TRADE PRACTICES AMENDMENT (CARTEL CONDUCT AND OTHER MEASURES) BILL 2008

i Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. ,

2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts relating to cartel conduct etc.

Proceeds of Crime Act 2002

Telecommunications (Interception and Access) Act 1979

Trade Practices Act 1974

Schedule 2--Other ame ndments

Part 1--Amendments

Trade Practices Act 1974

Part 2--Application

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

A Bill for an Act to amend the Trade Practices Act

1974, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Trade Practices Amendment (Cartel

Conduct and Other Measures) Act 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. ,

2008

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 on which this Act receives the

Royal Assent.

2. Schedule 1

The 28th day after the day on which this Act

receives the Royal Assent.

3. Schedule 2,

items 1 to 49

The 28th day after the day on which this Act

receives the Royal Assent.

4. Schedule 2,

items 50 and 51

The day after this Act receives the Royal

Assent.

5. Schedule 2,

items 52 and 53

The 28th day after the day on which this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Schedule 1

Amendments relating to cartel

conduct etc.

Proceeds of Crime Act 2002

1 Section 338 (after paragraph (ec) of the definition of serious

offence)

Insert:

(ed) an offence against either of the following sections of the

Trade Practices Act 1974:

(i) section 44ZZRF (making a contract etc. containing a

cartel provision);

(ii) section 44ZZRG (giving effect to a cartel provision); or

Telecommunications (Interception and Access) Act 1979

2 After subsection 5D(5A)

Insert:

Cartel offences

(5B) An offence is also a serious offence if it is:

(a) an offence against section 44ZZRF or 44ZZRG of the Trade

Practices Act 1974; or

(b) an offence under subsection 79(1) of the Trade Practices Act

1974 that relates to an offence covered by paragraph (a); or

out in Part 1 of the Schedule to the Trade Practices Act 1974,

so far as that section applies as a law of a State, the Northern

Territory or the Australian Capital Territory; or

(d) an offence under subsection 79(1) of the Trade Practices Act

1974 (so far as that subsection applies as a law of a State, the

Northern Territory or the Australian Capital Territory) that

relates to an offence covered by paragraph (c).

Note:

Offences covered by paragraph (c) or (d) form part of the Competition

Code of the State or Territory concerned.

Schedule 1 A mendments relating to cartel conduct etc.

4 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. ,

2008

Trade Practices Act 1974

3 Subsection 4(1)

Insert:

cartel provision has the meaning given by section 44ZZRD.

4 Subsection 5(1)

Repeal the subsection, substitute:

(1) Each of the following provisions:

(a) Part IV;

(b) Part IVA;

(d) Part VB;

(e) Part VC;

(f) the remaining provisions of this Act (to the extent to which

they relate to any of the provisions covered by paragraph (a),

(b), (c), (d) or (e));

extends to the engaging in conduct outside Australia by:

(g) bodies corporate incorporated or carrying on business within

Australia; or

(h) Australian citizens; or

(i) persons ordinarily resident within Australia.

Note:

The heading to section 5 is altered by omitting "and VC" and substituting ", VC etc.".

5 Subsection 5(4)

Omit "or the Commission", substitute ", the Commission or the Director

of Public Prosecutions".

6 At the end of paragraph 6(2)(a)

Add "and".

7 Paragraph 6(2)(b)

Omit "sections 45", substitute "sections 44ZZRF, 44ZZRG, 44ZZRJ,

44ZZRK, 45".

8 At the end of paragraph 6(2)(b)

Add "and".

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

9 At the end of paragraph 6(2)(c)

Add "and".

10 At the end of paragraph 6(2)(d)

Add "and".

11 At the end of paragraph 6(2)(e)

Add "and".

12 At the end of paragraph 6(2)(ea)

Add "and".

13 At the end of paragraph 6(2)(eb)

Add "and".

14 After subsection 6(2B)

Insert:

(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) the reference in paragraph 44ZZRD(2)(c) to goods or

services supplied, or likely to be supplied, were, by express

provision, confined to goods or services supplied, or likely to

be supplied, to corporations or classes of corporations; and

(b) the reference in paragraph 44ZZRD(2)(d) to goods or

services acquired, or likely to be acquired, were, by express

provision, confined to goods or services acquired, or likely to

be acquired, from corporations or classes of corporations; and

services re-supplied, or likely to be re-supplied, were, by

express provision, confined to goods or services re-supplied,

or likely to be re-supplied, to corporations or classes of

corporations; and

(d) the reference in paragraph 44ZZRD(2)(f) to goods or services

likely to be re-supplied were, by express provision, confined

to goods or services likely to be re-supplied to corporations

or classes of corporations; and

Schedule 1 A mendments relating to cartel conduct etc.

6 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. ,

2008

(e) the following paragraphs were added at the end of subsection

44ZZRD(2):

"; or (g) goods or services re-supplied, or likely to be re-supplied, by

corporations or classes of corporations to whom those goods

or services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(h) goods or services likely to be re-supplied by corporations or

classes of corporations to whom those goods or services are

likely to be supplied by any or all of the parties to the

contract, arrangement or understanding."; and

(f) the reference in subparagraph 44ZZRD(3)(a)(i) to the

production, or likely production, of goods were, by express

provision, confined to the production, or likely production, of

goods for supply to corporations or classes of corporations;

and

(g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply

of services were, by express provision, confined to the supply

of services to corporations or classes of corporations; and

(h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i)

and (ii) to persons or classes of persons were, by express

provision, confined to corporations or classes of

corporations; and

(i) the reference in subparagraph 44ZZRD(3)(b)(iii) to the

geographical areas in which goods or services are supplied,

or likely to be supplied, were, by express provision, confined

to the geographical areas in which goods or services are

supplied, or likely to be supplied, to corporations or classes

of corporations; and

(j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the

geographical areas in which goods or services are acquired,

or likely to be acquired, were, by express provision, confined

to the geographical areas in which goods or services are

acquired, or likely to be acquired, from corporations or

classes of corporations; and

(k) the reference in paragraph 44ZZRD(3)(c) to the supply or

acquisition of goods or services were, by express provision,

confined to supply of goods or services to, or the acquisition

of goods or services from, corporations or classes of

corporations; and

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e)

or (f) included a reference to paragraph (2)(g) or (h); and

(m) section 44ZZRD also provided that it is immaterial whether

the identities of the corporations referred to in subsection (2)

or (3) of that section can be ascertained; and

(n) each reference in the following provisions of this Act:

(i) Division 1 of Part IV (other than section 44ZZRD);

(ii) any other provision (other than section 4, 44ZZRD,

151AE or 151AJ or this subsection or subsection (5A))

to the extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a

corporation.

For the purposes of this subsection, likely and production have the

same meaning as in Division 1 of Part IV.

(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by

express provision, confined in their operation to engaging in

conduct to the extent to which the conduct involves the use

of, or relates to, a postal, telegraphic, telephonic or other like

service within the meaning of paragraph 51(v) of the

Constitution; and

(b) each reference in the following provisions of this Act:

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the

extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a

corporation.

(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by

express provision, confined in their operation to engaging in

conduct to the extent to which the conduct takes place in, or

relates to:

Schedule 1 A mendments relating to cartel conduct etc.

8 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. ,

2008

(i) a Territory; or

(ii) a Commonwealth place (within the meaning of the

Commonwealth Places (Application of Laws) Act 1970);

and

(b) each reference in the following provisions of this Act:

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the

extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a

corporation.

15 Subsection 6(3)

Omit "subsection (2)", substitute "another subsection of this section".

16 Subsection 6(4)

Omit "subsections (2) and (3)", substitute "another subsection of this

section".

17 After subsection 6(5)

Insert:

(5A) Despite anything in section 44ZZRF or 44ZZRG, if a body

corporate other than a corporation is convicted of an offence

against that section (as that section applies because of this section),

the offence is taken to be punishable on conviction as if the body

corporate were a corporation.

(5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other

than a body corporate is convicted of an offence against that

section (as that section applies because of this section), the offence

is taken to be punishable on conviction by a term of imprisonment

not exceeding 10 years or a fine not exceeding 2,000 penalty units,

or both.

18 Subsection 6AA(2)

Omit "or Division 7 of Part XIB", substitute ", Division 7 of Part XIB,

or section 44ZZRF or 44ZZRG".

19 Part IV (after heading)

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Insert:

Division 1--Cartel conduct

Subdivision A--Introduction

44ZZRA Simplified outline

The following is a simplified outline of this Division:

�

This Division sets out parallel offences and civil penalty

provisions relating to cartel conduct.

�

A corporation must not make, or give effect to, a contract,

arrangement or understanding that contains a cartel provision.

�

A cartel provision is a provision relating to:

(a) price-fixing; or

(b) restricting outputs in the production and supply

chain; or

(d) bid-rigging;

by parties that are, or would otherwise be, in competition with

each other.

44ZZRB Definitions

In this Division:

annual turnover, of a body corporate during a 12-month period,

means the sum of the values of all the supplies that the body

corporate, and any body corporate related to the body corporate,

have made, or are likely to make, during the 12-month period,

other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

Schedule 1 A mendments relating to cartel conduct etc.

10 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(b) supplies that are input taxed; or

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

benefit includes any advantage and is not limited to property.

bid includes:

(a) tender; and

(b) the taking, by a potential bidder or tenderer, of a preliminary

step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

likely, in relation to any of the following:

(a) a supply of goods or services;

(b) an acquisition of goods or services;

(d) the capacity to supply services;

includes a possibility that is not remote.

obtaining includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in

another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly,

disassembly, renovation, restoration, growing, raising, mining,

extraction, harvesting, fishing, capturing and gathering.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

44ZZRC Exte nded meaning of party

For the purposes of this Division, if a body corporate is a party to a

contract, arrangement or understanding (otherwise than because of

this section), each body corporate related to that body corporate is

taken to be a party to that contract, arrangement or understanding.

44ZZRD Cartel provisions

(1) For the purposes of this Act, a provision of a contract, arrangement

or understanding is a cartel provision if:

(a) either of the following conditions is satisfied in relation to the

provision:

(i) the purpose/effect condition set out in subsection (2);

(ii) the purpose condition set out in subsection (3); and

(b) the competition condition set out in subsection (4) is satisfied

in relation to the provision.

Purpose/effect condition

(2) The purpose/effect condition is satisfied if the provision has the

purpose, or has or is likely to have the effect, of directly or

indirectly:

(a) fixing, controlling or maintaining; or

(b) providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation

to:

all of the parties to the contract, arrangement or

understanding; or

(d) goods or services acquired, or likely to be acquired, by any or

all of the parties to the contract, arrangement or

understanding; or

(e) goods or services re-supplied, or likely to be re-supplied, by

persons or classes of persons to whom those goods or

services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(f) goods or services likely to be re-supplied by persons or

classes of persons to whom those goods or services are likely

to be supplied by any or all of the parties to the contract,

arrangement or understanding.

Schedule 1 A mendments relating to cartel conduct etc.

12 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Note 1:

The purpose/effect condition can be satisfied when a provision is

considered with related provisions--see subsection (8).

Note 2:

Party has an extended meaning--see section 44ZZRC.

Purpose condition

(3) The purpose condition is satisfied if the provision has the purpose

of directly or indirectly:

(a) preventing, restricting or limiting:

(i) the production, or likely production, of goods by any or

all of the parties to the contract, arrangement or

understanding; or

(ii) the capacity, or likely capacity, of any or all of the

parties to the contract, arrangement or understanding to

supply services; or

(iii) the supply, or likely supply, of goods or services to

persons or classes of persons by any or all of the parties

to the contract, arrangement or understanding; or

(b) allocating between any or all of the parties to the contract,

arrangement or understanding:

(i) the persons or classes of persons who have acquired, or

who are likely to acquire, goods or services from any or

all of the parties to the contract, arrangement or

understanding; or

(ii) the persons or classes of persons who have supplied, or

who are likely to supply, goods or services to any or all

of the parties to the contract, arrangement or

understanding; or

(iii) the geographical areas in which goods or services are

supplied, or likely to be supplied, by any or all of the

parties to the contract, arrangement or understanding; or

(iv) the geographical areas in which goods or services are

acquired, or likely to be acquired, by any or all of the

parties to the contract, arrangement or understanding; or

the supply or acquisition of goods or services:

(i) one or more parties to the contract, arrangement or

understanding bid, but one or more other parties do not;

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(ii) 2 or more parties to the contract, arrangement or

understanding bid, but at least 2 of them do so on the

basis that one of those bids is more likely to be

successful than the others; or

(iii) 2 or more parties to the contract, arrangement or

understanding bid, but not all of those parties proceed

with their bids until the suspension or finalisation of the

request for bids process; or

(iv) 2 or more parties to the contract, arrangement or

understanding bid and proceed with their bids, but at

least 2 of them proceed with their bids on the basis that

one of those bids is more likely to be successful than the

others; or

(v) 2 or more parties to the contract, arrangement or

understanding bid, but a material component of at least

one of those bids is worked out in accordance with the

contract, arrangement or understanding.

Note 1:

For example, subparagraph (3)(a)(iii) will not apply in relation to a

roster for the supply of after-hours medical services if the roster does

not prevent, restrict or limit the supply of services.

Note 2:

The purpose condition can be satisfied when a provision is considered

with related provisions--see subsection (9).

Note 3:

Party has an extended meaning--see section 44ZZRC.

Competition condition

(4) The competition condition is satisfied if at least 2 of the parties to

the contract, arrangement or understanding:

(a) are or are likely to be; or

(b) but for any contract, arrangement or understanding, would be

or would be likely to be;

in competition with each other in relation to:

likely supply, of goods or services--the supply of those

goods or services; or

(d) if paragraph (2)(d) or (3)(b) applies in relation to an

acquisition, or likely acquisition, of goods or services--the

acquisition of those goods or services; or

(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or

likely re-supply, of goods or services--the supply of those

goods or services to that re-supplier; or

Schedule 1 A mendments relating to cartel conduct etc.

14 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(f) if subparagraph (3)(a)(i) applies in relation to preventing,

restricting or limiting the production, or likely production, of

goods--the production of those goods; or

(g) if subparagraph (3)(a)(ii) applies in relation to preventing,

restricting or limiting the capacity, or likely capacity, to

supply services--the supply of those services; or

(h) if subparagraph (3)(a)(iii) applies in relation to preventing,

restricting or limiting the supply, or likely supply, of goods

or services--the supply of those goods or services; or

(i) if paragraph (3)(c) applies in relation to a supply of goods or

services--the supply of those goods or services; or

(j) if paragraph (3)(c) applies in relation to an acquisition of

goods or services--the acquisition of those goods or services.

Note:

Party has an extended meaning--see section 44ZZRC.

Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in

paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can

be ascertained.

Recommending prices etc.

(6) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not taken:

(a) to have the purpose mentioned in subsection (2); or

(b) to have, or be likely to have, the effect mentioned in

subsection (2);

by reason only that it recommends, or provides for the

recommending of, a price, discount, allowance, rebate or credit.

Immaterial whether particular circumstances or particular

conditions

(7) It is immaterial whether:

(a) for the purposes of subsection (2), subparagraph (3)(a)(iii)

and paragraphs (3)(b) and (c)--a supply or acquisition

happens, or a likely supply or likely acquisition is to happen,

in particular circumstances or on particular conditions; and

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(b) for the purposes of subparagraph (3)(a)(i)--the production

happens, or the likely production is to happen, in particular

circumstances or on particular conditions; and

exists, or the likely capacity is to exist, in particular

circumstances or on particular conditions.

Considering related provisions--purpose/effect condition

(8) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose, or to

have or be likely to have the effect, mentioned in subsection (2) if

the provision, when considered together with any or all of the

following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose, or has or is likely to have that effect.

Considering related provisions--purpose condition

(9) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose

mentioned in a paragraph of subsection (3) if the provision, when

considered together with any or all of the following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose.

Purpose/effect of a provision

(10) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

Schedule 1 A mendments relating to cartel conduct etc.

16 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

purpose, or not to have or to be likely to have the effect, mentioned

in subsection (2) by reason only of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

arrangement or understanding, by the parties.

Purpose of a provision

(11) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose mentioned in a paragraph of subsection (3) by reason only

of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

arrangement or understanding, by the parties.

44ZZRE Meaning of expressions in other provisions of this Act

In determining the meaning of an expression used in a provision of

this Act (other than this Division, subsection 6(2C), paragraph

76(1A)(aa) or subsection 93AB(1A)), this Division is to be

disregarded.

Subdivision B--Offences etc.

44ZZRF Making a contract etc. containing a cartel provision

Offence

(1) A corporation commits an offence if:

(a) the corporation makes a contract or arrangement, or arrives at

an understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(2) The fault element for paragraph (1)(b) is knowledge or belief.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Penalty

(3) An offence against subsection (1) is punishable on conviction by a

fine not exceeding the greater of the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

benefits--10% of the corporation's annual turnover during

the 12-month period ending at the end of the month in which

the corporation committed, or began committing, the offence.

Indictable offence

(4) An offence against subsection (1) is an indictable offence.

44ZZRG Giving effect to a cartel provision

Offence

(1) A corporation commits an offence if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the corporation gives effect to the cartel provision.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(2) The fault element for paragraph (1)(a) is knowledge or belief.

Penalty

(3) An offence against subsection (1) is punishable on conviction by a

fine not exceeding the greater of the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

Schedule 1 A mendments relating to cartel conduct etc.

18 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

3 times that total value;

benefits--10% of the corporation's annual turnover during

the 12-month period ending at the end of the month in which

the corporation committed, or began committing, the offence.

Pre-commencement contracts etc.

(4) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Indictable offence

(5) An offence against subsection (1) is an indictable offence.

44ZZRH Determining guilt

(1) A corporation may be found guilty of an offence against

section 44ZZRF or 44ZZRG even if:

(a) each other party to the contract, arrangement or

understanding is a person who is not criminally responsible;

(b) subject to subsection (2), all other parties to the contract,

arrangement or understanding have been acquitted of the

offence.

Note:

Party has an extended meaning--see section 44ZZRC.

(2) A corporation cannot be found guilty of an offence against

section 44ZZRF or 44ZZRG if:

(a) all other parties to the contract, arrangement or understanding

have been acquitted of such an offence; and

(b) a finding of guilt would be inconsistent with their acquittal.

44ZZRI Court may make related civil orders

If a prosecution against a person for an offence against

section 44ZZRF or 44ZZRG is being, or has been, heard by a

court, the court may:

(a) grant an injunction under section 80 against the person in

relation to:

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(i) the conduct that constitutes, or is alleged to constitute,

the offence; or

(ii) other conduct of that kind; or

(b) make an order under section 86C, 86D, 86E or 87 in relation

to the offence.

Subdivision C--Civil penalty provisions

44ZZRJ Making a contract etc. containing a cartel provision

A corporation contravenes this section if:

(a) the corporation makes a contract or arrangement, or arrives at

an understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

Note:

For enforcement, see Part VI.

44ZZRK Giving effect to a cartel provision

(1) A corporation contravenes this section if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the corporation gives effect to the cartel provision.

Note:

For enforcement, see Part VI.

(2) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Subdivision D--Exceptions

44ZZRL Conduct notified

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to

a corporation in relation to a contract, arrangement or

understanding containing a cartel provision, in so far as:

(a) the cartel provision:

(i) has the purpose, or has or is likely to have the effect,

mentioned in subsection 44ZZRD(2); or

Schedule 1 A mendments relating to cartel conduct etc.

20 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(ii) has the purpose mentioned in a paragraph of subsection

44ZZRD(3) other than paragraph (c); and

(b) the corporation has given the Commission a collective

bargaining notice under subsection 93AB(1A) setting out

particulars of the contract, arrangement or understanding; and

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRM Cartel provision subject to grant of authorisation

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract that contains a cartel provision if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the corporation is

granted an authorisation to give effect to the provision; and

(b) the corporation applies for the grant of such an authorisation

within 14 days after the contract is made.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ bears an evidential burden in

relation to that matter.

44ZZRN Contracts, arrange ments or understandings between

related bodies corporate

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding if the only

parties to the contract, arrangement or understanding are bodies

corporate that are related to each other.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRO Joint ventures--prosecution

(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a

contract containing a cartel provision if:

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

(b) the joint venture is for the production and/or supply of goods

or services; and

venture--the joint venture is carried on jointly by the parties

to the contract; and

(d) 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 contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code).

Notice to prosecutor

(2) A person is not entitled to rely on subsection (1) in a trial for an

offence unless, within 28 days after the day on which the person is

committed for trial, the person gives the prosecutor:

(a) a written notice setting out:

(i) the facts on which the person proposes to rely for the

purpose of discharging the evidential burden borne by

the person in relation to the matter in subsection (1); and

(ii) the names and address of any witnesses whom the

person proposes to call for the purpose of discharging

the evidential burden borne by the person in relation to

the matter in subsection (1); and

(b) certified copies of any documents which the person proposes

to adduce or point to for the purpose of discharging the

Schedule 1 A mendments relating to cartel conduct etc.

22 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

evidential burden borne by the person in relation to the

matter in subsection (1).

(3) If the trial of a person for an offence is being, or is to be, held in a

court, the court may, by order:

(a) exempt the person from compliance with subsection (2); or

(b) extend the time within which the person is required to

comply with subsection (2).

(4) For the purposes of paragraph (2)(b), a certified copy of a

document is a copy of the document certified to be a true copy by:

(a) a Justice of the Peace; or

(b) a commissioner for taking affidavits.

44ZZRP Joint ventures--civil penalty proceedings

(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a

contract containing a cartel provision if:

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

(b) the joint venture is for the production and/or supply of goods

or services; and

venture--the joint venture is carried on jointly by the parties

to the contract; and

(d) 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 contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRQ Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract containing a cartel provision, in so far as the

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

cartel provision constitutes a covenant to which section 45B

applies or, but for subsection 45B(9), would apply.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRR Resale price maintenance

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision relates to:

(a) conduct that contravenes section 48; or

(b) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

the acts constituting the practice of resale price maintenance

by reference to the maximum price at which goods or

services are to be sold or supplied or are to be advertised,

displayed or offered for sale or supply.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRS Exclusive dealing

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as giving effect to the cartel provision

would, or would but for the operation of subsection 47(10) or 88(8)

or section 93, constitute a contravention of section 47.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

Schedule 1 A mendments relating to cartel conduct etc.

24 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorisation under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7), conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRT Dual listed company arrange ment

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as:

(a) the contract, arrangement or understanding is a dual listed

company arrangement; and

(b) the making of the contract, arrangement or understanding

would, or would apart from subsection 88(8B), contravene

section 49.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision, in so far as:

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(a) the cartel provision is a provision of a dual listed company

arrangement; and

(b) the giving effect to the cartel provision would, or would apart

from subsection 88(8B), contravene section 49.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRU Acquisition of shares or assets

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision provides directly

or indirectly for the acquisition of:

(a) any shares in the capital of a body corporate; or

(b) any assets of a person.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRV Collective acquisition of goods or services by the parties to

a contract, arrangement or understanding

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as:

(a) the cartel provision has the purpose, or has or is likely to

have the effect, mentioned in subsection 44ZZRD(2); and

(b) either:

(i) the cartel provision relates to the price for goods or

services to be collectively acquired, whether directly or

indirectly, by the parties to the contract, arrangement or

understanding; or

Schedule 1 A mendments relating to cartel conduct etc.

26 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(ii) the cartel provision is for the joint advertising of the

price for the re-supply of goods or services so acquired.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

Division 2--Other provisions

20 Subsection 45(3)

Omit "and section 45A".

21 Section 45A

Repeal the section.

22 At the end of subparagraph 76(1)(a)(i)

Add "(other than section 44ZZRF or 44ZZRG)".

23 Before paragraph 76(1A)(a)

Insert:

(aa) for each act or omission to which this section applies that

relates to section 44ZZRJ or 44ZZRK--the greatest of the

following:

(i) $10,000,000;

(ii) if the court can determine the total value of the benefits

that have been obtained (within the meaning of

Division 1 of Part IV) by one or more persons and that

are reasonably attributable to the act or omission--3

times that total value;

(iii) if the Court cannot determine the total value of those

benefits--10% of the annual turnover (within the

meaning of Division 1 of Part IV) of the body corporate

during the period (the turnover period) of 12 months

ending at the end of the month in which the act or

omission occurred; and

24 Subsection 76(3)

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

After "Part IV", insert "(other than section 44ZZRF or 44ZZRG)".

25 Subsection 76(4)

Omit "the 2 limits in paragraphs (1A)(a) and (b) apply is an amount up

to the higher", substitute "2 or more of the limits in

paragraphs (1A)(aa), (a) and (b) apply is an amount up to the highest".

26 Subsection 76B(1) (definition of contravention)

After "section" (wherever occurring), insert "or Part".

Note:

The heading to section 76B is altered by inserting "Part IV or" before

"section 75AYA".

27 Subsections 76B(2), (3), (4) and (5)

Before "section 75AYA", insert "Part IV or".

28 At the end of section 76B

Add:

(6) In this section:

offence means an offence against a law of the Commonwealth, a

State or a Territory.

29 Section 76D

Repeal the section.

30 Subparagraph 78(a)(i)

Repeal the subparagraph, substitute:

(i) a provision of Part IV (other than section 44ZZRF or

44ZZRG);

(ia) a provision of Part V (other than section 65Q or 65R or

subsection 65F(9));

31 Before paragraph 79(1)(a)

Insert:

(aa) attempts to contravene; or

Note:

The heading to section 79 is altered by inserting "section 44ZZRF or 44ZZRG or"

after "against".

32 Subsection 79(1)

Schedule 1 A mendments relating to cartel conduct etc.

28 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Before "a provision of", insert "a cartel offence provision or".

33 Subsection 79(1)

Omit "punishable accordingly.", substitute:

punishable:

(e) in a case where:

(i) the provision is a cartel offence provision; and

(ii) the person is not a body corporate;

by a term of imprisonment not exceeding 10 years or a fine

not exceeding 2,000 penalty units, or both; or

(f) in any other case--accordingly.

34 After subsection 79(1)

Insert:

(1AA) For the purposes of the application of subsection (1) to a case

where:

(a) the provision is a cartel offence provision; and

(b) the person is a body corporate other than a corporation;

assume that each reference in paragraph 44ZZRF(3)(c) or

44ZZRG(3)(c) to a corporation were read as a reference to a body

corporate.

(1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply

in relation to paragraph (1)(aa) in the same way that they apply in

relation to the offence of attempt under subsection 11.1(1) of the

Criminal Code.

35 Subsection 79(5)

Before "a provision of", insert "a cartel offence provision or".

36 At the end of section 79

Add:

(7) In this section:

cartel offence provision means section 44ZZRF or 44ZZRG.

37 Subsection 79A(1)

Omit "section 65Q", substitute "section 44ZZRF, 44ZZRG, 65Q".

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

38 Subparagraph 79B(a)(ii)

After "under", insert "section 44ZZRF or 44ZZRG or".

39 At the end of section 80

Add:

(9) If the Director of Public Prosecutions makes an application to the

Court for the grant of an injunction under this section in relation to:

(a) a person's contravention, or proposed contravention, of

section 44ZZRF or 44ZZRG; or

(b) a person's involvement, or proposed involvement, in a

contravention of section 44ZZRF or 44ZZRG;

the Court must not require the Director of Public Prosecutions or

any other person, as a condition of granting an interim injunction,

to give any undertakings as to damages.

40 Section 83

After "offence against", insert "section 44ZZRF or 44ZZRG or".

41 Subsection 84(1)

Repeal the subsection, substitute:

(1) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG in respect of conduct engaged in by a body

corporate; or

(b) a proceeding under this Part in respect of conduct engaged in

by a body corporate, being conduct in relation to which

section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVA, IVB, V,

VB or VC applies;

it is necessary to establish the state of mind of the body corporate,

it is sufficient to show that:

in that conduct; and

(d) the director, employee or agent was, in engaging in that

conduct, acting within the scope of his or her actual or

apparent authority; and

(e) the director, employee or agent had that state of mind.

Note:

The heading to section 84 is altered by omitting "servants" and substituting

"employees".

Schedule 1 A mendments relating to cartel conduct etc.

30 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

42 Subsection 84(2)

Omit "servant" (wherever occurring), substitute "employee".

43 Subsection 84(3)

Repeal the subsection, substitute:

(3) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG in respect of conduct engaged in by a person other

than a body corporate; or

(b) a proceeding under this Part in respect of conduct engaged in

by a person other than a body corporate, being conduct in

relation to which section 44ZZRJ or 44ZZRK or Part IVA,

IVB, V, VB or VC applies;

it is necessary to establish the state of mind of the person, it is

sufficient to show that:

and

(d) the employee or agent was, in engaging in that conduct,

acting within the scope of his or her actual or apparent

authority; and

(e) the employee or agent had that state of mind.

44 Paragraph 84(4)(a)

Omit "a servant", substitute "an employee".

45 Paragraph 84(4)(a)

Omit "the servant", substitute "the employee".

46 Paragraph 84(4)(b)

Omit "a servant", substitute "an employee".

47 Paragraph 84(4)(b)

Omit "the servant", substitute "the employee".

48 After subsection 84(4)

Insert:

(4A) If:

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(a) a person other than a body corporate is convicted of an

offence; and

(b) subsection (3) or (4) applied in relation to the conviction on

the basis that the person was the person first mentioned in

that subsection; and

that subsection had not been enacted;

the person is not liable to be punished by imprisonment for that

offence.

49 Subsection 86(1AA)

Omit "Part or Division" (wherever occurring), substitute "Part, Division

or section".

50 After subsection 86(3)

Insert:

(3A) The Supreme Court of a State is invested with federal jurisdiction

with respect to any matter in respect of which a civil proceeding

covered by section 44ZZRI is instituted in that Court.

(3B) Subject to the Constitution, the Supreme Court of a Territory is

conferred with jurisdiction with respect to any matter in respect of

which a civil proceeding covered by section 44ZZRI is instituted in

that Court.

51 After paragraph 86(4)(b)

Insert:

(ba) the jurisdiction of the Supreme Courts of the States under

subsection (3A); and

(bb) the jurisdiction of the Supreme Courts of the Territories

under subsection (3B); and

52 After subsection 86C(1)

Insert:

(1A) The Court may, on application by the Director of Public

Prosecutions, make one or more of the orders mentioned in

subsection (2) in relation to a person who has engaged in

contravening conduct that is:

(a) a contravention of section 44ZZRF or 44ZZRG; or

Schedule 1 A mendments relating to cartel conduct etc.

32 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(b) an involvement in a contravention of section 44ZZRF or

44ZZRG.

53 Paragraph 86D(1)(b)

Omit "under", substitute "against section 44ZZRF or 44ZZRG or".

54 After subsection 86D(1)

Insert:

(1A) The Court may, on application by the Director of Public

Prosecutions, make an adverse publicity order in relation to a

person who is guilty of an offence against section 44ZZRF or

44ZZRG.

55 After subsection 86E(1)

Insert:

(1A) On application by the Director of Public Prosecutions, the Court

may make an order disqualifying a person from managing

corporations for a period that the Court considers appropriate if:

(a) the Court is satisfied that the person has contravened or has

been involved in a contravention of section 44ZZRF or

44ZZRG; and

(b) the Court is satisfied that the disqualification is justified.

Note:

Section 206EA of the Corporations Act 2001 provides that a person is

disqualified from managing corporations if a court order is in force

under this section. That Act contains various consequences for persons

so disqualified.

56 Subsection 86E(2)

After "determining", insert "under subsection (1) or (1A)".

57 Subsection 86E(3)

Omit "this section", substitute "subsection (1)".

58 After subsection 86E(3)

Insert:

(3A) The Director of Public Prosecutions must notify ASIC if the Court

makes an order under subsection (1A). The Director of Public

Prosecutions must give ASIC a copy of the order.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Note:

ASIC must keep a register of persons who have been disqualified from

managing corporations--see section 1274AA of the Corporations Act

2001.

59 Subsection 87(1)

After "offence against", insert "section 44ZZRF or 44ZZRG or".

60 At the end of paragraph 87(1A)(b)

Add "or".

61 After paragraph 87(1A)(b)

Insert:

(ba) on the application of the Director of Public Prosecutions in

accordance with subsection (1BA) on behalf of one or more

persons who have suffered, or who are likely to suffer, loss or

damage by conduct of another person that was engaged in in

contravention of section 44ZZRF or 44ZZRG;

62 After subsection 87(1B)

Insert:

(1BA) The Director of Public Prosecutions may make an application

under paragraph (1A)(ba) on behalf of one or more persons

identified in the application who:

(a) have suffered, or are likely to suffer, loss or damage by

conduct of another person that was engaged in in

contravention of section 44ZZRF or 44ZZRG; and

(b) have, before the application is made, consented in writing to

the making of the application.

63 Section 87D (after paragraph (a) of the definition of

plaintiff)

Insert:

(aa) if the proceeding is a proceeding that the Director of Public

Prosecutions commences under paragraph 87(1A)(ba)--a

person on whose behalf the Director of Public Prosecutions

commences the proceeding; or

64 Before subsection 88(1)

Insert:

Schedule 1 A mendments relating to cartel conduct etc.

34 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(1A) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorisation to the

corporation:

(a) to make a contract or arrangement, or arrive at an

understanding, if a provision of the proposed contract,

arrangement or understanding would be, or might be, a cartel

provision; or

(b) to give effect to a provision of a contract, arrangement or

understanding if the provision is, or may be, a cartel

provision;

and, while such an authorisation remains in force:

arrangement, or to arrive at an understanding--

sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not

prevent the corporation from making the contract or

arrangement, or arriving at the understanding, in accordance

with the authorisation; or

(d) in the case of an authorisation to give effect to a provision of

a contract, arrangement or understanding--sections 44ZZRG

and 44ZZRK do not prevent the corporation from giving

effect to the provision in accordance with the authorisation.

65 Subsection 88(10)

Omit "subsection (1)", substitute "subsection (1A) or (1)".

66 After subsection 90(5)

Insert:

(5A) The Commission must not make a determination granting an

authorisation under subsection 88(1A) in respect of a provision of a

proposed contract, arrangement or understanding that would be, or

might be, a cartel provision, unless the Commission is satisfied in

all the circumstances:

(a) that the provision would result, or be likely to result, in a

benefit to the public; and

(b) that the benefit would outweigh the detriment to the public

constituted by any lessening of competition that would result,

or be likely to result, if:

(i) the proposed contract or arrangement were made, or the

proposed understanding were arrived at; and

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(ii) the provision were given effect to.

(5B) The Commission must not make a determination granting an

authorisation under subsection 88(1A) in respect of a provision of a

contract, arrangement or understanding that is or may be a cartel

provision, unless the Commission is satisfied in all the

circumstances:

(a) that the provision has resulted, or is likely to result, in a

benefit to the public; and

(b) that the benefit outweighs or would outweigh the detriment to

the public constituted by any lessening of competition that

has resulted, or is likely to result, from giving effect to the

provision.

67 Subsection 91A(4)

Omit "90(6)", substitute "90(5A), (5B), (6)".

68 Subsection 91B(5)

Omit "90(6)", substitute "90(5A), (5B), (6)".

69 Subsection 91C(7)

Omit "90(6)", substitute "90(5A), (5B), (6)".

70 Section 93AA (definition of collective bargaining notice)

Omit "93AB(1)", substitute "93AB(1A) or (1)".

71 Before subsection 93AB(1)

Insert:

Notice to Commission--cartel provisions

(1A) A corporation that:

(a) has made, or proposes to make, a contract (the initial

contract) that contains a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(b) has made, or proposes to make, a contract (the initial

contract) that contains a cartel provision that has the purpose

Schedule 1 A mendments relating to cartel conduct etc.

36 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

mentioned in a paragraph of subsection 44ZZRD(3) other

than paragraph (c); or

contract) where the provision is a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(d) proposes to give effect to a provision of a contract (the initial

contract) where the provision is a cartel provision that has

the purpose mentioned in a paragraph of subsection

44ZZRD(3) other than paragraph (c);

may give the Commission a notice (the collective bargaining

notice) setting out particulars of the contract or proposed contract,

but only if the 3 requirements set out in subsections (2), (3) and (4)

are satisfied.

Note 1:

Subsection (6) deals with the form etc. of a collective bargaining

notice.

Note 2:

Section 93AD sets out when a collective bargaining notice comes into

force.

72 Subsection 93AB(1)

Omit "following 3 requirements", substitute "3 requirements set out in

subsections (2), (3) and (4)".

Note:

The heading to subsection 93AB(1) is altered by adding at the end "--per se and

competition provisions".

73 Before subsection 93AB(11)

Insert:

Purpose/effect of a provision

(10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of

paragraphs (1A)(a) and (c) in a corresponding way to the way in

which they apply for the purposes of Division 1 of Part IV.

Purpose of a provision

(10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of

paragraphs (1A)(b) and (d) in a corresponding way to the way in

which they apply for the purposes of Division 1 of Part IV.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

74 Subsection 93AC(1)

Omit "a collective bargaining notice in relation to".

75 Before paragraph 93AC(1)(a)

Insert:

(aa) a collective bargaining notice under subsection 93AB(1A) in

relation to a contract, or proposed contract, containing a

cartel provision of the kind referred to in that subsection; or

Note:

The heading to subsection 93AC(1) is altered by inserting "cartel provisions or" before

"per se provisions".

76 Paragraph 93AC(1)(a)

Before "a contract", insert "a collective bargaining notice under

subsection 93AB(1) in relation to".

77 Paragraph 93AC(1)(a)

Omit "provisions); or", substitute "provisions);".

78 Paragraph 93AC(1)(b)

Repeal the paragraph.

79 Subsection 93AC(2)

After "collective bargaining notice", insert "under subsection

93AB(1)".

80 Subsection 93AC(2)

Omit "(other than a price fixing provision)".

81 Subsection 93AC(6)

Repeal the subsection.

82 After section 93AE

Insert:

93AEA Only 1 collective bargaining notice under subsection

93AB(1A) may be given

If:

Schedule 1 A mendments relating to cartel conduct etc.

38 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(a) a corporation gives the Commission a collective bargaining

notice under subsection 93AB(1A) in relation to a contract or

proposed contract; and

(b) either:

(i) the Commission gives the corporation an objection

notice in relation to the contract or proposed contract; or

(ii) the collective bargaining notice is taken to be withdrawn

under subsection 93AE(3);

then a further collective bargaining notice under subsection

93AB(1A) cannot be given by any person in relation to the same

contract or proposed contract or in relation to a contract or

proposed contract to the like effect.

83 Paragraph 93AF(a)

After "a collective bargaining notice", insert "under subsection

93AB(1)".

Note:

The heading to section 93AF is altered by inserting "under subsection 93AB(1)" after

"notice".

84 Section 93AF

After "further collective bargaining notice", insert "under subsection

93AB(1)".

85 Subsection 93A(12)

Omit "93AB(1)", substitute "93AB(1A) or (1)".

86 Subsection 101(1A)

Omit "90(6)", substitute "90(5A), (5B), (6)".

87 Subsection 101(2)

Omit "90(6)", substitute "90(5A), (5B), (6)".

88 Section 10.01A

Omit:

�

If the conference agreement is registered, the parties will be

given partial and conditional exemptions from section 45

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(contracts etc. that restrict dealings or affect competition) and

section 47 (exclusive dealing).

substitute:

�

If the conference agreement is registered, the parties will be

given partial and conditional exemptions from:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK

(cartel conduct); and

(b) section 45 (contracts etc. that restrict dealings or

affect competition); and

89 Before paragraph 10.08(1)(a)

Insert:

(aa) that is a provision where the following conditions are

satisfied in relation to the provision:

(i) the purpose/effect condition set out in subsection

44ZZRD(2);

(ii) the competition condition set out in subsection

44ZZRD(4); or

(ab) that is a provision where the following conditions are

satisfied in relation to the provision:

(i) the purpose condition set out in subsection 44ZZRD(3);

(ii) the competition condition set out in subsection

44ZZRD(4); or

90 Subsection 10.08(1)

Omit "an exclusionary provision or has or is likely to have that effect",

substitute "covered by paragraph (aa), (ab), (a) or (b)".

91 Subsection 10.17(1)

Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45

do".

Note:

The heading to section 10.17 is altered by omitting "section 45" and substituting

"sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45".

Schedule 1 A mendments relating to cartel conduct etc.

40 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

92 Subsection 10.17(2)

Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45

do".

93 Subsections 10.17A(1) and (2)

Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45

do".

Note:

The heading to section 10.17A is altered by omitting "section 45" and substituting

"sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45".

94 Subsections 10.17A(3) and (4)

Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45

do".

95 Subsection 10.19(1)

Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45

do".

Note:

The heading to section 10.19 is altered by omitting "section 45" and substituting

"sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45".

96 Subsection 10.19(2)

Omit "Section 45 does", substitute "Sections 44ZZRG, 44ZZRK and 45

do".

97 Subsection 10.24(1)

After "Sections", insert "44ZZRF, 44ZZRJ,".

Note:

The heading to section 10.24 is altered by inserting "44ZZRF, 44ZZRG, 44ZZRJ,

44ZZRK," after "sections".

98 Subsection 10.24(2)

After "Sections", insert "44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK,".

99 Subsection 10.24A(1)

Omit "Section 45 does", substitute "Sections 44ZZRF, 44ZZRJ and 45

do".

Note:

The heading to section 10.24A is altered by inserting "44ZZRF, 44ZZRG, 44ZZRJ,

44ZZRK," after "sections".

100 Subsection 10.24A(2)

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

After "Sections", insert "44ZZRG, 44ZZRK,".

101 Subsections 10.24A(3)

After "Sections", insert "44ZZRF, 44ZZRJ,".

102 Paragraph 10.45(3)(a)

Repeal the paragraph, substitute:

(a) the agreement includes a provision that is covered by

paragraph 10.08(1)(aa) or (b); and

103 Paragraph 151AJ(3)(a)

After "section", insert "44ZZRJ, 44ZZRK,".

104 Subsection 151AJ(4)

After "section", insert "44ZZRJ, 44ZZRK,".

105 Subsection 151AJ(4)

Omit all the words after "48,", substitute:

the following assumptions are to be made:

(a) the assumption that each reference to a corporation in:

(i) those sections; and

(ii) sections 44ZZRL and 44ZZRM;

included a reference to a carrier, or a carriage service

provider, that is not a corporation;

(b) the assumption that subsections 45(8) and 47(12) and

section 44ZZRN had not been enacted.

106 Subsection 151AJ(7)

Omit "section 45", substitute "section 44ZZRJ, 44ZZRK, 45".

107 Paragraph 151AJ(7)(b)

After "subsection", insert "44ZZRL(1) or".

108 Paragraph 151AJ(7)(b)

Omit "93.", substitute "93; or".

109 At the end of subsection 151AJ(7)

Add:

Schedule 1 A mendments relating to cartel conduct etc.

42 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(d) because of the operation of subsection 45B(8); or

(e) because of the operation of section 44ZZRM.

110 Paragraph 151AY(1)(b)

Omit "93AB(1)", substitute "93AB(1A) or (1)".

111 At the end of section 151BZ

Add:

(3) To avoid doubt, subsection (1) does not apply in relation to

proceedings for an offence against section 44ZZRF or 44ZZRG.

112 Subsection 157(1)

Omit "Where:", substitute "Subject to subsection (1A), if:".

113 After subsection 157(1)

Insert:

Protected cartel information--Commission may refuse to comply

with request

(1A) If a request under subsection (1) relates to a document containing

protected cartel information, the Commission may refuse to

comply with the request.

(1B) In exercising its powers under subsection (1A), the Commission

must have regard to the following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia's relations with other countries;

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) the legitimate interests of the corporation which, or the

person who, made the request under subsection (1);

(f) such other matters (if any) as the Commission considers

relevant.

114 Subsection 157(2)

After "subsection (1)", insert "otherwise than because of a refusal under

subsection (1A)".

Note:

The following heading to subsection 157(2) is inserted "Court order".

115 At the end of section 157

Add:

Definition

(6) In this section:

protected cartel information has the same meaning as in

section 157B.

116 After section 157A

Insert:

157B Disclosure of protected cartel information to a court or

tribunal

Commission or a Commission official not required to disclose

protected cartel information

(1) The Commission or a Commission official is not to be required:

(a) to produce to a court or tribunal a document containing

protected cartel information; or

(b) to disclose protected cartel information to a court or tribunal;

except with the leave of the court or tribunal.

(2) In exercising its powers to grant leave under subsection (1), the

court or tribunal must have regard to the following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

Schedule 1 A mendments relating to cartel conduct etc.

44 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(b) Australia's relations with other countries;

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) in the case of a court--the interests of the administration of

justice;

(f) in the case of a tribunal--the interests of securing the

effective performance of the tribunal's functions;

and must not have regard to any other matters.

(3) If:

(a) a document is produced; or

(b) information is disclosed;

to a court or tribunal in accordance with leave granted under

subsection (1) in relation to particular proceedings, the document

or information must not be adduced in other proceedings before the

court or tribunal except:

relation to the other proceedings; or

(d) as a result of an exercise of power under subsection (4) in

relation to the other proceedings.

Commission or a Commission official may disclose protected

cartel information

(4) The Commission or a Commission official may:

(a) produce to the court or tribunal a document containing

protected cartel information; or

(b) disclose protected cartel information to the court or tribunal.

(5) In exercising the powers conferred by subsection (4), the

Commission or Commission official must have regard to the

following matters:

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia's relations with other countries;

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) in the case of production or disclosure to a court--the

interests of the administration of justice;

(f) in the case of production or disclosure to a tribunal--the

interests of securing the effective performance of the

tribunal's functions;

and must not have regard to any other matters.

(6) If:

(a) a document is produced; or

(b) information is disclosed;

to a court or tribunal as a result of an exercise of power under

subsection (4) in relation to particular proceedings, the document

or information must not be adduced in other proceedings before the

court or tribunal except:

relation to the other proceedings; or

(d) as a result of an exercise of power under subsection (4) in

relation to the other proceedings.

Definitions

(7) In this section:

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

Schedule 1 A mendments relating to cartel conduct etc.

46 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

disclose means divulge or communicate.

protected cartel information means information that:

(a) was given to the Commission in confidence; and

(b) relates to a breach, or a possible breach, of section 44ZZRF,

44ZZRG, 44ZZRJ or 44ZZRK.

157C Disclosure of protected cartel information to a party to court

proceedings etc.

Commission or Commission official not required to make discovery

of documents containing protected cartel information etc.

(1) If:

(a) a person is a party to proceedings before a court; and

(b) the Commission is not a party to the proceedings;

the Commission or a Commission official is not to be required, in

connection with the proceedings, to:

document containing protected cartel information; or

(d) produce to the person a document containing protected cartel

information.

(2) If:

(a) a person is considering instituting proceedings before a court;

and

(b) the proceedings have not yet been instituted;

the Commission or a Commission official is not to be required, in

connection with the prospective proceedings, to:

document containing protected cartel information; or

(d) produce to the person a document containing protected cartel

information.

Commission or Commission official may disclose protected cartel

information

(3) If:

(a) a person is a party to proceedings before a court; and

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(b) the Commission is not a party to the proceedings;

the Commission or a Commission official may, on application by

the person:

information; and

(d) give the copy to the person.

(4) If:

(a) a person is considering instituting proceedings before a court;

and

(b) the proceedings have not yet been instituted;

the Commission or a Commission official may, on application by

the person:

information; and

(d) give the copy to the person.

(5) In exercising the powers conferred by subsection (3) or (4), the

Commission or Commission official must have regard to the

following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia's relations with other countries;

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) the interests of the administration of justice;

and must not have regard to any other matters.

(6) If a copy of a document is given to a party, or prospective party, to

proceedings before a court as a result of an exercise of power under

Schedule 1 A mendments relating to cartel conduct etc.

48 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

subsection (3) or (4), the copy must not be adduced in other

proceedings before:

(a) the court; or

(b) another court; or

except:

(d) as a result of an exercise of power under subsection (3) or (4)

in relation to the other proceedings; or

(e) in accordance with leave granted under subsection 157B(1)

in relation to the other proceedings; or

(f) as a result of an exercise of power under subsection 157B(4)

in relation to the other proceedings.

Definitions

(7) In this section:

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

protected cartel information means information that:

(a) was given to the Commission in confidence; and

(b) relates to a breach, or a possible breach, of section 44ZZRF,

44ZZRG, 44ZZRJ or 44ZZRK.

157D General powers of a court

Power of a court in a criminal or civil proceeding

(1) The power of a court to control the conduct of a criminal or civil

proceeding, in particular with respect to abuse of process, is not

affected by section 157B or 157C, except so far as that section

expressly or impliedly provides otherwise.

Stay order--criminal proceeding

(2) A refusal by a court to grant leave under subsection 157B(1) does

not prevent the court from later ordering that a criminal proceeding

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

be stayed on the ground that the refusal would have a substantial

adverse effect on a defendant's right to receive a fair hearing.

Stay order--civil proceeding

(3) A refusal by a court to grant leave under subsection 157B(1) does

not prevent the court from later ordering that a civil proceeding be

stayed on the ground that the refusal would have a substantial

adverse effect on the hearing in the proceeding.

(4) In deciding whether to order a stay of the civil proceeding, the

court must consider:

(a) the extent of any financial loss that a party would suffer as a

result of the proceeding being stayed; and

(b) whether a party has reasonable prospects of obtaining a

remedy in the proceeding; and

117 Subsection 163(2)

Repeal the subsection, substitute:

(2) In so far as this section has effect as a law of the Commonwealth,

the Federal Court has jurisdiction in any matter in respect of which

a criminal proceeding is instituted for an offence to which

subsection (1) applies, and that jurisdiction is exclusive of the

jurisdiction of any other court other than:

(a) the jurisdiction of a Supreme Court of a State or Territory

under section 68 of the Judiciary Act 1903 with respect to

any matter in respect of which a criminal proceeding is

instituted for an offence against section 44ZZRF or 44ZZRG;

and

(b) the jurisdiction of a court under section 68 of the Judiciary

Act 1903 with respect to the examination and commitment

for trial on indictment of a person who is charged with an

indictable offence; and

Constitution.

118 Application

subsection 163(2) of the Trade Practices

Act 1974

Schedule 1 A mendments relating to cartel conduct etc.

50 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Despite the repeal of subsection 163(2) of the Trade Practices Act 1974

by this Schedule, that subsection continues to apply, in relation to

prosecutions instituted before the commencement of this item, as if that

repeal had not happened.

119 Before paragraph 163(4)(a)

Insert:

(aa) the Director of Public Prosecutions; or

120 At the end of paragraph 163(4)(a)

Add "or".

121 At the end of section 163

Add:

(6) Despite subsection (2), the Federal Court does not have jurisdiction

in any matter in respect of which a criminal proceeding is instituted

for an offence against section 44ZZRF or 44ZZRG if the

proceeding is instituted before the commencement of Schedule 1 to

the Federal Court of Australia Amendment (Criminal Jurisdiction)

Act 2008.

122 Subsection 163A(3A)

Omit "In", substitute "Subject to subsections (4B) and (4C), in".

Note 1: The following heading to subsection 163A(1) is inserted "Declarations and orders".

Note 2: The following heading to subsection 163A(2) is inserted "When Minister may institute,

or intervene in, proceedings".

Note 3: The following heading to subsection 163A(3) is inserted "When Commission may

institute proceedings".

Note 4: The following heading to subsection 163A(3A) is inserted "Jurisdiction of Federal

Court".

123 After subsection 163A(4)

Insert:

Jurisdiction of State/Territory Supreme Courts etc.

(4A) In so far as this section has effect as a law of the Commonwealth,

the Supreme Court of a State or Territory does not have

jurisdiction to hear and determine proceedings under this section

otherwise than in accordance with subsection (4B) or (4C). This

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

subsection has effect despite any other law, including section 39 of

the Judiciary Act 1903.

(4B) If a decision to prosecute a person for an offence against

section 44ZZRF or 44ZZRG has been made and the prosecution is

proposed to be commenced in the Supreme Court of a State or

Territory:

(a) the Federal Court does not have jurisdiction with respect to

any matter in which a person seeks the making of a

paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in

relation to that decision; and

(b) if the Supreme Court is the Supreme Court of a State--in so

far as this section has effect as a law of the Commonwealth,

the Supreme Court is invested with federal jurisdiction with

respect to any such matter; and

then:

(i) in so far as this section has effect as a law of the

Commonwealth; and

(ii) subject to the Constitution;

the Supreme Court is conferred with jurisdiction with respect

to any such matter.

(4C) Subject to subsection (4D), at any time when:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG is before the Supreme Court of a State or Territory;

(b) an appeal arising out of such a prosecution is before the

Supreme Court of a State or Territory;

the following apply:

any matter in which the person who is or was the defendant

in the prosecution seeks the making of a paragraph (1)(aa)

declaration, or a paragraph (1)(b) order, in relation to a

related criminal justice process decision;

(d) if the Supreme Court is the Supreme Court of a State--in so

far as this section has effect as a law of the Commonwealth,

the Supreme Court is invested with federal jurisdiction with

respect to any such matter;

(e) if the Supreme Court is the Supreme Court of a Territory,

then:

Schedule 1 A mendments relating to cartel conduct etc.

52 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(i) in so far as this section has effect as a law of the

Commonwealth; and

(ii) subject to the Constitution;

the Supreme Court is conferred with jurisdiction with respect

to any such matter.

(4D) Subsection (4C) does not apply if, before the commencement of a

prosecution for an offence against section 44ZZRF or 44ZZRG, a

person seeks the making of a paragraph (1)(aa) declaration, or a

paragraph (1)(b) order, in relation to a related criminal justice

process decision.

(4E) If subsection (4D) applies, the prosecutor may apply to the Federal

Court for a permanent stay of the paragraph (1)(aa) or (b)

proceedings referred to in that subsection, and the Federal Court

may grant such a stay if the Federal Court determines that:

(a) the matters the subject of the proceedings are more

appropriately dealt with in the criminal justice process; and

(b) a stay of proceedings will not substantially prejudice the

person.

Note:

The following heading to subsection 163A(5) is inserted "Definitions".

124 At the end of section 163A

Add:

(6) In this section:

related criminal justice process decision has the same meaning as

in section 39B of the Judiciary Act 1903.

125 After Part XII

Insert:

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Part XIII--Application and transitional provisions

relating to the competition provisions

Division 1--Cartel conduct

174 Definitions

In this Division:

commencement time means the commencement of Division 1 of

Part IV.

175 Giving effect after the comme ncement time to a cartel provision

in existence before that time

The following provisions of this Act:

(a) paragraph 88(1A)(b);

(b) paragraph 93AB(1A)(c);

apply in relation to a contract or arrangement made, or an

understanding arrived at, before, at or after the commencement

time.

176 Proceedings relating to price-fixing contraventions taking place

before the comme ncement time

Despite the repeal of section 76D by the Trade Practices

Amendment (Cartel Conduct and Other Measures) Act 2008, that

section continues to apply, in relation to proceedings (whether

instituted before or after the commencement time) in relation to a

contravention that took place before the commencement time, as if

that repeal had not happened.

177 Authorisations in force before the commence ment time

(1) This section applies if:

(a) an authorisation (the pre-commencement authorisation) was

granted to a person to give effect to a provision of a contract,

arrangement or understanding; and

(b) the provision is a cartel provision; and

Schedule 1 A mendments relating to cartel conduct etc.

54 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

commencement time.

(2) This Act has effect, after the commencement time, as if:

(a) the Commission had, at the commencement time, granted to

the person an authorisation under subsection 88(1A) to give

effect to the cartel provision; and

(b) the day specified in the subsection 88(1A) authorisation as

the day the authorisation comes into force were the day on

which Division 1 of Part IV commenced; and

pre-commencement authorisation was expressed to be in

force for a period (the initial period) specified in that

authorisation--the subsection 88(1A) authorisation were

expressed to be in force for a period specified in the

subsection 88(1A) authorisation, and that period were the

period:

(i) starting at the commencement time; and

(ii) ending at the end of the initial period; and

(d) any requirements for the granting of the subsection 88(1A)

authorisation were satisfied.

(3) Subsection (2) does not prevent the subsection 88(1A)

authorisation from being varied, revoked or set aside in accordance

with this Act.

178 Notifications in force before the commencement time

(1) This section applies if:

(a) a person gave the Commission a collective bargaining notice

under subsection 93AB(1) in relation to a proposal to give

effect to a provision of a contract, arrangement or

understanding; and

(b) the provision is a cartel provision of the kind referred to in

paragraph 93AB(1A)(c) or (d); and

the commencement time.

(2) This Act has effect, after the commencement time, as if:

(a) the person had, at the commencement time, given the

Commission a collective bargaining notice under subsection

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

93AB(1A) in relation to a proposal to give effect to the cartel

provision; and

(b) despite subsections 93AD(1) and (2), the subsection

93AB(1A) notice had come into force at the commencement

time; and

subsection 93AB(1A) notice for the purposes of paragraph

93AD(3)(c) were the period:

(i) starting at the commencement time; and

(ii) ending at the end of the period of 3 years starting on the

day the person gave the subsection 93AB(1) notice to

the Commission; and

(d) any requirements for the giving of the subsection 93AB(1A)

notice were satisfied.

(3) Subsection (2) does not prevent the subsection 93AB(1A) notice

from ceasing to be in force in accordance with this Act.

126 Before section 45 of the Schedule

Insert:

Division 1--Cartel conduct

Subdivision A--Introduction

44ZZRA Simplified outline

The following is a simplified outline of this Division:

�

This Division sets out parallel offences and civil penalty

provisions relating to cartel conduct.

�

A person must not make, or give effect to, a contract,

arrangement or understanding that contains a cartel provision.

�

A cartel provision is a provision relating to:

(a) price-fixing; or

(b) restricting outputs in the production and supply

chain; or

Schedule 1 A mendments relating to cartel conduct etc.

56 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(d) bid-rigging;

by parties that are, or would otherwise be, in competition with

each other.

44ZZRB Definitions

In this Division:

annual turnover, of a body corporate during a 12-month period,

means the sum of the values of all the supplies that the body

corporate, and any body corporate related to the body corporate,

have made, or are likely to make, during the 12-month period,

other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

benefit includes any advantage and is not limited to property.

bid includes:

(a) tender; and

(b) the taking, by a potential bidder or tenderer, of a preliminary

step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

knowledge has the same meaning as in the Criminal Code.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

likely, in relation to any of the following:

(a) a supply of goods or services;

(b) an acquisition of goods or services;

(d) the capacity to supply services;

includes a possibility that is not remote.

obtaining includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in

another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly,

disassembly, renovation, restoration, growing, raising, mining,

extraction, harvesting, fishing, capturing and gathering.

44ZZRC Exte nded meaning of party

For the purposes of this Division, if a body corporate is a party to a

contract, arrangement or understanding (otherwise than because of

this section), each body corporate related to that body corporate is

taken to be a party to that contract, arrangement or understanding.

44ZZRD Cartel provisions

(1) For the purposes of this Act, a provision of a contract, arrangement

or understanding is a cartel provision if:

(a) either of the following conditions is satisfied in relation to the

provision:

(i) the purpose/effect condition set out in subsection (2);

(ii) the purpose condition set out in subsection (3); and

(b) the competition condition set out in subsection (4) is satisfied

in relation to the provision.

Purpose/effect condition

(2) The purpose/effect condition is satisfied if the provision has the

purpose, or has or is likely to have the effect, of directly or

indirectly:

Schedule 1 A mendments relating to cartel conduct etc.

58 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(a) fixing, controlling or maintaining; or

(b) providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation

to:

all of the parties to the contract, arrangement or

understanding; or

(d) goods or services acquired, or likely to be acquired, by any or

all of the parties to the contract, arrangement or

understanding; or

(e) goods or services re-supplied, or likely to be re-supplied, by

persons or classes of persons to whom those goods or

services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(f) goods or services likely to be re-supplied by persons or

classes of persons to whom those goods or services are likely

to be supplied by any or all of the parties to the contract,

arrangement or understanding.

Note 1:

The purpose/effect condition can be satisfied when a provision is

considered with related provisions--see subsection (8).

Note 2:

Party has an extended meaning--see section 44ZZRC.

Purpose condition

(3) The purpose condition is satisfied if the provision has the purpose

of directly or indirectly:

(a) preventing, restricting or limiting:

(i) the production, or likely production, of goods by any or

all of the parties to the contract, arrangement or

understanding; or

(ii) the capacity, or likely capacity, of any or all of the

parties to the contract, arrangement or understanding to

supply services; or

(iii) the supply, or likely supply, of goods or services to

persons or classes of persons by any or all of the parties

to the contract, arrangement or understanding; or

(b) allocating between any or all of the parties to the contract,

arrangement or understanding:

(i) the persons or classes of persons who have acquired, or

who are likely to acquire, goods or services from any or

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

all of the parties to the contract, arrangement or

understanding; or

(ii) the persons or classes of persons who have supplied, or

who are likely to supply, goods or services to any or all

of the parties to the contract, arrangement or

understanding; or

(iii) the geographical areas in which goods or services are

supplied, or likely to be supplied, by any or all of the

parties to the contract, arrangement or understanding; or

(iv) the geographical areas in which goods or services are

acquired, or likely to be acquired, by any or all of the

parties to the contract, arrangement or understanding; or

the supply or acquisition of goods or services:

(i) one or more parties to the contract, arrangement or

understanding bid, but one or more other parties do not;

(ii) 2 or more parties to the contract, arrangement or

understanding bid, but at least 2 of them do so on the

basis that one of those bids is more likely to be

successful than the others; or

(iii) 2 or more parties to the contract, arrangement or

understanding bid, but not all of those parties proceed

with their bids until the suspension or finalisation of the

request for bids process; or

(iv) 2 or more parties to the contract, arrangement or

understanding bid and proceed with their bids, but at

least 2 of them proceed with their bids on the basis that

one of those bids is more likely to be successful than the

others; or

(v) 2 or more parties to the contract, arrangement or

understanding bid, but a material component of at least

one of those bids is worked out in accordance with the

contract, arrangement or understanding.

Note 1:

For example, subparagraph (3)(a)(iii) will not apply in relation to a

roster for the supply of after-hours medical services if the roster does

not prevent, restrict or limit the supply of services.

Note 2:

The purpose condition can be satisfied when a provision is considered

with related provisions--see subsection (9).

Note 3:

Party has an extended meaning--see section 44ZZRC.

Schedule 1 A mendments relating to cartel conduct etc.

60 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Competition condition

(4) The competition condition is satisfied if at least 2 of the parties to

the contract, arrangement or understanding:

(a) are or are likely to be; or

(b) but for any contract, arrangement or understanding, would be

or would be likely to be;

in competition with each other in relation to:

likely supply, of goods or services--the supply of those

goods or services; or

(d) if paragraph (2)(d) or (3)(b) applies in relation to an

acquisition, or likely acquisition, of goods or services--the

acquisition of those goods or services; or

(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or

likely re-supply, of goods or services--the supply of those

goods or services to that re-supplier; or

(f) if subparagraph (3)(a)(i) applies in relation to preventing,

restricting or limiting the production, or likely production, of

goods--the production of those goods; or

(g) if subparagraph (3)(a)(ii) applies in relation to preventing,

restricting or limiting the capacity, or likely capacity, to

supply services--the supply of those services; or

(h) if subparagraph (3)(a)(iii) applies in relation to preventing,

restricting or limiting the supply, or likely supply, of goods

or services--the supply of those goods or services; or

(i) if paragraph (3)(c) applies in relation to a supply of goods or

services--the supply of those goods or services; or

(j) if paragraph (3)(c) applies in relation to an acquisition of

goods or services--the acquisition of those goods or services.

Note:

Party has an extended meaning--see section 44ZZRC.

Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in

paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can

be ascertained.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Recommending prices etc.

(6) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not taken:

(a) to have the purpose mentioned in subsection (2); or

(b) to have, or be likely to have, the effect mentioned in

subsection (2);

by reason only that it recommends, or provides for the

recommending of, a price, discount, allowance, rebate or credit.

Immaterial whether particular circumstances or particular

conditions

(7) It is immaterial whether:

(a) for the purposes of subsection (2), subparagraph (3)(a)(iii)

and paragraphs (3)(b) and (c)--a supply or acquisition

happens, or a likely supply or likely acquisition is to happen,

in particular circumstances or on particular conditions; and

(b) for the purposes of subparagraph (3)(a)(i)--the production

happens, or the likely production is to happen, in particular

circumstances or on particular conditions; and

exists, or the likely capacity is to exist, in particular

circumstances or on particular conditions.

Considering related provisions--purpose/effect condition

(8) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose, or to

have or be likely to have the effect, mentioned in subsection (2) if

the provision, when considered together with any or all of the

following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose, or has or is likely to have that effect.

Schedule 1 A mendments relating to cartel conduct etc.

62 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Considering related provisions--purpose condition

(9) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose

mentioned in a paragraph of subsection (3) if the provision, when

considered together with any or all of the following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose.

Purpose/effect of a provision

(10) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose, or not to have or to be likely to have the effect, mentioned

in subsection (2) by reason only of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

arrangement or understanding, by the parties.

Purpose of a provision

(11) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose mentioned in a paragraph of subsection (3) by reason only

of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

arrangement or understanding, by the parties.

44ZZRE Meaning of expressions in other provisions of this Act

In determining the meaning of an expression used in a provision of

this Act (other than this Division, subsection 6(2C), paragraph

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

76(1A)(aa) or subsection 93AB(1A)), this Division is to be

disregarded.

Subdivision B--Offences etc.

44ZZRF Making a contract etc. containing a cartel provision

Offence

(1) A person commits an offence if:

(a) the person makes a contract or arrangement, or arrives at an

understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

(2) The fault element for paragraph (1)(b) is knowledge or belief.

Penalty

(3) An offence against subsection (1) committed by a body corporate

is punishable on conviction by a fine not exceeding the greater of

the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

benefits--10% of the body corporate's annual turnover

during the 12-month period ending at the end of the month in

which the body corporate committed, or began committing,

the offence.

(4) An offence against subsection (1) committed by a person other

than a body corporate is punishable on conviction by a term of

imprisonment not exceeding 10 years or a fine not exceeding 2,000

penalty units, or both.

Indictable offence

(5) An offence against subsection (1) is an indictable offence.

Schedule 1 A mendments relating to cartel conduct etc.

64 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

44ZZRG Giving effect to a cartel provision

Offence

(1) A person commits an offence if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the person gives effect to the cartel provision.

(2) The fault element for paragraph (1)(a) is knowledge or belief.

Penalty

(3) An offence against subsection (1) committed by a body corporate

is punishable on conviction by a fine not exceeding the greater of

the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

benefits--10% of the body corporate's annual turnover

during the 12-month period ending at the end of the month in

which the body corporate committed, or began committing,

the offence.

(4) An offence against subsection (1) committed by a person other

than a body corporate is punishable on conviction by a term of

imprisonment not exceeding 10 years or a fine not exceeding 2,000

penalty units, or both.

Pre-commencement contracts etc.

(5) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Indictable offence

(6) An offence against subsection (1) is an indictable offence.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

44ZZRH Determining guilt

(1) A person may be found guilty of an offence against

section 44ZZRF or 44ZZRG even if:

(a) each other party to the contract, arrangement or

understanding is a person who is not criminally responsible;

(b) subject to subsection (2), all other parties to the contract,

arrangement or understanding have been acquitted of the

offence.

Note:

Party has an extended meaning--see section 44ZZRC.

(2) A person cannot be found guilty of an offence against

section 44ZZRF or 44ZZRG if:

(a) all other parties to the contract, arrangement or understanding

have been acquitted of such an offence; and

(b) a finding of guilt would be inconsistent with their acquittal.

44ZZRI Court may make related civil orders

If a prosecution against a person for an offence against

section 44ZZRF or 44ZZRG is being, or has been, heard by a

court, the court may:

(a) grant an injunction under section 80 against the person in

relation to:

(i) the conduct that constitutes, or is alleged to constitute,

the offence; or

(ii) other conduct of that kind; or

(b) make an order under section 86C, 86D, 86E or 87 in relation

to the offence.

Subdivision C--Civil penalty provisions

44ZZRJ Making a contract etc. containing a cartel provision

A person contravenes this section if:

(a) the person makes a contract or arrangement, or arrives at an

understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

Schedule 1 A mendments relating to cartel conduct etc.

66 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Note:

For enforcement, see Part VI.

44ZZRK Giving effect to a cartel provision

(1) A person contravenes this section if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the person gives effect to the cartel provision.

Note:

For enforcement, see Part VI.

(2) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Subdivision D--Exceptions

44ZZRL Conduct notified

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to

a person in relation to a contract, arrangement or understanding

containing a cartel provision, in so far as:

(a) the cartel provision:

(i) has the purpose, or has or is likely to have the effect,

mentioned in subsection 44ZZRD(2); or

(ii) has the purpose mentioned in a paragraph of subsection

44ZZRD(3) other than paragraph (c); and

(b) the person has given the Commission a collective bargaining

notice under subsection 93AB(1A) setting out particulars of

the contract, arrangement or understanding; and

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRM Cartel provision subject to grant of authorisation

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract that contains a cartel provision if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the person is granted an

authorisation to give effect to the provision; and

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(b) the person applies for the grant of such an authorisation

within 14 days after the contract is made.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRN Contracts, arrange ments or understandings between

related bodies corporate

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding if the only

parties to the contract, arrangement or understanding are bodies

corporate that are related to each other.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRO Joint ventures--prosecution

(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a

contract containing a cartel provision if:

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

(b) the joint venture is for the production and/or supply of goods

or services; and

venture--the joint venture is carried on jointly by the parties

to the contract; and

(d) 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 contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

Schedule 1 A mendments relating to cartel conduct etc.

68 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Notice to prosecutor

(3) A person is not entitled to rely on subsection (1) in a trial for an

offence unless, within 28 days after the day on which the person is

committed for trial, the person gives the prosecutor:

(a) a written notice setting out:

(i) the facts on which the person proposes to rely for the

purpose of discharging the evidential burden borne by

the person in relation to the matter in subsection (1); and

(ii) the names and address of any witnesses whom the

person proposes to call for the purpose of discharging

the evidential burden borne by the person in relation to

the matter in subsection (1); and

(b) certified copies of any documents which the person proposes

to adduce or point to for the purpose of discharging the

evidential burden borne by the person in relation to the

matter in subsection (1).

(4) If the trial of a person for an offence is being, or is to be, held in a

court, the court may, by order:

(a) exempt the person from compliance with subsection (3); or

(b) extend the time within which the person is required to

comply with subsection (3).

(5) For the purposes of paragraph (3)(b), a certified copy of a

document is a copy of the document certified to be a true copy by:

(a) a Justice of the Peace; or

(b) a commissioner for taking affidavits.

44ZZRP Joint ventures--civil penalty proceedings

(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a

contract containing a cartel provision if:

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

(b) the joint venture is for the production and/or supply of goods

or services; and

venture--the joint venture is carried on jointly by the parties

to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint

venture--the joint venture is carried on by a body corporate

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

formed by the parties to the contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRQ Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract containing a cartel provision, in so far as the

cartel provision constitutes a covenant to which section 45B

applies or, but for subsection 45B(9), would apply.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRR Resale price maintenance

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision relates to:

(a) conduct that contravenes section 48; or

(b) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

the acts constituting the practice of resale price maintenance

by reference to the maximum price at which goods or

services are to be sold or supplied or are to be advertised,

displayed or offered for sale or supply.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRS Exclusive dealing

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as giving effect to the cartel provision

Schedule 1 A mendments relating to cartel conduct etc.

70 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

would, or would but for the operation of subsection 47(10) or 88(8)

or section 93, constitute a contravention of section 47.

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorisation under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7), conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(3) A person who wishes to rely on subsection (1) or (2) bears an

evidential burden in relation to that matter.

44ZZRT Dual listed company arrange ment

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as:

(a) the contract, arrangement or understanding is a dual listed

company arrangement; and

(b) the making of the contract, arrangement or understanding

would, or would apart from subsection 88(8B), contravene

section 49.

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision, in so far as:

(a) the cartel provision is a provision of a dual listed company

arrangement; and

(b) the giving effect to the cartel provision would, or would apart

from subsection 88(8B), contravene section 49.

Amend ments relating to cartel conduct etc. Schedule 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

(3) A person who wishes to rely on subsection (1) or (2) bears an

evidential burden in relation to that matter.

44ZZRU Acquisition of shares or assets

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision provides directly

or indirectly for the acquisition of:

(a) any shares in the capital of a body corporate; or

(b) any assets of a person.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRV Collective acquisition of goods or services by the parties to

a contract, arrangement or understanding

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as:

(a) the cartel provision has the purpose, or has or is likely to

have the effect, mentioned in subsection 44ZZRD(2); and

(b) either:

(i) the cartel provision relates to the price for goods or

services to be collectively acquired, whether directly or

indirectly, by the parties to the contract, arrangement or

understanding; or

(ii) the cartel provision is for the joint advertising of the

price for the re-supply of goods or services so acquired.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

Division 2--Other provisions

127 Subsection 45(3) of the Schedule

Omit "and section 45A".

128 Section 45A of the Schedule

Repeal the section.

Schedule 2 Other amendments

Part 1 A mend ments

72 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Schedule 2

Other amendments

Part 1

Amendments

Trade Practices Act 1974

1 Subsection 79A(5)

Omit "section 18A of the Crimes Act 1914", substitute "section 15A of

the Crimes Act 1914 (including an order described in subsection

15A(1AA) of that Act)".

2 Subsection 79A(10)

Repeal the subsection.

3 Section 83

Omit "or 86D", substitute ", 86D or 86E".

4 Before subsection 86E(4)

Insert:

(3B) For the purposes of this Act (other than this section or

section 86F), an order under this section is not a penalty.

5 After section 86E

Insert:

86F Privilege against exposure to penalty--disqualification from

managing corporations

Court proceeding

(1) In a civil or criminal proceeding under, or arising out of, this Act, a

person is not entitled to refuse or fail to comply with a

requirement:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

Other amend ments Schedule 2

Amend ments Part 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

be, might tend to expose the person to a penalty by way of an order

under section 86E.

(2) Subsection (1) applies whether or not the person is a defendant in

the proceeding or in any other proceeding.

Statutory requirement

(3) A person is not entitled to refuse or fail to comply with a

requirement under this Act:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

be, might tend to expose the person to a penalty by way of an order

under section 86E.

Definition

(4) In this section:

penalty includes forfeiture.

6 Subsection 87(1)

Omit "or 86D", substitute ", 86D or 86E".

7 Section 154A

Insert:

contravention, in relation to a law, includes an offence against

section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an

offence against that law.

8 Section 154A

Insert:

data includes:

(a) information in any form; or

(b) any program (or part of a program).

9 Section 154A

Schedule 2 Other amendments

Part 1 A mend ments

74 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Insert:

data held in a computer includes:

(a) data held in any removable data storage device for the time

being held in a computer; or

(b) data held in a data storage device on a computer network of

which the computer forms a part.

10 Section 154A

Insert:

data storage device means a thing containing, or designed to

contain, data for use by a computer.

11 Section 154A (definition of evidential material)

Repeal the definition, substitute:

evidential material means a document or other thing that may

afford evidence relating to:

(a) a contravention of this Act; or

(b) a contravention of Part 20 of the Telecommunications Act

1997; or

(Consumer Protection and Service Standards) Act 1999; or

(d) a contravention of section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part.

12 Section 154A (definition of executing officer)

Repeal the definition, substitute:

executing officer, for a search warrant, means:

(a) the inspector named in the warrant as being responsible for

executing the warrant; or

(b) if that inspector does not intend to be present at the execution

of the warrant--another inspector whose name has been

written in the warrant by the inspector so named; or

by the inspector last named in the warrant.

13 Subsection 154F(1)

Other amend ments Schedule 2

Amend ments Part 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Repeal the subsection, substitute:

(1) If:

(a) an inspector or an assistant enters premises under this

Division; and

(b) he or she believes on reasonable grounds that any data

accessed by operating electronic equipment at the premises

(including data not held at the premises) might constitute

evidential material;

he or she may do only 1 of 2 things.

14 Subsection 154F(2)

Omit "evidential material", substitute "data".

15 At the end of subsection 154F(2)

Add "from the premises".

16 Subsection 154F(3)

Omit "evidential material", substitute "data".

17 After subsection 154G(1)

Insert:

(1A) In executing a search warrant that is in force in relation to

premises, the executing officer or an officer assisting may:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises;

take photographs, or make video recordings, of the premises or of

anything at the premises.

(1B) If a search warrant in relation to premises is being executed, the

executing officer and the officers assisting may, if the warrant is

still in force, complete the execution of the warrant after all of

them temporarily cease its execution and leave the premises:

(a) for not more than one hour; or

(b) for a longer period if the occupier of the premises consents in

writing.

18 Paragraph 154G(2)(a)

Repeal the paragraph, substitute:

Schedule 2 Other amendments

Part 1 A mend ments

76 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

(a) the executing officer or an officer assisting, in the course of

searching for the kind of evidential material specified in the

warrant, finds another thing that he or she believes on

reasonable grounds to be evidence of:

(i) an indictable offence against this Act; or

(ii) an indictable offence against Part 20 of the

Telecommunications Act 1997; or

(iii) an indictable offence against Part 9 of the

Telecommunications (Consumer Protection and Service

Standards) Act 1999; or

(iv) an offence against section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part; and

19 After section 154G

Insert:

154GA Removing things for examination or processing

(1) A thing found at the premises may be moved to another place for

examination or processing in order to determine whether it may be

seized under a search warrant if:

(a) both of the following subparagraphs apply:

(i) it is significantly more practicable to do so having

regard to the timeliness and cost of examining or

processing the thing at another place and the availability

of expert assistance;

(ii) there are reasonable grounds to believe that the thing

contains or constitutes evidential material; or

(b) the occupier of the premises consents in writing.

Notice to occupier

(2) If a thing is moved to another place for the purpose of examination

or processing under subsection (1), the executing officer must, if it

is practicable to do so:

(a) inform the occupier of the address of the place and the time

at which the examination or processing will be carried out;

and

(b) allow the occupier or his or her representative to be present

during the examination or processing.

Other amend ments Schedule 2

Amend ments Part 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Period of removal

(3) The thing may be moved to another place for examination or

processing for no longer than 72 hours.

Extensions

(4) An executing officer may apply to a magistrate for one or more

extensions of that time if the executing officer believes on

reasonable grounds that the thing cannot be examined or processed

within 72 hours or that time as previously extended.

(5) The executing officer must give notice of the application to the

occupier of the premises of his or her intention to apply for an

extension, and the occupier is entitled to be heard in relation to the

application.

(6) The magistrate may order an extension for a period specified in the

order if the magistrate is satisfied that the extension is necessary.

20 Subsection 154H(1)

Repeal the subsection, substitute:

(1) If:

(a) a search warrant is in force in relation to premises; and

(b) the executing officer or an officer assisting believes on

reasonable grounds that any data accessed by operating

electronic equipment at the premises (including data not held

at the premises) might constitute evidential material of the

kind specified in the warrant;

he or she may do only 1 of 3 things.

21 Subsection 154H(3)

Omit "evidential material", substitute "data".

22 At the end of subsection 154H(3)

Add "from the premises".

23 At the end of subsection 154H(3)

Add:

Schedule 2 Other amendments

Part 1 A mend ments

78 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Note:

An executing officer can obtain an order requiring a person with

knowledge of a computer or computer system to provide assistance--

see section 154RA.

24 Subsection 154H(4)

Omit "evidential material", substitute "data".

25 At the end of subsection 154H(4)

Add:

Note:

An executing officer can obtain an order requiring a person with

knowledge of a computer or computer system to provide assistance--

see section 154RA.

26 Paragraph 154H(5)(a)

Omit "evidential material" (wherever occurring), substitute "data".

27 Section 154K

After "authorise", insert "a member of the Australian Federal Police,".

28 After paragraph 154L(b)

Insert:

(ba) a member of the Australian Federal Police who is an officer

assisting may use such force against persons and things as is

necessary and reasonable in the circumstances; and

29 Subsection 154R(2) (penalty)

Repeal the penalty, substitute:

Penalty: 30 penalty units or imprisonment for 12 months, or both.

30 Subsection 154R(4)

Omit "or in any proceedings that would expose the person to a

penalty,".

31 Paragraph 154R(4)(b)

Omit "or 137.2", substitute ", 137.2 or 149.1".

32 At the end of Subdivision D of Division 4 of Part XID

Add:

Other amend ments Schedule 2

Amend ments Part 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

154RA Person with computer knowledge to assist access etc.

(1) The executing officer for a search warrant may apply to a

magistrate for an order requiring a specified person to provide any

information or assistance that is reasonable and necessary to allow

the officer to do one or more of the following:

(a) access data held in, or accessible from, a computer that is on

premises to which the warrant relates;

(b) transfer the data to a disk, tape or other storage device;

(2) The magistrate may grant the order if the magistrate is satisfied

that:

(a) there are reasonable grounds for suspecting that evidential

material is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the

contravention, or one or more of the contraventions,

stated in the search warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(i) the computer or a computer network of which the

computer forms a part; or

(ii) measures applied to protect data held in, or accessible

from, the computer.

(3) A person commits an offence if:

(a) the person is subject to an order under this section; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: Imprisonment for 6

months.

33 Subsection 154T(1)

After "warrant", insert "or moved under subsection 154GA(1)".

Note:

The heading to section 154T is altered by inserting "or moved" after "seized".

34 Subsection 154T(2)

Schedule 2 Other amendments

Part 1 A mend ments

80 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

After "seized", insert "or moved".

35 Subsections 154U(1) and (2)

Omit "60 days" (wherever occurring), substitute "120 days".

36 Paragraph 154V(1)(a)

Omit "60 days", substitute "120 days".

37 Subsection 154V(2)

Omit "a contravention of".

38 Paragraph 154V(2)(a)

Before "this", insert "a contravention of".

39 Paragraphs 154V(2)(b) and (c)

Before "Part", insert "a contravention of".

40 At the end of paragraph 154V(2)(c)

Add "or".

41 After paragraph 154V(2)(c)

Insert:

(d) a contravention of section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part;

42 At the end of subsection 154X(2)

Add:

Note:

A magistrate who holds office under a law of a State or Territory may

issue a warrant in relation to premises even if those premises are not in

that State or Territory.

43 Subsection 155(7)

After "incriminate the person", insert "or expose the person to a

penalty".

44 Subsection 155(7)

Omit "by a person" (wherever occurring), substitute "by an individual".

45 Subsection 155(7)

Other amend ments Schedule 2

Amend ments Part 1

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No. , 2008

Omit ", or any document produced in pursuance of such a notice,".

46 Subsection 155(7)

Omit "against the person", substitute "against the individual in any

criminal proceedings, other than".

47 Paragraphs 155(7)(a) and (b)

Repeal the paragraphs, substitute:

(a) proceedings for an offence against this section; or

(b) proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this section.

48 Subsection 159(1)

Omit "him or her", substitute "the person or expose the person to a

penalty".

49 Subsection 159(2)

Repeal the subsection, substitute:

(2) Evidence given by an individual before the Commission is not

admissible against the individual in any criminal proceedings,

other than:

(a) proceedings for an offence against this Part; or

(b) proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Part.

50 Paragraph 165(1)(a)

After "95(1)", insert "or section 95AH".

51 After subsection 165(3)

Insert:

(3A) Subject to any direction under subsection 106(2), a person may, on

application in accordance with the regulations and on payment of

the prescribed fee (if any):

(a) inspect any document contained in the register kept under

section 95AZ; and

(b) obtain a copy of such a document (including, where the

person so requests, a copy certified to be a true copy by the

Registrar or a Deputy Registrar).

Schedule 2 Other amendments

Part 2 Application

82 Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 No.

, 2008

Part 2

Application

52 Application

search warrants

The amendments of the following provisions made by this Schedule:

(a) section 154A of the Trade Practices Act 1974 (to the extent

to which that section relates to Division 4 of Part XID of that

Act);

(b) Division 4 of Part XID of the Trade Practices Act 1974;

apply in relation to search warrants issued after the commencement of

this item.

53 Application

giving answers and producing documents

etc.

(1)

The amendments of subsection 155(7) of the Trade Practices Act 1974

made by this Schedule apply in relation to notices under section 155 of

that Act served after the commencement of this item.

(2)

The amendments of section 159 of the Trade Practices Act 1974 made

by this Schedule apply in relation to:

(a) requirements to give evidence; and

(b) requirements to produce documents;

imposed after the commencement of this item.

Commonwealth of Australia Bills

TRADE PRACTICES AMENDMENT (CARTEL CONDUCT AND OTHER MEASURES) BILL 2008