AB(11) 26 Insert: 27 Purpose/effect of a provision 28 (10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of 29 paragraphs (1A)(a) and (c) in a corresponding way to the way in 30 which they apply for the purposes of Division 1 of Part IV. 31 Purpose of a provision 32 (10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of 33 paragraphs (1A)(b) and (d) in a corresponding way to the way in 34 which they apply for the purposes of Division 1 of Part IV. 36 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 74 Subsection 93AC(1) 2 Omit "a collective bargaining notice in relation to". 3 75 Before paragraph 93AC(1)(a) 4 Insert: 5 (aa) a collective bargaining notice under subsection 93AB(1A) in 6 relation to a contract, or proposed contract, containing a 7 cartel provision of the kind referred to in that subsection; or 8 Note: The heading to subsection 93AC(1) is altered by inserting "cartel provisions or" before 9 "per se provisions". 10 76 Paragraph 93AC(1)(a) 11 Before "a contract", insert "a collective bargaining notice under 12 subsection 93AB(1) in relation to". 13 77 Paragraph 93AC(1)(a) 14 Omit "provisions); or", substitute "provisions);". 15 78 Paragraph 93AC(1)(b) 16 Repeal the paragraph. 17 79 Subsection 93AC(2) 18 After "collective bargaining notice", insert "under subsection 19 93AB(1)". 20 80 Subsection 93AC(2) 21 Omit "(other than a price fixing provision)". 22 81 Subsection 93AC(6) 23 Repeal the subsection. 24 82 After section 93AE 25 Insert: 26 93AEA Only 1 collective bargaining notice under subsection 27 93AB(1A) may be given 28 If: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 37 [Page Break] 1 (a) a corporation gives the Commission a collective bargaining 2 notice under subsection 93AB(1A) in relation to a contract or 3 proposed contract; and 4 (b) either: 5 (i) the Commission gives the corporation an objection 6 notice in relation to the contract or proposed contract; or 7 (ii) the collective bargaining notice is taken to be withdrawn 8 under subsection 93AE(3); 9 then a further collective bargaining notice under subsection 10 93AB(1A) cannot be given by any person in relation to the same 11 contract or proposed contract or in relation to a contract or 12 proposed contract to the like effect. 13 83 Paragraph 93AF(a) 14 After "a collective bargaining notice", insert "under subsection 15 93AB(1)". 16 Note: The heading to section 93AF is altered by inserting "under subsection 93AB(1)" after 17 "notice". 18 84 Section 93AF 19 After "further collective bargaining notice", insert "under subsection 20 93AB(1)". 21 85 Subsection 93A(12) 22 Omit "93AB(1)", substitute "93AB(1A) or (1)". 23 86 Subsection 101(1A) 24 Omit "90(6)", substitute "90(5A), (5B), (6)". 25 87 Subsection 101(2) 26 Omit "90(6)", substitute "90(5A), (5B), (6)". 27 88 Section 10.01A 28 Omit: 29 · If the conference agreement is registered, the parties will be 30 given partial and conditional exemptions from section 45 38 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (contracts etc. that restrict dealings or affect competition) and 2 section 47 (exclusive dealing). 3 substitute: 4 · If the conference agreement is registered, the parties will be 5 given partial and conditional exemptions from: 6 (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 7 (cartel conduct); and 8 (b) section 45 (contracts etc. that restrict dealings or 9 affect competition); and 10 (c) section 47 (exclusive dealing). 11 89 Before paragraph 10.08(1)(a) 12 Insert: 13 (aa) that is a provision where the following conditions are 14 satisfied in relation to the provision: 15 (i) the purpose/effect condition set out in subsection 16 44ZZRD(2); 17 (ii) the competition condition set out in subsection 18 44ZZRD(4); or 19 (ab) that is a provision where the following conditions are 20 satisfied in relation to the provision: 21 (i) the purpose condition set out in subsection 44ZZRD(3); 22 (ii) the competition condition set out in subsection 23 44ZZRD(4); or 24 90 Subsection 10.08(1) 25 Omit "an exclusionary provision or has or is likely to have that effect", 26 substitute "covered by paragraph (aa), (ab), (a) or (b)". 27 91 Subsection 10.17(1) 28 Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45 29 do". 30 Note: The heading to section 10.17 is altered by omitting "section 45" and substituting 31 "sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45". Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 39 [Page Break] 1 92 Subsection 10.17(2) 2 Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45 3 do". 4 93 Subsections 10.17A(1) and (2) 5 Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45 6 do". 7 Note: The heading to section 10.17A is altered by omitting "section 45" and substituting 8 "sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45". 9 94 Subsections 10.17A(3) and (4) 10 Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45 11 do". 12 95 Subsection 10.19(1) 13 Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45 14 do". 15 Note: The heading to section 10.19 is altered by omitting "section 45" and substituting 16 "sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45". 17 96 Subsection 10.19(2) 18 Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45 19 do". 20 97 Subsection 10.24(1) 21 After "Sections", insert "44ZZRF, 44ZZRJ,". 22 Note: The heading to section 10.24 is altered by inserting "44ZZRF, 44ZZRG, 44ZZRJ, 23 44ZZRK," after "sections". 24 98 Subsection 10.24(2) 25 After "Sections", insert "44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK,". 26 99 Subsection 10.24A(1) 27 Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45 28 do". 29 Note: The heading to section 10.24A is altered by inserting "44ZZRF, 44ZZRG, 44ZZRJ, 30 44ZZRK," after "sections". 31 100 Subsection 10.24A(2) 40 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 After "Sections", insert "44ZZRG, 44ZZRK,". 2 101 Subsections 10.24A(3) 3 After "Sections", insert "44ZZRF, 44ZZRJ,". 4 102 Paragraph 10.45(3)(a) 5 Repeal the paragraph, substitute: 6 (a) the agreement includes a provision that is covered by 7 paragraph 10.08(1)(aa) or (b); and 8 103 Paragraph 151AJ(3)(a) 9 After "section", insert "44ZZRJ, 44ZZRK,". 10 104 Subsection 151AJ(4) 11 After "section", insert "44ZZRJ, 44ZZRK,". 12 105 Subsection 151AJ(4) 13 Omit all the words after "48,", substitute: 14 the following assumptions are to be made: 15 (a) the assumption that each reference to a corporation in: 16 (i) those sections; and 17 (ii) sections 44ZZRL and 44ZZRM; 18 included a reference to a carrier, or a carriage service 19 provider, that is not a corporation; 20 (b) the assumption that subsections 45(8) and 47(12) and 21 section 44ZZRN had not been enacted. 22 106 Subsection 151AJ(7) 23 Omit "section 45", substitute "section 44ZZRJ, 44ZZRK, 45". 24 107 Paragraph 151AJ(7)(b) 25 After "subsection", insert "44ZZRL(1) or". 26 108 Paragraph 151AJ(7)(b) 27 Omit "93.", substitute "93; or". 28 109 At the end of subsection 151AJ(7) 29 Add: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 41 [Page Break] 1 (c) because of the operation of subsection 45(9); or 2 (d) because of the operation of subsection 45B(8); or 3 (e) because of the operation of section 44ZZRM. 4 110 Paragraph 151AY(1)(b) 5 Omit "93AB(1)", substitute "93AB(1A) or (1)". 6 111 At the end of section 151BZ 7 Add: 8 (3) To avoid doubt, subsection (1) does not apply in relation to 9 proceedings for an offence against section 44ZZRF or 44ZZRG. 10 112 Subsection 157(1) 11 Omit "Where:", substitute "Subject to subsection (1A), if:". 12 113 After subsection 157(1) 13 Insert: 14 Protected cartel information--Commission may refuse to comply 15 with request 16 (1A) If a request under subsection (1) relates to a document containing 17 protected cartel information, the Commission may refuse to 18 comply with the request. 19 (1B) In exercising its powers under subsection (1A), the Commission 20 must have regard to the following matters: 21 (a) the fact that the protected cartel information was given to the 22 Commission in confidence; 23 (b) Australia's relations with other countries; 24 (c) the need to avoid disruption to national and international 25 efforts relating to law enforcement, criminal intelligence and 26 criminal investigation; 27 (d) in a case where the protected cartel information was given by 28 an informant: 29 (i) the protection or safety of the informant or of persons 30 associated with the informant; and 31 (ii) the fact that the production of a document containing 32 protected cartel information, or the disclosure of 42 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 protected cartel information, may discourage informants 2 from giving protected cartel information in the future; 3 (e) the legitimate interests of the corporation which, or the 4 person who, made the request under subsection (1); 5 (f) such other matters (if any) as the Commission considers 6 relevant. 7 114 Subsection 157(2) 8 After "subsection (1)", insert "otherwise than because of a refusal under 9 subsection (1A)". 10 Note: The following heading to subsection 157(2) is inserted "Court order". 11 115 At the end of section 157 12 Add: 13 Definition 14 (6) In this section: 15 protected cartel information has the same meaning as in 16 section 157B. 17 116 After section 157A 18 Insert: 19 157B Disclosure of protected cartel information to a court or 20 tribunal 21 Commission or a Commission official not required to disclose 22 protected cartel information 23 (1) The Commission or a Commission official is not to be required: 24 (a) to produce to a court or tribunal a document containing 25 protected cartel information; or 26 (b) to disclose protected cartel information to a court or tribunal; 27 except with the leave of the court or tribunal. 28 (2) In exercising its powers to grant leave under subsection (1), the 29 court or tribunal must have regard to the following matters: 30 (a) the fact that the protected cartel information was given to the 31 Commission in confidence; Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 43 [Page Break] 1 (b) Australia's relations with other countries; 2 (c) the need to avoid disruption to national and international 3 efforts relating to law enforcement, criminal intelligence and 4 criminal investigation; 5 (d) in a case where the protected cartel information was given by 6 an informant: 7 (i) the protection or safety of the informant or of persons 8 associated with the informant; and 9 (ii) the fact that the production of a document containing 10 protected cartel information, or the disclosure of 11 protected cartel information, may discourage informants 12 from giving protected cartel information in the future; 13 (e) in the case of a court--the interests of the administration of 14 justice; 15 (f) in the case of a tribunal--the interests of securing the 16 effective performance of the tribunal's functions; 17 and must not have regard to any other matters. 18 (3) If: 19 (a) a document is produced; or 20 (b) information is disclosed; 21 to a court or tribunal in accordance with leave granted under 22 subsection (1) in relation to particular proceedings, the document 23 or information must not be adduced in other proceedings before the 24 court or tribunal except: 25 (c) in accordance with leave granted under subsection (1) in 26 relation to the other proceedings; or 27 (d) as a result of an exercise of power under subsection (4) in 28 relation to the other proceedings. 29 Commission or a Commission official may disclose protected 30 cartel information 31 (4) The Commission or a Commission official may: 32 (a) produce to the court or tribunal a document containing 33 protected cartel information; or 34 (b) disclose protected cartel information to the court or tribunal. 35 (5) In exercising the powers conferred by subsection (4), the 36 Commission or Commission official must have regard to the 37 following matters: 44 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (a) the fact that the protected cartel information was given to the 2 Commission in confidence; 3 (b) Australia's relations with other countries; 4 (c) the need to avoid disruption to national and international 5 efforts relating to law enforcement, criminal intelligence and 6 criminal investigation; 7 (d) in a case where the protected cartel information was given by 8 an informant: 9 (i) the protection or safety of the informant or of persons 10 associated with the informant; and 11 (ii) the fact that the production of a document containing 12 protected cartel information, or the disclosure of 13 protected cartel information, may discourage informants 14 from giving protected cartel information in the future; 15 (e) in the case of production or disclosure to a court--the 16 interests of the administration of justice; 17 (f) in the case of production or disclosure to a tribunal--the 18 interests of securing the effective performance of the 19 tribunal's functions; 20 and must not have regard to any other matters. 21 (6) If: 22 (a) a document is produced; or 23 (b) information is disclosed; 24 to a court or tribunal as a result of an exercise of power under 25 subsection (4) in relation to particular proceedings, the document 26 or information must not be adduced in other proceedings before the 27 court or tribunal except: 28 (c) in accordance with leave granted under subsection (1) in 29 relation to the other proceedings; or 30 (d) as a result of an exercise of power under subsection (4) in 31 relation to the other proceedings. 32 Definitions 33 (7) In this section: 34 Commission official means: 35 (a) a member, or associate member, of the Commission; or 36 (b) a person referred to in subsection 27(1); or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 45 [Page Break] 1 (c) a person engaged under section 27A. 2 disclose means divulge or communicate. 3 protected cartel information means information that: 4 (a) was given to the Commission in confidence; and 5 (b) relates to a breach, or a possible breach, of section 44ZZRF, 6 44ZZRG, 44ZZRJ or 44ZZRK. 7 157C Disclosure of protected cartel information to a party to court 8 proceedings etc. 9 Commission or Commission official not required to make discovery 10 of documents containing protected cartel information etc. 11 (1) If: 12 (a) a person is a party to proceedings before a court; and 13 (b) the Commission is not a party to the proceedings; 14 the Commission or a Commission official is not to be required, in 15 connection with the proceedings, to: 16 (c) make discovery (however described) to the person of a 17 document containing protected cartel information; or 18 (d) produce to the person a document containing protected cartel 19 information. 20 (2) If: 21 (a) a person is considering instituting proceedings before a court; 22 and 23 (b) the proceedings have not yet been instituted; 24 the Commission or a Commission official is not to be required, in 25 connection with the prospective proceedings, to: 26 (c) make discovery (however described) to the person of a 27 document containing protected cartel information; or 28 (d) produce to the person a document containing protected cartel 29 information. 30 Commission or Commission official may disclose protected cartel 31 information 32 (3) If: 33 (a) a person is a party to proceedings before a court; and 46 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (b) the Commission is not a party to the proceedings; 2 the Commission or a Commission official may, on application by 3 the person: 4 (c) make a copy of a document containing protected cartel 5 information; and 6 (d) give the copy to the person. 7 (4) If: 8 (a) a person is considering instituting proceedings before a court; 9 and 10 (b) the proceedings have not yet been instituted; 11 the Commission or a Commission official may, on application by 12 the person: 13 (c) make a copy of a document containing protected cartel 14 information; and 15 (d) give the copy to the person. 16 (5) In exercising the powers conferred by subsection (3) or (4), the 17 Commission or Commission official must have regard to the 18 following matters: 19 (a) the fact that the protected cartel information was given to the 20 Commission in confidence; 21 (b) Australia's relations with other countries; 22 (c) the need to avoid disruption to national and international 23 efforts relating to law enforcement, criminal intelligence and 24 criminal investigation; 25 (d) in a case where the protected cartel information was given by 26 an informant: 27 (i) the protection or safety of the informant or of persons 28 associated with the informant; and 29 (ii) the fact that the production of a document containing 30 protected cartel information, or the disclosure of 31 protected cartel information, may discourage informants 32 from giving protected cartel information in the future; 33 (e) the interests of the administration of justice; 34 and must not have regard to any other matters. 35 (6) If a copy of a document is given to a party, or prospective party, to 36 proceedings before a court as a result of an exercise of power under Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 47 [Page Break] 1 subsection (3) or (4), the copy must not be adduced in other 2 proceedings before: 3 (a) the court; or 4 (b) another court; or 5 (c) a tribunal; 6 except: 7 (d) as a result of an exercise of power under subsection (3) or (4) 8 in relation to the other proceedings; or 9 (e) in accordance with leave granted under subsection 157B(1) 10 in relation to the other proceedings; or 11 (f) as a result of an exercise of power under subsection 157B(4) 12 in relation to the other proceedings. 13 Definitions 14 (7) In this section: 15 Commission official means: 16 (a) a member, or associate member, of the Commission; or 17 (b) a person referred to in subsection 27(1); or 18 (c) a person engaged under section 27A. 19 protected cartel information means information that: 20 (a) was given to the Commission in confidence; and 21 (b) relates to a breach, or a possible breach, of section 44ZZRF, 22 44ZZRG, 44ZZRJ or 44ZZRK. 23 157D General powers of a court 24 Power of a court in a criminal or civil proceeding 25 (1) The power of a court to control the conduct of a criminal or civil 26 proceeding, in particular with respect to abuse of process, is not 27 affected by section 157B or 157C, except so far as that section 28 expressly or impliedly provides otherwise. 29 Stay order--criminal proceeding 30 (2) A refusal by a court to grant leave under subsection 157B(1) does 31 not prevent the court from later ordering that a criminal proceeding 48 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 be stayed on the ground that the refusal would have a substantial 2 adverse effect on a defendant's right to receive a fair hearing. 3 Stay order--civil proceeding 4 (3) A refusal by a court to grant leave under subsection 157B(1) does 5 not prevent the court from later ordering that a civil proceeding be 6 stayed on the ground that the refusal would have a substantial 7 adverse effect on the hearing in the proceeding. 8 (4) In deciding whether to order a stay of the civil proceeding, the 9 court must consider: 10 (a) the extent of any financial loss that a party would suffer as a 11 result of the proceeding being stayed; and 12 (b) whether a party has reasonable prospects of obtaining a 13 remedy in the proceeding; and 14 (c) any other matter the court considers relevant. 15 117 Subsection 163(2) 16 Repeal the subsection, substitute: 17 (2) In so far as this section has effect as a law of the Commonwealth, 18 the Federal Court has jurisdiction in any matter in respect of which 19 a criminal proceeding is instituted for an offence to which 20 subsection (1) applies, and that jurisdiction is exclusive of the 21 jurisdiction of any other court other than: 22 (a) the jurisdiction of a Supreme Court of a State or Territory 23 under section 68 of the Judiciary Act 1903 with respect to 24 any matter in respect of which a criminal proceeding is 25 instituted for an offence against section 44ZZRF or 44ZZRG; 26 and 27 (b) the jurisdiction of a court under section 68 of the Judiciary 28 Act 1903 with respect to the examination and commitment 29 for trial on indictment of a person who is charged with an 30 indictable offence; and 31 (c) the jurisdiction of the High Court under section 75 of the 32 Constitution. 33 118 Application--subsection 163(2) of the Trade Practices 34 Act 1974 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 49 [Page Break] 1 Despite the repeal of subsection 163(2) of the Trade Practices Act 1974 2 by this Schedule, that subsection continues to apply, in relation to 3 prosecutions instituted before the commencement of this item, as if that 4 repeal had not happened. 5 119 Before paragraph 163(4)(a) 6 Insert: 7 (aa) the Director of Public Prosecutions; or 8 120 At the end of paragraph 163(4)(a) 9 Add "or". 10 121 At the end of section 163 11 Add: 12 (6) Despite subsection (2), the Federal Court does not have jurisdiction 13 in any matter in respect of which a criminal proceeding is instituted 14 for an offence against section 44ZZRF or 44ZZRG if the 15 proceeding is instituted before the commencement of Schedule 1 to 16 the Federal Court of Australia Amendment (Criminal Jurisdiction) 17 Act 2008. 18 122 Subsection 163A(3A) 19 Omit "In", substitute "Subject to subsections (4B) and (4C), in". 20 Note 1: The following heading to subsection 163A(1) is inserted "Declarations and orders". 21 Note 2: The following heading to subsection 163A(2) is inserted "When Minister may institute, 22 or intervene in, proceedings". 23 Note 3: The following heading to subsection 163A(3) is inserted "When Commission may 24 institute proceedings". 25 Note 4: The following heading to subsection 163A(3A) is inserted "Jurisdiction of Federal 26 Court". 27 123 After subsection 163A(4) 28 Insert: 29 Jurisdiction of State/Territory Supreme Courts etc. 30 (4A) In so far as this section has effect as a law of the Commonwealth, 31 the Supreme Court of a State or Territory does not have 32 jurisdiction to hear and determine proceedings under this section 33 otherwise than in accordance with subsection (4B) or (4C). This 50 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 subsection has effect despite any other law, including section 39 of 2 the Judiciary Act 1903. 3 (4B) If a decision to prosecute a person for an offence against 4 section 44ZZRF or 44ZZRG has been made and the prosecution is 5 proposed to be commenced in the Supreme Court of a State or 6 Territory: 7 (a) the Federal Court does not have jurisdiction with respect to 8 any matter in which a person seeks the making of a 9 paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in 10 relation to that decision; and 11 (b) if the Supreme Court is the Supreme Court of a State--in so 12 far as this section has effect as a law of the Commonwealth, 13 the Supreme Court is invested with federal jurisdiction with 14 respect to any such matter; and 15 (c) if the Supreme Court is the Supreme Court of a Territory, 16 then: 17 (i) in so far as this section has effect as a law of the 18 Commonwealth; and 19 (ii) subject to the Constitution; 20 the Supreme Court is conferred with jurisdiction with respect 21 to any such matter. 22 (4C) Subject to subsection (4D), at any time when: 23 (a) a prosecution for an offence against section 44ZZRF or 24 44ZZRG is before the Supreme Court of a State or Territory; 25 or 26 (b) an appeal arising out of such a prosecution is before the 27 Supreme Court of a State or Territory; 28 the following apply: 29 (c) the Federal Court does not have jurisdiction with respect to 30 any matter in which the person who is or was the defendant 31 in the prosecution seeks the making of a paragraph (1)(aa) 32 declaration, or a paragraph (1)(b) order, in relation to a 33 related criminal justice process decision; 34 (d) if the Supreme Court is the Supreme Court of a State--in so 35 far as this section has effect as a law of the Commonwealth, 36 the Supreme Court is invested with federal jurisdiction with 37 respect to any such matter; 38 (e) if the Supreme Court is the Supreme Court of a Territory, 39 then: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 51 [Page Break] 1 (i) in so far as this section has effect as a law of the 2 Commonwealth; and 3 (ii) subject to the Constitution; 4 the Supreme Court is conferred with jurisdiction with respect 5 to any such matter. 6 (4D) Subsection (4C) does not apply if, before the commencement of a 7 prosecution for an offence against section 44ZZRF or 44ZZRG, a 8 person seeks the making of a paragraph (1)(aa) declaration, or a 9 paragraph (1)(b) order, in relation to a related criminal justice 10 process decision. 11 (4E) If subsection (4D) applies, the prosecutor may apply to the Federal 12 Court for a permanent stay of the paragraph (1)(aa) or (b) 13 proceedings referred to in that subsection, and the Federal Court 14 may grant such a stay if the Federal Court determines that: 15 (a) the matters the subject of the proceedings are more 16 appropriately dealt with in the criminal justice process; and 17 (b) a stay of proceedings will not substantially prejudice the 18 person. 19 Note: The following heading to subsection 163A(5) is inserted "Definitions". 20 124 At the end of section 163A 21 Add: 22 (6) In this section: 23 related criminal justice process decision has the same meaning as 24 in section 39B of the Judiciary Act 1903. 25 125 After Part XII 26 Insert: 52 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 Part XIII--Application and transitional provisions 2 relating to the competition provisions 3 Division 1--Cartel conduct 4 174 Definitions 5 In this Division: 6 commencement time means the commencement of Division 1 of 7 Part IV. 8 175 Giving effect after the comme ncement time to a cartel provision 9 in existence before that time 10 The following provisions of this Act: 11 (a) paragraph 88(1A)(b); 12 (b) paragraph 93AB(1A)(c); 13 (c) paragraph 93AB(1A)(d); 14 apply in relation to a contract or arrangement made, or an 15 understanding arrived at, before, at or after the commencement 16 time. 17 176 Proceedings relating to price-fixing contraventions taking place 18 before the comme ncement time 19 Despite the repeal of section 76D by the Trade Practices 20 Amendment (Cartel Conduct and Other Measures) Act 2008, that 21 section continues to apply, in relation to proceedings (whether 22 instituted before or after the commencement time) in relation to a 23 contravention that took place before the commencement time, as if 24 that repeal had not happened. 25 177 Authorisations in force before the commence ment time 26 (1) This section applies if: 27 (a) an authorisation (the pre-commencement authorisation) was 28 granted to a person to give effect to a provision of a contract, 29 arrangement or understanding; and 30 (b) the provision is a cartel provision; and Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 53 [Page Break] 1 (c) the authorisation was in force immediately before the 2 commencement time. 3 (2) This Act has effect, after the commencement time, as if: 4 (a) the Commission had, at the commencement time, granted to 5 the person an authorisation under subsection 88(1A) to give 6 effect to the cartel provision; and 7 (b) the day specified in the subsection 88(1A) authorisation as 8 the day the authorisation comes into force were the day on 9 which Division 1 of Part IV commenced; and 10 (c) if, immediately before the commencement time, the 11 pre-commencement authorisation was expressed to be in 12 force for a period (the initial period) specified in that 13 authorisation--the subsection 88(1A) authorisation were 14 expressed to be in force for a period specified in the 15 subsection 88(1A) authorisation, and that period were the 16 period: 17 (i) starting at the commencement time; and 18 (ii) ending at the end of the initial period; and 19 (d) any requirements for the granting of the subsection 88(1A) 20 authorisation were satisfied. 21 (3) Subsection (2) does not prevent the subsection 88(1A) 22 authorisation from being varied, revoked or set aside in accordance 23 with this Act. 24 178 Notifications in force before the commencement time 25 (1) This section applies if: 26 (a) a person gave the Commission a collective bargaining notice 27 under subsection 93AB(1) in relation to a proposal to give 28 effect to a provision of a contract, arrangement or 29 understanding; and 30 (b) the provision is a cartel provision of the kind referred to in 31 paragraph 93AB(1A)(c) or (d); and 32 (c) the subsection 93AB(1) notice is in force immediately before 33 the commencement time. 34 (2) This Act has effect, after the commencement time, as if: 35 (a) the person had, at the commencement time, given the 36 Commission a collective bargaining notice under subsection 54 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 93AB(1A) in relation to a proposal to give effect to the cartel 2 provision; and 3 (b) despite subsections 93AD(1) and (2), the subsection 4 93AB(1A) notice had come into force at the commencement 5 time; and 6 (c) despite paragraph 93AD(3)(c), the period applicable to the 7 subsection 93AB(1A) notice for the purposes of paragraph 8 93AD(3)(c) were the period: 9 (i) starting at the commencement time; and 10 (ii) ending at the end of the period of 3 years starting on the 11 day the person gave the subsection 93AB(1) notice to 12 the Commission; and 13 (d) any requirements for the giving of the subsection 93AB(1A) 14 notice were satisfied. 15 (3) Subsection (2) does not prevent the subsection 93AB(1A) notice 16 from ceasing to be in force in accordance with this Act. 17 126 Before section 45 of the Schedule 18 Insert: 19 Division 1--Cartel conduct 20 Subdivision A--Introduction 21 44ZZRA Simplified outline 22 The following is a simplified outline of this Division: 23 · This Division sets out parallel offences and civil penalty 24 provisions relating to cartel conduct. 25 · A person must not make, or give effect to, a contract, 26 arrangement or understanding that contains a cartel provision. 27 · A cartel provision is a provision relating to: 28 (a) price-fixing; or 29 (b) restricting outputs in the production and supply 30 chain; or Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 55 [Page Break] 1 (c) allocating customers, suppliers or territories; or 2 (d) bid-rigging; 3 by parties that are, or would otherwise be, in competition with 4 each other. 5 44ZZRB Definitions 6 In this Division: 7 annual turnover, of a body corporate during a 12-month period, 8 means the sum of the values of all the supplies that the body 9 corporate, and any body corporate related to the body corporate, 10 have made, or are likely to make, during the 12-month period, 11 other than: 12 (a) supplies made from any of those bodies corporate to any 13 other of those bodies corporate; or 14 (b) supplies that are input taxed; or 15 (c) supplies that are not for consideration (and are not taxable 16 supplies under section 72-5 of the A New Tax System (Goods 17 and Services Tax) Act 1999); or 18 (d) supplies that are not made in connection with an enterprise 19 that the body corporate carries on; or 20 (e) supplies that are not connected with Australia. 21 Expressions used in this definition that are also used in the A New 22 Tax System (Goods and Services Tax) Act 1999 have the same 23 meaning as in that Act. 24 benefit includes any advantage and is not limited to property. 25 bid includes: 26 (a) tender; and 27 (b) the taking, by a potential bidder or tenderer, of a preliminary 28 step in a bidding or tendering process. 29 evidential burden, in relation to a matter, means the burden of 30 adducing or pointing to evidence that suggests a reasonable 31 possibility that the matter exists or does not exist. 32 knowledge has the same meaning as in the Criminal Code. 56 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 likely, in relation to any of the following: 2 (a) a supply of goods or services; 3 (b) an acquisition of goods or services; 4 (c) the production of goods; 5 (d) the capacity to supply services; 6 includes a possibility that is not remote. 7 obtaining includes: 8 (a) obtaining for another person; and 9 (b) inducing a third person to do something that results in 10 another person obtaining. 11 party has a meaning affected by section 44ZZRC. 12 production includes manufacture, processing, treatment, assembly, 13 disassembly, renovation, restoration, growing, raising, mining, 14 extraction, harvesting, fishing, capturing and gathering. 15 44ZZRC Exte nded meaning of party 16 For the purposes of this Division, if a body corporate is a party to a 17 contract, arrangement or understanding (otherwise than because of 18 this section), each body corporate related to that body corporate is 19 taken to be a party to that contract, arrangement or understanding. 20 44ZZRD Cartel provisions 21 (1) For the purposes of this Act, a provision of a contract, arrangement 22 or understanding is a cartel provision if: 23 (a) either of the following conditions is satisfied in relation to the 24 provision: 25 (i) the purpose/effect condition set out in subsection (2); 26 (ii) the purpose condition set out in subsection (3); and 27 (b) the competition condition set out in subsection (4) is satisfied 28 in relation to the provision. 29 Purpose/effect condition 30 (2) The purpose/effect condition is satisfied if the provision has the 31 purpose, or has or is likely to have the effect, of directly or 32 indirectly: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 57 [Page Break] 1 (a) fixing, controlling or maintaining; or 2 (b) providing for the fixing, controlling or maintaining of; 3 the price for, or a discount, allowance, rebate or credit in relation 4 to: 5 (c) goods or services supplied, or likely to be supplied, by any or 6 all of the parties to the contract, arrangement or 7 understanding; or 8 (d) goods or services acquired, or likely to be acquired, by any or 9 all of the parties to the contract, arrangement or 10 understanding; or 11 (e) goods or services re-supplied, or likely to be re-supplied, by 12 persons or classes of persons to whom those goods or 13 services were supplied by any or all of the parties to the 14 contract, arrangement or understanding; or 15 (f) goods or services likely to be re-supplied by persons or 16 classes of persons to whom those goods or services are likely 17 to be supplied by any or all of the parties to the contract, 18 arrangement or understanding. 19 Note 1: The purpose/effect condition can be satisfied when a provision is 20 considered with related provisions--see subsection (8). 21 Note 2: Party has an extended meaning--see section 44ZZRC. 22 Purpose condition 23 (3) The purpose condition is satisfied if the provision has the purpose 24 of directly or indirectly: 25 (a) preventing, restricting or limiting: 26 (i) the production, or likely production, of goods by any or 27 all of the parties to the contract, arrangement or 28 understanding; or 29 (ii) the capacity, or likely capacity, of any or all of the 30 parties to the contract, arrangement or understanding to 31 supply services; or 32 (iii) the supply, or likely supply, of goods or services to 33 persons or classes of persons by any or all of the parties 34 to the contract, arrangement or understanding; or 35 (b) allocating between any or all of the parties to the contract, 36 arrangement or understanding: 37 (i) the persons or classes of persons who have acquired, or 38 who are likely to acquire, goods or services from any or 58 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 all of the parties to the contract, arrangement or 2 understanding; or 3 (ii) the persons or classes of persons who have supplied, or 4 who are likely to supply, goods or services to any or all 5 of the parties to the contract, arrangement or 6 understanding; or 7 (iii) the geographical areas in which goods or services are 8 supplied, or likely to be supplied, by any or all of the 9 parties to the contract, arrangement or understanding; or 10 (iv) the geographical areas in which goods or services are 11 acquired, or likely to be acquired, by any or all of the 12 parties to the contract, arrangement or understanding; or 13 (c) ensuring that in the event of a request for bids in relation to 14 the supply or acquisition of goods or services: 15 (i) one or more parties to the contract, arrangement or 16 understanding bid, but one or more other parties do not; 17 or 18 (ii) 2 or more parties to the contract, arrangement or 19 understanding bid, but at least 2 of them do so on the 20 basis that one of those bids is more likely to be 21 successful than the others; or 22 (iii) 2 or more parties to the contract, arrangement or 23 understanding bid, but not all of those parties proceed 24 with their bids until the suspension or finalisation of the 25 request for bids process; or 26 (iv) 2 or more parties to the contract, arrangement or 27 understanding bid and proceed with their bids, but at 28 least 2 of them proceed with their bids on the basis that 29 one of those bids is more likely to be successful than the 30 others; or 31 (v) 2 or more parties to the contract, arrangement or 32 understanding bid, but a material component of at least 33 one of those bids is worked out in accordance with the 34 contract, arrangement or understanding. 35 Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a 36 roster for the supply of after-hours medical services if the roster does 37 not prevent, restrict or limit the supply of services. 38 Note 2: The purpose condition can be satisfied when a provision is considered 39 with related provisions--see subsection (9). 40 Note 3: Party has an extended meaning--see section 44ZZRC. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 59 [Page Break] 1 Competition condition 2 (4) The competition condition is satisfied if at least 2 of the parties to 3 the contract, arrangement or understanding: 4 (a) are or are likely to be; or 5 (b) but for any contract, arrangement or understanding, would be 6 or would be likely to be; 7 in competition with each other in relation to: 8 (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or 9 likely supply, of goods or services--the supply of those 10 goods or services; or 11 (d) if paragraph (2)(d) or (3)(b) applies in relation to an 12 acquisition, or likely acquisition, of goods or services--the 13 acquisition of those goods or services; or 14 (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or 15 likely re-supply, of goods or services--the supply of those 16 goods or services to that re-supplier; or 17 (f) if subparagraph (3)(a)(i) applies in relation to preventing, 18 restricting or limiting the production, or likely production, of 19 goods--the production of those goods; or 20 (g) if subparagraph (3)(a)(ii) applies in relation to preventing, 21 restricting or limiting the capacity, or likely capacity, to 22 supply services--the supply of those services; or 23 (h) if subparagraph (3)(a)(iii) applies in relation to preventing, 24 restricting or limiting the supply, or likely supply, of goods 25 or services--the supply of those goods or services; or 26 (i) if paragraph (3)(c) applies in relation to a supply of goods or 27 services--the supply of those goods or services; or 28 (j) if paragraph (3)(c) applies in relation to an acquisition of 29 goods or services--the acquisition of those goods or services. 30 Note: Party has an extended meaning--see section 44ZZRC. 31 Immaterial whether identities of persons can be ascertained 32 (5) It is immaterial whether the identities of the persons referred to in 33 paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can 34 be ascertained. 60 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 Recommending prices etc. 2 (6) For the purposes of this Division, a provision of a contract, 3 arrangement or understanding is not taken: 4 (a) to have the purpose mentioned in subsection (2); or 5 (b) to have, or be likely to have, the effect mentioned in 6 subsection (2); 7 by reason only that it recommends, or provides for the 8 recommending of, a price, discount, allowance, rebate or credit. 9 Immaterial whether particular circumstances or particular 10 conditions 11 (7) It is immaterial whether: 12 (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) 13 and paragraphs (3)(b) and (c)--a supply or acquisition 14 happens, or a likely supply or likely acquisition is to happen, 15 in particular circumstances or on particular conditions; and 16 (b) for the purposes of subparagraph (3)(a)(i)--the production 17 happens, or the likely production is to happen, in particular 18 circumstances or on particular conditions; and 19 (c) for the purposes of subparagraph (3)(a)(ii)--the capacity 20 exists, or the likely capacity is to exist, in particular 21 circumstances or on particular conditions. 22 Considering related provisions--purpose/effect condition 23 (8) For the purposes of this Division, a provision of a contract, 24 arrangement or understanding is taken to have the purpose, or to 25 have or be likely to have the effect, mentioned in subsection (2) if 26 the provision, when considered together with any or all of the 27 following provisions: 28 (a) the other provisions of the contract, arrangement or 29 understanding; 30 (b) the provisions of another contract, arrangement or 31 understanding, if the parties to that other contract, 32 arrangement or understanding consist of or include at least 33 one of the parties to the first-mentioned contract, 34 arrangement or understanding; 35 has that purpose, or has or is likely to have that effect. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 61 [Page Break] 1 Considering related provisions--purpose condition 2 (9) For the purposes of this Division, a provision of a contract, 3 arrangement or understanding is taken to have the purpose 4 mentioned in a paragraph of subsection (3) if the provision, when 5 considered together with any or all of the following provisions: 6 (a) the other provisions of the contract, arrangement or 7 understanding; 8 (b) the provisions of another contract, arrangement or 9 understanding, if the parties to that other contract, 10 arrangement or understanding consist of or include at least 11 one of the parties to the first-mentioned contract, 12 arrangement or understanding; 13 has that purpose. 14 Purpose/effect of a provision 15 (10) For the purposes of this Division, a provision of a contract, 16 arrangement or understanding is not to be taken not to have the 17 purpose, or not to have or to be likely to have the effect, mentioned 18 in subsection (2) by reason only of: 19 (a) the form of the provision; or 20 (b) the form of the contract, arrangement or understanding; or 21 (c) any description given to the provision, or to the contract, 22 arrangement or understanding, by the parties. 23 Purpose of a provision 24 (11) For the purposes of this Division, a provision of a contract, 25 arrangement or understanding is not to be taken not to have the 26 purpose mentioned in a paragraph of subsection (3) by reason only 27 of: 28 (a) the form of the provision; or 29 (b) the form of the contract, arrangement or understanding; or 30 (c) any description given to the provision, or to the contract, 31 arrangement or understanding, by the parties. 32 44ZZRE Meaning of expressions in other provisions of this Act 33 In determining the meaning of an expression used in a provision of 34 this Act (other than this Division, subsection 6(2C), paragraph 62 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 76(1A)(aa) or subsection 93AB(1A)), this Division is to be 2 disregarded. 3 Subdivision B--Offences etc. 4 44ZZRF Making a contract etc. containing a cartel provision 5 Offence 6 (1) A person commits an offence if: 7 (a) the person makes a contract or arrangement, or arrives at an 8 understanding; and 9 (b) the contract, arrangement or understanding contains a cartel 10 provision. 11 (2) The fault element for paragraph (1)(b) is knowledge or belief. 12 Penalty 13 (3) An offence against subsection (1) committed by a body corporate 14 is punishable on conviction by a fine not exceeding the greater of 15 the following: 16 (a) $10,000,000; 17 (b) if the court can determine the total value of the benefits that: 18 (i) have been obtained by one or more persons; and 19 (ii) are reasonably attributable to the commission of the 20 offence; 21 3 times that total value; 22 (c) if the court cannot determine the total value of those 23 benefits--10% of the body corporate's annual turnover 24 during the 12-month period ending at the end of the month in 25 which the body corporate committed, or began committing, 26 the offence. 27 (4) An offence against subsection (1) committed by a person other 28 than a body corporate is punishable on conviction by a term of 29 imprisonment not exceeding 10 years or a fine not exceeding 2,000 30 penalty units, or both. 31 Indictable offence 32 (5) An offence against subsection (1) is an indictable offence. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 63 [Page Break] 1 44ZZRG Giving effect to a cartel provision 2 Offence 3 (1) A person commits an offence if: 4 (a) a contract, arrangement or understanding contains a cartel 5 provision; and 6 (b) the person gives effect to the cartel provision. 7 (2) The fault element for paragraph (1)(a) is knowledge or belief. 8 Penalty 9 (3) An offence against subsection (1) committed by a body corporate 10 is punishable on conviction by a fine not exceeding the greater of 11 the following: 12 (a) $10,000,000; 13 (b) if the court can determine the total value of the benefits that: 14 (i) have been obtained by one or more persons; and 15 (ii) are reasonably attributable to the commission of the 16 offence; 17 3 times that total value; 18 (c) if the court cannot determine the total value of those 19 benefits--10% of the body corporate's annual turnover 20 during the 12-month period ending at the end of the month in 21 which the body corporate committed, or began committing, 22 the offence. 23 (4) An offence against subsection (1) committed by a person other 24 than a body corporate is punishable on conviction by a term of 25 imprisonment not exceeding 10 years or a fine not exceeding 2,000 26 penalty units, or both. 27 Pre-commencement contracts etc. 28 (5) Paragraph (1)(a) applies to contracts or arrangements made, or 29 understandings arrived at, before, at or after the commencement of 30 this section. 31 Indictable offence 32 (6) An offence against subsection (1) is an indictable offence. 64 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 44ZZRH Determining guilt 2 (1) A person may be found guilty of an offence against 3 section 44ZZRF or 44ZZRG even if: 4 (a) each other party to the contract, arrangement or 5 understanding is a person who is not criminally responsible; 6 or 7 (b) subject to subsection (2), all other parties to the contract, 8 arrangement or understanding have been acquitted of the 9 offence. 10 Note: Party has an extended meaning--see section 44ZZRC. 11 (2) A person cannot be found guilty of an offence against 12 section 44ZZRF or 44ZZRG if: 13 (a) all other parties to the contract, arrangement or understanding 14 have been acquitted of such an offence; and 15 (b) a finding of guilt would be inconsistent with their acquittal. 16 44ZZRI Court may make related civil orders 17 If a prosecution against a person for an offence against 18 section 44ZZRF or 44ZZRG is being, or has been, heard by a 19 court, the court may: 20 (a) grant an injunction under section 80 against the person in 21 relation to: 22 (i) the conduct that constitutes, or is alleged to constitute, 23 the offence; or 24 (ii) other conduct of that kind; or 25 (b) make an order under section 86C, 86D, 86E or 87 in relation 26 to the offence. 27 Subdivision C--Civil penalty provisions 28 44ZZRJ Making a contract etc. containing a cartel provision 29 A person contravenes this section if: 30 (a) the person makes a contract or arrangement, or arrives at an 31 understanding; and 32 (b) the contract, arrangement or understanding contains a cartel 33 provision. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 65 [Page Break] 1 Note: For enforcement, see Part VI. 2 44ZZRK Giving effect to a cartel provision 3 (1) A person contravenes this section if: 4 (a) a contract, arrangement or understanding contains a cartel 5 provision; and 6 (b) the person gives effect to the cartel provision. 7 Note: For enforcement, see Part VI. 8 (2) Paragraph (1)(a) applies to contracts or arrangements made, or 9 understandings arrived at, before, at or after the commencement of 10 this section. 11 Subdivision D--Exceptions 12 44ZZRL Conduct notified 13 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to 14 a person in relation to a contract, arrangement or understanding 15 containing a cartel provision, in so far as: 16 (a) the cartel provision: 17 (i) has the purpose, or has or is likely to have the effect, 18 mentioned in subsection 44ZZRD(2); or 19 (ii) has the purpose mentioned in a paragraph of subsection 20 44ZZRD(3) other than paragraph (c); and 21 (b) the person has given the Commission a collective bargaining 22 notice under subsection 93AB(1A) setting out particulars of 23 the contract, arrangement or understanding; and 24 (c) the notice is in force under section 93AD. 25 (2) A person who wishes to rely on subsection (1) bears an evidential 26 burden in relation to that matter. 27 44ZZRM Cartel provision subject to grant of authorisation 28 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 29 making of a contract that contains a cartel provision if: 30 (a) the contract is subject to a condition that the provision will 31 not come into force unless and until the person is granted an 32 authorisation to give effect to the provision; and 66 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (b) the person applies for the grant of such an authorisation 2 within 14 days after the contract is made. 3 (2) A person who wishes to rely on subsection (1) bears an evidential 4 burden in relation to that matter. 5 44ZZRN Contracts, arrange ments or understandings between 6 related bodies corporate 7 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 8 relation to a contract, arrangement or understanding if the only 9 parties to the contract, arrangement or understanding are bodies 10 corporate that are related to each other. 11 (2) A person who wishes to rely on subsection (1) bears an evidential 12 burden in relation to that matter. 13 44ZZRO Joint ventures--prosecution 14 (1) Sections 44ZZRF and 44ZZRG do not apply in relation to a 15 contract containing a cartel provision if: 16 (a) the cartel provision is for the purposes of a joint venture; and 17 (b) the joint venture is for the production and/or supply of goods 18 or services; and 19 (c) in a case where subparagraph 4J(a)(i) applies to the joint 20 venture--the joint venture is carried on jointly by the parties 21 to the contract; and 22 (d) in a case where subparagraph 4J(a)(ii) applies to the joint 23 venture--the joint venture is carried on by a body corporate 24 formed by the parties to the contract for the purpose of 25 enabling those parties to carry on the activity mentioned in 26 paragraph (b) jointly by means of: 27 (i) their joint control; or 28 (ii) their ownership of shares in the capital; 29 of that body corporate. 30 (2) A person who wishes to rely on subsection (1) bears an evidential 31 burden in relation to that matter. Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 67 [Page Break] 1 Notice to prosecutor 2 (3) A person is not entitled to rely on subsection (1) in a trial for an 3 offence unless, within 28 days after the day on which the person is 4 committed for trial, the person gives the prosecutor: 5 (a) a written notice setting out: 6 (i) the facts on which the person proposes to rely for the 7 purpose of discharging the evidential burden borne by 8 the person in relation to the matter in subsection (1); and 9 (ii) the names and address of any witnesses whom the 10 person proposes to call for the purpose of discharging 11 the evidential burden borne by the person in relation to 12 the matter in subsection (1); and 13 (b) certified copies of any documents which the person proposes 14 to adduce or point to for the purpose of discharging the 15 evidential burden borne by the person in relation to the 16 matter in subsection (1). 17 (4) If the trial of a person for an offence is being, or is to be, held in a 18 court, the court may, by order: 19 (a) exempt the person from compliance with subsection (3); or 20 (b) extend the time within which the person is required to 21 comply with subsection (3). 22 (5) For the purposes of paragraph (3)(b), a certified copy of a 23 document is a copy of the document certified to be a true copy by: 24 (a) a Justice of the Peace; or 25 (b) a commissioner for taking affidavits. 26 44ZZRP Joint ventures--civil penalty proceedings 27 (1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a 28 contract containing a cartel provision if: 29 (a) the cartel provision is for the purposes of a joint venture; and 30 (b) the joint venture is for the production and/or supply of goods 31 or services; and 32 (c) in a case where subparagraph 4J(a)(i) applies to the joint 33 venture--the joint venture is carried on jointly by the parties 34 to the contract; and 35 (d) in a case where subparagraph 4J(a)(ii) applies to the joint 36 venture--the joint venture is carried on by a body corporate 68 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 formed by the parties to the contract for the purpose of 2 enabling those parties to carry on the activity mentioned in 3 paragraph (b) jointly by means of: 4 (i) their joint control; or 5 (ii) their ownership of shares in the capital; 6 of that body corporate. 7 (2) A person who wishes to rely on subsection (1) bears an evidential 8 burden in relation to that matter. 9 44ZZRQ Covenants affecting competition 10 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 11 relation to a contract containing a cartel provision, in so far as the 12 cartel provision constitutes a covenant to which section 45B 13 applies or, but for subsection 45B(9), would apply. 14 (2) A person who wishes to rely on subsection (1) bears an evidential 15 burden in relation to that matter. 16 44ZZRR Resale price maintenance 17 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 18 relation to a contract, arrangement or understanding containing a 19 cartel provision, in so far as the cartel provision relates to: 20 (a) conduct that contravenes section 48; or 21 (b) conduct that would contravene section 48 but for the 22 operation of subsection 88(8A); or 23 (c) conduct that would contravene section 48 if this Act defined 24 the acts constituting the practice of resale price maintenance 25 by reference to the maximum price at which goods or 26 services are to be sold or supplied or are to be advertised, 27 displayed or offered for sale or supply. 28 (2) A person who wishes to rely on subsection (1) bears an evidential 29 burden in relation to that matter. 30 44ZZRS Exclusive dealing 31 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 32 making of a contract, arrangement or understanding that contains a 33 cartel provision, in so far as giving effect to the cartel provision Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 69 [Page Break] 1 would, or would but for the operation of subsection 47(10) or 88(8) 2 or section 93, constitute a contravention of section 47. 3 (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the 4 giving effect to a cartel provision by way of: 5 (a) engaging in conduct that contravenes, or would but for the 6 operation of subsection 47(10) or 88(8) or section 93 7 contravene, section 47; or 8 (b) doing an act by reason of a breach or threatened breach of a 9 condition referred to in subsection 47(2), (4), (6) or (8), being 10 an act done by a person at a time when: 11 (i) an authorisation under subsection 88(8) is in force in 12 relation to conduct engaged in by that person on that 13 condition; or 14 (ii) by reason of subsection 93(7), conduct engaged in by 15 that person on that condition is not to be taken to have 16 the effect of substantially lessening competition within 17 the meaning of section 47; or 18 (iii) a notice under subsection 93(1) is in force in relation to 19 conduct engaged in by that person on that condition. 20 (3) A person who wishes to rely on subsection (1) or (2) bears an 21 evidential burden in relation to that matter. 22 44ZZRT Dual listed company arrange ment 23 (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the 24 making of a contract, arrangement or understanding that contains a 25 cartel provision, in so far as: 26 (a) the contract, arrangement or understanding is a dual listed 27 company arrangement; and 28 (b) the making of the contract, arrangement or understanding 29 would, or would apart from subsection 88(8B), contravene 30 section 49. 31 (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the 32 giving effect to a cartel provision, in so far as: 33 (a) the cartel provision is a provision of a dual listed company 34 arrangement; and 35 (b) the giving effect to the cartel provision would, or would apart 36 from subsection 88(8B), contravene section 49. 70 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] 1 (3) A person who wishes to rely on subsection (1) or (2) bears an 2 evidential burden in relation to that matter. 3 44ZZRU Acquisition of shares or assets 4 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 5 relation to a contract, arrangement or understanding containing a 6 cartel provision, in so far as the cartel provision provides directly 7 or indirectly for the acquisition of: 8 (a) any shares in the capital of a body corporate; or 9 (b) any assets of a person. 10 (2) A person who wishes to rely on subsection (1) bears an evidential 11 burden in relation to that matter. 12 44ZZRV Collective acquisition of goods or services by the parties to 13 a contract, arrangement or understanding 14 (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in 15 relation to a contract, arrangement or understanding containing a 16 cartel provision, in so far as: 17 (a) the cartel provision has the purpose, or has or is likely to 18 have the effect, mentioned in subsection 44ZZRD(2); and 19 (b) either: 20 (i) the cartel provision relates to the price for goods or 21 services to be collectively acquired, whether directly or 22 indirectly, by the parties to the contract, arrangement or 23 understanding; or 24 (ii) the cartel provision is for the joint advertising of the 25 price for the re-supply of goods or services so acquired. 26 (2) A person who wishes to rely on subsection (1) bears an evidential 27 burden in relation to that matter. 28 Division 2--Other provisions 29 127 Subsection 45(3) of the Schedule 30 Omit "and section 45A". 31 128 Section 45A of the Schedule 32 Repeal the section. 33 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 71 [Page Break] Part 1 A mend ments 1 2 Schedule 2--Other amendments 3 Part 1--Amendments 4 Trade Practices Act 1974 5 1 Subsection 79A(5) 6 Omit "section 18A of the Crimes Act 1914", substitute "section 15A of 7 the Crimes Act 1914 (including an order described in subsection 8 15A(1AA) of that Act)". 9 2 Subsection 79A(10) 10 Repeal the subsection. 11 3 Section 83 12 Omit "or 86D", substitute ", 86D or 86E". 13 4 Before subsection 86E(4) 14 Insert: 15 (3B) For the purposes of this Act (other than this section or 16 section 86F), an order under this section is not a penalty. 17 5 After section 86E 18 Insert: 19 86F Privilege against exposure to penalty--disqualification from 20 managing corporations 21 Court proceeding 22 (1) In a civil or criminal proceeding under, or arising out of, this Act, a 23 person is not entitled to refuse or fail to comply with a 24 requirement: 25 (a) to answer a question or give information; or 26 (b) to produce a document or any other thing; or 27 (c) to do any other act; 28 on the ground that the answer or information, production of the 29 document or other thing, or doing that other act, as the case may 72 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 be, might tend to expose the person to a penalty by way of an order 2 under section 86E. 3 (2) Subsection (1) applies whether or not the person is a defendant in 4 the proceeding or in any other proceeding. 5 Statutory requirement 6 (3) A person is not entitled to refuse or fail to comply with a 7 requirement under this Act: 8 (a) to answer a question or give information; or 9 (b) to produce a document or any other thing; or 10 (c) to do any other act; 11 on the ground that the answer or information, production of the 12 document or other thing, or doing that other act, as the case may 13 be, might tend to expose the person to a penalty by way of an order 14 under section 86E. 15 Definition 16 (4) In this section: 17 penalty includes forfeiture. 18 6 Subsection 87(1) 19 Omit "or 86D", substitute ", 86D or 86E". 20 7 Section 154A 21 Insert: 22 contravention, in relation to a law, inc ludes an offence against 23 section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an 24 offence against that law. 25 8 Section 154A 26 Insert: 27 data includes: 28 (a) information in any form; or 29 (b) any program (or part of a program). 30 9 Section 154A Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 73 [Page Break] Part 1 A mend ments 1 Insert: 2 data held in a computer includes: 3 (a) data held in any removable data storage device for the time 4 being held in a computer; or 5 (b) data held in a data storage device on a computer network of 6 which the computer forms a part. 7 10 Section 154A 8 Insert: 9 data storage device means a thing containing, or designed to 10 contain, data for use by a computer. 11 11 Section 154A (definition of evidential material) 12 Repeal the definition, substitute: 13 evidential material means a document or other thing that may 14 afford evidence relating to: 15 (a) a contravention of this Act; or 16 (b) a contravention of Part 20 of the Telecommunications Act 17 1997; or 18 (c) a contravention of Part 9 of the Telecommunications 19 (Consumer Protection and Service Standards) Act 1999; or 20 (d) a contravention of section 137.1, 137.2 or 149.1 of the 21 Criminal Code that relates to this Part. 22 12 Section 154A (definition of executing officer) 23 Repeal the definition, substitute: 24 executing officer, for a search warrant, means: 25 (a) the inspector named in the warrant as being responsible for 26 executing the warrant; or 27 (b) if that inspector does not intend to be present at the execution 28 of the warrant--another inspector whose name has been 29 written in the warrant by the inspector so named; or 30 (c) another inspector whose name has been written in the warrant 31 by the inspector last named in the warrant. 32 13 Subsection 154F(1) 74 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 Repeal the subsection, substitute: 2 (1) If: 3 (a) an inspector or an assistant enters premises under this 4 Division; and 5 (b) he or she believes on reasonable grounds that any data 6 accessed by operating electronic equipment at the premises 7 (including data not held at the premises) might constitute 8 evidential material; 9 he or she may do only 1 of 2 things. 10 14 Subsection 154F(2) 11 Omit "evidential material", substitute "data". 12 15 At the end of subsection 154F(2) 13 Add "from the premises". 14 16 Subsection 154F(3) 15 Omit "evidential material", substitute "data". 16 17 After subsection 154G(1) 17 Insert: 18 (1A) In executing a search warrant that is in force in relation to 19 premises, the executing officer or an officer assisting may: 20 (a) for a purpose incidental to the execution of the warrant; or 21 (b) with the written consent of the occupier of the premises; 22 take photographs, or make video recordings, of the premises or of 23 anything at the premises. 24 (1B) If a search warrant in relation to premises is being executed, the 25 executing officer and the officers assisting may, if the warrant is 26 still in force, complete the execution of the warrant after all of 27 them temporarily cease its execution and leave the premises: 28 (a) for not more than one hour; or 29 (b) for a longer period if the occupier of the premises consents in 30 writing. 31 18 Paragraph 154G(2)(a) 32 Repeal the paragraph, substitute: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 75 [Page Break] Part 1 A mend ments 1 (a) the executing officer or an officer assisting, in the course of 2 searching for the kind of evidential material specified in the 3 warrant, finds another thing that he or she believes on 4 reasonable grounds to be evidence of: 5 (i) an indictable offence against this Act; or 6 (ii) an indictable offence against Part 20 of the 7 Telecommunications Act 1997; or 8 (iii) an indictable offence against Part 9 of the 9 Telecommunications (Consumer Protection and Service 10 Standards) Act 1999; or 11 (iv) an offence against section 137.1, 137.2 or 149.1 of the 12 Criminal Code that relates to this Part; and 13 19 After section 154G 14 Insert: 15 154GA Removing things for examination or processing 16 (1) A thing found at the premises may be moved to another place for 17 examination or processing in order to determine whether it may be 18 seized under a search warrant if: 19 (a) both of the following subparagraphs apply: 20 (i) it is significantly more practicable to do so having 21 regard to the timeliness and cost of examining or 22 processing the thing at another place and the availability 23 of expert assistance; 24 (ii) there are reasonable grounds to believe that the thing 25 contains or constitutes evidential material; or 26 (b) the occupier of the premises consents in writing. 27 Notice to occupier 28 (2) If a thing is moved to another place for the purpose of examination 29 or processing under subsection (1), the executing officer must, if it 30 is practicable to do so: 31 (a) inform the occupier of the address of the place and the time 32 at which the examination or processing will be carried out; 33 and 34 (b) allow the occupier or his or her representative to be present 35 during the examination or processing. 76 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 Period of removal 2 (3) The thing may be moved to another place for examination or 3 processing for no longer than 72 hours. 4 Extensions 5 (4) An executing officer may apply to a magistrate for one or more 6 extensions of that time if the executing officer believes on 7 reasonable grounds that the thing cannot be examined or processed 8 within 72 hours or that time as previously extended. 9 (5) The executing officer must give notice of the application to the 10 occupier of the premises of his or her intention to apply for an 11 extension, and the occupier is entitled to be heard in relation to the 12 application. 13 (6) The magistrate may order an extension for a period specified in the 14 order if the magistrate is satisfied that the extension is necessary. 15 20 Subsection 154H(1) 16 Repeal the subsection, substitute: 17 (1) If: 18 (a) a search warrant is in force in relation to premises; and 19 (b) the executing officer or an officer assisting believes on 20 reasonable grounds that any data accessed by operating 21 electronic equipment at the premises (including data not held 22 at the premises) might constitute evidential material of the 23 kind specified in the warrant; 24 he or she may do only 1 of 3 things. 25 21 Subsection 154H(3) 26 Omit "evidential material", substitute "data". 27 22 At the end of subsection 154H(3) 28 Add "from the premises". 29 23 At the end of subsection 154H(3) 30 Add: Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 77 [Page Break] Part 1 A mend ments 1 Note: An executing officer can obtain an order requiring a person with 2 knowledge of a computer or computer system to provide assistance-- 3 see section 154RA. 4 24 Subsection 154H(4) 5 Omit "evidential material", substitute "data". 6 25 At the end of subsection 154H(4) 7 Add: 8 Note: An executing officer can obtain an order requiring a person with 9 knowledge of a computer or computer system to provide assistance-- 10 see section 154RA. 11 26 Paragraph 154H(5)(a) 12 Omit "evidential material" (wherever occurring), substitute "data". 13 27 Section 154K 14 After "authorise", insert "a member of the Australian Federal Police,". 15 28 After paragraph 154L(b) 16 Insert: 17 (ba) a member of the Australian Federal Police who is an officer 18 assisting may use such force against persons and things as is 19 necessary and reasonable in the circumstances; and 20 29 Subsection 154R(2) (penalty) 21 Repeal the penalty, substitute: 22 Penalty: 30 penalty units or imprisonment for 12 months, or both. 23 30 Subsection 154R(4) 24 Omit "or in any proceedings that would expose the person to a 25 penalty,". 26 31 Paragraph 154R(4)(b) 27 Omit "or 137.2", substitute ", 137.2 or 149.1". 28 32 At the end of Subdivision D of Division 4 of Part XID 29 Add: 78 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 154RA Person with computer knowledge to assist access etc. 2 (1) The executing officer for a search warrant may apply to a 3 magistrate for an order requiring a specified person to provide any 4 information or assistance that is reasonable and necessary to allow 5 the officer to do one or more of the following: 6 (a) access data held in, or accessible from, a computer that is on 7 premises to which the warrant relates; 8 (b) transfer the data to a disk, tape or other storage device; 9 (c) convert the data into documentary form. 10 (2) The magistrate may grant the order if the magistrate is satisfied 11 that: 12 (a) there are reasonable grounds for suspecting that evidential 13 material is held in, or is accessible from, the computer; and 14 (b) the specified person is: 15 (i) reasonably suspected of having committed the 16 contravention, or one or more of the contraventions, 17 stated in the search warrant; or 18 (ii) the owner or lessee of the computer; or 19 (iii) an employee of the owner or lessee of the computer; and 20 (c) the specified person has relevant knowledge of: 21 (i) the computer or a computer network of which the 22 computer forms a part; or 23 (ii) measures applied to protect data held in, or accessible 24 from, the computer. 25 (3) A person commits an offence if: 26 (a) the person is subject to an order under this section; and 27 (b) the person engages in conduct; and 28 (c) the person's conduct breaches the order. 29 Penalty for a contravention of this subsection: Imprisonment for 6 30 months. 31 33 Subsection 154T(1) 32 After "warrant", insert "or moved under subsection 154GA(1)". 33 Note: The heading to section 154T is altered by inserting "or moved" after "seized". 34 34 Subsection 154T(2) Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 79 [Page Break] Part 1 A mend ments 1 After "seized", insert "or moved". 2 35 Subsections 154U(1) and (2) 3 Omit "60 days" (wherever occurring), substitute "120 days". 4 36 Paragraph 154V(1)(a) 5 Omit "60 days", substitute "120 days". 6 37 Subsection 154V(2) 7 Omit "a contravention of". 8 38 Paragraph 154V(2)(a) 9 Before "this", insert "a contravention of". 10 39 Paragraphs 154V(2)(b) and (c) 11 Before "Part", insert "a contravention of". 12 40 At the end of paragraph 154V(2)(c) 13 Add "or". 14 41 After paragraph 154V(2)(c) 15 Insert: 16 (d) a contravention of section 137.1, 137.2 or 149.1 of the 17 Criminal Code that relates to this Part; 18 42 At the end of subsection 154X(2) 19 Add: 20 Note: A magistrate who holds office under a law of a State or Territory may 21 issue a warrant in relation to premises even if those premises are not in 22 that State or Territory. 23 43 Subsection 155(7) 24 After "incriminate the person", insert "or expose the person to a 25 penalty". 26 44 Subsection 155(7) 27 Omit "by a person" (wherever occurring), substitute "by an individual". 28 45 Subsection 155(7) 80 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 Omit ", or any document produced in pursuance of such a notice,". 2 46 Subsection 155(7) 3 Omit "against the person", substitute "against the individual in any 4 criminal proceedings, other than". 5 47 Paragraphs 155(7)(a) and (b) 6 Repeal the paragraphs, substitute: 7 (a) proceedings for an offence against this section; or 8 (b) proceedings for an offence against section 137.1, 137.2 or 9 149.1 of the Criminal Code that relates to this section. 10 48 Subsection 159(1) 11 Omit "him or her", substitute "the person or expose the person to a 12 penalty". 13 49 Subsection 159(2) 14 Repeal the subsection, substitute: 15 (2) Evidence given by an individual before the Commission is not 16 admissible against the individual in any criminal proceedings, 17 other than: 18 (a) proceedings for an offence against this Part; or 19 (b) proceedings for an offence against section 137.1, 137.2 or 20 149.1 of the Criminal Code that relates to this Part. 21 50 Paragraph 165(1)(a) 22 After "95(1)", insert "or section 95AH". 23 51 After subsection 165(3) 24 Insert: 25 (3A) Subject to any direction under subsection 106(2), a person may, on 26 application in accordance with the regulations and on payment of 27 the prescribed fee (if any): 28 (a) inspect any document contained in the register kept under 29 section 95AZ; and 30 (b) obtain a copy of such a document (including, where the 31 person so requests, a copy certified to be a true copy by the 32 Registrar or a Deputy Registrar). 33 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008 81 [Page Break] Part 2 Application 1 2 Part 2--Application 3 52 Application--search warrants 4 The amendments of the following provisions made by this Schedule: 5 (a) section 154A of the Trade Practices Act 1974 (to the extent 6 to which that section relates to Division 4 of Part XID of that 7 Act); 8 (b) Division 4 of Part XID of the Trade Practices Act 1974; 9 apply in relation to search warrants issued after the commencement of 10 this item. 11 53 Application--giving answers and producing documents 12 etc. 13 (1) The amendments of subsection 155(7) of the Trade Practices Act 1974 14 made by this Schedule apply in relation to notices under section 155 of 15 that Act served after the commencement of this item. 16 (2) The amendments of section 159 of the Trade Practices Act 1974 made 17 by this Schedule apply in relation to: 18 (a) requirements to give evidence; and 19 (b) requirements to produce documents; 20 imposed after the commencement of this item. 82 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008