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Trade Practices Act 1974 (Consolidated to Act 59 of 2009)

Division 1 of Part IV of the TPA as originally introduced in 2009

Note: On 1 January 2011 the TPA was renamed the Competition and Consumer Act 2010

 

Part IV - Restrictive Trade Practices

Division 1Cartel conduct

Subdivision AIntroduction

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

               (c)     allocating customers, suppliers or territories; 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

                     (b)  supplies that are input taxed; or

                     (c)  supplies that are not for consideration (and are not taxable 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;

                     (c)  the production of goods;

                     (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  Extended 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:

                     (c)  goods or services supplied, or likely to be supplied, by any or 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 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

                     (c)  ensuring that in the event of a request for bids in relation to 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; or

                             (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:

                     (c)  if paragraph (2)(c) or (3)(b) applies in relation to a supply, or 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.

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

                     (c)  for the purposes of subparagraph (3)(a)(ii)—the capacity 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 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

                     (c)  any description given to the provision, or to the contract, 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

                     (c)  any description given to the provision, or to the contract, 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 BOffences 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.

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;

                     (c)  if the court cannot determine the total value of those 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;

                            3 times that total value;

                     (c)  if the court cannot determine the total value of those 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; or

                     (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:

                              (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 CCivil 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 DExceptions

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

                             (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

                     (c)  the notice is in force under section 93AD.

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, arrangements 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).

             (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

                     (c)  in a case where subparagraph 4J(a)(i) applies to the joint 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 1:       A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code).

Note 2:       For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1A)  Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

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

                     (d)  the joint venture is for the production and/or supply of goods or services; and

                     (e)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                      (f)  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 arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note 1:       A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

Note 2:       For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1B)  Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

                     (c)  when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

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

                     (e)  the joint venture is for the production and/or supply of goods or services; and

                      (f)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                     (g)  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 arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note 1:       A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

Note 2:       For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

Notice to prosecutor

             (2)  A person is not entitled to rely on subsection (1), (1A) or (1B) 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), (1A) or (1B), as the case may be; 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), (1A) or (1B), as the case may be; 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), (1A) or (1B), as the case may be.

             (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

                     (c)  in a case where subparagraph 4J(a)(i) applies to the joint 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:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1A)  Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

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

                     (d)  the joint venture is for the production and/or supply of goods or services; and

                     (e)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                      (f)  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 arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

          (1B)  Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:

                     (a)  the arrangement or understanding is not a contract; and

                     (b)  when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding:

                              (i)  intended the arrangement or understanding to be a contract; and

                             (ii)  reasonably believed that the arrangement or understanding was a contract; and

                     (c)  when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and

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

                     (e)  the joint venture is for the production and/or supply of goods or services; and

                      (f)  in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and

                     (g)  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 arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of:

                              (i)  their joint control; or

                             (ii)  their ownership of shares in the capital;

                            of that body corporate.

Note:          For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.

             (2)  A person who wishes to rely on subsection (1), (1A) or (1B) 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.

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

                     (c)  conduct that would contravene section 48 if this Act defined 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).

             (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 arrangement

             (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:

                     (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

                             (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.