Commonwealth Numbered Acts

TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 5

5. Section 4 of the Principal Act is amended-

   (a)  by inserting in sub-section (1), before the definition of
''authorization'', the following definitions:-

'' 'acquire' includes-

   (a)  in relation to goods-acquire by way of purchase, exchange or taking on
        lease, on hire or on hire-purchase; and

   (b)  in relation to services-accept;

'arrive at', in relation to an understanding, includes reach or enter into;

'authority of the Commonwealth' means-

   (a)  a body corporate established for a purpose of the Commonwealth by or
        under a law of the Commonwealth or a law of a Territory; or

   (b)  an incorporated company in which the Commonwealth, or a body corporate
        referred to in paragraph (a), has a controlling interest;'';

   (b)  by inserting in sub-section (1), after the definition of
        ''authorization'', the following definition:-

'' 'business' includes a business not carried on for profit;'';

   (c)  by omitting from sub-section (1) the definitions of ''commencing
        date'', ''Commission'' and ''Companies Ordinance'' and substituting
        the following definitions:-

'' 'commencing date' means 1 October 1974;

'Commission' means the Trade Practices Commission established by section 6A,
and includes a member of the Commission or a Division of the Commission
performing functions of the Commission;'';

   (d)  by omitting from sub-section (1) the definition of ''conduct'';

   (e)  by inserting in sub-section (1), after the definition of ''Court'',
        the following definitions:-

'' 'covenant' means a covenant (including a promise not under seal) annexed to
or running with an estate or interest in land (whether at law or in equity and
whether or not for the benefit of other land), and 'proposed covenant' has a
corresponding meaning;

'debenture' includes debenture stock, bonds, notes and any other document
evidencing or acknowledging indebtedness of a body corporate, whether
constituting a charge on property of the body corporate or not;'';

   (f)  by omitting from sub-section (1) the definitions of ''engage in
        conduct'' and ''financial corporation'' and substituting the following
        definition:-

'' 'financial corporation' means a financial corporation within the meaning of
paragraph 51 (xx) of the Constitution and includes a body corporate that
carries on as its sole or principal business the business of banking (other
than State banking not extending beyond the limits of the State concerned) or
insurance (other than State insurance not extending beyond the limits of the
State concerned);'';

   (g)  by omitting from sub-section (1) the definitions of ''full-time member
        of the Commission'' and ''give effect to'' and substituting the
        following definition:-

'' 'give effect to', in relation to a provision of a contract, arrangement or
understanding, includes do an act or thing in pursuance of or in accordance
with or enforce or purport to enforce;'';

   (h)  by omitting from sub-section (1) the definitions of ''market'',
        ''meeting'' and ''member of the Commission'' and substituting the
        following definition:-

'' 'member of the Commission' includes the Chairman and a person appointed to
act as a member of the Commission but does not include an associate member of
the Commission;'';

   (j)  by omitting from sub-section (1) the definition of ''practice of
        exclusive dealing'' and substituting the following definition:-

'' 'practice of exclusive dealing' means the practice of exclusive dealing
referred to in sub-section 47 (2), (3), (4), (5), (6), (7), (8) or (9);'';

   (k)  by inserting in sub-section (1), after the definition of ''price'',
        the following definition:-

'' 'provision', in relation to an understanding, means any matter forming part
of the understanding;'';
(1) by inserting in sub-section (1), after the definition of ''Registrar'',
the following definition:-

'' 'require', in relation to the giving of a covenant, means require or demand
the giving of a covenant, whether by way of making a contract containing the
covenant or otherwise, and whether or not a covenant is given in pursuance of
the requirement or demand;'';

   (m)  by omitting from sub-section (1) the definitions of ''services'' and
        ''share'' and substituting the following definitions:-

'' 'services' includes any rights (including rights in relation to, and
interests in, real or personal property), benefits, privileges or facilities
that are, or are to be, provided, granted or conferred in trade or commerce,
and without limiting the generality of the foregoing, includes the rights,
benefits, privileges or facilities that are, or are to be, provided, granted
or conferred under-

   (a)  a contract for or in relation to-

        (i)    the performance of work (including work of a professional
               nature), whether with or without the supply of goods;

        (ii)   the provision of, or of the use or enjoyment of facilities for,
               amusement, entertainment, recreation or instruction; or

        (iii)  the conferring of rights, benefits or privileges for which
               remuneration is payable in the form of a royalty, tribute, levy
               or similar exaction;

   (b)  a contract of insurance;

   (c)  a contract between a banker and a customer of the banker entered into
        in the course of the carrying on by the banker of the business of
        banking; or

   (d)  any contract for or in relation to the lending of moneys,

but does not include rights or benefits being the supply of goods or the
performance of work under a contract of service;

'share' includes stock;'';

   (n)  by adding at the end of sub-section (1) the following definition:-

'' 'unsolicited services' means services supplied to a person without any
request made by him or on his behalf.''; and

   (o)  by omitting sub-sections (2), (3) and (4) and substituting the
        following sub-sections:-

''(2) In this Act-

   (a)  a reference to engaging in conduct shall be read as a reference to
        doing or refusing to do any act, including the making of, or the
        giving effect to a provision of, a contract or arrangement, the
        arriving at, or the giving effect to a provision of, an understanding
        or the requiring of the giving of, or the giving of, a covenant;

   (b)  a reference to conduct, when that expression is used as a noun
        otherwise than as mentioned in paragraph (a), shall be read as a
        reference to the doing of or the refusing to do any act, including the
        making of, or the giving effect to a provision of, a contract or
        arrangement, the arriving at, or the giving effect to a provision of,
        an understanding or the requiring of the giving of, or the giving of,
        a covenant;

   (c)  a reference to refusing to do an act includes a reference to-

        (i)    refraining (otherwise than inadvertently) from doing that act;
               or

        (ii)   making it known that that act will not be done; and

   (d)  a reference to a person offering to do an act, or to do an act on a
        particular condition, includes a reference to the person making it
        known that the person will accept applications, offers or proposals
        for the person to do that act or to do that act on that condition, as
        the case may be.

''(3) Where a provision of this Act is expressed to render a provision of a
contract, or to render a covenant, unenforceable if the provision of the
contract or the covenant has or is likely to have a particular effect, that
provision of this Act applies in relation to the provision of the contract or
the covenant at any time when the provision of the contract or the covenant
has or is likely to have that effect notwithstanding that-

   (a)  at an earlier time the provision of the contract or the covenant did
        not have that effect or was not regarded as likely to have that
        effect; or

   (b)  the provision of the contract or the covenant will not or may not have
        that effect at a later time.

''(4) In this Act-

   (a)  a reference to the acquisition of shares in the capital of a body
        corporate shall be construed as a reference to an acquisition, whether
        alone or jointly with another person, of any legal or equitable
        interest in such shares; and

   (b)  a reference to the acquisition of assets of a body corporate shall be
        construed as a reference to an acquisition, whether alone or jointly
        with another person, of any legal or equitable interest in such assets
        but does not include a reference to an acquisition by way of charge
        only or an acquisition in the ordinary course of business.''.