Commonwealth Consolidated Acts

TRADE PRACTICES ACT 1974 - 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;

                             (ii)  section 75AU or 75AYA;

                            (iii)  section 95AZN; 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 under subsection (1) by a body corporate is not to exceed:

                     (a)  for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA--$750,000; and

                     (b)  for each act or omission to which this section applies that relates to any other provision of Part IV--the greatest of the following:

                              (i)  $10,000,000;

                             (ii)  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;

                            (iii)  if the Court cannot determine the value of that benefit--10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the act or omission occurred; and

                     (c)  for each act or omission to which this section applies that relates to section 95AZN--$33,000; and

                     (d)  for each other act or omission to which this section applies--$10,000,000.

Note:          For annual turnover , see subsection (5).

          (1B)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:

                     (a)  for each act or omission to which this section applies that relates to section 95AZN--$6,600; and

                     (b)  for each other act or omission to which this section applies--$500,000.

             (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, 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 the 2 limits in paragraphs (1A)(a) and (b) apply is an amount up to the higher of those limits.

Annual turnover

             (5)  For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than:

                     (a)  supplies made from any of those bodies corporate to any other of those bodies corporate; or

                     (b)  supplies that are input taxed; or

                     (c)  supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999 ); or

                     (d)  supplies that are not made in connection with an enterprise that the body corporate carries on; or

                     (e)  supplies that are not connected with Australia.

             (6)  Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.