Commonwealth Numbered Acts

TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 60

60. Sections 92 and 93 of the Principal Act are repealed and the following
section is substituted:- Notification of exclusive dealing.
''93. (1) Subject to sub-section (2), a corporation that engages, or proposes
to engage, in conduct of a kind referred to in sub-section 47 (2), (3), (4) or
(5) or paragraph 47 (8) (a) or (b) or (9) (a), (b) or (c) may give to the
Commission notice, as prescribed, setting out particulars of the conduct or
proposed conduct.

''(2) A corporation is not entitled to give a notice under sub-section (1) in
relation to conduct or proposed conduct if-

   (a)  the corporation has made an application for an authorization to engage
        in that conduct, being an application in respect of which the
        Commission, or the Trade Practices Commission established under the
        Trade Practices Act 1974 as in force immediately before the
        commencement of the Trade Practices Amendment Act 1977, has-

        (i)    made a determination dismissing the application, not being a
               determination made in circumstances where the corporation gave
               a notice in relation to that conduct under sub-section 92 (1)
               or 93 (1) of the Trade Practices Act 1974 as in force
               immediately before the commencement of the
               Trade Practices Amendment Act 1977 and-

                (A)  in the case of a notice given under sub-section 92 (1) of
                     the Trade Practices Act 1974 as so in force-a notice was
                     given to the corporation under sub-section 92 (2) of that
                     Act; or

                (B)  in the case of a notice given under sub-section 93 (1) of
                     the Trade Practices Act 1974 as so in force-no notice was
                     given to the Corporation under sub-section 93 (2) of that
                     Act; or

        (ii)   made a determination granting an authorization (whether or not
               the authorization is still in force); and

   (b)  the Tribunal has made a determination on an application for a review
        of the determination of the Commission, or for a review of the
        determination of the Trade Practices Commission established under the
        Trade Practices Act 1974 as in force immediately before the
        commencement of the Trade Practices Amendment Act 1977, or the time
        for making such an application for review has expired without an
        application for review having been made.

''(3) If the Commission is satisfied that the engaging by a corporation in
conduct or proposed conduct of a kind referred to in a notice given by the
corporation to the Commission under sub-section (1) has or is likely to have,
or would have or be likely to have, the effect of substantially lessening
competition within the meaning of section 47 and that in all the
circumstances-

   (a)  the conduct has not resulted or is not likely to result, or the
        proposed conduct would not result or be likely to result, in a benefit
        to the public; or

   (b)  any benefit to the public that has resulted or is likely to result
        from the conduct, or would result or be likely to result from the
        proposed conduct, would not outweigh the detriment to the public
        constituted by any lessening of competition that has resulted or is
        likely to result from the conduct or would result or be likely to
        result from the proposed conduct, the Commission may at any time give
        notice in writing to the corporation stating that the Commission is so
        satisfied and accompanied by a statement setting out its reasons for
        being so satisfied.

''(4) Before giving a notice under sub-section (3) the Commission shall comply
with the requirements of section 93A.

''(5) In satisfying itself for the purposes of sub-section (3) in relation to
any conduct or proposed conduct referred to in a notice given to the
Commission by a corporation under sub-section (1), the Commission shall seek
such relevant information as it considers reasonable and appropriate and may
make a decision on the basis of any information so obtained and any other
information furnished to it by the corporation or any other person or
otherwise in its possession.

''(6) A corporation that has given a notice to the Commission under this
section in relation to any conduct or proposed conduct may, at any time before
the Commission has given to the corporation a notice under sub-section (3) in
relation to the conduct or proposed conduct, by notice in writing to the
Commission, withdraw the first-mentioned notice.

''(7) Where a corporation has given notice to the Commission under sub-section
(1)-

   (a)  in the case of a notice given before the expiration of the period of 3
        months commencing on the date of commencement of the Trade Practices
        Amendment Act 1977, the engaging by the corporation in the conduct
        referred to in the notice on or after that date and before the giving
        of the notice shall not be taken, for the purposes of section 47, to
        have had the effect of substantially lessening competition within the
        meaning of that section; and

   (b)  in any case, the engaging by the corporation in the conduct referred
        to in the notice after the giving of the notice shall not be taken,
        for the purposes of section 47, to have the effect of substantially
        lessening competition within the meaning of that section unless-

        (i)    the Commission has given notice to the corporation under
               sub-section (3) of this section in relation to the conduct and
               the conduct takes place more than 30 days (or such longer
               period as the Commission by writing permits) after the day on
               which the Commission gave the notice; or

        (ii)   the notice has been, or is deemed to have been, withdrawn and
               the conduct takes place after the day on which the notice was,
               or is deemed to have been, withdrawn.

''(8) Where-

   (a)  a corporation gives a notice to the Commission under sub- section (1)
        in relation to any conduct or proposed conduct;

   (b)  before or after the notice is given the corporation makes an
        application to the Commission for an authorization to engage in that
        conduct;

   (c)  the Commission-

        (i)    makes a determination dismissing the application; or

        (ii)   makes a determination granting an authorization in respect of
               the application; and

   (d)  the Tribunal makes a determination on an application for a review of
        the determination of the Commission or the time for making such an
        application for review expires without an application for review
        having been made, the notice shall thereupon be deemed to be
        withdrawn.

''(9) If an application is made to the Tribunal for a review of the giving of
a notice by the Commission under sub-section (3), the reference in sub-section
(7) to the day on which the Commission gave the notice shall be read as a
reference to-

   (a)  if the application is withdrawn-the day on which the application is
        withdrawn;

   (b)  if the Tribunal, on the application of the Commission or of any other
        person who the Tribunal is satisfied has an interest in the subject
        matter of the review, declares that the application for the review is
        not being proceeded with by the applicant with due diligence-the day
        on which the Tribunal makes the declaration; or

   (c)  in any other case-the day on which the Tribunal makes a determination
        on the review.

''(10) Where-

   (a)  a corporation has given a notice to the Commission under sub-section
        (1) in relation to conduct or proposed conduct and the Commission has
        given notice to the corporation in writing under sub-section (3) in
        relation to the conduct or the proposed conduct; or

   (b)  a notice given by a corporation to the Commission under sub-section
        (1) in relation to conduct or proposed conduct is withdrawn or deemed
        to be withdrawn, the corporation is not entitled to give a further
        notice under sub-section (1) to the Commission in relation to the same
        conduct or proposed conduct or in relation to conduct or proposed
        conduct to the like effect.''.