Commonwealth Numbered Acts

TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 54

54. (1) Section 88 of the Principal Act is repealed and the following section
substituted:- Power of Commission to grant authorizations.
''88. (1) Subject to this Part, the Commission may, upon application by or on
behalf of a corporation, grant an authorization to the corporation-

   (a)  to make a contract or arrangement, or arrive at an understanding,
        where a provision of the proposd contract, arrangement or
        understanding would be, or might be, an exclusionary provision or
        would have the purpose, or would have or might have the effect, of
        substantially lessening competition within the meaning of section 45;
        or

   (b)  to give effect to a provision of a contract, arrangement or
        understanding where the provision is, or may be, an exclusionary
        provision or has the purpose, or has or may have the effect, of
        substantially lessening competition within the meaning of section 45,
        and, while such an authorization remains in force-

   (c)  in the case of an authorization to make a contract or arrangement or
        to arrive at an understanding-sub-section 45 (2) does not prevent the
        corporation from making the contract or arrangement or arriving at the
        understanding in accordance with the authorization and giving effect
        in accordance with the authorization to any provision of the contract
        or arrangement so made or of the understanding so arrived at;

   (d)  in the case of an authorization to give effect to a provision of a
        contract-

        (i)    the provision is not unenforceable by reason of sub- section 45
               (1); and

        (ii)   sub-section 45 (2) does not prevent the corporation from giving
               effect to the provision in accordance with the authorization;
               or

   (e)  in the case of an authorization to give effect to a provision of an
        arrangement or understanding-sub-section 45 (2) does not prevent the
        corporation from giving effect to the provision in accordance with the
        authorization.

''(2) Subject to sub-sections (3) and (4), sub-section (1) does not permit the
granting of an authorization in relation to-

   (a)  the making of a contract or arrangement, or the arriving at an
        understanding, that would contain a provision having the purpose, or
        having or being likely to have the effect, of fixing, controlling or
        maintaining, or providing for the fixing, controlling or maintaining
        of, the price for, or a discount, allowance, rebate or credit in
        relation to, goods supplied or acquired or to be supplied or acquired
        by the proposed parties to the proposed contract, arrangement or
        understanding, or by any of them, or by any bodies corporate that are
        related to any of them, in competition with each other, to or from
        other persons who are neither proposed parties to the proposed
        contract, arrangement or understanding nor bodies corporate related to
        such proposed parties; or

   (b)  the giving effect to such a provision of a contract, arrangement or
        understanding.

''(3) Sub-section (2) does not prevent the granting of an authorization under
sub-section (1) in relation to-

   (a)  a provision of a contract or arrangement made, or of an understanding
        arrived at, or of a proposed contract or arrangement to be made, or of
        a proposed understanding to be arrived at, for the purposes of a joint
        venture to the extent that the provision relates or would relate to
        the supply of goods in pursuance of the joint venture; or

   (b)  a provision of a contract, arrangement or understanding, or of a
        proposed contract, arrangement or understanding, to the extent that
        the provision recommends or provides for recommending, or would
        recommend or provide for recommending, the price for, or a discount,
        allowance, rebate or credit in relation to, goods, where the parties
        to the contract, arrangement or understanding, or the proposed parties
        to the proposed contract, arrangement or understanding, include-

        (i)    not less than 50 persons (bodies corporate that are related to
               one another being counted as a single person) who supply, in
               trade or commerce, goods to which the provision applies; or

        (ii)   not less than 50 persons (bodies corporate that are related to
               one another being counted as a single person) who acquire, in
               trade or commerce, goods to which the provision applies.

''(4) Sub-section (2) does not prevent the granting of an authorization under
sub-section (1) in relation to a provision of a contract, arrangement or
understanding, or of a proposed contract, arrangement or understanding, being
a provision-

   (a)  in relation to the price for goods to be collectively acquired,
        whether directly or indirectly, by the parties to the contract,
        arrangement or understanding, or by the proposed parties to the
        proposed contract, arrangement or understanding, from-

        (i)    a person who is not, or persons none of whom is, such a party
               or a body corporate related to such a party; or

        (ii)   a person who would not be, or persons none of whom would be,
               such a proposed party or a body corporate related to such a
               proposed party; or

   (b)  for the joint advertising of the price for the re-supply of goods so
        acquired.

''(5) Subject to this Part, the Commission may, upon application by or on
behalf of a person, grant an authorization to the person-

   (a)  to require the giving of, or to give, a covenant (other than a
        proposed covenant of a kind mentioned in sub-section 45C (2) that
        relates to the supply or acquisition of goods) where the proposed
        covenant would have the purpose, or would have or might have the
        effect, of substantially lessening competition in a market referred to
        in paragraph 45B (2) (a); or

   (b)  to enforce the terms of a covenant (other than a covenant of a kind
        mentioned in sub-section 45C (1) that relates to the supply or
        acquisition of goods), and, while such an authorization remains in
        force-

   (c)  in the case of an authorization to require the giving of, or to give,
        a covenant-

        (i)    the covenant is not unenforceable by reason of sub-section 45B
               (1); and

        (ii)   sub-section 45B (2) does not apply in relation to the covenant;
               or

   (d)  in the case of an authorization to enforce the terms of a covenant-

        (i)    the covenant is not unenforceable by reason of sub-section 45B
               (1); and

        (ii)   paragraphs 45B (2) (b) and (c) do not apply in relation to the
               covenant.

''(6) An authorization granted by the Commission to a person under any of the
preceding provisions of this section to-

   (a)  make a contract or arrangement or arrive at an understanding;

   (b)  give effect to a provision of a contract, arrangement or
        understanding;

   (c)  require the giving of, or give, a covenant; or

   (d)  enforce the terms of a covenant, has effect as if it were also an
        authorization in the same terms to every other person named or
        referred to in the application for the authorization as a party to the
        contract, arrangement or understanding or as a proposed party to the
        proposed contract, arrangement or understanding, or as a person who is
        or would be bound by, or entitled to the benefit of, the covenant or
        the proposed covenant, as the case may be.

''(7) Subject to this Part, the Commission may, upon application by a person,
grant an authorization to the person, and to any other person acting in
concert with the first-mentioned person, to engage in conduct that hinders or
prevents, or may hinder or prevent, the supply of goods or services by a third
person to a corporation or the acquisition of goods or services by a third
person from a corporation and, while such an authorization remains in force,
section 45D does not apply in relation to the engaging in that conduct by the
applicant and by any person acting in concert with the applicant.

''(8) Subject to this Part, the Commission may, upon application by a
corporation, grant an authorization to the corporation to engage in conduct
that constitutes or may constitute the practice of exclusive dealing and,
while such an authorization remains in force, section 47 does not prevent the
corporation from engaging in that conduct in accordance with the
authorization.

''(9) Subject to this Part, the Commission may, upon application by a
corporation, grant an authorization to the corporation to acquire shares in
the capital, or to acquire assets, of a body corporate and, while such an
authorization remains in force, section 50 does not prevent the corporation
from acquiring shares in the capital, or from acquiring assets, of the body
corporate in accordance with the authorization.

''(10) An authorization to a corporation under sub-section (1) may be
expressed so as to apply to or in relation to another person who-

   (a)  in the case of an authorization to make a contract or arrangement or
        arrive at an understanding-becomes a party to the proposed contract or
        arrangement at a time after it is made or becomes a party to the
        proposed understanding at a time after it is arrived at; or

   (b)  in the case of an authorization to give effect to a provision of a
        contract, arrangement or understanding-becomes a party to the
        contract, arrangement or understanding at a time after the
        authorization is granted.

''(11) An authorization under sub-section (5) may be expressed so as to apply
to or in relation to another person who-

   (a)  in the case of an authorization to require the giving of, or to give,
        a covenant-becomes bound by, or entitled to the benefit of, the
        proposed covenant at a time after the covenant is given; or

   (b)  in the case of an authorization to enforce the terms of a
        covenant-becomes bound by, or entitled to the benefit of, the covenant
        at a time after the authorization is granted.

''(12) The Commission does not have power to grant an authorization to a
corporation to make a contract or arrangement, to arrive at an understanding
or to require the giving of, or to give, a covenant if the contract or
arrangement has been made, the understanding has been arrived at or the
covenant has been given before the Commission makes a determination in respect
of the application.

''(13) An application made to the Commission under this section for an
authorization in relation to a particular contract or proposed contract may be
expressed to be made also in relation to another contract or proposed contract
that is or will be, or in relation to two or more other contracts or proposed
contracts that are or will be, in similar terms to the first-mentioned
contract or proposed contract and, where an application is so expressed, the
Commission may grant a single authorization in respect of all the contracts or
proposed contracts or may grant separate authorizations in respect of any one
or more of the contracts or proposed contracts.

''(14) Where an application made to the Commission under this section for an
authorization in relation to a particular contract or proposed contract is
expressed in accordance with sub-section (13) to be made also in relation to
another contract or contracts or proposed contract or proposed contracts-

   (a)  the application shall set out-

        (i)    the names of the parties to each other contract; and

        (ii)   the names of the parties to each other proposed contract where
               those names are known to the applicant at the time when the
               application is made; and

   (b)  if an authorization is granted in respect of a proposed contract the
        names of the parties to which were not so known to the applicant, the
        authorization shall, by force of this sub-section, be deemed to be
        expressed to be subject to a condition that any party to the contract
        will, when so required by the Commission, furnish to the Commission
        the names of all the parties to the contract.

''(15) In sub-sections (13) and (14)-

   (a)  'contract' includes an arrangement, understanding or covenant and
        'proposed contract' has a corresponding meaning; and

   (b)  the reference to the parties to a contract or proposed contract shall,
        for the purposes of the application of those sub-sections in relation
        to a covenant or proposed covenant by reason of paragraph (a) of this
        sub-section, be read as a reference to the persons who are or will be,
        or but for sub-section 45B (1) would be, respectively bound by, or
        entitled to the benefit of, the covenant or proposed covenant.

''(16) A corporation that has made an application to the Commission for an
authorization may at any time, by notice in writing to the Commission,
withdraw the application.''.

(2) Where, before the date of commencement of this section, a person made an
application to the Trade Practices Commission (in the succeeding provisions of
this section referred to as the ''previous Commission'') established under the
Principal Act for an authorization to engage in conduct, being conduct of a
kind referred to in sub-section 88 (1), (5), (8) or (9) of the Principal Act
as amended by this Act, then-

   (a)  if the previous Commission had not before that date made a
        determination in respect of the application-the application shall be
        treated as if it were an application for an authorization in respect
        of that conduct made by the person on that date to the Trade Practices
        Commission (in the
succeeding provisions of this section referred to as the ''new Commission'')
established by the Principal Act as amended by this Act; or

   (b)  if the previous Commission had before that date made a determination
(in this paragraph referred to as the ''relevant determination'') in respect
of the application-

        (i)    where no application had been made before that date to the
               Tribunal for a review of the relevant determination but the
               time for making such an application had not expired-the
               relevant determination shall be deemed to have been a
               determination by the new Commission made on that date; or

        (ii)   where an application had been made to the Tribunal before that
               date for a review of the relevant determination but the
               application for review had not been determined before that
               date-the Tribunal shall hear and determine the application for
               review as if the relevant determination had been made by the
               new Commission on that date.

(3) Any authorization to engage in conduct that was granted under the
Principal Act before the date of commencement of this section and was in force
immediately before that date shall, to the extent (if any) that the new
Commission has power to grant an authorization in respect of that conduct
under the Principal Act as amended by this Act, have effect as if-

   (a)  it had been granted by the new Commission on that date;

   (b)  in the case of an authorization for a limited period only-it had been
        so granted for the unexpired portion of that period; and

   (c)  in the case of an authorization to continue to be a party to a
        contract, arrangement or understanding-it were an authorization to
        give effect to the provisions of that contract, arrangement or
        understanding.

(4) Where-

   (a)  before the date of commencement of this section a person gave a notice
        to the previous Commission under sub-section 92 (1) of the Principal
        Act in relation to a contract, arrangement or understanding or a
        proposed contract, arrangement or understanding, not being a contract,
        arrangement or understanding or a proposed contract, arrangement or
        understanding that contains a provision of a kind to which sub-section
        88 (2) of the Principal Act as amended by this Act applies;

   (b)  the previous Commission gave a notice to the person before that date
        under sub-section 92 (2) of the Principal Act in relation to the
        contract, arrangement or understanding or the proposed contract,
        arrangement or understanding, being a notice that had not been
        revoked; and

   (c)  section 45 or 45B of the Principal Act as amended by this Act applies
        to or in relation to a provision of the contract, arrangement or
        understanding, the notice by the previous Commission has effect as if
        it were an authorization to give effect to the provision referred to
        in paragraph (c) granted to the person by the new Commission on that
        date under sub-section 88 (1) or (5), as the case may be, of the
        Principal Act as amended by this Act.

(5) Where, before the date of commencement of this section, a corporation made
a contract to which sub-section 88 (1) of the Principal Act applied (not being
a contract to which that sub-section applied by reason only that the contract
contained a covenant) and the contract was subject to a condition that the
contract would not come into force unless and until a notice was given to the
corporation under sub-section 92 (2) of the Principal Act in relation to the
contract-

   (a)  the contract shall be deemed to be subject to the condition referred
        to in paragraph 45 (9) (a) of the Principal Act as amended by this
        Act; and

   (b)  if, before the date of commencement of this section, the corporation
        gave, as mentioned in paragraph 45 (8) (b) of the Principal Act, a
        notice, in relation to the contract, to the Trade Practices Commission
        established under the Principal Act and that Commission did not,
        before that date, give notice in writing to the corporation stating
        whether or not that Commission considered that any restraint of trade
        or commerce resulting from the contract had, or was likely to have, a
        significant effect upon competition, the giving of the notice by the
        corporation shall be deemed to have been an application by the
        corporation for the grant of an authorization to give effect to any
        provisions of the contract to or in relation to which sub-section 88
        (1) of the Principal Act as amended by this Act applies.

(6) Where, before the date of commencement of this section, a corporation made
a contract that contained a covenant and the contract was subject to a
condition that the contract would not come into force unless and until a
notice was given to the corporation under sub-section 92 (2) of the Principal
Act in relation to the contract-

   (a)  the covenant shall be deemed to be subject to the condition referred
        to in paragraph 45B (8) (a) of the Principal Act as amended by this
        Act; and

   (b)  if, before the date of commencement of this section, the corporation
        gave, as mentioned in paragraph 45 (8) (b) of the Principal Act, a
        notice, in relation to the contract, to the Trade Practices Commission
        established under the Principal Act and that Commission did not,
        before that date, give notice in writing to the corporation stating
        whether or not that Commission considered that any restraint of trade
        or commerce resulting from the contract had, or was likely to have, a
        significant effect upon competition, the giving of the notice by the
        corporation shall be deemed to have been an application by the
        corporation for a grant of an authorization to enforce the terms of
        the covenant.

(7) Where, before the date of commencement of this section, a corporation
entered into a contract to acquire shares in the capital, or assets, of a body
corporate and the contract was subject to a condition that the contract would
not come into force unless and until sub-section 94 (3) of the Principal Act
applied in relation to the acquisition-

   (a)  the contract shall be deemed to be subject to the condition referred
        to in paragraph 50 (4) (b) of the Principal Act as amended by this
        Act; and

   (b)  if, before the date of commencement of this section, the corporation
        gave, as mentioned in paragraph 50 (3) (c) of the Principal Act, a
        notice of the proposed acquisition to the Trade Practices Commission
        established under the Principal Act and that Commission did not,
        before that date, give notice in writing to the corporation stating
        whether or not that Commission considered that the proposed
        acquisition would be likely to have the effect of substantially
        lessening competition in a market for goods or services, the giving of
        the notice by the corporation shall be deemed to have been an
        application by the corporation for the grant of an authorization to
        acquire the shares or assets.