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Tuesday, 16 June 2009
Page: 6117

Bill returned from the Senate with amendments.

Ordered that the amendments be considered immediately.

Senate’s amendments—

(1)    Schedule 1, item 19, page 21 (line 21), after “Note”, insert “1”.

(2)    Schedule 1, item 19, page 21 (after line 22), at the end of subsection 44ZZRO(1), add:

Note 2:  For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(3)    Schedule 1, item 19, page 21 (before line 23), before subsection 44ZZRO(2), insert:

      (1A)    Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    the cartel provision is for the purposes of a joint venture; and

              (d)    the joint venture is for the production and/or supply of goods or services; and

              (e)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

               (f)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note 1:  A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

Note 2:  For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

       (1B)    Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

              (d)    the cartel provision is for the purposes of a joint venture; and

              (e)    the joint venture is for the production and/or supply of goods or services; and

               (f)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

              (g)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note 1:  A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

Note 2:  For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(4)    Schedule 1, item 19, page 21 (line 24), after “subsection (1)”, insert “, (1A) or (1B)”.

(5)    Schedule 1, item 19, page 21 (line 30), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(6)    Schedule 1, item 19, page 21 (line 34), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(7)    Schedule 1, item 19, page 22 (line 2), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(8)    Schedule 1, item 19, page 22 (after line 28), at the end of subsection 44ZZRP(1), add:

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(9)    Schedule 1, item 19, page 22 (before line 29), before subsection 44ZZRP(2), insert:

      (1A)    Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    the cartel provision is for the purposes of a joint venture; and

              (d)    the joint venture is for the production and/or supply of goods or services; and

              (e)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

               (f)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

       (1B)    Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

              (d)    the cartel provision is for the purposes of a joint venture; and

              (e)    the joint venture is for the production and/or supply of goods or services; and

               (f)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

              (g)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(10)  Schedule 1, item 19, page 22 (line 29), after “subsection (1)”, insert “, (1A) or (1B)”.

(11)  Schedule 1, item 126, page 67 (after line 29), at the end of subsection 44ZZRO(1), add:

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(12)  Schedule 1, item 126, page 67 (before line 30), before subsection 44ZZRO(2), insert:

      (1A)    Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    the cartel provision is for the purposes of a joint venture; and

              (d)    the joint venture is for the production and/or supply of goods or services; and

              (e)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

               (f)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

       (1B)    Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

              (d)    the cartel provision is for the purposes of a joint venture; and

              (e)    the joint venture is for the production and/or supply of goods or services; and

               (f)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

              (g)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(13)  Schedule 1, item 126, page 67 (line 30), after “subsection (1)”, insert “, (1A) or (1B)”.

(14)  Schedule 1, item 126, page 68 (line 2), after “subsection (1)”, insert “, (1A) or (1B)”.

(15)  Schedule 1, item 126, page 68 (line 8), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(16)  Schedule 1, item 126, page 68 (line 12), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(17)  Schedule 1, item 126, page 68 (line 16), after “subsection (1)”, insert “, (1A) or (1B), as the case may be”.

(18)  Schedule 1, item 126, page 69 (after line 6), at the end of subsection 44ZZRP(1), add:

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(19)  Schedule 1, item 126, page 69 (before line 7), before subsection 44ZZRP(2), insert:

      (1A)    Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    the cartel provision is for the purposes of a joint venture; and

              (d)    the joint venture is for the production and/or supply of goods or services; and

              (e)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

               (f)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

       (1B)    Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

              (a)    the arrangement or understanding is not a contract; and

              (b)    when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                    (i)    intended the arrangement or understanding to be a contract; and

                   (ii)    reasonably believed that the arrangement or understanding was a contract; and

              (c)    when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

              (d)    the cartel provision is for the purposes of a joint venture; and

              (e)    the joint venture is for the production and/or supply of goods or services; and

               (f)    in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

              (g)    in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                    (i)    their joint control; or

                   (ii)    their ownership of shares in the capital;

                       of that body corporate.

Note:   For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

(20)  Schedule 1, item 126, page 69 (line 7), after “subsection (1)”, insert “, (1A) or (1B)”.

Mr BURKE (Watson —Minister for Agriculture, Fisheries and Forestry) [4:56 PM] —I move:

That the amendments be agreed to.

Question agreed to.