Home Page / Legislation / Competition and Consumer Act 2010 / s 151AJ

Competition and Consumer Act 2010 (Cth)

Section 151AJ
Anti-competitive conduct

 

The provision

(1) This section sets out the 2 circumstances in which:

(a) a carrier; or

(b) a carriage service provider;

is said to engage in anti‑competitive conduct for the purposes of this Part.

(2) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

(a) has a substantial degree of power in a telecommunications market; and

(b) either:

(i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

(ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.

(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to:

(a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and

(b) the reasons for that conduct.

(3) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

(a) engages in conduct in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48; and

(b) the conduct relates to a telecommunications market.

(4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48 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.

(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:

(a) the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3);

(b) the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);

(c) the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a);

(d) the assumption that subsection 46(2) had not been enacted;

(e) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:

(i) paragraphs 47(2)(d) and (e);

(ii) paragraphs 47(3)(d) and (e);

(iii) subparagraphs 47(8)(a)(i) and (ii);

(f) the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);

(g) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);

(h) the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);

(i) the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);

(j) the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;

(k) the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).

(6) A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).

(7) Despite anything in this subsection, a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48:

(a) because an authorisation is in force; or

(b) because of the operation of subsection 44ZZRL(1) or 45(8A) or section 93; or

(c) because of the operation of subsection 45(9); or

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

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

(8) A carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct occurred before 1 July 1997.

(9)  Despite anything in this section, a person does not engage in anti-competitive conduct if, under section 577BA of the Telecommunications Act 1997, the conduct is authorised for the purposes of subsection 51(1) of this Act.

(10)  Despite anything in this section, a person does not engage in anti-competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1).

 

Legislative history

Amended by Telecommunications Legislation Amendment (National Broadband Network Measures-Access Arrangements) Act 2011

"25B  Subsection 151AJ(7)

Omit “subsection (2) or (3)”, substitute “this section”.

25C  Subsection 151AJ(9)

Omit “subsection (2) or (3) of”.

25D  At the end of section 151AJ

Add:

(10)  Despite anything in this section, a person does not engage in anti-competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1)."

Amended by Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010

"33  At the end of section 151AJ

Add:

(9)  Despite anything in subsection (2) or (3) of this section, a person does not engage in anti‑competitive conduct if, under section 577BA of the Telecommunications Act 1997, the conduct is authorised for the purposes of subsection 51(1) of this Act."

Amended by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009

Amended by Trade Practices Legislation Amendment (No 1) Act 2007 (Act 159 of 2007)

Amended by Trade Practices Legislation Amendment (No 1) Act 2006 (Act 131 of 2006)

Amended by Telecommunications Legislation Amendment Act 1999 (Act 52 of 1999)

Amended by Telecommunications Legislation Amendment Act 1997 (Act 200 of 1997)

Inserted by Trade Practices Amendment (Telecommunications) Act 1997 (Act 58 of 1997)

 

Commentary

Forthcoming