Queensland Bills Queensland Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
COMPETITION POLICY
REFORM (QUEENSLAND)
BILL 1995
Queensland
COMPETITION POLICY REFORM
(QUEENSLAND) BILL 1995
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PART 2--COMPETITION CODE
4 Competition Code text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5 Application of Competition Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6 Future modifications of Competition Code text . . . . . . . . . . . . . . . . . . . . . . 10
7 Interpretation of Competition Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8 Application of Competition Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9 Special provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
PART 3--CITING THE COMPETITION CODES
10 Citation of Competition Code of this jurisdiction . . . . . . . . . . . . . . . . . . . . . 13
11 References to Competition Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 References to Competition Codes of other jurisdictions . . . . . . . . . . . . . . . 13
PART 4--APPLICATION OF COMPETITION CODES TO
JURISDICTIONS
13 Application law of this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14 Application law of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Activities that are not business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16 States not liable to pecuniary penalty or prosecution . . . . . . . . . . . . . . . . . . 16
17 This part overrides the prerogative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2
Competition Policy Reform (Queensland)
PART 5--NATIONAL ADMINISTRATION AND
ENFORCEMENT OF COMPETITION CODES
Division 1--Preliminary
18 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 2--Conferral of functions
19 Conferral of functions and powers on certain bodies . . . . . . . . . . . . . . . . . . 17
20 Conferral of other functions and powers for purposes of law in this
jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Division 3--Jurisdiction of courts
21 Jurisdiction of Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
22 Jurisdiction of courts of this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
23 Exercise of jurisdiction under cross-vesting provisions . . . . . . . . . . . . . . . . . 18
Division 4--Offences
24 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
25 Application of Commonwealth laws to offences against
Competition Code of this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
26 Application of Commonwealth laws to offences against
Competition Codes of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
27 Functions and powers conferred on Commonwealth officers and
authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
28 Restriction of functions and powers of officers and authorities of
this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Division 5--Administrative law
29 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
30 Application of Commonwealth administrative laws to
Competition Code of this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
31 Application of Commonwealth administrative laws to
Competition Codes of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
32 Functions and powers conferred on Commonwealth officers and
authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
33 Restriction of functions and powers of officers and authorities of
this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
PART 6--MISCELLANEOUS
34 No doubling-up of liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
35 Things done for multiple purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
36 Reference in Commonwealth law to a provision of another law . . . . . . . . . 24
3
Competition Policy Reform (Queensland)
37 Fees and other money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
38 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
39 Regulations for exceptions under section 51 of Trade Practices
Act or Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PART 7--TRANSITIONAL RULES
40 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
41 Existing contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
42 Section 51 exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
43 Temporary exemption from pecuniary penalties . . . . . . . . . . . . . . . . . . . . . . 26
44 Advance authorisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
45 Regulations relating to savings and transitional matters . . . . . . . . . . . . . . . 27
PART 8--ATTACHMENT
46 Attachment--Schedule version of Part 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ATTACHMENT TO COMPETITION POLICY REFORM
(QUEENSLAND) ACT 1995
SCHEDULE VERSION OF PART IV . . . 28
1995
A BILL
FOR
An Act to apply certain laws of the Commonwealth relating to
competition policy as laws of Queensland, and for other purposes
s1 6 s3
Competition Policy Reform (Queensland)
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Competition Policy Reform (Queensland) 4
Act 1995. 5
6
Commencement
2.(1) This part, section 39 and parts 7 and 81 commence on the date of 7
assent. 8
(2) The remaining provisions of this Act commence on 21 July 1996, 9
but, if the commencement of those provisions is postponed under 10
subsection (3), they commence on the day to which their commencement 11
has been postponed (or the later or latest of those days). 12
(3) The commencement of the provisions referred to in subsection (2) 13
may be postponed from time to time by regulation made by the Governor 14
in Council, but any such postponement cannot be effected after the 15
provisions have commenced. 16
17
Definitions
3.(1) In this Act-- 18
"application law" means-- 19
(a) a law of a participating jurisdiction that applies the Competition 20
Code, either with or without modifications, as a law of the 21
participating jurisdiction; or 22
(b) any regulations or other legislative instrument made under a law 23
1 Sections 3 (Definitions), 39 (Regulations for exceptions under section 51 of
Trade Practices Act or Code) and parts 7 (Transitional rules) and
8 (Attachment)
s3 7 s3
Competition Policy Reform (Queensland)
described in paragraph (a); or 1
(c) the Competition Code, applying as a law of the participating 2
jurisdiction, either with or without modifications. 3
"Code", for part 7, see section 40. 4
"Commission" means the Australian Competition and Consumer 5
Commission established by section 6A 2 of the Trade Practices Act, 6
and includes a member of the commission or a division of the 7
commission performing functions of the commission. 8
"Commonwealth administrative laws", for part 5, division 5, see 9
section 29. 10
"Competition Code" means (according to the context)-- 11
(a) the Competition Code text; or 12
(b) the Competition Code text, applying as a law of a participating 13
jurisdiction, either with or without modifications. 14
"Competition Code text" means the text described in section 4. 15
"Conduct Code Agreement" means the Conduct Code Agreement made 16
on 11 April 1995 between the Commonwealth, the State of New 17
South Wales, the State of Victoria, the State of Queensland, the State 18
of Western Australia, the State of South Australia, the State of 19
Tasmania, the Australian Capital Territory and the Northern Territory 20
of Australia, as in force for the time being. 21
"Council" means the National Competition Council established by 22
section 29A3 of the Trade Practices Act. 23
"cut-off date", for part 7, see section 40. 24
"existing contract", for part 7, see section 40. 25
"instrument" means any document whatever, including-- 26
(a) an Act or an instrument made under an Act; or 27
(b) a law of this jurisdiction or an instrument made under such a law; 28
or 29
2 Trade Practices Act, section 6A (Establishment of Commission)
3 Trade Practices Act, section 29A (Establishment of Council)
s3 8 s3
Competition Policy Reform (Queensland)
(c) an award or other industrial determination or order, or an 1
industrial agreement; or 2
(d) any other order (whether executive, judicial or otherwise); or 3
(e) a notice, certificate or licence; or 4
(f) an agreement; or 5
(g) an application made, information or complaint laid, affidavit 6
sworn, or warrant issued, for any purpose; or 7
(h) an indictment, presentment, summons or writ; or 8
(i) any other pleading in, or process issued in connection with, a 9
legal or other proceeding. 10
"jurisdiction" means a State. 11
"law", in relation to a Territory, means a law of, or in force in, that 12
Territory. 13
"modifications" includes additions, omissions and substitutions. 14
"month" means a period commencing at the beginning of a day of one of 15
the 12 months of the year and ending immediately before the 16
beginning of the corresponding day of the next month or, if there is no 17
such corresponding day, ending at the expiration of the next month. 18
"notification", for a regulation, see the Statutory Instruments Act 1992, 19
section 47. 20
"officer", in relation to the Commonwealth, has the meaning given in 21
part XIA4 of the Trade Practices Act. 22
"operative date", for part 7, see section 40. 23
"participating jurisdiction" means a jurisdiction that is a party to the 24
Conduct Code Agreement and applies the Competition Code as a law 25
of the jurisdiction, either with or without modifications. 26
"Schedule version of Part IV" means the text that is set out in the 27
Schedule to the Trade Practices Act. 28
"State" includes a Territory. 29
4 Trade Practices Act, part XIA (The Competition Code)
s4 9 s4
Competition Policy Reform (Queensland)
"Territory" means the Australian Capital Territory or the Northern 1
Territory of Australia. 2
"this jurisdiction" means Queensland. 3
"Trade Practices Act" means the Trade Practices Act 1974 (Cwlth). 4
"Tribunal" means the Australian Competition Tribunal referred to in the 5
Trade Practices Act, and includes a member of the tribunal or a 6
division of the tribunal performing functions of the tribunal. 7
(2) If an expression is defined in the Trade Practices Act and is also used 8
in this Act, the expression as used in this Act has, unless the contrary 9
intention appears, the same meaning as in that Act. 10
(3) In this Act, a reference to a Commonwealth Act includes a reference 11
to-- 12
(a) that Commonwealth Act as amended and in force for the time 13
being; and 14
(b) an Act enacted in substitution for that Act. 15
PART 2--COMPETITION CODE 16
Code text 17
Competition
4.(1) The Competition Code text consists of-- 18
(a) the Schedule version of Part IV; and 19
(b) the remaining provisions of the Trade Practices Act (except 20
sections 2A, 5, 6 and 1725), so far as they would relate to the 21
schedule version if the schedule version were substituted for 22
part IV of that Act; and 23
(c) the regulations under the Trade Practices Act, so far as they relate 24
to any provisions covered by paragraph (a) or (b). 25
5 Trade Practices Act, sections 2A (Application of Act to Commonwealth and
Commonwealth authorities), 5 (Extended application of Parts IV, IVA and V),
6 (Additional operation of Act) and 172 (Regulations)
s5 10 s6
Competition Policy Reform (Queensland)
(2) For the purpose of forming part of the Competition Code text-- 1
(a) the provisions referred to in subsection (1)(b) and (c) are to be 2
modified as necessary to fit in with the Schedule version of 3
Part IV; and 4
(b) in particular, references to corporations are to include references 5
to persons who are not corporations. 6
of Competition Code 7
Application
5.(1) The Competition Code text, as in force for the time being, applies 8
as a law of Queensland. 9
(2) This section has effect subject to section 6.6 10
modifications of Competition Code text 11
Future
6.(1) A modification made by a Commonwealth law to the Competition 12
Code text after the commencement of this section-- 13
(a) does not apply under section 57 until at least the end of the period 14
of 2 months after the date of the modification, unless a regulation 15
under this Act appoints an earlier date; and 16
(b) does not apply under that section at all, if the modification is 17
declared by a regulation under this Act to be excluded from the 18
operation of that section. 19
(2) A regulation under subsection (1)(a)-- 20
(a) cannot appoint any day that is earlier than the date of notification 21
of the regulation or that is earlier than the date on which the 22
modification of the text takes effect; and 23
(b) is taken in such a case to appoint the date of notification of the 24
regulation or the date on which the modification of the text takes 25
effect, whichever is the later. 26
(3) A regulation under subsection (1)(b) has effect only if notified before 27
6 Section 6 (Future modifications of Competition Code text)
7 Section 5 (Application of Competition Code)
s7 11 s8
Competition Policy Reform (Queensland)
the end of 2 months after the date of the modification. 1
(4) Subsection (1)(b) ceases to apply to the modification if a further 2
regulation so provides. 3
(5) For the purposes of this section, the date of the modification is the 4
date on which the Commonwealth Act effecting the modification receives 5
the Royal Assent or the regulation effecting the modification is notified in 6
the Commonwealth of Australia Gazette. 7
of Competition Code 8
Interpretation
7.(1) The Acts Interpretation Act 1901 (Cwlth) applies as a law of this 9
jurisdiction to-- 10
(a) the Competition Code of this jurisdiction; and 11
(b) any instrument under that code. 12
(2) For the purposes of subsection (1), the Commonwealth Act 13
mentioned in that subsection applies as if-- 14
(a) the statutory provisions in the Competition Code of this 15
jurisdiction were a Commonwealth Act; and 16
(b) the regulations in the Competition Code of this jurisdiction or 17
instruments mentioned in that subsection were regulations or 18
instruments under a Commonwealth Act. 19
(3) The Acts Interpretation Act 1954 does not apply to-- 20
(a) the Competition Code of Queensland; or 21
(b) any instrument under that code. 22
of Competition Code 23
Application
8.(1) The Competition Code of this jurisdiction applies to and in relation 24
to-- 25
(a) persons carrying on business within this jurisdiction; or 26
(b) bodies corporate incorporated or registered under the law of this 27
jurisdiction; or 28
(c) persons ordinarily resident in this jurisdiction; or 29
s8 12 s8
Competition Policy Reform (Queensland)
(d) persons otherwise connected with this jurisdiction. 1
(2) Subject to subsection (1), the Competition Code of this jurisdiction 2
extends to conduct, and other acts, matters and things, occurring or existing 3
outside or partly outside this jurisdiction (whether within or outside 4
Australia). 5
(3) Where a claim under section 82 8 of the Competition Code of this 6
jurisdiction is made in a proceeding, a person is not entitled to rely at a 7
hearing in respect of that proceeding on conduct to which a provision of the 8
code extends occurring outside Australia except with the consent in writing 9
of the Commonwealth Minister. 10
(4) A person other than the Commonwealth Minister or the Commission 11
is not entitled to make an application to the Court for an order under 12
section 87(1)9 or (1A) of the Competition Code of this jurisdiction in a 13
proceeding in respect of conduct to which a provision of the code extends 14
occurring outside Australia except with the consent in writing of the 15
Commonwealth Minister. 16
(5) The Commonwealth Minister is required to give a consent under 17
subsection (3) or (4) in respect of a proceeding unless, in the opinion of the 18
Commonwealth Minister-- 19
(a) the law of the country in which the conduct concerned was 20
engaged in required or specifically authorised the engaging in of 21
the conduct; and 22
(b) it is not in the national interest that the consent be given. 23
(6) In this section-- 24
"Commonwealth Minister" means a Minister of State for the 25
Commonwealth administering part IV10 of the Trade Practices Act. 26
8 Competition Code, section 82 (Actions for damages)
9 Competition Code, section 87 (Other orders)
10 Trade Practices Act, part IV (Restrictive trade practices)
s9 13 s 12
Competition Policy Reform (Queensland)
provisions 1
Special
9. The references in sections 45 and 45B11 of the Competition Code of 2
this or another participating jurisdiction to "the commencement of this 3
section" are taken to be references to the commencement of the provision 4
of the law of that jurisdiction that provides that the Competition Code text as 5
in force for the time being applies as a law of that jurisdiction. 6
PART 3--CITING THE COMPETITION CODES 7
of Competition Code of this jurisdiction 8
Citation
10. The Competition Code text applying as a law of this jurisdiction may 9
be cited as the Competition Code of Queensland. 10
to Competition Code 11
References
11.(1) The object of this section is to help ensure that the Competition 12
Code of this jurisdiction can operate, in appropriate circumstances, as if that 13
code, together with the Competition Code of each other participating 14
jurisdiction, constituted a single national Competition Code applying 15
throughout the participating jurisdictions. 16
(2) A reference in any instrument to the Competition Code is a reference 17
to the Competition Codes of any or all of the participating jurisdictions. 18
(3) Subsection (2) has effect except so far as the contrary intention 19
appears in the instrument or the context of the reference otherwise requires. 20
to Competition Codes of other jurisdictions 21
References
12.(1) This section has effect for the purposes of an Act, a law of this 22
jurisdiction or an instrument under an Act or such a law. 23
11 Competition Code, sections 45 (Contracts, arrangements or understandings that
restrict dealings or affect competition) and 45B (Covenants affecting
competition)
s 13 14 s 15
Competition Policy Reform (Queensland)
(2) If a law of a participating jurisdiction other than this jurisdiction 1
provides that the Competition Code text as in force for the time being 2
applies as a law of that jurisdiction, the Competition Code of that 3
jurisdiction is the Competition Code text, applying as a law of that 4
jurisdiction. 5
ART 4--APPLICATION OF COMPETITION CODES 6
P
TO JURISDICTIONS 7
law of this jurisdiction 8
Application
13. The application law of this jurisdiction binds (so far as the legislative 9
power of Parliament permits) this jurisdiction and each other jurisdiction, so 10
far as the jurisdiction carries on a business, either directly or by an authority 11
of the jurisdiction. 12
law of other jurisdictions 13
Application
14. The application law of each participating jurisdiction other than this 14
jurisdiction binds this jurisdiction, so far as this jurisdiction carries on a 15
business, either directly or by an authority of this jurisdiction. 16
that are not business 17
Activities
15.(1) For the purposes of sections 13 and 14,12 the following do not 18
amount to carrying on a business-- 19
(a) imposing or collecting-- 20
(i) taxes; or 21
(ii) levies; or 22
(iii) fees for licences; 23
12 Sections 13 (Application law of this jurisdiction) and 14 (Application law of
other jurisdictions)
s 15 15 s 15
Competition Policy Reform (Queensland)
(b) granting, refusing to grant, revoking, suspending or varying 1
licences (whether or not they are subject to conditions); 2
(c) a transaction involving-- 3
(i) only persons who are all acting for the same jurisdiction 4
(and none of whom is an authority of a State); or 5
(ii) only persons who are all acting for the same authority of a 6
State; or 7
(iii) only a State and 1 or more non-commercial authorities of 8
that State; or 9
(iv) only non-commercial authorities of the same State; 10
(d) the acquisition of primary products by a government body under 11
legislation, unless the acquisition occurs because-- 12
(i) the body chooses to acquire the products; or 13
(ii) the body has not exercised a discretion that it has under the 14
legislation that would allow it not to acquire the products. 15
(2) Subsection (1) does not limit the things that do not amount to 16
carrying on a business for the purposes of sections 13 and 14.13 17
(3) In this section-- 18
"acquisition of primary products by a government body under 19
legislation" includes vesting of ownership of primary products in a 20
government body by legislation. 21
"government body" means a State or an authority of a State. 22
"licence" means a licence that allows the licensee to supply goods or 23
services. 24
"primary products means-- 25
(a) agricultural or horticultural produce; or 26
(b) crops, whether on or attached to the land or not; or 27
(c) animals (whether dead or alive); or 28
13 Sections 13 (Application law of this jurisdiction) and 14 (Application law of
other jurisdictions)
s 16 16 s 18
Competition Policy Reform (Queensland)
(d) the bodily produce (including natural increase) of animals. 1
(4) For the purposes of this section, an authority of a State is 2
"non-commercial" if-- 3
(a) it is constituted by only 1 person; and 4
(b) it is neither a trading corporation nor a financial corporation. 5
not liable to pecuniary penalty or prosecution 6
States
16.(1) Nothing in the application law of this jurisdiction makes a State 7
liable to a pecuniary penalty or to be prosecuted for an offence. 8
(2) Without limiting subsection (1), nothing in the application law of a 9
participating jurisdiction makes this jurisdiction liable to a pecuniary penalty 10
or to be prosecuted for an offence. 11
(3) The protection in subsection (1) or (2) does not apply to an authority 12
of any jurisdiction. 13
part overrides the prerogative 14
This
17. If, because of this part, a provision of the law of another participating 15
jurisdiction binds this jurisdiction, this jurisdiction is subject to that 16
provision despite any prerogative right or privilege. 17
ART 5--NATIONAL ADMINISTRATION AND 18
P
ENFORCEMENT OF COMPETITION CODES 19
1--Preliminary 20
Division
21
Object
18. The object of this part is to help ensure that the Competition Codes of 22
the participating jurisdictions are administered on a uniform basis, in the 23
same way as if those codes constituted a single law of the Commonwealth. 24
s 19 17 s 22
Competition Policy Reform (Queensland)
2--Conferral of functions 1
Division
of functions and powers on certain bodies 2
Conferral
19.(1) The authorities and officers of the Commonwealth referred to in 3
the Competition Code of this jurisdiction, including (but not limited to) the 4
Commission, the Tribunal and the Council, have the functions and powers 5
conferred or expressed to be conferred on them respectively under the 6
Competition Code of this jurisdiction. 7
(2) In addition to the powers mentioned in subsection (1), the authorities 8
and officers referred to in that subsection have power to do all things 9
necessary or convenient to be done in connection with the performance of 10
the functions and exercise of the powers referred to in that subsection. 11
of other functions and powers for purposes of law in this 12
Conferral
jurisdiction 13
20. The Commission and the Tribunal have power to do acts in this 14
jurisdiction in the performance or exercise of any function or power 15
expressed to be conferred on them respectively by the Competition Code of 16
another participating jurisdiction. 17
3--Jurisdiction of courts 18
Division
of Federal Court 19
Jurisdiction
21. Jurisdiction is conferred on the Federal Court of Australia with 20
respect to all civil and criminal matters arising under the Competition Code 21
of this jurisdiction. 22
of courts of this jurisdiction 23
Jurisdiction
22. Subject to section 23, the courts of this jurisdiction do not have 24
jurisdiction with respect to the matters referred to in section 21.14 25
14 Sections 23 (Exercise of jurisdiction under cross-vesting provisions) and 21
(Jurisdiction of Federal Court)
s 23 18 s 24
Competition Policy Reform (Queensland)
of jurisdiction under cross-vesting provisions 1
Exercise
23. This part does not affect the operation of any law of this jurisdiction 2
relating to cross-vesting of jurisdiction. 3
4--Offences 4
Division
5
Object
24.(1) The object of this division is to further the object of this part by 6
providing-- 7
(a) for an offence against the Competition Code of this jurisdiction to 8
be treated as if it were an offence against a law of the 9
Commonwealth; and 10
(b) for an offence against the Competition Code of another 11
participating jurisdiction to be treated in this jurisdiction as if it 12
were an offence against a law of the Commonwealth. 13
(2) The purposes for which an offence is to be treated as mentioned in 14
subsection (1) include, for example (but without limitation)-- 15
(a) the investigation and prosecution of offences; and 16
(b) the arrest, custody, bail, trial and conviction of offenders or 17
persons charged with offences; and 18
(c) proceedings relating to a matter referred to in paragraph (a) or (b); 19
and 20
(d) appeals and review relating to criminal proceedings and to 21
proceedings of the kind referred to in paragraph (c); and 22
(e) the sentencing, punishment and release of persons convicted of 23
offences; and 24
(f) fines, penalties and forfeitures; and 25
(g) liability to make reparation in connection with offences; and 26
(h) proceeds of crime; and 27
(i) spent convictions. 28
s 25 19 s 26
Competition Policy Reform (Queensland)
of Commonwealth laws to offences against Competition 1
Application
Code of this jurisdiction 2
25.(1) The Commonwealth laws apply as laws of this jurisdiction in 3
relation to an offence against the Competition Code of this jurisdiction as if 4
that code were a law of the Commonwealth and not a law of this 5
jurisdiction. 6
(2) For the purposes of a law of this jurisdiction, an offence against the 7
Competition Code of this jurisdiction-- 8
(a) is taken to be an offence against the laws of the Commonwealth, 9
in the same way as if that code were a law of the Commonwealth; 10
and 11
(b) is taken not to be an offence against the laws of this jurisdiction. 12
(3) Subsection (2) has effect for the purposes of a law of this jurisdiction 13
except as prescribed by a regulation under this Act. 14
of Commonwealth laws to offences against Competition 15
Application
Codes of other jurisdictions 16
26.(1) The Commonwealth laws apply as laws of this jurisdiction in 17
relation to an offence against the Competition Code of another participating 18
jurisdiction as if that code were a law of the Commonwealth and not a law 19
of that other jurisdiction. 20
(2) For the purposes of a law of this jurisdiction, an offence against the 21
Competition Code of another participating jurisdiction-- 22
(a) is taken to be an offence against the laws of the Commonwealth, 23
in the same way as if that code were a law of the Commonwealth; 24
and 25
(b) is taken not to be an offence against the laws of that jurisdiction. 26
(3) Subsection (2) has effect for the purposes of a law of this jurisdiction 27
except as prescribed by a regulation under this Act. 28
(4) This section does not require, prohibit, empower, authorise or 29
otherwise provide for, the doing of an act outside this jurisdiction. 30
s 27 20 s 28
Competition Policy Reform (Queensland)
and powers conferred on Commonwealth officers and 1
Functions
authorities 2
27.(1) A Commonwealth law applying because of section 2515 that 3
confers on a Commonwealth officer or authority a function or power in 4
relation to an offence against the Trade Practices Act also confers on the 5
officer or authority the same function or power in relation to an offence 6
against the corresponding provision of the Competition Code of this 7
jurisdiction. 8
(2) A Commonwealth law applying because of section 2616 that confers 9
on a Commonwealth officer or authority a function or power in relation to 10
an offence against the Trade Practices Act also confers on the officer or 11
authority the same function or power in relation to an offence against the 12
corresponding provision of the Competition Code of another participating 13
jurisdiction. 14
(3) The function or power referred to in subsection (2) may only be 15
performed or exercised in this jurisdiction. 16
(4) In performing a function or exercising a power conferred by 17
subsection (1) or (2), the Commonwealth officer or authority must act as 18
nearly as practicable as the officer or authority would act in performing or 19
exercising the same function or power in relation to an offence against the 20
corresponding provision of the Trade Practices Act. 21
of functions and powers of officers and authorities of this 22
Restriction
jurisdiction 23
28. Where, by reason of this division, a function or power is conferred 24
on a Commonwealth officer or authority, that function or power may not be 25
performed or exercised by an officer or authority of this jurisdiction. 26
15 Section 25 (Application of Commonwealth laws to offences against Competition
Code of this jurisdiction)
16 Section 26 (Application of Commonwealth laws to offences against Competition
Codes of other jurisdictions)
s 29 21 s 30
Competition Policy Reform (Queensland)
5--Administrative law 1
Division
2
Definition
29. In this division-- 3
"Commonwealth administrative laws" means-- 4
(a) the following Acts-- 5
(i) the Administrative Appeals Tribunal Act 1975 (Cwlth); 6
(ii) the Administrative Decisions (Judicial Review) Act 1977 7
(Cwlth); 8
(iii) the Freedom of Information Act 1982 (Cwlth); 9
(iv) the Ombudsman Act 1976 (Cwlth); 10
(v) the Privacy Act 1988 (Cwlth); and 11
(b) the regulations in force under those Acts. 12
of Commonwealth administrative laws to Competition 13
Application
Code of this jurisdiction 14
30.(1) The Commonwealth administrative laws apply as laws of this 15
jurisdiction to any matter arising in relation to the Competition Code of this 16
jurisdiction as if that code were a law of the Commonwealth and not a law 17
of this jurisdiction. 18
(2) For the purposes of a law of this jurisdiction, a matter arising in 19
relation to the Competition Code of this jurisdiction-- 20
(a) is taken to be a matter arising in relation to laws of the 21
Commonwealth in the same way as if that code were a law of the 22
Commonwealth; and 23
(b) is taken not to be a matter arising in relation to laws of this 24
jurisdiction. 25
(3) Subsection (2) has effect for the purposes of a law of this jurisdiction 26
except as prescribed by a regulation under this Act. 27
s 31 22 s 32
Competition Policy Reform (Queensland)
of Commonwealth administrative laws to Competition 1
Application
Codes of other jurisdictions 2
31.(1) The Commonwealth administrative laws apply as laws of this 3
jurisdiction to any matter arising in relation to the Competition Code of 4
another participating jurisdiction as if that code were a law of the 5
Commonwealth and not a law of that jurisdiction. 6
(2) For the purposes of a law of this jurisdiction, a matter arising in 7
relation to the Competition Code of another participating jurisdiction-- 8
(a) is taken to be a matter arising in relation to laws of the 9
Commonwealth in the same way as if that code were a law of the 10
Commonwealth; and 11
(b) is taken not to be a matter arising in relation to laws of that 12
jurisdiction. 13
(3) Subsection (2) has effect for the purposes of a law of this jurisdiction 14
except as prescribed by a regulation under this Act. 15
(4) This section does not require, prohibit, empower, authorise or 16
otherwise provide for, the doing of an act outside this jurisdiction. 17
and powers conferred on Commonwealth officers and 18
Functions
authorities 19
32.(1) A Commonwealth administrative law applying because of 20
section 3017 that confers on a Commonwealth officer or authority a function 21
or power also confers on the officer or authority the same function or power 22
in relation to a matter arising in relation to the Competition Code of this 23
jurisdiction. 24
(2) A Commonwealth administrative law applying because of 25
section 3118 that confers on a Commonwealth officer or authority a function 26
or power also confers on the officer or authority the same function or power 27
in relation to a matter arising in relation to the Competition Code of another 28
participating jurisdiction. 29
17 Section 30 (Application of Commonwealth administrative laws to Competition
Code of this jurisdiction)
18 Section 31 (Application of Commonwealth administrative laws to Competition
Codes of other jurisdictions)
s 33 23 s 34
Competition Policy Reform (Queensland)
(3) The function or power referred to in subsection (2) may only be 1
performed or exercised in this jurisdiction. 2
(4) In performing a function or exercising a power conferred by 3
subsection (1) or (2), the Commonwealth officer or authority must act as 4
nearly as practicable as the officer or authority would act in performing or 5
exercising the same function or power under the Commonwealth 6
administrative law. 7
of functions and powers of officers and authorities of this 8
Restriction
jurisdiction 9
33. Where, by reason of this division, a function or power is conferred 10
on a Commonwealth officer or authority, that function or power may not be 11
performed or exercised by an officer or authority of this jurisdiction. 12
ART 6--MISCELLANEOUS 13
P
doubling-up of liabilities 14
No
34.(1) If-- 15
(a) an act or omission is an offence against the Competition Code of 16
this jurisdiction and is also an offence against the Trade Practices 17
Act or an application law of another participating jurisdiction; and 18
(b) the offender has been punished for the offence under the Trade 19
Practices Act or the application law of the other jurisdiction; 20
the offender is not liable to be punished for the offence against the 21
Competition Code of this jurisdiction. 22
(2) If a person has been ordered to pay a pecuniary penalty under the 23
Trade Practices Act or the application law of another participating 24
jurisdiction, the person is not liable to a pecuniary penalty under the 25
Competition Code of this jurisdiction in respect of the same conduct. 26
s 35 24 s 38
Competition Policy Reform (Queensland)
done for multiple purposes 1
Things
35. The validity of an authorisation, notification or any other thing given 2
or done for the purposes of the Competition Code of this jurisdiction is not 3
affected only because it was given or done also for the purposes of the 4
Trade Practices Act or the Competition Code of 1 or more other 5
jurisdictions. 6
in Commonwealth law to a provision of another law 7
Reference
36. For the purposes of section 25, 26, 30 or 31,19 a reference in a 8
Commonwealth law to a provision of that or another Commonwealth law is 9
taken to be a reference to that provision as applying because of that section. 10
and other money 11
Fees
37.(1) All fees, taxes, penalties (including pecuniary penalties referred to 12
in section 7620 of the Competition Code), fines and other money that, under 13
the application law of this jurisdiction, are authorised or directed to be 14
payable by or imposed on any person must be paid to the Commonwealth. 15
(2) Subsection (1) does not apply to amounts recovered for loss or 16
damage as referred to in section 82 or 8721 of the Competition Code and 17
other amounts prescribed by a regulation under this Act. 18
(3) This subsection imposes the fees (including fees that are taxes) that 19
the regulations in the Competition Code of this jurisdiction prescribe. 20
21
Regulations
38. The Governor in Council may make regulations under this Act. 22
19 Sections 25 (Application of Commonwealth laws to offences against
Competition Code of this jurisdiction), 26 (Application of Commonwealth laws
to offences against Competition Codes of other jurisdictions), 30 (Application of
Commonwealth administrative laws to Competition Code of this jurisdiction) or
31 (Application of Commonwealth administrative laws to Competition Codes of
other jurisdictions)
20 Competition Code, section 76 (Pecuniary penalties)
21 Competition Code, section 82 (Actions for damages) or 87 (Other orders)
s 39 25 s 41
Competition Policy Reform (Queensland)
for exceptions under section 51 of Trade Practices Act or 1
Regulations
Code 2
39. Without limiting any other power to make regulations under any 3
other Act, the Governor in Council may make regulations under this Act 4
specifically authorising a specified thing to be done in this jurisdiction and 5
referring expressly to the Trade Practices Act or the Competition Code. 6
ART 7--TRANSITIONAL RULES 7
P
8
Definitions
40. In this part-- 9
"Code" means the Competition Code of this jurisdiction. 10
"cut-off date" means 19 August 1994. 11
"existing contract" means a contract that was made before the operative 12
date. 13
"operative date" means the date of commencement of parts 2 to 6 of this 14
Act. 15
contracts 16
Existing
41.(1) For the purposes of deciding whether a person has contravened 17
part IV22 of the Code at any time after the operative date-- 18
(a) existing contracts made before the cut-off date, and things done to 19
give effect to those contracts, are to be disregarded; and 20
(b) if an existing contract made before the cut-off date is varied on or 21
after the cut-off date--things done to give effect to the varied 22
contract are not to be disregarded under paragraph (a) unless they 23
would have been disregarded under the contract as in force 24
immediately before the cut-off date; and 25
22 Competition Code, part IV (Restrictive trade practices)
s 42 26 s 44
Competition Policy Reform (Queensland)
(c) regard can be had to existing contracts made on or after the 1
cut-off date and to things done to give effect to those contracts. 2
(2) Part IV of the Code does not make unenforceable a provision of an 3
existing contract made before the cut-off date, unless it was unenforceable 4
immediately before the operative date. 5
(3) Part IV of the Code can make unenforceable a provision of an 6
existing contract made on or after the cut-off date. 7
51 exceptions 8
Section
42.(1) This section applies (in addition to section 51(1)23 of the Code) to 9
conduct taking place before the end of 3 years after 20 July 1995. 10
(2) In deciding whether a person has contravened part IV24 of the Code, a 11
particular thing is to be disregarded if (and to the same extent) it is to be 12
disregarded for the purposes of the Trade Practices Act because of 13
section 3325 of the Competition Policy Reform Act 1995 (Cwlth). 14
exemption from pecuniary penalties 15
Temporary
43.(1) A person is not liable to a pecuniary penalty under the Code for 16
conduct that happens within 2 years after 20 July 1995. 17
(2) If the commencement of provisions of this Act is postponed under 18
section 2,26 the period of 2 years mentioned in this section is extended by 19
the same number of days. 20
authorisations 21
Advance
44. From the commencement of this section-- 22
(a) an authorisation may be applied for and granted under the Code; 23
and 24
23 Competition Code, section 51 (Exceptions)
24 Competition Code, part IV (Restrictive trade practices)
25 Competition Policy (Reform) Act 1995 (Cwlth), section 33 (Transitional rule for
changes to section 51 exceptions)
26 Section 2 (Commencement)
s 45 27 s 46
Competition Policy Reform (Queensland)
(b) a notice may be given under section 9327 of the Code; 1
as if the whole of this Act commenced at the same time as this section. 2
relating to savings and transitional matters 3
Regulations
45. A regulation under this Act may contain provisions of a savings or 4
transitional nature consequent on the enactment of this Act. 5
PART 8--ATTACHMENT 6
version of Part 4 7
Attachment--Schedule
46.(1) Attached to this Act is a copy of the Schedule version of Part IV. 8
(2) The attachment does not form part of this Act. 9
(3) To remove doubt, it is declared that the copy of the Schedule version 10
of Part IV in the attachment may be revised so that it is an accurate copy of 11
the schedule version as amended from time to time. 12
13
27 Competition Code, section 93 (Notification of exclusive dealing)
28
Competition Policy Reform (Queensland)
ATTACHMENT TO COMPETITION POLICY 1
REFORM (QUEENSLAND) ACT 1995 2
section 46 3
CHEDULE VERSION OF PART IV 4
¡S
Contracts, arrangements or understandings that restrict dealings or 5
affect competition 6
45.(1) If a provision of a contract made before the commencement of 7
this section: 8
(a) is an exclusionary provision; or 9
(b) has the purpose, or has or is likely to have the effect, of 10
substantially lessening competition; 11
that provision is unenforceable in so far as it confers rights or benefits or 12
imposes duties or obligations on a person. 13
(2) A person shall not: 14
(a) make a contract or arrangement, or arrive at an understanding, if: 15
(i) the proposed contract, arrangement or understanding 16
contains an exclusionary provision; or 17
(ii) a provision of the proposed contract, arrangement or 18
understanding has the purpose, or would have or be likely to 19
have the effect, of substantially lessening competition; or 20
(b) give effect to a provision of a contract, arrangement or 21
understanding, whether the contract or arrangement was made, or 22
the understanding was arrived at, before or after the 23
commencement of this section, if that provision: 24
(i) is an exclusionary provision; or 25
(ii) has the purpose, or has or is likely to have the effect, of 26
substantially lessening competition. 27
(3) For the purposes of this section and section 45A, "competition", in 28
29
Competition Policy Reform (Queensland)
relation to a provision of a contract, arrangement or understanding or of a 1
proposed contract, arrangement or understanding, means competition in any 2
market in which a person who is a party to the contract, arrangement or 3
understanding or would be a party to the proposed contract, arrangement or 4
understanding, or any body corporate related to such a person, supplies or 5
acquires, or is likely to supply or acquire, goods or services or would, but 6
for the provision, supply or acquire, or be likely to supply or acquire, goods 7
or services. 8
(4) For the purposes of the application of this section in relation to a 9
particular person, a provision of a contract, arrangement or understanding or 10
of a proposed contract, arrangement or understanding shall be deemed to 11
have or to be likely to have the effect of substantially lessening competition 12
if that provision and any one or more of the following provisions, namely: 13
(a) the other provisions of that contract, arrangement or 14
understanding or proposed contract, arrangement or 15
understanding; and 16
(b) the provisions of any other contract, arrangement or 17
understanding or proposed contract, arrangement or 18
understanding to which the person or a body corporate related to 19
the person is or would be a party; 20
together have or are likely to have that effect. 21
(5) This section does not apply to or in relation to: 22
(a) a provision of a contract where the provision constitutes a 23
covenant to which section 45B applies or, but for 24
subsection 45B(9), would apply; 25
(b) a provision of a proposed contract where the provision would 26
constitute a covenant to which section 45B would apply or, but 27
for subsection 45B(9), would apply; or 28
(c) a provision of a contract, arrangement or understanding or of a 29
proposed contract, arrangement or understanding in so far as the 30
provision relates to: 31
(i) conduct that contravenes section 48; or 32
(ii) conduct that would contravene section 48 but for the 33
operation of subsection 88(8A); or 34
30
Competition Policy Reform (Queensland)
(iii) conduct that would contravene section 48 if this Act defined 1
the acts constituting the practice of resale price maintenance 2
by reference to the maximum price at which goods or 3
services are to be sold or supplied or are to be advertised, 4
displayed or offered for sale or supply. 5
(6) The making of a contract, arrangement or understanding does not 6
constitute a contravention of this section by reason that the contract, 7
arrangement or understanding contains a provision the giving effect to 8
which would, or would but for the operation of subsection 47(10) or 88(8) 9
or section 93, constitute a contravention of section 47 and this section does 10
not apply to or in relation to the giving effect to a provision of a contract, 11
arrangement or understanding by way of: 12
(a) engaging in conduct that contravenes, or would but for the 13
operation of subsection 47(10) or 88(8) or section 93 contravene, 14
section 47; or 15
(b) doing an act by reason of a breach or threatened breach of a 16
condition referred to in subsection 47(2), (4), (6) or (8), being an 17
act done by a person at a time when: 18
(i) an authorization under subsection 88(8) is in force in relation 19
to conduct engaged in by that person on that condition; or 20
(ii) by reason of subsection 93(7) conduct engaged in by that 21
person on that condition is not to be taken to have the effect 22
of substantially lessening competition within the meaning of 23
section 47; or 24
(iii) a notice under subsection 93(1) is in force in relation to 25
conduct engaged in by that person on that condition. 26
(7) This section does not apply to or in relation to a contract, arrangement 27
or understanding in so far as the contract, arrangement or understanding 28
provides, or to or in relation to a proposed contract, arrangement or 29
understanding in so far as the proposed contract, arrangement or 30
understanding would provide, directly or indirectly for the acquisition of 31
any shares in the capital of a body corporate or any assets of a person. 32
(8) This section does not apply to or in relation to a contract, arrangement 33
or understanding, or a proposed contract, arrangement or understanding, the 34
only parties to which are or would be bodies corporate that are related to 35
31
Competition Policy Reform (Queensland)
each other. 1
(9) The making by a person of a contract that contains a provision in 2
relation to which subsection 88(1) applies is not a contravention of 3
subsection (2) of this section if: 4
(a) the contract is subject to a condition that the provision will not 5
come into force unless and until the person is granted an 6
authorization to give effect to the provision; and 7
(b) the person applies for the grant of such an authorization within 8
14 days after the contract is made; 9
but nothing in this subsection prevents the giving effect by a person to such 10
a provision from constituting a contravention of subsection (2). 11
Contracts, arrangements or understandings in relation to prices 12
45A.(1) Without limiting the generality of section 45, a provision of a 13
contract, arrangement or understanding, or of a proposed contract, 14
arrangement or understanding, shall be deemed for the purposes of that 15
section to have the purpose, or to have or to be likely to have the effect, of 16
substantially lessening competition if the provision has the purpose, or has 17
or is likely to have the effect, as the case may be, of fixing, controlling or 18
maintaining, or providing for the fixing, controlling or maintaining of, the 19
price for, or a discount, allowance, rebate or credit in relation to, goods or 20
services supplied or acquired or to be supplied or acquired by the parties to 21
the contract, arrangement or understanding or the proposed parties to the 22
proposed contract, arrangement or understanding, or by any of them, or by 23
any bodies corporate that are related to any of them, in competition with 24
each other. 25
(2) Subsection (1) does not apply to a provision of a contract or 26
arrangement made or of an understanding arrived at, or of a proposed 27
contract or arrangement to be made or of a proposed understanding to be 28
arrived at, for the purposes of a joint venture to the extent that the provision 29
relates or would relate to: 30
(a) the joint supply by 2 or more of the parties to the joint venture, or 31
the supply by all the parties to the joint venture in proportion to 32
their respective interests in the joint venture, of goods jointly 33
produced by all the parties in pursuance of the joint venture; 34
32
Competition Policy Reform (Queensland)
(b) the joint supply by 2 or more of the parties to the joint venture of 1
services in pursuance of the joint venture, or the supply by all the 2
parties to the joint venture in proportion to their respective 3
interests in the joint venture of services in pursuance of, and made 4
available as a result of, the joint venture; or 5
(c) in the case of a joint venture carried on by a body corporate as 6
mentioned in subparagraph 4J(a)(ii): 7
(i) the supply by that body corporate of goods produced by it in 8
pursuance of the joint venture; or 9
(ii) the supply by that body corporate of services in pursuance of 10
the joint venture, not being services supplied on behalf of the 11
body corporate by: 12
(A) a person who is the owner of shares in the capital of the 13
body corporate; or 14
(B) a body corporate that is related to such a person. 15
(4) Subsection (1) does not apply to a provision of a contract, 16
arrangement or understanding, or of a proposed contract, arrangement or 17
understanding, being a provision: 18
(a) in relation to the price for goods or services to be collectively 19
acquired, whether directly or indirectly, by parties to the contract, 20
arrangement or understanding or by proposed parties to the 21
proposed contract, arrangement or understanding; or 22
(b) for the joint advertising of the price for the re-supply of goods or 23
services so acquired. 24
(5) For the purposes of this Act, a provision of a contract, arrangement 25
or understanding, or of a proposed contract, arrangement or understanding, 26
shall not be taken not to have the purpose, or not to have or to be likely to 27
have the effect, of fixing, controlling or maintaining, or providing for the 28
fixing, controlling or maintaining of, the price for, or a discount, allowance, 29
rebate or credit in relation to, goods or services by reason only of: 30
(a) the form of, or of that provision of, the contract, arrangement or 31
understanding or the proposed contract, arrangement or 32
understanding; or 33
(b) any description given to, or to that provision of, the contract, 34
33
Competition Policy Reform (Queensland)
arrangement or understanding or the proposed contract, 1
arrangement or understanding by the parties or proposed parties. 2
(6) For the purposes of this Act but without limiting the generality of 3
subsection (5), a provision of a contract, arrangement or understanding, or 4
of a proposed contract, arrangement or understanding, shall not be taken not 5
to have the purpose, or not to have or to be likely to have the effect, of 6
fixing, controlling or maintaining, or providing for the fixing, controlling or 7
maintaining of, the price for, or a discount, allowance, rebate or credit in 8
relation to, goods or services by reason only that the provision 9
recommends, or provides for the recommending of, such a price, discount, 10
allowance, rebate or credit if in fact the provision has that purpose or has or 11
is likely to have that effect. 12
(7) For the purposes of the preceding provisions of this section but 13
without limiting the generality of those provisions, a provision of a contract, 14
arrangement or understanding, or of a proposed contract, arrangement or 15
understanding, shall be deemed to have the purpose, or to have or to be 16
likely to have the effect, of fixing, controlling or maintaining, or providing 17
for the fixing, controlling or maintaining of, the price for, or a discount, 18
allowance, rebate or credit in relation to, goods or services supplied as 19
mentioned in subsection (1) if the provision has the purpose, or has or is 20
likely to have the effect, of fixing, controlling or maintaining, or providing 21
for the fixing, controlling or maintaining of, such a price, discount, 22
allowance, rebate or credit in relation to a re-supply of the goods or services 23
by persons to whom the goods or services are or would be supplied by the 24
parties to the contract, arrangement or understanding or the proposed parties 25
to the proposed contract, arrangement or understanding, or by any of them, 26
or by any bodies corporate that are related to any of them. 27
(8) The reference in subsection (1) to the supply or acquisition of goods 28
or services by persons in competition with each other includes a reference to 29
the supply or acquisition of goods or services by persons who, but for a 30
provision of any contract, arrangement or understanding or of any proposed 31
contract, arrangement or understanding, would be, or would be likely to be, 32
in competition with each other in relation to the supply or acquisition of the 33
goods or services. 34
34
Competition Policy Reform (Queensland)
Covenants affecting competition 1
45B.(1) A covenant, whether the covenant was given before or after the 2
commencement of this section, is unenforceable in so far as it confers rights 3
or benefits or imposes duties or obligations on a first person or on a person 4
associated with a first person if the covenant has, or is likely to have, the 5
effect of substantially lessening competition in any market in which the first 6
person or any person associated with the first person supplies or acquires, 7
or is likely to supply or acquire, goods or services or would, but for the 8
covenant, supply or acquire, or be likely to supply or acquire, goods or 9
services. 10
(2) A first person or a person associated with a first person shall not: 11
(a) require the giving of a covenant, or give a covenant, if the 12
proposed covenant has the purpose, or would have or be likely to 13
have the effect, of substantially lessening competition in any 14
market in which: 15
(i) the first person, or any person associated with the first 16
person by virtue of paragraph (7)(b), supplies or acquires, is 17
likely to supply or acquire, or would, but for the covenant, 18
supply or acquire, or be likely to supply or acquire, goods or 19
services; or 20
(ii) any person associated with the first person by virtue of the 21
operation of paragraph (7)(a) supplies or acquires, is likely 22
to supply or acquire, or would, but for the covenant, supply 23
or acquire, or be likely to supply or acquire, goods or 24
services, being a supply or acquisition in relation to which 25
that person is, or would be, under an obligation to act in 26
accordance with directions, instructions or wishes of the first 27
person; 28
(b) threaten to engage in particular conduct if a person who, but 29
for subsection (1), would be bound by a covenant does not 30
comply with the terms of the covenant; or 31
(c) engage in particular conduct by reason that a person who, 32
but for subsection (1), would be bound by a covenant has 33
failed to comply, or proposes or threatens to fail to comply, 34
with the terms of the covenant. 35
35
Competition Policy Reform (Queensland)
(3) Where a person: 1
(a) issues an invitation to another person to enter into a contract 2
containing a covenant; 3
(b) makes an offer to another person to enter into a contract 4
containing a covenant; or 5
(c) makes it known that the person will not enter into a contract of a 6
particular kind unless the contract contains a covenant of a 7
particular kind or in particular terms; 8
the first-mentioned person shall, by issuing that invitation, making that offer 9
or making that fact known, be deemed to require the giving of the covenant. 10
(4) For the purposes of this section, a covenant or proposed covenant 11
shall be deemed to have, or to be likely to have, the effect of substantially 12
lessening competition in a market if the covenant or proposed covenant, as 13
the case may be, would have, or be likely to have, that effect when taken 14
together with the effect or likely effect on competition in that market of any 15
other covenant or proposed covenant to the benefit of which: 16
(a) a person who is or would be, or but for subsection (1) would be, 17
entitled to the benefit of the first-mentioned covenant or proposed 18
covenant; or 19
(b) a person associated with the person referred to in paragraph (a); 20
is or would be, or but for subsection (1) would be, entitled. 21
(5) The requiring of the giving of, or the giving of, a covenant does not 22
constitute a contravention of this section by reason that giving effect to the 23
covenant would, or would but for the operation of subsection 88(8) or 24
section 93, constitute a contravention of section 47 and this section does not 25
apply to or in relation to engaging in conduct in relation to a covenant by 26
way of: 27
(a) conduct that contravenes, or would but for the operation of 28
subsection 88(8) or section 93 contravene, section 47; or 29
(b) doing an act by reason of a breach or threatened breach of a 30
condition referred to in subsection 47(2), (4), (6) or (8), being an 31
act done by a person at a time when: 32
(i) an authorization under subsection 88(8) is in force in relation 33
to conduct engaged in by that person on that condition; or 34
36
Competition Policy Reform (Queensland)
(ii) by reason of subsection 93(7) conduct engaged in by that 1
person on that condition is not to be taken to have the effect 2
of substantially lessening competition within the meaning of 3
section 47; or 4
(iii) a notice under subsection 93(1) is in force in relation to 5
conduct engaged in by that person on that condition. 6
(6) This section does not apply to or in relation to a covenant or proposed 7
covenant where the only persons who are or would be respectively bound 8
by, or entitled to the benefit of, the covenant or proposed covenant are 9
persons who are associated with each other or are bodies corporate that are 10
related to each other. 11
(7) For the purposes of this section, section 45C and 12
subparagraph 87(3)(a)(ii), the first person and another person (the "second 13
person") shall be taken to be associated with each other in relation to a 14
covenant or proposed covenant if, and only if: 15
(a) the first person is a body corporate and the second person is 16
under an obligation (otherwise than in pursuance of the covenant 17
or proposed covenant), whether formal or informal, to act in 18
accordance with directions, instructions or wishes of the first 19
person in relation to the covenant or proposed covenant; or 20
(b) the second person is a body corporate in relation to which the first 21
person is in the position mentioned in subparagraph 4A(1)(a)(ii). 22
(8) The requiring by a person of the giving of, or the giving by a person 23
of, a covenant in relation to which subsection 88(5) applies is not a 24
contravention of subsection (2) of this section if: 25
(a) the covenant is subject to a condition that the covenant will not 26
come into force unless and until the person is granted an 27
authorization to require the giving of, or to give, the covenant; and 28
(b) the person applies for the grant of such an authorization within 29
14 days after the covenant is given; 30
but nothing in this subsection affects the application of paragraph (2)(b) or 31
(c) in relation to the covenant. 32
(9) This section does not apply to or in relation to a covenant or proposed 33
covenant if: 34
37
Competition Policy Reform (Queensland)
(a) the sole or principal purpose for which the covenant was or is 1
required to be given was or is to prevent the relevant land from 2
being used otherwise than for residential purposes; 3
(b) the person who required or requires the covenant to be given was 4
or is a religious, charitable or public benevolent institution or a 5
trustee for such an institution and the covenant was or is required 6
to be given for or in accordance with the purposes or objects of 7
that institution; or 8
(c) the covenant was or is required to be given in pursuance of a 9
legally enforceable requirement made by, or by a trustee for, a 10
religious, charitable or public benevolent institution, being a 11
requirement made for or in accordance with the purposes or 12
objects of that institution. 13
Covenants in relation to prices 14
45C.(1) In the application of subsection 45B(1) in relation to a covenant 15
that has, or is likely to have, the effect of fixing, controlling or maintaining, 16
or providing for the fixing, controlling or maintaining of, the price for, or a 17
discount, allowance, rebate or credit in relation to, goods or services 18
supplied or acquired by the persons who are, or but for that subsection 19
would be, bound by or entitled to the benefit of the covenant, or by any of 20
them, or by any persons associated with any of them, in competition with 21
each other, that subsection has effect as if the words "if the covenant has, or 22
is likely to have, the effect of substantially lessening competition in any 23
market in which the first person or any person associated with the first 24
person supplies or acquires, or is likely to supply or acquire, goods or 25
services or would, but for the covenant, supply or acquire, or be likely to 26
supply or acquire, goods or services" were omitted. 27
(2) In the application of subsection 45B(2) in relation to a proposed 28
covenant that has the purpose, or would have or be likely to have the effect, 29
of fixing, controlling or maintaining, or providing for the fixing, controlling 30
or maintaining of, the price for, or a discount, allowance, rebate or credit in 31
relation to, goods or services supplied or acquired by the persons who 32
would, or would but for subsection 45B(1), be bound by or entitled to the 33
benefit of the proposed covenant, or by any of them, or by any persons 34
associated with any of them, in competition with each other, 35
38
Competition Policy Reform (Queensland)
paragraph 45B(2)(a) has effect as if all the words after the words "require 1
the giving of a covenant, or give a covenant" were omitted. 2
(3) For the purposes of this Act, a covenant shall not be taken not to 3
have, or not to be likely to have, the effect, or a proposed covenant shall not 4
be taken not to have the purpose, or not to have, or not to be likely to have, 5
the effect, of fixing, controlling or maintaining, or providing for the fixing, 6
controlling or maintaining of, the price for, or a discount, allowance, rebate 7
or credit in relation to, goods or services by reason only of: 8
(a) the form of the covenant or proposed covenant; or 9
(b) any description given to the covenant by any of the persons who 10
are, or but for subsection 45B(1) would be, bound by or entitled 11
to the benefit of the covenant or any description given to the 12
proposed covenant by any of the persons who would, or would 13
but for subsection 45B(1), be bound by or entitled to the benefit 14
of the proposed covenant. 15
(4) For the purposes of the preceding provisions of this section, but 16
without limiting the generality of those provisions: 17
(a) a covenant shall be deemed to have, or to be likely to have, the 18
effect of fixing, controlling or maintaining, or providing for the 19
fixing, controlling or maintaining of, the price for, or a discount, 20
allowance, rebate or credit in relation to, goods or services 21
supplied as mentioned in subsection (1) if the covenant has, or is 22
likely to have, the effect of fixing, controlling or maintaining, or 23
providing for the fixing, controlling or maintaining of, such a 24
price, discount, allowance, rebate or credit in relation to a re- 25
supply of the goods or services by persons to whom the goods or 26
services are supplied by the persons who are, or but for 27
subsection 45B(1) would be, bound by or entitled to the benefit of 28
the covenant, or by any of them, or by any persons associated 29
with any of them; and 30
(b) a proposed covenant shall be deemed to have the purpose, or to 31
have, or to be likely to have, the effect, of fixing, controlling or 32
maintaining, or providing for the fixing, controlling or 33
maintaining of, the price for, or a discount, allowance, rebate or 34
credit in relation to, goods or services supplied as mentioned in 35
subsection (2) if the proposed covenant has the purpose, or would 36
39
Competition Policy Reform (Queensland)
have or be likely to have the effect, as the case may be, of fixing, 1
controlling or maintaining, or providing for the fixing, controlling 2
or maintaining of, such a price, discount, allowance, rebate or 3
credit in relation to a re-supply of the goods or services by 4
persons to whom the goods or services are supplied by the 5
persons who would, or would but for subsection 45B(1), be 6
bound by or entitled to the benefit of the proposed covenant, or by 7
any of them, or by any persons associated with any of them. 8
(5) The reference in subsection (1) to the supply or acquisition of goods 9
or services by persons in competition with each other includes a reference to 10
the supply or acquisition of goods or services by persons who, but for a 11
provision of any contract, arrangement or understanding or of any proposed 12
contract, arrangement or understanding, would be, or would be likely to be, 13
in competition with each other in relation to the supply or acquisition of the 14
goods or services. 15
Boycotts 16
45D.(1) Subject to subsection (2), a person must not, in concert with a 17
second person, engage in conduct that hinders or prevents the supply of 18
goods or services by a third person to a fourth person, or the acquisition of 19
goods or services by a third person from a fourth person, if the conduct is 20
engaged in for the purpose, and would have or be likely to have the effect, 21
of causing a substantial lessening of competition in any market in which the 22
fourth person supplies or acquires goods or services. 23
(2) In determining whether a contravention of subsection (1) has been 24
committed, boycott conduct within the meaning of Division 7 of Part VI of 25
the Industrial Relations Act 1988 is to be disregarded. 26
(3) This section does not affect the operation of any other provision of 27
this Part. 28
Misuse of market power 29
46.(1) A person (the "first person") who has a substantial degree of 30
power in a market shall not take advantage of that power for the purpose of: 31
(a) eliminating or substantially damaging a competitor of the first 32
person or of a body corporate that is related to the first person in 33
40
Competition Policy Reform (Queensland)
that or any other market; 1
(b) preventing the entry of a person into that or any other market; or 2
(c) deterring or preventing a person from engaging in competitive 3
conduct in that or any other market. 4
(1A) For the purposes of subsection (1): 5
(a) the reference in paragraph (1)(a) to a competitor includes a 6
reference to competitors generally, or to a particular class or 7
classes of competitors; and 8
(b) the reference in paragraphs (1)(b) and (c) to a person includes a 9
reference to persons generally, or to a particular class or classes of 10
persons. 11
(2) If: 12
(a) a body corporate that is related to a person (the "first person") 13
has, or 2 or more bodies corporate each of which is related to the 14
one person (the "first person") together have, a substantial 15
degree of power in a market; or 16
(b) a person (the "first person") and a body corporate that is, or a 17
person (the "first person") and 2 or more bodies corporate each 18
of which is, related to the first person, together have a substantial 19
degree of power in a market; 20
the first person shall be taken for the purposes of this section to have a 21
substantial degree of power in that market. 22
(3) In determining for the purposes of this section the degree of power 23
that a person (the "first person") or bodies corporate has or have in a 24
market, the Court shall have regard to the extent to which the conduct of the 25
first person or of any of those bodies corporate in that market is constrained 26
by the conduct of: 27
(a) competitors, or potential competitors, of the first person or of any 28
of those bodies corporate in that market; or 29
(b) persons to whom or from whom the first person or any of those 30
bodies corporate supplies or acquires goods or services in that 31
market. 32
(4) In this section: 33
41
Competition Policy Reform (Queensland)
(a) a reference to power is a reference to market power; 1
(b) a reference to a market is a reference to a market for goods or 2
services; and 3
(c) a reference to power in relation to, or to conduct in, a market is a 4
reference to power, or to conduct, in that market either as a 5
supplier or as an acquirer of goods or services in that market. 6
(5) Without extending by implication the meaning of subsection (1), a 7
person shall not be taken to contravene that subsection by reason only that 8
the person acquires plant or equipment. 9
(6) This section does not prevent a person from engaging in conduct that 10
does not constitute a contravention of any of the following sections, namely, 11
sections 45, 45B, 47 and 50, by reason that an authorization is in force or by 12
reason of the operation of section 93. 13
(7) Without in any way limiting the manner in which the purpose of a 14
person may be established for the purposes of any other provision of this 15
Act, a person may be taken to have taken advantage of the person's power 16
for a purpose referred to in subsection (1) notwithstanding that, after all the 17
evidence has been considered, the existence of that purpose is ascertainable 18
only by inference from the conduct of the person or of any other person or 19
from other relevant circumstances. 20
Exclusive dealing 21
47.(1) Subject to this section, a person shall not, in trade or commerce, 22
engage in the practice of exclusive dealing. 23
(2) A person (the "first person") engages in the practice of exclusive 24
dealing if the first person: 25
(a) supplies, or offers to supply, goods or services; 26
(b) supplies, or offers to supply, goods or services at a particular 27
price; or 28
(c) gives or allows, or offers to give or allow, a discount, allowance, 29
rebate or credit in relation to the supply or proposed supply of 30
goods or services by the first person; 31
on the condition that the person (the "second person") to whom the first 32
42
Competition Policy Reform (Queensland)
person supplies, or offers or proposes to supply, the goods or services or, if 1
the second person is a body corporate, a body corporate related to that body 2
corporate: 3
(d) will not, or will not except to a limited extent, acquire goods or 4
services, or goods or services of a particular kind or description, 5
directly or indirectly from a competitor of the first person or from 6
a competitor of a body corporate related to the first person; 7
(e) will not, or will not except to a limited extent, re-supply goods or 8
services, or goods or services of a particular kind or description, 9
acquired directly or indirectly from a competitor of the first 10
person or from a competitor of a body corporate related to the 11
first person; or 12
(f) in the case where the first person supplies or would supply goods 13
or services, will not re-supply the goods or services to any 14
person, or will not, or will not except to a limited extent, 15
re-supply the goods or services: 16
(i) to particular persons or classes of persons or to persons 17
other than particular persons or classes of persons; or 18
(ii) in particular places or classes of places or in places other 19
than particular places or classes of places. 20
(3) A person (the "first person") also engages in the practice of 21
exclusive dealing if the first person refuses: 22
(a) to supply goods or services to a second person; 23
(b) to supply goods or services to a second person at a particular 24
price; or 25
(c) to give or allow a discount, allowance, rebate or credit in relation 26
to the supply or proposed supply of goods or services to a second 27
person; 28
for the reason that the second person or, if the second person is a body 29
corporate, a body corporate related to that body corporate: 30
(d) has acquired, or has not agreed not to acquire, goods or services, 31
or goods or services of a particular kind or description, directly or 32
indirectly from a competitor of the first person or from a 33
competitor of a body corporate related to the first person; 34
43
Competition Policy Reform (Queensland)
(e) has re-supplied, or has not agreed not to re-supply, goods or 1
services, or goods or services of a particular kind or description, 2
acquired directly or indirectly from a competitor of the first 3
person or from a competitor of a body corporate related to the 4
first person; or 5
(f) has re-supplied, or has not agreed not to re-supply, goods or 6
services, or goods or services of a particular kind or description, 7
acquired from the first person to any person, or has re-supplied, 8
or has not agreed not to re-supply, goods or services, or goods or 9
services of a particular kind or description, acquired from the first 10
person: 11
(i) to particular persons or classes of persons or to persons 12
other than particular persons or classes of persons; or 13
(ii) in particular places or classes of places or in places other 14
than particular places or classes of places. 15
(4) A person (the "first person") also engages in the practice of 16
exclusive dealing if the first person: 17
(a) acquires, or offers to acquire, goods or services; or 18
(b) acquires, or offers to acquire, goods or services at a particular 19
price; 20
on the condition that the person (the "second person") from whom the 21
first person acquires or offers to acquire the goods or services or, if the 22
second person is a body corporate, a body corporate related to that body 23
corporate will not supply goods or services, or goods or services of a 24
particular kind or description, to any person, or will not, or will not except 25
to a limited extent, supply goods or services, or goods or services of a 26
particular kind or description: 27
(c) to particular persons or classes of persons or to persons other 28
than particular persons or classes of persons; or 29
(d) in particular places or classes of places or in places other than 30
particular places or classes of places. 31
(5) A person (the "first person") also engages in the practice of 32
exclusive dealing if the first person refuses: 33
(a) to acquire goods or services from a second person; or 34
44
Competition Policy Reform (Queensland)
(b) to acquire goods or services at a particular price from a second 1
person; 2
for the reason that the second person or, if the second person is a body 3
corporate, a body corporate related to that body corporate has supplied, or 4
has not agreed not to supply, goods or services, or goods or services of a 5
particular kind or description: 6
(c) to particular persons or classes of persons or to persons other 7
than particular persons or classes of persons; or 8
(d) in particular places or classes of places or in places other than 9
particular places or classes of places. 10
(6) A person (the "first person") also engages in the practice of 11
exclusive dealing if the first person: 12
(a) supplies, or offers to supply, goods or services; 13
(b) supplies, or offers to supply, goods or services at a particular 14
price; or 15
(c) gives or allows, or offers to give or allow, a discount, allowance, 16
rebate or credit in relation to the supply or proposed supply of 17
goods or services by the first person; 18
on the condition that the person (the "second person") to whom the first 19
person supplies or offers or proposes to supply the goods or services or, if 20
the second person is a body corporate, a body corporate related to that body 21
corporate will acquire goods or services of a particular kind or description 22
directly or indirectly from another person. 23
(7) A person (the "first person") also engages in the practice of 24
exclusive dealing if the first person refuses: 25
(a) to supply goods or services to a second person; 26
(b) to supply goods or services at a particular price to a second 27
person; or 28
(c) to give or allow a discount, allowance, rebate or credit in relation 29
to the supply of goods or services to a second person; 30
for the reason that the second person or, if the second person is a body 31
corporate, a body corporate related to that body corporate has not acquired, 32
or has not agreed to acquire, goods or services of a particular kind or 33
45
Competition Policy Reform (Queensland)
description directly or indirectly from another person. 1
(8) A person (the "first person") also engages in the practice of 2
exclusive dealing if the first person grants or renews, or makes it known 3
that the first person will not exercise a power or right to terminate, a lease 4
of, or a licence in respect of, land or a building or part of a building on the 5
condition that another party to the lease or licence or, if that other party is a 6
body corporate, a body corporate related to that body corporate: 7
(a) will not, or will not except to a limited extent: 8
(i) acquire goods or services, or goods or services of a 9
particular kind or description, directly or indirectly from a 10
competitor of the first person or from a competitor of a body 11
corporate related to the first person; or 12
(ii) re-supply goods or services, or goods or services of a 13
particular kind or description, acquired directly or indirectly 14
from a competitor of the first person or from a competitor of 15
a body corporate related to the first person; 16
(b) will not supply goods or services, or goods or services of a 17
particular kind or description, to any person, or will not, or will 18
not except to a limited extent, supply goods or services, or goods 19
or services of a particular kind or description: 20
(i) to particular persons or classes of persons or to persons 21
other than particular persons or classes of persons; or 22
(ii) in particular places or classes of places or in places other 23
than particular places or classes of places; or 24
(c) will acquire goods or services of a particular kind or description 25
directly or indirectly from another person not being a body 26
corporate related to the first person. 27
(9) A person (the "first person") also engages in the practice of 28
exclusive dealing if the first person refuses to grant or renew, or exercises a 29
power or right to terminate, a lease of, or a licence in respect of, land or a 30
building or part of a building for the reason that another party to the lease or 31
licence or, if that other party is a body corporate, a body corporate related to 32
that body corporate: 33
(a) has acquired, or has not agreed not to acquire, goods or services, 34
or goods or services of a particular kind or description, directly or 35
46
Competition Policy Reform (Queensland)
indirectly from a competitor of the first person or from a 1
competitor of a body corporate related to the first person; 2
(b) has re-supplied, or has not agreed not to re-supply, goods or 3
services, or goods or services of a particular kind or description, 4
acquired directly or indirectly from a competitor of the first 5
person or from a competitor of a body corporate related to the 6
first person; 7
(c) has supplied goods or services, or goods or services of a 8
particular kind or description: 9
(i) to particular persons or classes of persons or to persons 10
other than particular persons or classes of persons; or 11
(ii) in particular places or classes of places or in places other 12
than particular places or classes of places; or 13
(d) has not acquired, or has not agreed to acquire, goods or services 14
of a particular kind or description directly or indirectly from 15
another person not being a body corporate related to the first 16
person. 17
(10) Subsection (1) does not apply to the practice of exclusive dealing 18
constituted by a person engaging in conduct of a kind referred to in 19
subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) 20
unless: 21
(a) the engaging by the person in that conduct has the purpose, or has 22
or is likely to have the effect, of substantially lessening 23
competition; or 24
(b) the engaging by the person in that conduct, and the engaging by 25
the person, or by a body corporate related to the person, in other 26
conduct of the same or a similar kind, together have or are likely 27
to have the effect of substantially lessening competition. 28
(l0A) Subsection (1) does not apply to a person engaging in conduct 29
described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if: 30
(a) the person has given the Commission a notice under 31
subsection 93(1) describing the conduct; and 32
(b) the notice is in force under section 93. 33
(11) Subsections (8) and (9) do not apply with respect to: 34
47
Competition Policy Reform (Queensland)
(a) conduct engaged in by, or by a trustee for, a religious, charitable 1
or public benevolent institution, being conduct engaged in for or 2
in accordance with the purposes or objects of that institution; or 3
(b) conduct engaged in in pursuance of a legally enforceable 4
requirement made by, or by a trustee for, a religious, charitable or 5
public benevolent institution, being a requirement made for or in 6
accordance with the purposes or objects of that institution. 7
(12) Subsection (1) does not apply with respect to any conduct engaged 8
in by a body corporate by way of restricting dealings by another body 9
corporate if those bodies corporate are related to each other. 10
(13) In this section: 11
(a) a reference to a condition shall be read as a reference to any 12
condition, whether direct or indirect and whether having legal or 13
equitable force or not, and includes a reference to a condition the 14
existence or nature of which is ascertainable only by inference 15
from the conduct of persons or from other relevant 16
circumstances; 17
(b) a reference to competition, in relation to conduct to which a 18
provision of this section other than subsection (8) or (9) applies, 19
shall be read as a reference to competition in any market in which: 20
(i) the person engaging in the conduct or any body corporate 21
related to that person; or 22
(ii) any person whose business dealings are restricted, limited or 23
otherwise circumscribed by the conduct or, if that person is a 24
body corporate, any body corporate related to that body 25
corporate; 26
supplies or acquires, or is likely to supply or acquire, goods or 27
services or would, but for the conduct, supply or acquire, or be 28
likely to supply or acquire, goods or services; and 29
(c) a reference to competition, in relation to conduct to which 30
subsection (8) or (9) applies, shall be read as a reference to 31
competition in any market in which the person engaging in the 32
conduct or any other person whose business dealings are 33
restricted, limited or otherwise circumscribed by the conduct, or 34
any body corporate related to either of those persons, supplies or 35
48
Competition Policy Reform (Queensland)
acquires, or is likely to supply or acquire, goods or services or 1
would, but for the conduct, supply or acquire, or be likely to 2
supply or acquire, goods or services. 3
Resale price maintenance 4
48. A person shall not engage in the practice of resale price maintenance. 5
Prohibition of acquisitions that would result in a substantial lessening 6
of competition 7
50.(1) A person must not directly or indirectly: 8
(a) acquire shares in the capital of a body corporate; or 9
(b) acquire any assets of a person; 10
if the acquisition would have the effect, or be likely to have the effect, of 11
substantially lessening competition in a market. 12
(3) Without limiting the matters that may be taken into account for the 13
purposes of subsection (1) in determining whether the acquisition would 14
have the effect, or be likely to have the effect, of substantially lessening 15
competition in a market, the following matters must be taken into account: 16
(a) the actual and potential level of import competition in the market; 17
(b) the height of barriers to entry to the market; 18
(c) the level of concentration in the market; 19
(d) the degree of countervailing power in the market; 20
(e) the likelihood that the acquisition would result in the acquirer 21
being able to significantly and sustainably increase prices or profit 22
margins; 23
(f) the extent to which substitutes are available in the market or are 24
likely to be available in the market; 25
(g) the dynamic characteristics of the market, including growth, 26
innovation and product differentiation; 27
(h) the likelihood that the acquisition would result in the removal 28
from the market of a vigorous and effective competitor; 29
49
Competition Policy Reform (Queensland)
(i) the nature and extent of vertical integration in the market. 1
(4) Where: 2
(a) a person has entered into a contract to acquire shares in the capital 3
of a body corporate or assets of a person; 4
(b) the contract is subject to a condition that the provisions of the 5
contract relating to the acquisition will not come into force unless 6
and until the person has been granted an authorization to acquire 7
the shares or assets; and 8
(c) the person applied for the grant of such an authorization before 9
the expiration of 14 days after the contract was entered into; 10
the acquisition of the shares or assets shall not be regarded for the purposes 11
of this Act as having taken place in pursuance of the contract before: 12
(d) the application for the authorization is disposed of; or 13
(e) the contract ceases to be subject to the condition; 14
whichever first happens. 15
(5) For the purposes of subsection (4), an application for an authorization 16
shall be taken to be disposed of: 17
(a) in a case to which paragraph (b) of this subsection does not 18
apply--at the expiration of 14 days after the period in which an 19
application may be made to the Tribunal for a review of the 20
determination by the Commission of the application for the 21
authorization; or 22
(b) if an application is made to the Tribunal for a review of the 23
determination by the Commission of the application for the 24
authorization--at the expiration of 14 days after the date of the 25
making by the Tribunal of a determination on the review. 26
(6) In this section: 27
"market" means a substantial market for goods or services in Australia, in 28
a State or in a Territory. 29
Exceptions 30
51.(1) In deciding whether a person has contravened this Part, the 31
50
Competition Policy Reform (Queensland)
following must be disregarded: 1
(a) anything that is disregarded for the purposes of Part IV of the 2
Trade Practices Act 1974 because of subsection 51(1) of that 3
Act; 4
(b) anything done in a State, if the thing is specified in, and 5
specifically authorised by: 6
(i) an Act passed by the Parliament of that State; or 7
(ii) regulations made under such an Act; 8
(c) anything done in the Australian Capital Territory, if the thing is 9
specified in, and specifically authorised by: 10
(i) an enactment as defined in section 3 of the Australian 11
Capital Territory (Self-Government) Act 1988; or 12
(ii) regulations made under such an enactment; 13
(d) anything done in the Northern Territory, if the thing is specified 14
in, and specifically authorised by: 15
(i) an enactment as defined in section 4 of the Northern 16
Territory (Self-Government) Act 1978; or 17
(ii) regulations made under such an enactment; 18
(e) anything done in another Territory, if the thing is specified in, and 19
specifically authorised by: 20
(i) an Ordinance of that Territory; or 21
(ii) regulations made under such an Ordinance. 22
(1A) Without limiting subsection (1), conduct is taken to be specified in, 23
and authorised by, a law for the purposes of that subsection if: 24
(a) a licence or other instrument issued or made under the law 25
specifies one or both of the following: 26
(i) the person authorised to engage in the conduct; 27
(ii) the place where the conduct is to occur; and 28
(b) the law specifies the attributes of the conduct except those 29
mentioned in paragraph (a). 30
For this purpose, "law" means a State Act, enactment or Ordinance. 31
51
Competition Policy Reform (Queensland)
(1B) Subsections (1) and (lA) apply regardless of when the State Acts, 1
enactments, Ordinances, regulations or instruments referred to in those 2
subsections were passed, made or issued. 3
(1C) The operation of subsection (1) (other than paragraph (1)(a)) is 4
subject to the following limitations: 5
(a) in order for something to be regarded as specifically authorised 6
for the purposes of subsection (1), the authorising provision must 7
expressly refer to the Competition Code; 8
(b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding 9
whether a person has contravened section 50; 10
(c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii) or 11
(e)(ii) do not have the effect of requiring a particular thing to be 12
disregarded if the thing happens more than 2 years after those 13
regulations came into operation; 14
(d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii) 15
do not have the effect of requiring a particular thing to be 16
disregarded to the extent that the regulations are the same in 17
substance as other regulations that: 18
(i) were made for the purposes of the subparagraph concerned; 19
and 20
(ii) came into operation more than 2 years before the particular 21
thing happened. 22
(2) In determining whether a contravention of a provision of this Part 23
other than section 48 has been committed, regard shall not be had: 24
(a) to any act done in relation to, or to the making of a contract or 25
arrangement or the entering into of an understanding, or to any 26
provision of a contract, arrangement or understanding, to the 27
extent that the contract, arrangement or understanding, or the 28
provision, relates to, the remuneration, conditions of 29
employment, hours of work or working conditions of employees; 30
(b) to any provision of a contract of service or of a contract for the 31
provision of services, being a provision under which a person, 32
not being a body corporate, agrees to accept restrictions as to the 33
work, whether as an employee or otherwise, in which he may 34
engage during, or after the termination of, the contract; 35
52
Competition Policy Reform (Queensland)
(c) to any provision of a contract, arrangement or understanding, 1
being a provision obliging a person to comply with or apply 2
standards of dimension, design, quality or performance prepared 3
or approved by the Standards Association of Australia or by a 4
prescribed association or body; 5
(d) to any provision of a contract, arrangement or understanding 6
between partners none of whom is a body corporate, being a 7
provision in relation to the terms of the partnership or the conduct 8
of the partnership business or in relation to competition between 9
the partnership and a party to the contract, arrangement or 10
understanding while he is, or after he ceases to be, a partner; 11
(e) in the case of a contract for the sale of a business or of shares in 12
the capital of a body corporate carrying on a business--to any 13
provision of the contract that is solely for the protection of the 14
purchaser in respect of the goodwill of the business; or 15
(g) to any provision of a contract, arrangement or understanding, 16
being a provision that relates exclusively to the export of goods 17
from Australia or to the supply of services outside Australia, if 18
full and accurate particulars of the provision (not including 19
particulars of prices for goods or services but including 20
particulars of any method of fixing, controlling or maintaining 21
such prices) were furnished to the Commission before the 22
expiration of 14 days after the date on which the contract or 23
arrangement was made or the understanding was arrived at, or 24
before 8 September 1976, whichever was the later. 25
(2A) In determining whether a contravention of a provision of this Part 26
other than section 48 has been committed, regard shall not be had to any 27
acts done, otherwise than in the course of trade or commerce, in concert by 28
ultimate users or consumers of goods or services against the suppliers of 29
those goods or services. 30
(3) A contravention of a provision of this Part other than section 46 or 48 31
shall not be taken to have been committed by reason of: 32
(a) the imposing of, or giving effect to, a condition of: 33
(i) a licence granted by the proprietor, licensee or owner of a 34
patent, of a registered design, of a copyright or of EL rights 35
within the meaning of the Circuit Layouts Act 1989, or by a 36
53
Competition Policy Reform (Queensland)
person who has applied for a patent or for the registration of 1
a design; or 2
(ii) an assignment of a patent, of a registered design, of a 3
copyright or of such EL rights, or of the right to apply for a 4
patent or for the registration of a design; 5
to the extent that the condition relates to: 6
(iii) the invention to which the patent or application for a patent 7
relates or articles made by the use of that invention; 8
(iv) goods in respect of which the design is, or is proposed to be, 9
registered and to which it is applied; 10
(v) the work or other subject matter in which the copyright 11
subsists; or 12
(vi) the eligible layout in which the EL rights subsist; 13
(b) the inclusion in a contract, arrangement or understanding 14
authorizing the use of a certification trade mark of a provision in 15
accordance with rules applicable under Part XI of the Trade 16
Marks Act 1955, or the giving effect to such a provision; or 17
(c) the inclusion in a contract, arrangement or understanding 18
between: 19
(i) the registered proprietor of a trade mark other than a 20
certification trade mark; and 21
(ii) a person registered as a registered user of that trade mark 22
under Part IX of the Trade Marks Act 1955 or a person 23
authorized by the contract to use the trade mark subject to his 24
becoming registered as such a registered user; 25
of a provision to the extent that it relates to the kinds, qualities or 26
standards of goods bearing the mark that may be produced or 27
supplied, or the giving effect to the provision to that extent. 28
(4) This section applies in determining whether a provision of a contract 29
is unenforceable by reason of subsection 45(1), or whether a covenant is 30
unenforceable by reason of subsection 45B(1), in like manner as it applies 31
in determining whether a contravention of a provision of this Part has been 32
committed. 33
54
Competition Policy Reform (Queensland)
© State of Queensland 1995
[Index] [Search] [Download] [Related Items] [Help]