2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Trade Practices Legislation Amendment Bill 2008 No. , 2008 (Treasury) A Bill for an Act to amend the law in relation to trade practices, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 1 Schedule 1--Misuse of market power by corporations 3 Trade Practices Act 1974 3 Schedule 2--Misuse of market power by persons 5 Trade Practices Act 1974 5 Schedule 3--Other amendments 7 Australian Securities and Investments Commission Act 2001 7 Trade Practices Act 1974 7 [Page Break] 2 trade practices, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Trade Practices Legislation 6 Amendment Act 2008. 7 2 Commencement 8 This Act commences on the day after it receives the Royal Assent. 9 3 Schedule(s) 10 Each Act that is specified in a Schedule to this Act is amended or 11 repealed as set out in the applicable items in the Schedule Trade Practices Legislation Amendment Bill 2008 No. , 2008 1 [Page Break] 2 according to its terms. [Page Break] 2 Schedule 1--Misuse of market power by 3 corporations 4 5 Trade Practices Act 1974 6 1 Subsection 46(1AA) 7 Omit "share of a market must not supply, or offer to supply", substitute 8 "degree of power in a market must not take advantage of that power in 9 that or any other market by supplying, or offering to supply". 10 2 Subsection 46(1AB) 11 Repeal the subsection, substitute: 12 (1AB) A corporation may contravene subsection (1AA) even if the 13 corporation cannot, and might not ever be able to, recoup losses 14 incurred by supplying the goods or services at a price less than the 15 relevant cost to the corporation of the supply. 16 (1AC) Subsection (1AA) does not by implication limit subsection (1). 17 3 Subsections 46(3), (3A) and (3C) 18 Omit "Court", substitute "court". 19 4 Subsection 46(4A) 20 Repeal the subsection. 21 5 After subsection 46(6) 22 Insert: 23 (6A) In determining for the purposes of this section whether, by 24 engaging in conduct, a corporation has taken advantage of its 25 substantial degree of power in a market, the court may have regard 26 to any or all of the following: 27 (a) whether the conduct was materially facilitated by the 28 corporation's substantial degree of power in the market; 29 (b) whether the corporation engaged in the conduct in reliance on 30 its substantial degree of power in the market; [Page Break] 2 in the conduct if it did not have a substantial degree of power 3 in the market; 4 (d) whether the conduct is otherwise related to the corporation's 5 substantial degree of power in the market. 6 This subsection does not limit the matters to which the court may 7 have regard. 8 6 Subsection 46(7) 9 After "subsection (1)", insert "or (1AA)". 10 7 Subsection 86(1A) 11 After "arising under", insert "section 46,". [Page Break] 2 Schedule 2--Misuse of market power by 3 persons 4 5 Trade Practices Act 1974 6 1 Subsection 46(1AA) of the Schedule 7 Omit "share of a market must not supply, or offer to supply", substitute 8 "degree of power in a market must not take advantage of that power in 9 that or any other market by supplying, or offering to supply". 10 2 Subsection 46(1AB) of the Schedule 11 Repeal the subsection, substitute: 12 (1AB) A person may contravene subsection (1AA) even if the person 13 cannot, and might not ever be able to, recoup losses incurred by 14 supplying the goods or services at a price less than the relevant cost 15 to the person of the supply. 16 (1AC) Subsection (1AA) does not by implication limit subsection (1). 17 3 Subsections 46(3), (3A) and (3C) of the Schedule 18 Omit "Court", substitute "court". 19 4 Subsection 46(4A) of the Schedule 20 Repeal the subsection. 21 5 After subsection 46(6) of the Schedule 22 Insert: 23 (6A) In determining for the purposes of this section whether, by 24 engaging in conduct, a person has taken advantage of the person's 25 substantial degree of power in a market, the court may have regard 26 to any or all of the following: 27 (a) whether the conduct was materially facilitated by the 28 person's substantial degree of power in the market; 29 (b) whether the person engaged in the conduct in reliance on the 30 person's substantial degree of power in the market; [Page Break] 2 conduct if the person did not have a substantial degree of 3 power in the market; 4 (d) whether the conduct is otherwise related to the person's 5 substantial degree of power in the market. 6 This subsection does not limit the matters to which the court may 7 have regard. 8 6 Subsection 46(7) of the Schedule 9 After "subsection (1)", insert "or (1AA)". [Page Break] 2 Schedule 3--Other amendments 3 4 Australian Securities and Investments Commission Act 2001 5 1 Subsection 12CB(2) 6 Omit "Court" (wherever occurring), substitute "court". 7 2 Paragraphs 12CB(4)(a) and (b) 8 Omit "Court", substitute "court". 9 3 Subsections 12CC(2) and (3) 10 Omit "Court" (wherever occurring), substitute "court". 11 4 Paragraphs 12CC(5)(a) and (b) 12 Omit "Court", substitute "court". 13 5 Subsections 12CC(8), (9) and (10) 14 Repeal the subsections. 15 6 Application of item 5 16 The amendments made by item 5 of this Schedule apply in relation to 17 conduct engaged in after the commencement of that item, including 18 conduct in relation to contracts for the supply or acquisition of goods or 19 services whether made before or after that commencement. 20 Trade Practices Act 1974 21 7 After subsection 10(1A) 22 Insert: 23 (1B) Before the Governor-General appoints a person as a Deputy 24 Chairperson, the Minister must be satisfied that, immediately after 25 the appointment, there will be at least one Deputy Chairperson who 26 has knowledge of, or experience in, small business matters. 27 8 Subsection 51AB(2) 28 Omit "Court" (wherever occurring), substitute "court". [Page Break] 2 Omit "Court", substitute "court". 3 10 Subsections 51AC(3) and (4) 4 Omit "Court" (wherever occurring), substitute "court". 5 11 Paragraphs 51AC(6)(a) and (b) 6 Omit "Court", substitute "court". 7 12 Subsections 51AC(9), (10) and (11) 8 Repeal the subsections. 9 13 Application of item 12 10 The amendments made by item 12 of this Schedule apply in relation to 11 conduct engaged in after the commencement of that item, including 12 conduct in relation to contracts for the supply or acquisition of goods or 13 services whether made before or after that commencement. 14 14 After subsection 155(3A) 15 Insert: 16 (4) A member of the Commission may exercise, or continue to 17 exercise, a power under subsection (1) in relation to a matter 18 referred to in that subsection until: 19 (a) the Commission commences proceedings in relation to the 20 matter (other than proceedings for an injunction, whether 21 interim or final); or 22 (b) the close of pleadings in relation to an application by the 23 Commission for a final injunction in relation to the matter. 24 15 Application of item 14 25 (1) Item 14 applies in relation to a matter referred to in subsection 155(1) of 26 the Trade Practices Act 1974 whether the matter arose before or after 27 the commencement of that item. 28 (2) Without limiting subitem (1), item 14 of this Schedule applies even if 29 an interim injunction has been granted in relation to the matter.