Home Page / Legislation / Competition and Consumer Act 2010 / s 44ZZZ

Competition and Consumer Act 2010 (Cth)

Repealed

Section 44ZZZ
Additional exceptions that only apply to section 44ZZW

On 6 November 2017 Part IV, Division 1A (Anti-competitive disclosure of pricing and other information) was repealed The Harper Reforms. None of the provisions in Division 1A were ever litigated.

The provision

Disclosure of information to acquirer or supplier of goods or services

(1) Section 44ZZW does not apply to the disclosure of information by a corporation to a person (the recipient) if:

(a) the information relates to goods or services supplied or likely to be supplied, by the corporation to the recipient; or

(b) the information relates to goods or services acquired or likely to be acquired, by the corporation from the recipient.

Disclosure to unknown competitor

(2) Section 44ZZW does not apply to the disclosure of information by a corporation to a person if:

(a) the person is a competitor or potential competitor of the corporation in the market referred to in that section; and

(b) the corporation did not know, and could not reasonably be expected to have known, that the person was such a competitor or potential competitor.

Disclosure to participants in joint venture

(3) Section 44ZZW does not apply to the disclosure of information by a corporation if:

(a) either:

(i) the corporation is a participant in a joint venture for the production and/or supply of goods or services; or

(ii) the corporation proposes to enter into a joint venture with one or more other persons (the proposed participants); and

(b) the disclosure is to one or more participants or proposed participants in the joint venture, and is not to any other person; and

(c) the disclosure is made for the purposes of the joint venture or in the course of negotiations for the joint venture.

Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more participants in the joint venture, and is not to any other person.

Disclosure relating to provision of loans etc. to same person

(3A) Section 44ZZW does not apply to the disclosure of information between 2 or more corporations (the relevant corporations) if:

(a) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant corporations; and

(b) 2 or more of the relevant corporations are, in relation to the same person (the borrower), doing either or both of the following:

(i) providing such services to the borrower;

(ii) considering whether to provide such services to the borrower;

(c) the disclosure is for the purpose of, or related to, providing services, or considering whether to provide services, to the borrower as mentioned in paragraph (b).

Disclosure between credit provider and provider of credit service

(3B) Section 44ZZW does not apply to the disclosure of information by a corporation to another person if:

(a) either:

(i) the corporation is a credit provider, and the other person provides a credit service, within the meaning of the National Consumer Credit Protection Act 2009; or

(ii) the corporation provides a credit service, and the other person is a credit provider, within the meaning of that Act; and

(b) the disclosure is made in the course of the relationship between the corporation and the other person in their capacities as credit provider and provider of a credit service.

Disclosure relating to acquisition of shares or assets

(4) Section 44ZZW does not apply to the disclosure of information by a corporation in so far as the information is disclosed in connection with a contract, arrangement or understanding that provides, or a proposed contract, arrangement or understanding that would provide, for the acquisition of any shares in the capital of a body corporate, or any assets of a person, by or from the corporation. Note: For the meaning of acquisition of shares, and acquisition of assets, see subsection 4(4).

Disclosure if borrower insolvent etc.

(5) Section 44ZZW does not apply to the disclosure of information between 2 or more corporations (the relevant corporations) if:

(a) at least one of the relevant corporations:

(i) has provided a loan or credit to another corporation (the borrower); and

(ii) has been notified of a borrower insolvency situation (see subsection (6)); and

(b) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant corporations; and

(c) the disclosure is for the purpose of one or more of the relevant corporations considering whether to take measures to return the borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent.

(6) For the purpose of subsection (5), a relevant corporation is notified of a borrower insolvency situation if:

(a) the corporation is notified that there are reasonable grounds for suspecting that one or more of the following may be or become insolvent:

(i) the borrower;

(ii) a person who has given a guarantee or indemnity in respect of loans or credit provided to the borrower by one or more of the relevant corporations; and

(b) the notification is given by the borrower, or by a person referred to in subparagraph (a)(ii).

 

Legislative history