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Schedule 3—Price signalling and concerted practices

Schedule 3 Price signalling and concerted practices

Part 1 Main amendments

Competition and Consumer Act 2010

1  Division 1A of Part IV

Repeal the Division.

2  Subsections 45(1) to (3)

Repeal the subsections, substitute:

             (1)  A corporation must not:

                     (a)  make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

                     (b)  give effect to a provision of a contract, arrangement or understanding, if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition; or

                     (c)  engage with one or more persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.

             (2)  Paragraph (1)(b) applies in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this section.

             (3)  For the purposes of this section, competition means:

                     (a)  in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding—competition in any market in which:

                              (i)  a corporation that is a party to the contract, arrangement or understanding, or would be a party to the proposed contract, arrangement or understanding; or

                             (ii)  any body corporate related to such a corporation;

                            supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services; or

                     (b)  in relation to a concerted practice—competition in any market in which:

                              (i)  a corporation that is a party to the practice; or

                             (ii)  any body corporate related to such a corporation;

                            supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the practice, supply or acquire, or be likely to supply or acquire, goods or services.

3  After subsection 45(5)

Insert:

          (5A)  The making of a contract, arrangement or understanding does not constitute a contravention of this section because the contract, arrangement or understanding contains a provision the giving effect to which would, or would apart from subsection 47(10) or section 88 or 93, constitute a contravention of section 47.

4  Subsection 45(6)

Omit all the words from and including “(6) The” to and including “by way of:”, substitute:

             (6)  This section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding, or to or in relation to engaging in a concerted practice, by way of:

5  Subsections 45(7) and (8)

Repeal the subsections, substitute:

             (7)  This section does not apply to or in relation to:

                     (a)  a contract, arrangement or understanding to the extent that the contract, arrangement or understanding directly or indirectly provides for; or

                     (b)  a proposed contract, arrangement or understanding to the extent that the proposed contract, arrangement or understanding would directly or indirectly provide for; or

                     (c)  a concerted practice to the extent that the practice directly involves;

the acquisition of any shares in the capital of a body corporate or any assets of a person.

             (8)  This section does not apply to or in relation to:

                     (a)  a contract, arrangement or understanding, or

                     (b)  a proposed contract, arrangement or understanding; or

                     (c)  a concerted practice;

the only parties to which are or would be bodies corporate that are related to each other.

       (8AA)  This section does not apply to or in relation to a concerted practice if the only persons engaging in it are or would be:

                     (a)  the Crown in right of the Commonwealth and one or more authorities of the Commonwealth; or

                     (b)  the Crown in right of a State or Territory and one or more authorities of that State or Territory.

6  Division 1A of Part 1 of Schedule 1

Repeal the Division.

7  Subsections 45(1) to (3) of Schedule 1

Repeal the subsections, substitute:

             (1)  A person must not:

                     (a)  make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

                     (b)  give effect to a provision of a contract, arrangement or understanding, if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition; or

                     (c)  engage with one or more other persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.

             (2)  Paragraph (1)(b) applies in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this section.

             (3)  For the purposes of this section, competition means:

                     (a)  in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding—competition in any market in which:

                              (i)  a person who is a party to the contract, arrangement or understanding, or would be a party to the proposed contract, arrangement or understanding; or

                             (ii)  any body corporate related to such a person;

                            supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services; or

                     (b)  in relation to a concerted practice—competition in any market in which:

                              (i)  a person who is a party to the practice; or

                             (ii)  any body corporate related to such a person;

                            supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the practice, supply or acquire, or be likely to supply or acquire, goods or services.

8  After subsection 45(5) of Schedule 1

Insert:

          (5A)  The making of a contract, arrangement or understanding does not constitute a contravention of this section because the contract, arrangement or understanding contains a provision the giving effect to which would, or would apart from subsection 47(10) or section 88 or 93, constitute a contravention of section 47.

9  Subsection 45(6) of Schedule 1

Omit all the words from and including “(6) The” to and including “by way of:”, substitute:

             (6)  This section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding, or to or in relation to engaging in a concerted practice, by way of:

10  Subsections 45(7) and (8) of Schedule 1

Repeal the subsections, substitute:

             (7)  This section does not apply to or in relation to:

                     (a)  a contract, arrangement or understanding to the extent that the contract, arrangement or understanding directly or indirectly provides for; or

                     (b)  a proposed contract, arrangement or understanding to the extent that the proposed contract, arrangement or understanding would directly or indirectly provide for; or

                     (c)  a concerted practice to the extent that the practice directly or indirectly involves;

the acquisition of any shares in the capital of a body corporate or any assets of a person.

             (8)  This section does not apply to or in relation to:

                     (a)  a contract, arrangement or understanding, or

                     (b)  a proposed contract, arrangement or understanding; or

                     (c)  a concerted practice;

the only parties to which are or would be bodies corporate that are related to each other.

       (8AA)  This section does not apply to or in relation to a concerted practice if the only persons engaging in it are or would be:

                     (a)  the Crown in right of the Commonwealth and one or more authorities of the Commonwealth; or

                     (b)  the Crown in right of a State or Territory and one or more authorities of that State or Territory.

Part 2 Other amendments

Competition and Consumer Act 2010

11  Paragraphs 4(2)(a) and (b)

Omit “the requiring of the giving of, or the giving of, a covenant”, substitute “the engaging in of a concerted practice”.

12  Subparagraph 6(2)(b)(i)

Omit “and 44ZZRK, Division 1A of Part IV, and sections”, substitute “, 44ZZRK,”.

13  Paragraph 6(2)(d)

Omit “subsection 45(1) and subparagraph 87(3)(a)(i)”, substitute “paragraph 87(3)(a)”.

14  Subsection 45(8A)

Omit “Subsection (2)”, substitute “Subsection (1)”.

15  Subsection 45(9)

Omit “subsection (2)” (wherever occurring), substitute “subsection (1)”.

16  Paragraph 51(2)(a)

Repeal the paragraph, substitute:

                     (a)  to any act done, or concerted practice, to the extent that it relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

                    (aa)  to:

                              (i)  the making of a contract or arrangement, or the entering into of an understanding; or

                             (ii)  any provision of a contract, arrangement or understanding;

                            to the extent that the contract, arrangement, understanding or provision relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

17  At the end of paragraph 51(2)(b)

Add “or”.

18  Paragraphs 51(2)(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice obliges a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or a prescribed association or body; or

                     (d)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            between partners none of whom is a body corporate, to the extent that the provision or concerted practice relates to:

                            (iii)  the terms of the partnership; or

                            (iv)  the conduct of the partnership business; or

                             (v)  competition between the partnership and a party to the contract, arrangement, understanding or concerted practice, while the party is, or after the party ceases to be, a partner; or

19  Paragraph 51(2)(g)

Repeal the paragraph, substitute:

                     (g)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice relates exclusively to:

                            (iii)  the export of goods from Australia; or

                            (iv)  the supply of services outside Australia;

                            if full and accurate particulars of the provision or concerted practice were given to the Commission no more than 14 days after the day the contract or arrangement was made or the understanding or concerted practice was entered into, or before 8 September 1976, whichever was the later.

20  After subsection 51(2)

Insert:

       (2AA)  For the purposes of paragraph (2)(g), the particulars to be given to the Commission:

                     (a)  need not include particulars of prices for the goods or services; but

                     (b)  must include particulars of any method of fixing, controlling or maintaining such prices.

21  Subsection 51(4)

Repeal the subsection.

22  Paragraph 84(1)(b)

Omit “or 44ZZRK, Division 1A of Part IV, section 46 or 46A”, substitute “, 44ZZRK, 46 or 46A,”.

23  Paragraph 84(3)(b)

Omit “Division 1A of Part IV,”.

24  Paragraph 93AB(1)(a)

Omit “paragraph 45(2)(a)”, substitute “paragraph 45(1)(a)”.

25  Paragraph 93AB(1)(b)

Omit “paragraph 45(2)(b)”, substitute “paragraph 45(1)(b)”.

26  Subsection 93AC(2)

Omit “subparagraph 45(2)(a)(ii) or (b)(ii)”, substitute “paragraph 45(1)(a) or (b)”.

27  Subsection 166(1)

Omit “particulars of, or of a provision of, a contract, arrangement or understanding”, substitute “particulars of a provision of a contract, arrangement or understanding, or particulars of a concerted practice,”.

28  Subsection 166(1)

Omit “contract or to the arrangement or understanding”, substitute “contract, arrangement, understanding or concerted practice”.

29  Subsection 166(3)

Omit “of, or of a provision of, a contract, arrangement or understanding”.

30  Subsection 45(8A) of Schedule 1

Omit “Subsection (2)”, substitute “Subsection (1)”.

31  Subsection 45(9) of Schedule 1

Omit “subsection (2)” (wherever occurring), substitute “subsection (1)”.

32  Paragraph 51(2)(a) of Schedule 1

Repeal the paragraph, substitute:

                     (a)  to any act done, or concerted practice, to the extent that it relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

                    (aa)  to:

                              (i)  the making of a contract or arrangement, or the entering into of an understanding; or

                             (ii)  any provision of a contract, arrangement or understanding;

                            to the extent that the contract, arrangement, understanding or provision relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

33  At the end of paragraph 51(2)(b) of Schedule 1

Add “or”.

34  Paragraphs 51(2)(c) and (d) of Schedule 1

Repeal the paragraphs, substitute:

                     (c)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice obliges a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or a prescribed association or body; or

                     (d)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            between partners none of whom is a body corporate, to the extent that the provision or concerted practice relates to:

                            (iii)  the terms of the partnership; or

                            (iv)  the conduct of the partnership business; or

                             (v)  competition between the partnership and a party to the contract, arrangement, understanding or concerted practice, while the party is, or after the party ceases to be, a partner; or

35  Paragraph 51(2)(g) of Schedule 1

Repeal the paragraph, substitute:

                     (g)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice relates exclusively to:

                            (iii)  the export of goods from Australia; or

                            (iv)  the supply of services outside Australia;

                            if full and accurate particulars of the provision or concerted practice were given to the Commission no more than 14 days after the day the contract or arrangement was made or the understanding or concerted practice was entered into, or before 8 September 1976, whichever was the later.

36  After subsection 51(2) of Schedule 1

Insert:

       (2AA)  For the purposes of paragraph (2)(g), the particulars to be given to the Commission:

                     (a)  need not include particulars of prices for the goods or services; but

                     (b)  must include particulars of any method of fixing, controlling or maintaining such prices.

37  Subsection 51(4) of Schedule 1

Repeal the subsection.