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Competition and Consumer Act 2010 (Cth)

Section 49
Dual listed company arrangements that affect competition

 

The provision

(1) A corporation must not:

(a) make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

(b) give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition.

Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(8B).

Exception

(2) The making by a corporation of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if:

(a) the arrangement 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 arrangement is made.

However, this subsection does not permit the corporation to give effect to such a provision.

Meaning of competition

(3) For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which:

(a) a corporation that is a party to the arrangement or would be a party to the proposed arrangement; or

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

supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services.

(4) For the purposes of the application of this section in relation to a particular corporation, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions:

(a) the other provisions of that arrangement or proposed arrangement;

(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;

together have or are likely to have that effect.

 


Legislative history

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

Note: s 49 originally contained a prohibition against price discrimination which was repealed by the Competition Policy Reform Act 1995 (Act 88 of 1995).

 


Commentary

Until 2006 the conduct of dual listed companies was assessed under s 45. Dual listed company arrangements are now assessed under s 49 which prohibits parties making (or giving effect to) a dual listed company arrangement if a provision fo the proposed arrangement would have the purpose, effect or likely effect of substantially lessening competition.

There have not yet been any cases dealing with this provisions