COMPETITION AND CONSUMER ACT 2010 - SECT 76 Pecuniary penalties

COMPETITION AND CONSUMER ACT 2010 - SECT 76

  (1)   If the Court is satisfied that a person:

  (a)   has contravened any of the following provisions:

  (i)   a provision of Part   IV (other than section   45AF or 45AG);

  (iaa)   a provision of Part   IVBA specified in subsection   (4A);

  (iab)   subsection   53ZQ(1), (2) or (3), section   53ZV, subsection   53ZW(1) or a civil penalty provision of a gas market instrument; or

  (ia)   section   55B;

  (ib)   subsection   56BO(1) or 56BU(1), section   56CD or a civil penalty provision of the consumer data rules;

  (ic)   a provision of Part   IVE;

  (ii)   section   60C;

  (iia)   section   60K;

  (iii)   section   92;

  (iiia)   a provision of Division   2 of Part   XICA;

  (iiib)   subsection   153ZEL(2);

  (iv)   a civil penalty provision of an industry code; or

  (b)   has attempted to contravene such a provision; or

  (c)   has aided, abetted, counselled or procured a person to contravene such a provision; or

  (d)   has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

  (e)   has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

  (f)   has conspired with others to contravene such a provision;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part   XIB to have engaged in any similar conduct.

Note:   Section   87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. ( Boycott conduct is defined in subsection   87AA(2).)

  (1A)   The pecuniary penalty payable by a person under subsection   (1) is not to exceed the amount worked out using the following table.

Note 1:   Item   3 also applies to pecuniary penalties ordered under subsection   (1) in respect of an act or omission that relates to subsection   10.49A(1), 10.60(1) or 10.65(1): see subsection   10.49A(2), 10.60(2) or 10.65(2).

Note 2:   Pecuniary penalties may not be ordered under subsection   (1) against certain individuals in relation to contraventions of section   153E, 153F, 153G or 153H in certain circumstances: see section   153ZD.

  (1B)   For the purposes of items   1, 3, 6, 7A, 7C, 7D and 13 of the table in subsection   (1A), the amounts are as follows:

  (a)   $50,000,000;

  (b)   if item   1 or 13 of the table applies, and the Court can determine the total value of the benefits that have been obtained (within the meaning of Division   1 of Part   IV) by one or more persons and that are reasonably attributable to the act or omission--3 times that total value;

  (c)   if item   3, 6, 7A, 7C or 7D of the table applies, and the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission--3 times the value of that benefit;

  (d)   if the Court cannot determine the value of those benefits or that benefit--30% of the body corporate's adjusted turnover during the breach turnover period for the act or omission.

  (1C)   For the purposes of item   9 of the table in subsection   (1A), the amounts are as follows:

  (a)   $10,000,000;

  (b)   if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission--3 times the value of that benefit;

  (c)   if the Court cannot determine the value of that benefit--10% of the body corporate's adjusted turnover during the 12 - month period ending at the end of the month in which the act or omission occurred or started to occur.

  (2)   Nothing in subsection   (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section   45D, 45DA, 45DB, 45E or 45EA.

  (3)   If conduct constitutes a contravention of two or more provisions of Part   IV (other than section   45AF or 45AG), or two or more provisions of section   53ZQ, a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions but a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

  (4)   The single pecuniary penalty that may be imposed in accordance with subsection   (3) in respect of conduct that contravenes provisions to which 2 or more of the limits in items   1, 2 and 3 of the table in subsection   (1A) apply is an amount up to the highest of those limits.

Specified provisions of Part   IVBA

  (4A)   For the purposes of subparagraph   76(1)(a)(iaa), the following provisions of Part   IVBA are specified:

  (a)   section   52J;

  (b)   section   52ZI;

  (c)   a provision of Division   4 of Part   IVBA;

  (d)   section   52ZC;

  (e)   section   52ZH;

  (f)   section   52ZS;

  (g)   subsection   52ZT(5);

  (h)   subsection   52ZV(3);

  (i)   section   52ZZE;

  (j)   subsection   52ZZF(1).