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This is a Bill, not an Act. For current law, see the Acts databases.
COMPETITION AND CONSUMER AMENDMENT BILL (NO. 1) 2011
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Competition and Consumer Amendment
Bill (No. 1) 2011
No. , 2011
(Treasury)
A Bill for an Act to amend the Competition and
Consumer Act 2010, and for related purposes
i Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Competition and Consumer Act 2010
3
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 1
A Bill for an Act to amend the Competition and
1
Consumer Act 2010, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Competition and Consumer
5
Amendment Act (No. 1) 2011.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 3
Schedule 1--Amendments
1
2
Competition and Consumer Act 2010
3
1 Paragraph 6(2)(b)
4
Omit "44ZZRJ, 44ZZRK", substitute "44ZZRJ and 44ZZRK,
5
Division 1A of Part IV, and sections".
6
2 After Division 1 of Part IV
7
Insert:
8
Division 1A--Anti-competitive disclosure of pricing and
9
other information
10
44ZZS Definitions
11
In this Division:
12
disclose has a meaning affected by section 44ZZU.
13
Division 1A goods or services means goods or services to which
14
this Division applies (see section 44ZZT).
15
evidential burden, in relation to a matter, means the burden of
16
adducing or pointing to evidence that suggests a reasonable
17
possibility that the matter exists or does not exist.
18
intermediary: see subsection 44ZZU(3).
19
private disclosure to competitors: see section 44ZZV.
20
44ZZT Goods and services to which this Division applies
21
(1) This Division applies to goods and services of the classes (however
22
described) that are prescribed by the regulations for the purpose of
23
this section.
24
(2) Without limiting subsection (1), the regulations may limit the
25
description of a class of goods or services by reference to any
26
matters including (for example) any one or more of the following:
27
(a) a kind of supplier of goods or services;
28
Schedule 1 Amendments
4 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
(b) a kind of industry or business in which goods or services are
1
supplied;
2
(c) the circumstances in which goods or services are supplied.
3
44ZZU Provisions affecting whether a corporation has disclosed
4
information to a person
5
Disclosure to director, employee or agent etc. of another person
6
(1) For the purpose of this Division:
7
(a) if a corporation makes a disclosure of information to a person
8
in the person's capacity as a director, employee or agent of
9
another body corporate, the disclosure is taken to have been
10
made by the corporation to that body corporate; and
11
(b) if a corporation makes a disclosure of information to a person
12
in the person's capacity as an employee or agent of another
13
person (not being a body corporate), the disclosure is taken to
14
have been made by the corporation to that other person.
15
Disclosure to discloser's own agent
16
(2) For the purpose of this Division, the disclosure of information by a
17
corporation to another person is to be disregarded if:
18
(a) the disclosure is made to the person in the person's capacity
19
as an agent of the corporation; and
20
(b) subsection (3) does not apply to the disclosure.
21
Disclosure through intermediary
22
(3)
If:
23
(a) a corporation makes a disclosure of information to a person
24
(the intermediary); and
25
(b) the corporation makes the disclosure to the intermediary for
26
the purpose of the intermediary disclosing (or arranging for
27
the disclosure of) the information to one or more other
28
persons; and
29
(c) the information is so disclosed to one or more of those other
30
persons (the recipients);
31
then, for the purpose of this Division:
32
(d) the disclosure of the information to the recipients is taken to
33
have been made by the corporation; and
34
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 5
(e) the disclosure of the information to the intermediary is to be
1
disregarded (unless the intermediary is a competitor or
2
potential competitor of the corporation in a market).
3
Accidental disclosure
4
(4) For the purpose of this Division, the disclosure of information by a
5
corporation to a person (the recipient) is to be disregarded if the
6
disclosure to the recipient is due to:
7
(a) an accident; or
8
(b) the default of a person other than the corporation; or
9
(c) some other cause beyond the control of the corporation.
10
Note:
This subsection does not apply to a disclosure of information covered
11
by subsection (3).
12
Section 84 not limited
13
(5) This section does not limit section 84.
14
44ZZV Meaning of private disclosure to competitors
15
Main definition
16
(1) A disclosure of information by a corporation is a private disclosure
17
to competitors, in relation to a particular market, if the disclosure is
18
to one or more competitors or potential competitors of the
19
corporation in that market, and is not to any other person.
20
Note:
The effect of section 44ZZU must be taken into account in working
21
out whether the disclosure is to one or more competitors or potential
22
competitors, and is not to any other person.
23
Anti-avoidance
24
(2) For the purpose of determining whether a corporation has made a
25
private disclosure to competitors in relation to a particular market,
26
the fact that the disclosure is also made to a person who is not a
27
competitor or potential competitor of the corporation in that market
28
is to be disregarded if:
29
(a) for a disclosure that is not made through an intermediary--
30
the corporation made the disclosure to the person for the
31
purpose of avoiding the application of section 44ZZW to the
32
disclosure; or
33
Schedule 1 Amendments
6 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
(b) for a disclosure that is made through an intermediary--either:
1
(i) the corporation directed or requested the intermediary to
2
disclose the information to the person for the purpose of
3
avoiding the application of section 44ZZW to the
4
disclosure; or
5
(ii) the intermediary disclosed the information to the person
6
for the purpose of avoiding the application of
7
section 44ZZW to the disclosure.
8
Fact that the information is otherwise available is not relevant
9
(3) The question whether a disclosure of information by a corporation
10
is a private disclosure to competitors is not affected by the
11
information otherwise being or becoming available to competitors
12
or potential competitors of the corporation in the market, or to
13
other persons.
14
44ZZW Corporation must not make private disclosure of pricing
15
information etc. to competitors
16
A corporation must not make a disclosure of information if:
17
(a) the information relates to a price for, or a discount,
18
allowance, rebate or credit in relation to, Division 1A goods
19
or services supplied or likely to be supplied, or acquired or
20
likely to be acquired, by the corporation in a market (whether
21
or not the information also relates to other matters); and
22
(b) the disclosure is a private disclosure to competitors in
23
relation to that market.
24
Note:
Conduct that would otherwise contravene this section can be
25
authorised under subsection 88(6A).
26
44ZZX Corporation must not make disclosure of pricing
27
information etc. for purpose of substantially lessening
28
competition
29
The prohibition
30
(1) A corporation must not make a disclosure of information if:
31
(a) the information relates to one or more of the following
32
(whether or not it also relates to other matters):
33
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 7
(i) a price for, or a discount, allowance, rebate or credit in
1
relation to, Division 1A goods or services supplied or
2
likely to be supplied, or acquired or likely to be
3
acquired, by the corporation;
4
(ii) the capacity, or likely capacity, of the corporation to
5
supply or acquire Division 1A goods or services;
6
(iii) any aspect of the commercial strategy of the corporation
7
that relates to Division 1A goods or services; and
8
(b) the corporation makes the disclosure for the purpose of
9
substantially lessening competition in a market.
10
Note:
Conduct that would otherwise contravene this section can be
11
authorised under subsection 88(6A) or notified under subsection
12
93(1).
13
Determining whether disclosure made for purpose of substantially
14
lessening competition
15
(2) In determining, for the purpose of this section, if a corporation has
16
made a disclosure for the purpose of substantially lessening
17
competition in a market, the matters to which the court may have
18
regard include (but are not limited to):
19
(a) whether the disclosure was a private disclosure to
20
competitors in relation to that market; and
21
(b) the degree of specificity of the information; and
22
(c) whether the information relates to past, current or future
23
activities; and
24
(d) how readily available the information is to the public; and
25
(e) whether the disclosure is part of a pattern of similar
26
disclosures by the corporation.
27
(3) Without limiting the manner in which the purpose of a person may
28
be established for the purposes of any other provision of this Act, a
29
corporation may be taken to have made a disclosure of information
30
for the purpose of substantially lessening competition in a market
31
even though, after all the evidence has been considered, the
32
existence of that purpose is ascertainable only by inference from
33
the conduct of the corporation or of any other person or from other
34
relevant circumstances.
35
Schedule 1 Amendments
8 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
44ZZY Exceptions that apply to sections 44ZZW and 44ZZX
1
Disclosure authorised by law: general exception for 10 years
2
(1) Sections 44ZZW and 44ZZX do not apply to the disclosure of
3
information by a corporation if:
4
(a) the disclosure is authorised by or under a law of the
5
Commonwealth, a State or a Territory; and
6
(b) the disclosure occurs before the end of 10 years after the day
7
on which the Competition and Consumer Amendment Act
8
(No. 1) 2011 receives the Royal Assent.
9
Note:
This subsection has effect in addition to:
10
(a) subsection (6) (which covers compliance with continuous
11
disclosure requirements of the Corporations Act 2001); and
12
(b) subsection 51(1) (which covers things authorised by certain
13
laws).
14
Disclosure to related bodies corporate
15
(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of
16
information by a corporation if the disclosure is to one or more
17
bodies corporate that are related to the corporation, and is not to
18
any other person.
19
Note:
The effect of section 44ZZU must be taken into account in working
20
out whether the disclosure is to one or more bodies corporate that are
21
related to the corporation, and is not to any other person.
22
Disclosure for collective bargaining
23
(3) Sections 44ZZW and 44ZZX do not apply to the disclosure of
24
information by a corporation if:
25
(a)
the
corporation has given the Commission a collective
26
bargaining notice under subsection 93AB(1A) or (1) setting
27
out particulars of a contract or proposed contract; and
28
(b) the notice is in force; and
29
(c) the disclosure is to one or more of the other contracting
30
parties, and is not to any other person; and
31
(d) the disclosure of the information:
32
(i) if the notice relates to a contract--is required by the
33
contract; or
34
(ii) if the notice relates to a proposed contract--is made in
35
the course of negotiations for the proposed contract or,
36
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 9
if the proposed contract is entered into, is required by
1
the contract.
2
Note:
The effect of section 44ZZU must be taken into account in working
3
out whether the disclosure is to one or more of the other contracting
4
parties, and is not to any other person.
5
Disclosure in course of authorised conduct
6
(4) Sections 44ZZW and 44ZZX do not apply to the disclosure of
7
information by a corporation if:
8
(a) an authorisation under section 88 (other than subsection
9
88(6A)) applies to or in relation to the corporation; and
10
(b) the authorisation is in force; and
11
(c) the disclosure of the information is made in the course of
12
engaging in conduct that is covered by the authorisation.
13
Note:
A disclosure that would otherwise contravene section 44ZZW or
14
44ZZX can also be directly authorised under subsection 88(6A).
15
Disclosure covered by notification under section 93
16
(5) Sections 44ZZW and 44ZZX do not apply to the disclosure of
17
information by a corporation if:
18
(a) the corporation has given the Commission a notice under
19
subsection 93(1) describing conduct; and
20
(b) the disclosure is conduct described in the notice; and
21
(c) the notice is in force under section 93.
22
Compliance with continuous disclosure requirements of the
23
Corporations Act 2001
24
(6) Sections 44ZZW and 44ZZX do not apply to the disclosure of
25
information by a corporation if the disclosure is made for the
26
purpose of complying with Chapter 6CA of the Corporations Act
27
2001.
28
44ZZZ Additional exceptions that only apply to section 44ZZW
29
Disclosure of information to acquirer or supplier of goods or
30
services
31
(1) Section 44ZZW does not apply to the disclosure of information by
32
a corporation to a person (the recipient) if:
33
Schedule 1 Amendments
10 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
(a) the information relates to goods or services supplied or likely
1
to be supplied, by the corporation to the recipient; or
2
(b) the information relates to goods or services acquired or likely
3
to be acquired, by the corporation from the recipient.
4
Disclosure to unknown competitor
5
(2) Section 44ZZW does not apply to the disclosure of information by
6
a corporation to a person if:
7
(a) the person is a competitor or potential competitor of the
8
corporation in the market referred to in that section; and
9
(b) the corporation did not know, and could not reasonably be
10
expected to have known, that the person was such a
11
competitor or potential competitor.
12
Disclosure to participants in joint venture
13
(3) Section 44ZZW does not apply to the disclosure of information by
14
a corporation if:
15
(a)
either:
16
(i) the corporation is a participant in a joint venture for the
17
production and/or supply of goods or services; or
18
(ii) the corporation proposes to enter into a joint venture
19
with one or more other persons (the proposed
20
participants); and
21
(b) the disclosure is to one or more participants or proposed
22
participants in the joint venture, and is not to any other
23
person; and
24
(c) the disclosure is made for the purposes of the joint venture or
25
in the course of negotiations for the joint venture.
26
Note:
The effect of section 44ZZU must be taken into account in working
27
out whether the disclosure is to one or more participants in the joint
28
venture, and is not to any other person.
29
Disclosure relating to acquisition of shares or assets
30
(4) Section 44ZZW does not apply to the disclosure of information by
31
a corporation in so far as the information is disclosed in connection
32
with a contract, arrangement or understanding that provides, or a
33
proposed contract, arrangement or understanding that would
34
provide, for the acquisition of any shares in the capital of a body
35
corporate, or any assets of a person, by or from the corporation.
36
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 11
Note:
For the meaning of acquisition of shares, and acquisition of assets, see
1
subsection 4(4).
2
44ZZZA Burden of proof
3
If:
4
(a) proceedings are brought against a person in relation to
5
section 44ZZW or 44ZZX; and
6
(b) the person seeks to rely on subsection 44ZZU(2) or (4), or on
7
a subsection of section 44ZZY or 44ZZZ;
8
the person bears an evidential burden in relation to the matters set
9
out in that subsection on which the person seeks to rely.
10
44ZZZB Mere receipt of information does not constitute being
11
knowingly involved in contravention
12
For the purpose of paragraph 76(1)(e), a person is not taken to be
13
directly or indirectly knowingly concerned in, or party to, a
14
contravention of section 44ZZW or 44ZZX merely because the
15
person is a recipient of information disclosed in contravention of
16
that section.
17
3 Paragraph 84(1)(b)
18
Omit "44ZZRJ, 44ZZRK,", substitute "44ZZRJ or 44ZZRK,
19
Division 1A of Part IV, section".
20
4 Paragraph 84(3)(b)
21
After "44ZZRK", insert ", Division 1A of Part IV,".
22
5 After subsection 88(6)
23
Insert:
24
(6A) Subject to this Part, the Commission may, on application by or on
25
behalf of a corporation, grant an authorisation to the corporation to
26
make a particular disclosure of information to which
27
section 44ZZW or 44ZZX would or might apply. While the
28
authorisation remains in force, that section does not apply in
29
relation to the corporation making the disclosure.
30
(6B) The Commission does not have power to grant an authorisation
31
under subsection (6A) to a corporation to make a particular
32
Schedule 1 Amendments
12 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
disclosure of information if the disclosure occurred before the
1
Commission makes a determination in respect of the application.
2
(6C) An application made to the Commission under subsection (6A) for
3
an authorisation in relation to a particular disclosure of information
4
may be expressed to be made also in relation to one or more other
5
similar disclosures of information. If an application is so
6
expressed, the Commission may grant a single authorisation in
7
respect of all the disclosures or may grant separate authorisations
8
in respect of any one or more of the disclosures.
9
6 After subsection 90(5B)
10
Insert:
11
(5C) The Commission must not make a determination granting an
12
authorisation under subsection 88(6A) in respect of a proposed
13
disclosure of information to which section 44ZZW would or might
14
apply, unless the Commission is satisfied in all the circumstances
15
that the proposed disclosure would result, or be likely to result, in
16
such a benefit to the public that the proposed disclosure should be
17
allowed to be made.
18
(5D) The Commission must not make a determination granting an
19
authorisation under subsection 88(6A) in respect of a proposed
20
disclosure of information to which section 44ZZX would or might
21
apply, unless the Commission is satisfied in all the circumstances:
22
(a) that the proposed disclosure would result, or be likely to
23
result, in a benefit to the public; and
24
(b) that the benefit would outweigh the detriment to the public
25
constituted by any lessening of competition that would result,
26
or be likely to result, if the corporation so disclosed the
27
information.
28
7 Subsection 91A(4)
29
After "(5B),", insert "(5D),".
30
8 Subsection 91A(5)
31
Omit "90(8)", substitute "90(5C), (8)".
32
9 Subsection 91B(5)
33
After "(5B),", insert "(5C), (5D),".
34
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 13
10 Subsection 91C(7)
1
After "(5B),", insert "(5C), (5D),".
2
11 Subdivision A of Division 2 of Part VII (heading)
3
Repeal the heading, substitute:
4
Subdivision A--Exclusive dealing and private disclosure of
5
pricing information
6
12 Subsection 93(1)
7
After "referred to in", insert "section 44ZZW or".
8
Note:
The heading to section 93 is altered by adding at the end "or private disclosure of
9
pricing information".
10
13 Paragraph 93(3A)(a)
11
After "described in", insert "section 44ZZW,".
12
14 Subsections 93(7A), (7B) and (7C)
13
After "referred to in", insert "section 44ZZW,".
14
15 Subsection 101(1A)
15
After "(5B),", insert "(5C), (5D),".
16
16 Subsection 101(2)
17
After "(5B),", insert "(5C), (5D),".
18
17 After Division 1 of Part 1 of Schedule 1
19
Insert:
20
Division 1A--Anti-competitive disclosure of pricing and
21
other information
22
44ZZS Definitions
23
In this Division:
24
disclose has a meaning affected by section 44ZZU.
25
Schedule 1 Amendments
14 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
Division 1A goods or services means goods or services to which
1
this Division applies (see section 44ZZT).
2
evidential burden, in relation to a matter, means the burden of
3
adducing or pointing to evidence that suggests a reasonable
4
possibility that the matter exists or does not exist.
5
intermediary: see subsection 44ZZU(3).
6
private disclosure to competitors: see section 44ZZV.
7
44ZZT Goods and services to which this Division applies
8
This Division applies to goods and services of the classes
9
prescribed by the regulations for the purpose of section 44ZZT of
10
the Competition and Consumer Act 2010.
11
44ZZU Provisions affecting whether a person has disclosed
12
information to another person
13
Disclosure to director, employee or agent etc. of another person
14
(1) For the purpose of this Division:
15
(a) if a person (the first person) makes a disclosure of
16
information to another person (the second person) in the
17
second person's capacity as a director, employee or agent of
18
a body corporate, the disclosure is taken to have been made
19
by the first person to the body corporate; and
20
(b) if a person (the first person) makes a disclosure of
21
information to another person (the second person) in the
22
second person's capacity as an employee or agent of another
23
person (not being a body corporate), the disclosure is taken to
24
have been made by the first person to that other person.
25
Disclosure to discloser's own agent
26
(2) For the purpose of this Division, the disclosure of information by a
27
person (the first person) to another person is to be disregarded if:
28
(a) the disclosure is made to the other person in the other
29
person's capacity as an agent of the first person; and
30
(b) subsection (3) does not apply to the disclosure.
31
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 15
Disclosure through intermediary
1
(3)
If:
2
(a) a person (the first person) makes a disclosure of information
3
to another person (the intermediary); and
4
(b) the first person makes the disclosure to the intermediary for
5
the purpose of the intermediary disclosing (or arranging for
6
the disclosure of) the information to one or more other
7
persons; and
8
(c) the information is so disclosed to one or more of those other
9
persons (the recipients);
10
then, for the purpose of this Division:
11
(d) the disclosure of the information to the recipients is taken to
12
have been made by the first person; and
13
(e) the disclosure of the information to the intermediary is to be
14
disregarded (unless the intermediary is a competitor or
15
potential competitor of the first person in a market).
16
Accidental disclosure
17
(4) For the purpose of this Division, the disclosure of information by a
18
person (the first person) to another person (the recipient) is to be
19
disregarded if the disclosure to the recipient is due to:
20
(a) an accident; or
21
(b) the default of a person other than the first person; or
22
(c) some other cause beyond the control of the first person.
23
Note:
This subsection does not apply to a disclosure of information covered
24
by subsection (3).
25
Section 84 not limited
26
(5) This section does not limit section 84.
27
44ZZV Meaning of private disclosure to competitors
28
Main definition
29
(1) A disclosure of information by a person is a private disclosure to
30
competitors, in relation to a particular market, if the disclosure is to
31
one or more competitors or potential competitors of the person in
32
that market, and is not to any other person.
33
Schedule 1 Amendments
16 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
Note:
The effect of section 44ZZU must be taken into account in working
1
out whether the disclosure is to one or more competitors or potential
2
competitors, and is not to any other person.
3
Anti-avoidance
4
(2) For the purpose of determining whether a person (the first person)
5
has made a private disclosure to competitors in relation to a
6
particular market, the fact that the disclosure is also made to
7
another person who is not a competitor or potential competitor of
8
the first person in that market is to be disregarded if:
9
(a) for a disclosure that is not made through an intermediary--
10
the first person made the disclosure to the other person for
11
the purpose of avoiding the application of section 44ZZW to
12
the disclosure; or
13
(b) for a disclosure that is made through an intermediary--either:
14
(i) the first person directed or requested the intermediary to
15
disclose the information to the other person for the
16
purpose of avoiding the application of section 44ZZW
17
to the disclosure; or
18
(ii) the intermediary disclosed the information to the other
19
person for the purpose of avoiding the application of
20
section 44ZZW to the disclosure.
21
Fact that the information is otherwise available is not relevant
22
(3) The question whether a disclosure of information by a person is a
23
private disclosure to competitors is not affected by the information
24
otherwise being or becoming available to competitors or potential
25
competitors of the person in the market, or to other persons.
26
44ZZW Person must not make private disclosure of pricing
27
information etc. to competitors
28
A person must not make a disclosure of information if:
29
(a) the information relates to a price for, or a discount,
30
allowance, rebate or credit in relation to, Division 1A goods
31
or services supplied or likely to be supplied, or acquired or
32
likely to be acquired, by the person in a market (whether or
33
not the information also relates to other matters); and
34
(b) the disclosure is a private disclosure to competitors in
35
relation to that market.
36
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 17
Note:
Conduct that would otherwise contravene this section can be
1
authorised under subsection 88(6A) or notified under subsection
2
93(1).
3
44ZZX Person must not make disclosure of pricing information etc.
4
for purpose of substantially lessening competition
5
The prohibition
6
(1) A person must not make a disclosure of information if:
7
(a) the information relates to one or more of the following
8
(whether or not it also relates to other matters):
9
(i) a price for, or a discount, allowance, rebate or credit in
10
relation to, Division 1A goods or services supplied or
11
likely to be supplied, or acquired or likely to be
12
acquired, by the person;
13
(ii) the capacity, or likely capacity, of the person to supply
14
or acquire Division 1A goods or services;
15
(iii) any aspect of the commercial strategy of the person that
16
relates to Division 1A goods or services; and
17
(b) the person makes the disclosure for the purpose of
18
substantially lessening competition in a market.
19
Note:
Conduct that would otherwise contravene this section can be
20
authorised under subsection 88(6A).
21
Determining whether disclosure made for purpose of substantially
22
lessening competition
23
(2) In determining, for the purpose of this section, if a person has made
24
a disclosure for the purpose of substantially lessening competition
25
in a market, the matters to which the court may have regard include
26
(but are not limited to):
27
(a) whether the disclosure was a private disclosure to
28
competitors in relation to that market; and
29
(b) the degree of specificity of the information; and
30
(c) whether the information relates to past, current or future
31
activities; and
32
(d) how readily available the information is to the public; and
33
(e) whether the disclosure is part of a pattern of similar
34
disclosures by the person.
35
Schedule 1 Amendments
18 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
(3) Without limiting the manner in which the purpose of a person may
1
be established for the purposes of any other provision of this Act, a
2
person may be taken to have made a disclosure of information for
3
the purpose of substantially lessening competition in a market even
4
though, after all the evidence has been considered, the existence of
5
that purpose is ascertainable only by inference from the conduct of
6
the person or of any other person or from other relevant
7
circumstances.
8
44ZZY Exceptions that apply to sections 44ZZW and 44ZZX
9
Disclosure authorised by law: general exception for 10 years
10
(1) Sections 44ZZW and 44ZZX do not apply to the disclosure of
11
information by a person if:
12
(a) the disclosure is authorised by or under a law of the
13
Commonwealth, a State or a Territory; and
14
(b) the disclosure occurs before the end of 10 years after the day
15
on which the Competition and Consumer Amendment Act
16
(No. 1) 2011 receives the Royal Assent.
17
Note:
This subsection has effect in addition to:
18
(a) subsection (6) (which covers compliance with continuous
19
disclosure requirements of the Corporations Act 2001); and
20
(b) subsection 51(1) (which covers things authorised by certain
21
laws).
22
Disclosure to related bodies corporate
23
(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of
24
information by a body corporate (the first body corporate) if the
25
disclosure is to one or more other bodies corporate that are related
26
to the first body corporate, and is not to any other person.
27
Note:
The effect of section 44ZZU must be taken into account in working
28
out whether the disclosure is to one or more bodies corporate that are
29
related to the first body corporate, and is not to any other person.
30
Disclosure for collective bargaining
31
(3) Sections 44ZZW and 44ZZX do not apply to the disclosure of
32
information by a person if:
33
(a) the person has given the Commission a collective bargaining
34
notice under subsection 93AB(1A) or (1) setting out
35
particulars of a contract or proposed contract; and
36
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 19
(b) the notice is in force; and
1
(c) the disclosure is to one or more of the other contracting
2
parties, and is not to any other person; and
3
(d) the disclosure of the information:
4
(i) if the notice relates to a contract--is required by the
5
contract; or
6
(ii) if the notice relates to a proposed contract--is made in
7
the course of negotiations for the proposed contract or,
8
if the proposed contract is entered into, is required by
9
the contract.
10
Note:
The effect of section 44ZZU must be taken into account in working
11
out whether the disclosure is to one or more of the other contracting
12
parties, and is not to any other person.
13
Disclosure in course of authorised conduct
14
(4) Sections 44ZZW and 44ZZX do not apply to the disclosure of
15
information by a person if:
16
(a) an authorisation under section 88 (other than subsection
17
88(6A)) applies to or in relation to the person; and
18
(b) the authorisation is in force; and
19
(c) the disclosure of the information is made in the course of
20
engaging in conduct that is covered by the authorisation.
21
Note:
A disclosure that would otherwise contravene section 44ZZW or
22
44ZZX can also be directly authorised under subsection 88(6A).
23
Disclosure covered by notification under section 93
24
(5) Sections 44ZZW and 44ZZX do not apply to the disclosure of
25
information by a person if:
26
(a) the person has given the Commission a notice under
27
subsection 93(1) describing conduct; and
28
(b) the disclosure is conduct described in the notice; and
29
(c) the notice is in force under section 93.
30
Compliance with continuous disclosure requirements of the
31
Corporations Act 2001
32
(6) Sections 44ZZW and 44ZZX do not apply to the disclosure of
33
information by a person if the disclosure is made for the purpose of
34
complying with Chapter 6CA of the Corporations Act 2001.
35
Schedule 1 Amendments
20 Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011
44ZZZ Additional exceptions that only apply to section 44ZZW
1
Disclosure of information to acquirer or supplier of goods or
2
services
3
(1) Section 44ZZW does not apply to the disclosure of information by
4
a person (the first person) to another person (the recipient) if:
5
(a) the information relates to goods or services supplied or likely
6
to be supplied, by the first person to the recipient; or
7
(b) the information relates to goods or services acquired or likely
8
to be acquired, by the first person from the recipient.
9
Disclosure to unknown competitor
10
(2) Section 44ZZW does not apply to the disclosure of information by
11
a person (the first person) to another person (the recipient) if:
12
(a) the recipient is a competitor or potential competitor of the
13
first person in the market referred to in that section; and
14
(b) the first person did not know, and could not reasonably be
15
expected to have known, that the recipient was such a
16
competitor or potential competitor.
17
Disclosure to participants in joint venture
18
(3) Section 44ZZW does not apply to the disclosure of information by
19
a person if:
20
(a)
either:
21
(i) the person is a participant in a joint venture for the
22
production and/or supply of goods or services; or
23
(ii) the person proposes to enter into a joint venture with
24
one or more other persons (the proposed participants);
25
and
26
(b) the disclosure is to one or more participants or proposed
27
participants in the joint venture, and is not to any other
28
person; and
29
(c) the disclosure is made for the purposes of the joint venture or
30
in the course of negotiations for the joint venture.
31
Note:
The effect of section 44ZZU must be taken into account in working
32
out whether the disclosure is to one or more participants in the joint
33
venture, and is not to any other person.
34
Amendments Schedule 1
Competition and Consumer Amendment Bill (No. 1) 2011 No. , 2011 21
Disclosure relating to acquisition of shares or assets
1
(4) Section 44ZZW does not apply to the disclosure of information by
2
a person (the first person) in so far as the information is disclosed
3
in connection with a contract, arrangement or understanding that
4
provides, or a proposed contract, arrangement or understanding
5
that would provide, for the acquisition of any shares in the capital
6
of a body corporate, or any assets of a person, by or from the first
7
person.
8
Note:
For the meaning of acquisition of shares, and acquisition of assets, see
9
subsection 4(4).
10
44ZZZA Burden of proof
11
If:
12
(a) proceedings are brought against a person in respect of
13
section 44ZZW or 44ZZX; and
14
(b) the person seeks to rely on subsection 44ZZU(2) or (4), or on
15
a subsection of section 44ZZY or 44ZZZ;
16
the person bears an evidential burden in relation to the matters set
17
out in that subsection on which the person seeks to rely.
18
44ZZZB Mere receipt of information does not constitute being
19
knowingly involved in contravention
20
For the purpose of paragraph 76(1)(e), a person is not taken to be
21
directly or indirectly knowingly concerned in, or party to, a
22
contravention of section 44ZZW or 44ZZX merely because the
23
person is a recipient of information disclosed in contravention of
24
that section.
25