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Competition and Consumer Act 2010 (Cth)

Section 93
Notification of exclusive dealing or private disclosure of pricing information

 

The provision

(1) Subject to subsection (2), a corporation that engages, or proposes to engage, in conduct of a kind referred to in section 44ZZW or subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the Commission a notice setting out particulars of the conduct or proposed conduct.

(1A) To be valid, a notice under subsection (1) must:

(a) be in a form approved by the Commission in writing and contain the information required by the form; and

(b) be accompanied by any other information or documents prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the regulations.

(2) A corporation may not give a notice for conduct or proposed conduct if:

(a) the corporation applied for an authorisation for the conduct or proposed conduct; and

(b) the Commission or the Trade Practices Commission made a determination dismissing the application; and

(c) either:

(i) the Tribunal or the Trade Practices Tribunal made a determination on an application for a review of a determination described in paragraph (b); or

(ii) the time for making such an application for review has ended without the making of an application.

(2A) In subsection (2):

Trade Practices Commission means the Trade Practices Commission established by section 6A of this Act as in force immediately before this subsection commenced.

Trade Practices Tribunal means the Trade Practices Tribunal continued in existence by section 30 of this Act as in force immediately before this subsection commenced.

(2B) If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

(a) stating that the person has not given a valid notice; and

(b) giving reasons why the purported notice does not comply with this Division.

Definition

(2C) In subsection (2B):

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

(3) If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind described in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) and referred to in a notice given by the corporation under subsection (1):

(a) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47; and

(b) in all the circumstances:

(i) has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or

(ii) has resulted or is likely to result, or would result or be likely to result, in a benefit to the public that has not or would not outweigh the detriment to the public that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;

the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.

(3A) If:

(a) a corporation has notified the Commission under subsection (1) of conduct or proposed conduct described in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d); and

(b) the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct;

the Commission may give the corporation a written notice stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.

(3B) If:

(a) a corporation or other person has notified the Commission under subsection (1) of conduct or proposed conduct; and

(b) the Commission has given the corporation or other person a notice under subsection 93AAA(1) imposing conditions relating to the conduct or proposed conduct; and

(c) the Commission is satisfied that the corporation or other person has failed to comply with those conditions;

the Commission may at any time give notice in writing to the corporation or other person stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.

(4) Before giving a notice under subsection (3), (3A) or (3B) the Commission shall comply with the requirements of section 93A.

(5) In satisfying itself for the purposes of subsection (3), (3A) or (3B) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation under subsection (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or any other person or otherwise in its possession.

(6) A corporation that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation a notice under subsection (3), (3A) or (3B) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first-mentioned notice.

(7) Where a corporation has given notice to the Commission under subsection (1):

(a) in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and

(b) in any case, the engaging by the corporation in the conduct referred to in the notice after the giving of the notice shall not be taken, for the purposes of section 47, to have the purpose, or to have or be likely to have the effect, of substantially lessening competition within the meaning of that section unless:

(i) the Commission has given notice to the corporation under subsection (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or

(ii) the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn.

(7A) A notice under subsection (1) describing conduct or proposed conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) comes into force:

(a) at the end of a prescribed period that started on the day when the corporation gave the Commission the notice; or

(b) if the Commission gives notice to the corporation under subsection 93A(2) during that period—when the Commission decides not to give the corporation a notice under subsection (3A) or (3B) of this section.

(7B) A notice under subsection (1) describing conduct or proposed conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) does not come into force:

(a) if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or

(b) if the Commission:

(i) gives notice to the corporation under subsection 93A(2) during the period described in paragraph (7A)(a); and

(ii) gives notice to the corporation under subsection (3A) or (3B).

(7C) A notice under subsection (1) describing conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) ceases to be in force:

(a) when the notice is withdrawn or deemed to be withdrawn; or

(b) if the Commission gives the corporation a notice under subsection (3A) - on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission; or

(c) if the Commission gives the corporation or other person a notice under subsection (3B)—on the 31st day after the Commission gave the notice under subsection (3B) or on a later day specified in writing by the Commission.

(8) Where:

(a) a corporation gives a notice to the Commission under subsection (1) in relation to any conduct or proposed conduct;

(b) before or after the notice is given the corporation makes an application to the Commission for an authorization to engage in that conduct;

(c) the Commission:

(i) makes a determination dismissing the application; or

(ii) makes a determination granting an authorization in respect of the application; and

(d) the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for review having been made;

the notice shall thereupon be deemed to be withdrawn.

(9) If an application is made to the Tribunal for a review of the giving of a notice by the Commission under subsection (3), (3A) or (3B), a reference in subsection (7) or paragraph (7C)(b) or (7C)(c) to the day on which the Commission gave the notice shall be read as a reference to:

(a) if the application is withdrawn—the day on which the application is withdrawn;

(b) if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence—the day on which the Tribunal makes the declaration; or

(c) in any other case—the day on which the Tribunal makes a determination on the review.

(10) Where:

(a) a corporation has given a notice to the Commission under subsection (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation in writing under subsection (3), (3A) or (3B) in relation to the conduct or the proposed conduct; or

(b) a notice given by a corporation to the Commission under subsection (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn;

the corporation is not entitled to give a further notice under subsection (1) to the Commission in relation to the same conduct or proposed conduct or in relation to conduct or proposed conduct to the like effect.

 

Legislative history

Amended by Competition and Consumer Amendment (Competition Policy Reform) Act 2017

  • Subsection 3 and (3B) repealed and replaced. Immediately prior to the amendment the provisions took the following form

    (3) If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind described in subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c) and referred to in a notice given by the corporation to the Commission under subsection (1) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47 and that in all the circumstances:

    (a) the conduct has not resulted or is not likely to result, or the proposed conduct would not result or be likely to result, in a benefit to the public; or

    (b) any benefit to the public that has resulted or is likely to result from the conduct, or would result or be likely to result from the proposed conduct, would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;

    the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.

    (3B) The Commission must also give the corporation a written statement of its reasons for giving notice when the Commission gives the notice.

  • Various other subsections modified: ss (1A)(a), (3A), (4)-(6), (7A)(b), (7B)(b)(ii), (7C), (9), (10)(a)

Amended by Competition and Consumer Amendment Act (No 1) 2011 (Act 185 of 2011)

  • Amendments containing reference to Division 1A of Part IV (price signalling) inserted - to come into operation on 6 June 2012.

    Schedule 1, Section 12: Subsection 93(1)

    After "referred to in", insert "section 44ZZW or".

    Note: The heading to section 93 is altered by adding at the end "or private disclosure of pricing information".

    Schedule 1, Section 13: Paragraph 93(3A)(a)

    After "described in", insert "section 44ZZW,".

    Schedule 1, Section 14: Subsections 93(7A), (7B) and (7C)

    After "referred to in", insert "section 44ZZW,".

More forthcoming

 

Commentary

Forthcoming